FAMILY LAW / HINDU LAW – UNIT I — REVISION STUDY NOTES FOR LL.

Introduction of the Hindu Law

Concept of Dharma
Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to Hindu texts
embraces everything in life. According to the Hindus, ‘Dharma’ includes not only what is known as law
in the modern sense of the term but all rules of good and proper human conduct. Dharma is used to
mean justice what is right in a given circumstance, moral, religious, pious or righteous conduct, being
helpful to living beings and things, duty, law and usage or custom having in the force of law and also a
valid Rajashasana

Origin of Hindu law

The Hindu system as modified through centuries has been in existence for over five thousand years
and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse
elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of any known system
of Jurisprudence and even now it shows no signs of decrepitude“.

Nature and scope of Hindu Law

Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and
many of the acts of the people which were purely of a secular nature. But the secular nature of the
acts have been modified to suit the religious preferences of a Brahmin community. With a desire to
promote the special objects of religion or policy, they have used their intellectual superiority and
religious influence to mold the customs of the people.

Who are Hindus

The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu
parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the
Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion that
‘acceptance of vedas’ with reverence, recognition of the fact that the number of Gods to
be worshiped at large, that indeed is the distinguishing feature of Hindu religion.

In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same
basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus.

If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.
In Sapna vs State of kerala, Kerala HC,  the son of Hindu father and Christian mother was
held to be a Christian
To whom Hindu Law apply

1. Hindus by birth
2. Off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal Tribes

To whom Hindu law does not apply

 to converts from the Hindu to the Mohammedan faith

 to the Hindu converts to Christianity
 to the illegitimate children of a Hindu father by Christian mother and who are brought up as
Christians

Constitution of India and the Enactments under the Hindu Law

Presently, Hindu Law is applied through 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

Constitutional enactments are:

 Hindu Women’s Rights to Property Act, 1937

 Hindu Succession Act, 1956

Impact of Hindu Law Enactments in Fundamental Rights

Several principles of Hindu Law have been held invalid on the ground that they infringe the
Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution and
as such would be void under Article 13(1).

Sources of Hindu Law

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

01. SHRUTI (VEDAS)

Shruti means “what is heard”. It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas –
rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the
Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.

02. SMRITIS

Smriti means “what is remembered”.  With Smritis, a systematic study and teaching of Vedas started.
Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that
Smritis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a
need for the regulation of the society arose.

 Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They were mostly
written in prose form but also contain verses. It is clear that they were meant to be training
manuals of sages for teaching students.
 Dharmashastras: Dharmashastras were mostly in metrical verses and were based of
Dharmasutras.  However, they were a lot more systematic and clear.
 Manusmriti: This is the earliest and most important of all. It is not only defined the way of life
in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not
known because the author has written it under the mythical name of Manu, who is considered to
the the first human.
 Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its
language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to
customs but hold the king to be below the law.
 Narada Smriti: Narada was from Nepal and this smriti is well preserved and its complete text
is available. This is the only smriti that does not deal with religion and morality at all but
concentrates only on civil law.

03. COMMENATRIES AND DIGESTS

After 200 AD, most the of work was done only on the existing material given in Smrutis. The work
done to explain a particular smriti is called a commentary. Commentaries were composed in the
period immediately after 200 AD. Digests were mainly written after that and incorporated and
explained material from all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan’s Dayabhag
that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘New Word’ and is
paramount source of law in all of India.

04. CUSTOMS

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

 Local Custom: These are the customs that are followed in a given geographical area.
 Family Custom: These are the customs that are followed by a family from a long time.
These are applicable to families where ever they live.
 Class or Caste Custom: These are the customs that are followed by a particular cast or
community. It is binding on the members of that community or caste. By far, this is one of the
most important source of laws.
 Guild Custom: These are the customs that are followed by traders.

REQUIREMENTS FOR A VALID CUSTOM

 Ancient
 Continuous
 Certain
 Reasonable
 Not against morality
 Not against public policy
 Not against any law

PROOF OF CUSTOM

The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a
custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to notice
of the court repeated, no further proof is required.

USAGE AND CUSTOM

The term custom and usage is commonly used in commercial law, but “custom” and “usage” can be
distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises
from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage
accompanying it or preceding it. Usage derives its authority from the assent of the parties to a
transaction and is applicable only to consensual arrangements. Custom derives its authority from its
adoption into the law and is binding regardless of any acts of assent by the parties. In modern law,
however, the two principles are often merged into one by the courts.
Modern Sources

JUDICIAL DECISIONS (PRECEDENTS)

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

LEGISLATURES / STATUTES (CODIFICATION OF HINDU LAW)

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

JUSTICE, EQUITY AND GOOD CONSCIENCE

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice
can only be delivered through equity and good conscience.  In a situation where no rule is given, a
sense of ‘reasonableness’ must prevail. According to Gautama, in such situation, the decision should
be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya
has said that where ever there are conflicting rules, the decision must be based on ‘Nyaya’.

Schools of Hindu Law

Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of thoughts
arose.  The commentary in one part of the country varied from the commentary in the other parts of
the country.

The Mitakshara School

The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna
Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of
Mitakshara are grouped together under the Mitakshara School.

Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker
and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity
i.e. the nearest in blood relationship will get the property.

The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The
right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the
property.

 Dravidian School Of Thought (Madras School)

 Maharashtra School (Bombay School Of Thought)
 Banaras School Of Thought
 Mithila School Of Thought

The Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana
under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is
based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased
ancestors.

This school is followed in Bengal state only. Sapinda relation is by pinda offerings.

The right to Hindu joint family property is not by birth but only on the death of the father.

The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares
after the death of the father.
UNIT – II

Marriage and Kinship

Evolution of the Institution of Marriage and Family

Definition and Forms of Hindu Marriage

 Definitions of Marriage: Marriage is a civil and religious contract whereby a man is joined

and united to a woman for the purpose of civilized society. In law ‘marriage’ may mean either the
acts, agreements, or ceremony by which two persons enter into wedlock, or their subsequent
relation created thereby. Marriage is the civil status or personal relation of one man and one
woman joined together in a matrimonial union which was lawfully entered into.
 Characteristics of Marriage: Marriage is universal, It is for the formation of family, It forges a
new social link, It fixes the responsibility of bringing up children on the parents, It is a result of civil
or religious ceremony, Legitimization of children born out of such union which is a social need, In
marriage, the male and female get the right of mutual relationship in economic, social and
biological spheres.
 Origin of Marriage: The Institute of Marriage evolved in an evolutionary manner. In the
earliest form of groupings of people, sex was absolutely unregulated and the children were
considered to be the children of the group. According to Morgan, marriage institution started with
group marriage, then polygamy and lastly monogamy.
 Importance of the Institution of Marriage: The institute of marriage regulates and socially
validates relatively long-term legitimate sexual relation between males and females, Marriage
serves to start reproductive process, Marriage is also a way to acquire new Kinsmen, It is only
after marriage a family comes into being
 Hindu Marriage:
 Matrimonial Rights and Obligations
 Duties of a Husband are: to protect his wife, to give her a home, to maintain her by
providing her with comforts and necessities of life within his means, to treat her kindly with
affection and courtesy, to honour the wife, not to assault or commit battery against his wife’s
person
 Rights of a Husband are: he is entitled to the custody and the conjugal society of his
wife, he is entitled to succeed to her if she predeceases him without issue, and can utilise her
Sridhana property to relieve himself in circumstances of extreme distress
 Duties of a Wife are: to attend to the needs of her husband both in religious and
household activities, to show obedience and veneration for the husband, to live with him
wherever he may choose to reside unless he is guilty of cruelty or misconduct
 Rights of a Wife are: right for maintenance throughout her life, right of equality in the
house of her husband, right to bring suit for the restitution of conjugal rights, right to get
divorce for the cruelty, insults, etc

Different Forms of Hindu Marriage

THE FOUR OBSOLETE APPROVED FORMS

 Brahma (to a man learned in vedas)

 Daiva (to a preist)
 Arsha (father’s taking gift from groom: a cow and a bull)
 Prajapatya (similar to Brahma, gift of a daughter by father, but bridegroom need not be a
bachelor)

THE FOUR UNAPPROVED FORMS

 Asura (When groom buys bride through money)

 Gandharva (When voluntary union against parent’s wishes)
 Rakshasa (When forcible abduction / kidnapping)
 Paishacha (when intoxicated)
Salient Features of Hindu Marriage Act, 1955

 Ancient Hindu Law of Marriage

 During Muslim period
 During early british rule
 Enactments in the British Rule
 Enactments in Independent India
 The Special Marriage Act, 1954
 Salient Features of the Hindu Marriage Act, 1955
 Main changes introduced in the Hindu Marriage, 1955 by the Marriage Laws (Amendment)
Act, 1976

Application of Hindu Marriage Act, 1955

Definitions

 Custom and Usages

 Full Blood, Half Blood and Uterine Blood
 Sapinda Relationship
 Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955

Conditions of Hindu Marriage

Section 5 of the Hindu Marriage Act, 1955 lists out the following conditions to be fulfilled for the
solemnization between any two Hindus:-

 Monogamy: The first essential condition for a valid marriage is that neither party should have
a spouse living at the time of marriage. Monogamy is the voluntary union for life of one man with
one woman to the exclusion of all others. In the case of Varadrajan v. State, it was held that a
party to be bigamous marriage could be punished only upon the proof of the prior marriage
having been solemnized according to religious ceremonies and customs.
 Mental Capacity: A marriage is bliss. A sound mind is a key to a happy married life. Clause
(ii) of Section 5 of the Act lays down as one of the conditions for a Hindu Marriage that neither
party must be suffering from unsoundness of mind, mental disorder, and insanity.
 Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that at the time of the
marriage, the bridegroom must have completed the age of 21 and the bride the age of 18 years.
In the case of Rabindra Prasad v. Sita Devi, the court held that a child marriage is not void and
observed that “the marriage solemnized in violation of Section 5 (iii) remains unaffected.
 Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu Marriage Act,
1955 lays down that no marriage is valid if it is made between persons related to each other
within the prohibited degrees unless such marriage is sanctioned by custom or usage governing
both the parties.
 Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a person
connected by the same blood relation. Clause (v) of Section 5 of the Hindu Marriage Act, 1955
itself provides that the parties to marriage should not be sapindas of each other, unless the
custom or usage governing each of them permits of a marriage between two.
 The question of virginity of the bride: The Hindu bride is expected to be a virgin. If the
bride had been made pregnant by another, the husband can have the marriage set-aside by a
decree of nullity, provided (a) he was ignorant of this fact at the time of marriage; (b) he did not
have marital intercourse after discovering the fact; (c) petition is brought within one year from the
date of marriage
 Impotency and other physical infirmities: If the bridegroom is found impotent after the
marriage, the marriage can be set-aside under section 12 of the Act. Such marriage is voidable.
 Inter-caste Marriage: The Government of India enacted ‘Hindu Marriages Validating Act,
1949, which validates intercaste marriages and also marriages between Hindus, Jains and Sikhs.
In the case of Bai Gulab v. Jiwan Lal, the Bombay High Court upheld the validity of Anuloma
marriages.
 Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally enunciated by
the author of the Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact
cannot be altered by a hundred texts’. The text referred to are directory texts, as opposed to
mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done
and finally completed, although it may contravene a hundred directory texts, the fact will
nevertheless stand, and the act done will be deemed to be legal and binding.This doctrine came
from Roman maxim ‘factum valet quod fieri non debuit’ which literally means that ‘what ought not
to be done become valid when done’.In the case of Venkatrama v. State, the court has applied
the doctrine of factum valet to child marriage and held that the marriage itself is valid though
penal consequences are attracted. The child marriages are neither void nor voidable. They
continue to be valid even though punishable.

Ceremonies of Hindu Marriage

 No particular form of marriage

 Necessary religious ceremonies
 Vagdan
 Formalities including the recitation of holy texts before the sacred fire
 Saptapadi
 State amendments

 Registration of Hindu Marriages

 Types of Marriage: Monogamy, Polygamy, Polyandry

Matrimonial Remedies

Restitution of Conjugal Rights

The meaning of Restitution of Conjugal Rights: Either husband or wife has without reasonable excuse
withdrawn from the society of other, the aggrieved party, may approach the court for ‘Restitution of
Conjugal Rights’ and the court on being satisfied on the truth of the statement in such petition may
grant decree for ‘Restitution of Conjugal Rights’.

-> In case, husband or wife lives separately, then they can avail Conjugal Rights.
-> In case, if there was any valid reason to live separately, then they cannot avail Conjugal Rights

Case Laws:

1. T. Sareetha v. Venkata Subbaiah

 Matrimonial remedies
 Restitution of conjugal rights – Section 9
 Constitutionality of Section 9
 Remedies available
 Subsistance
 Withdrawal from the society
 Validity of agreement of separation
 Reasonable excuse
 Defence available to restitution petition
 Can a husband compel his wife to resign her job and stay with him?
 Petition for restitution

Void and Voidable Marriages

Void Marriages

Section 11. Void marriages :- 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 it contravenes any one of the conditions specified in clauses (i), (iv)
and (v), Section 5.”

A marriage is void in three circumstances:

– at the time of marriage, a party is having living spouse
– two persons come under prohibited degrees of relationship
– two persons com under sapinda relationships

 Constitutionality of Section 11 of the Act

 Applicability of Section 11 of the Act
 Delay
 Death of a spouse
 Bigamous marriage
 Injunction
 Third Person
 Effects of void marriage
 Legitimacy of children
 Position of Women

Voidable Marriages

 Grounds for the remedy

 Impotency
 Unsoundness of Mind
 Consent obtained by force or fraud
 Pregnancy of the bride
 Petition for annulment
 Decree for annulment
 Distinction between void and voidable marriages
 Legitimacy of children of void and voidable marriages

Judicial Separation – Section 10 of the Hindu Marriage Act, 1955

A petition can be filed on any of the grounds specified in sub-section (1) and (2) of Section 13.

Judicial or legal separation means living apart by the parties to the marriage. If a decree for judicial
separation is passed by a competent Court, it is no longer obligatory for either party to cohabit with
the other. Such a decree does not sever or dissolve the marriage. Yet it is equally true that certain
mutual rights and obligations arising from the marriage are suspended when such a decree is passed.

In Hiranand S Managaonkar v. Sunanda, the Supreme Court has observed that a decree of judicial
separation does not dissolve the bond of marriage but rather provides an opportunity to the spouses
for reconciliation and readjustment.

Grounds

 Adultery: Extra-marital voluntary sexual intercourse. In order to establish extra-marital, one

has to depend on ancillary facts which may be:- circumstantial evidence, birth of a child to the
wife when there is no evidence of contact with her, contracting of a venereal disease, admission
 on the part of the respondent, discovery of letters which might contain such contents which
suggest sexual relationship between the two
 Cruelty: There is mental as well as physical cruelty. To establish legal cruelty, it is not
necessary that physical violence should be used. Continuous ill-treatment, cessation of marital
intercourse, verbal abuse and insult, refusal to speak, ill-treatment of children, refusal to have
children, etc
 Desertion: Desertion is the act of forsaking or abandoning or the act of quitting without leave
with an intention not to return. Desertion has been defined in the Indian Divorce Act as “implying
an abandonment against the wish of the person changing it”.  In the case Shanti Devi v. Govind
Singh, it has been observed that for constituting ‘desertion’ two essential conditions must be
fulfilled namely (i) the factum of separation; and (ii) the intention to bring cohabitation permanently
to an end
 Conversion: Ceasing to be a Hindu by conversion on the part of the either party to the
marriage, forms a ground for a decree of judicial separation.
 Unsoundness of Mind: The petitioner has to establish that the respondent 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 be expected to live with
the respondent.
 Leprosy: If either of the party has been suffering from venereal disease in communicable
form, then the other party can present a petition for decree of judicial separation. The leprosy
which is maligned or venomous can be termed as virulent. Lepromatous leprosy is virulent and
incurable.
 Venereal Disease: It requires to establish for judicial separation that the respondent has
been suffering from venereal disease in a communicable form.
 Renunciation of the world: The renunciation implies a religious order which operates as a
civil death and, therefore, the other party has been given right to obtain a decree of judicial
separation or divorce.
 Presumption of death: That the other party has not been heard of as alive for a period of
seven years or more by those persons who would naturally have heard of him, had that party
been alive.

Additional Grounds

 Bigamy: Marrying again during lifetime of husband or wife: Whoever, having a husband or

wife living, marries in any case in which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with imprisonment and fine.
 Rape or sodomy or bestiality: The husband has, since the solemnization of the marriage,
been guilty of rape or sodomy or bestiality.
 In maintenance case:  Either in a suit under Section 18 of the Hindu Adoption and
Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure,
1973, a decree or order has been passed against the husband awarding maintenance to wife and
that since the passing of such decree or order cohabitation between the parties had not been
resumed for one year or upwards.
 In child marriage case: That, her marriage was solemnized before she attained the age of
15 years, and she has repudiated the marriage after attaining that age but before attaining the
age of 18 years.

POWER OF COURT TO RESCIND THE DECREE OF JUDICIAL SEPARATION

Section 10(2) of the Act empowers the Court to rescind the decree of the judicial separation if it
considers it just and reasonable to do so.

1. the decree has been obtained by showing reasonable excuse for his or her absence
2. the parties cohabited with each other after the decree was passed or they have resumed
living together
3. the opposite party has condoned the offence

EFFECTS OF JUDICIAL SEPARATION

1. permits the parties to live separately
2. does not dissolve the marriage
3. husband and wife continue to have the same status
4. not be obligatory for them to cohabit with each other
5. does not prevent the parties from resuming cohabitation and living together as husband and
wife

Divorce – Section 13 of the Hindu Marriage Act, 1955

Divorce in Ancient Hindu Law

Under Hindu Custom, Marriage is considered as sacred and they have this relation by the blessings of
the God. They believed the concept of “marriages are made in heaven”. Hindus considered the
separation of couple as a sin and hence the question of living separately did not arise in olden days.
Once married, the tie lasts till the end of life.

Divorce means putting an end to the marriage by dissolution of marital relations. The parties can no
longer be husband and wife. Divorce was unknown to the old textual Hindu law of marriage. Manu
declared that a wife cannot be separated from her husband either by sale or by abandonment
because marital tie could not be severed under any circumstances whatsoever. Manu did not approve
of the dissolution of marriage in any condition.

Dissolution of Marriage

 Grounds available for both

 Adultery:
 Cruelty:
 Desertion:
 Conversion:
 Unsoundness of mind:
 Venereal disease:
 Renunciation of the world:
 Presumption of death:
 Non-resumption of cohabitation after the decree of judicial separation:
 Non-compliance with the decree of restitution of conjugal rights:

 Grounds available for wife

 Bigamy:
 Rape, Sodomy and bestiality:
 Maintenance decreed to Wife:
 Repudiation of Marriage by Wife:

Alternate Relief
Section 13A of the Hindu Marriage Act, 1955 states “In any proceeding under this Act, on a petition for
dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the
grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if
considers it just to do having regard to the circumstances of the case, pass instead a decree for
judicial separation”.

Divorce by mutual consent

Since Divorce is the last remedy available to put an end to the marital tie, the parties can decide to
separate amicably, divorce petition may be submitted by any one of the spouses to the District Court
on any one of the grounds given in Section 13 of the Act to take divorce on mutual consent. Divorce
by mutual consent was not incorporated in the original Act of 1955. It has been inserted in the Section
13-B by the Hindu Marriage (Amendment) Act, 1976.
 parties living separately for a period of one year or more
 not able to live together
 mutual agreement in dissolving the marriage
 consent of the parties has been obtained

Distinction between judicial separation and divorce

 The relationship of husband and wife stands suppressed, while in Divorce the relationship of
husband and wife ceases to exist
 Temporarily suspends the marital rights and duties of parties to marriage for some time by
Court, while Divorce puts an end to the marital relationship between the parties
 The object is the hope of adjustment, reconciliation and reunion of the spouses, while in
Divorce, the object is to give the last resort
 The parties to the marriage cannot remarry, while in Divorce, the parties are entitled to get
another marriage of his/her choice
 Original marital relationship can be restored, while in Divorce, the original marital status
cannot be restored
 After obtaining the judicial separation, the wife can file and succeed for the maintenance,
while in Divorce, the divorced woman cannot file for the maintenance under Hindu Adoption and
Maintenance Act
 It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last remedy than
judicial separation

Presentment of petition for divorce

Under Section 14 of the Hindu Marriage Act, 1955, no Court shall entertain a petition for divorce
before expiration of a period of one year from the date of marriage, however this section also provides
that the Court may entertain petition for divorce before one year on the ground of exceptional hardship
to the petitioner or exceptional depravity of the respondent.

In the case of Meghanatha Nayyar v. Smt. Susheela, the Madras High Court had observed that
“Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal
proceedings before the parties have made real effort to save their marriage from disaster. It is
founded on public policy because marriage is the foundation of civil society and no part of the laws
and constitution of a country can be of more vital importance to the subject than those which
regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.”

Divorced persons when may marry again

Section 15 of the Hindu Marriage Act, 1955 provides: “When a marriage has been dissolved by a
decree of divorce and either there is no right of appeal against the decree or, if there is such a right of
appeal, the time for appealing has expired without an appeal have been presented, or an appeal has
been presented but has been dismissed, it shall be lawful for either party to the marriage to marry
again.”

Punishment of Bigamy and other matrimonial offences

Section 17 of the Hindu Marriage Act, 1955 states: “Any marriage between two Hindus solemnized
after the commencement of this Act is void if on the date of such marriage either party had a husband
or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code, 18600, shall apply
accordingly.”

In Gopal Lal V. State of Rajasthan, it has been observed that where a spouse contracts a second
marriage while the first marriage is still subsisting, the spouse would be of guilty of bigamy under
Section 17 of the Act and also under Section 494 IPC if it is proved that the second marriage was a
valid one in the sense that the necessary ceremonies required by law or by custom have been
actually performed.
Maintenance and Alimony

Section 24 – Maintenance Pendente Lite

Difference between Section 24 of Hindu Marriage Act, 1955 and Section 18 of Hindu Adoptions and
Maintenance Act, 1956

Section 25 – Permanent Alimony and Maintenance

Difference between Maintenance pendente lite under Section 24 and the permanent alimony under
Section 25

Section 27 – Disposal of Property

CASE LAWS:

 Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438 159
 Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

Customary Provisions and Legislative Provisions Relating to Dowry Prohibition

THE DOWRY PROHIBITION ACT, 1961

Other Laws

 Code Of Criminal Procedure, 1973

 Indian Evidence Act, 1872
 Indian Penal Code, 1860

23 AMOUNT OF MAINTENANCE

24 CLAIMANT TO MAINTENANCE SHOULD BE A HINDU

25 AMOUNT OF MAINTENANCE MAY BE ALTERED ON CHANGE OF

CIRCUMSTANCES

26 DEBTS TO HAVE PRIORITY

27 MAINTENANCE WHEN TO BE A CHARGE

28 EFFECT OF TRANSFER OF PROPERTY ON RIGHT TO MAINTENANCE

29 REPEALS

30 SAVINGS

CASE LAWS:

 Brijendra v. State of M.P., AIR 2008 SC 1058

UNIT III

Hindu undivided family

The term “Hindu undivided family” has not been defined in the Income Tax Act.
“Hindu undivided family” was included with in the meaning of the word Person in
section 2(31) of the Income Tax Act [1] but “Hindu undivided family” is not defined in
the Income tax Act. The exclussion has been because the term “Hindu undivided
family” has already been defined in the Hindu law and the legislature wanted the
meaning of the “Hindu undivided family” remain the same as that of the Hindu Law.
There are two schools of Hindu Law. They are:

Dayabhaga School in West Bengal

Mitakshara School in Rest of India

The expression “Hindu undivided or joint family” has a definite and well-known
connotation. Hindu law defines “Hindu undivided family” as all persons lineally
descended from a common ancestor and includes theur wives and unmarried
daughters. Common ancestor is must. It is a much wider body than a Hindu
coparcenary, which includes only those persons who acquire by birth an intersest in
the joint coparcenary property. The expression “Hindu Undvided family” in the Act is
used in the sense in which a Hindu joint family is understood in the personal laws of
Hindus. “Hindu undivided family” is purely a creature of law and cannot be created
by an act of parties (except in case of adoption and reunion). A “Hindu undivided
family” is a fluctuating body, its size increases with birth of a male member in the
family and decreases on death of a member of the family. Females go and come into
Hindu undivided family” on marriage. The daughters after the marriages cease to be
a member of her father’s “Hindu undivided family” and become a member of her
husband’s “Hindu undivided family”. In case of a sole male Hindu, strictly speaking, a
“Hindu undivided family” comes to existence automatically upon his marriage. It has
been held in Gowli Buddanna v/s. CIT [2] that to constitute a joint Hindu family, it is
not necessary that there has to be more than one coparcener in the family; a
husband and wife can validly constitute a “Hindu undivided family”. “Hindu
undivided family” is used in the Act with reference to all school of Hindu Law
mentioned above. For the purpose of the applicability of section 64(2) of the Act, the
expression cannot be given a restricted meaning to include only those “Hindu
undivided families” which comprises of the individual, his wife and minor child of
which he is the Karta. The expression “Hindu undivided family” appearing in section
64(2) should be given its ordinary meaning. First, no contrary legislative intent is
discernible from section 64(2) of the Act or the object and purpose of incorporation
the same. Second the language of the section 64(2) being clear and unambiguous
and the meaning of the expression “Hindu undivided family” used therein being well-
known and well understood, the court cannot detract from the same unless, reading
the statute as a whole, the context so requires. In the instant case, there is nothing in
the context or in the circumstances to warrant such deviation with a view to give it
and srtificial and restricted meaning. Thus for the purpose of section 64(2), “Hindu
undivided family” would include a joint family consisting of himself (karta), his father
(Coparceners) mother and female members who are staying together jointly; joint in
food, estate and worship. The “Hindu undivided family” is treated as the separate
entity of the purpose of assessment of tax of the joint family under Income Tax Act,
1961 and Wealth-tax Act, 1957. “Hindu undivided family” will enjoy all exemptions
and deductions; including the basic exemption from income-tax.

“Hindu undivided family” is purely a creature of law and cannot be created by an act
of parties (except in case of adoption and reunion). A “Hindu undivided family” is a
fluctuating body, its size increases with birth of a male member in the family and
decreases on death of a member of the family. Females go and come into Hindu
undivided family” on marriage. In case of a sole male Hindu, strictly speaking, a
Hindu undivided family” comes to existence automatically upon his marriage. It has
been held in Gowli Buddanna v/s. CIT [3] that to constitute a joint Hindu family, it is
not necessary that there has to be more than one coparcener in the family; a
husband and wife can validly constitute a “Hindu undivided family”.

Mitakshara Joint Family

A joint and undivided Hindu family is the normal condition of Hindu society. A joint
Hindu family consists of all persons who are lineally descended from a common
ancestor, and includes their wives and unmarried daughters.

On marriage, a daughter ceases to be a member of her father’s family, and becomes

a member of her husband’s family.

Thus, if A has two sons, X and У, and an unmarried daughter Z, all of them (i.e., A,
X, Y and Z) would constitute the joint family. On her marriage, Z would cease to be a
member of this joint family, and would become a member of the joint family of her
husband.

ADVERTISEMENTS:

Ordinarily, an undivided Hindu Family is joint, not only in estate, but also in food and
worship. However, the existence of joint estate is not absolutely necessary to
constitute a joint family, and it is possible to have a joint Hindu family which does not
own any estate. But, if joint estate exists, and the members of that family become
separate in estate, the family ceases to be joint.
Mere severance in food and worship does not, however, operate as a separation.
(Chowdhry Ganesh Dutt v. Jewach, 1904 31 I.A. 10)

Thus, although a Hindu family is presumed to be joint (in food, worship and estate),
there is no presumption that it possesses joint property or any property at all. This
would have to be proved by producing affirmative evidence to that effect. (Ram
Narain Chand v. Purnea Banking Corporation Ltd., A.I.R. 1953, 110)

ADVERTISEMENTS:

Thus, a joint Hindu family does not consist of male members only. It may consist, for
instance, of a single male member and widows of the deceased male members.
Likewise, it may consist of one male and one female member, e.g., a brother and his
unmarried sister, or a son and his mother (provided the female member is entitled to
a share or to maintenance), or it may consist even of two or more surviving females,
as for instance, two or more widows, or an unmarried daughter and her mother, and
so on.

A joint Hindu family, as such, has no legal entity which is distinct and separate from
that of the members who constitute such a family. In this sense, it is different from a
corporation or a company which is considered to be a distinct legal person in the
eyes of law.

A joint Hindu family is a unit to which no outsider can be admitted by consent of the
parties concerned. It is a status which can be acquired only by birth or by adoption,
and in the case of women, by marriage. Such a joint family may be broken up by
separation of individual members or by a partition amongst all the members. Such a
separating member would then form a new family with his descendants, and a new
joint family would come into existence.

Formation and Incidents

Characteristic features of Mitakshara Coparcenary are as follows:

In State Bank of India v. Ghamandi Ram, the Supreme Court observed: “A

coparcenary under the Mitakshara School is a creation of law and cannot arise by
act of parties except in so far that on adoption the adopted son becomes a
coparcener with his adoptive father as regards ancestral properties of the latter. The
incidents of coparcenership under Mitakshara law are:
ADVERTISEMENTS:

(i) First, the lineal male descendants of a person upto third generation, acquire on
birth ownership in the ancestral properties of such person,

(ii) Secondly, that such descendants can at any time work out their rights by asking
for partition;

(iii) Thirdly, that till partition, each member has got ownership extending over the
entire property conjointly with the rest;

(iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of
properties is common;

ADVERTISEMENTS:

(v) Fifthly, no alienation of the property is possible unless it be necessity, without the
concurrence of the coparceners;

(vi) Sixthly, that the interest of the deceased member lapses on his death to the
survivors;”

The following are the characteristic features of the Mitakshara coparcenary:

(1) Unity of Ownership:

The essential feature of a Mitakshara coparcenary property is unity of ownership,
i.e., the ownership of property is not vested in a single coparcener. It is vested in
whole body of coparcenary. According to the true notion of an undivided family
governed by the Mitakshara law, no individual member of that family whilst it remains
undivided, can predicate, of the joint and undivided property, that he has a definite
share.

ADVERTISEMENTS:

In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming

the above view held that the essential feature of Mitakshara coparcenary is unity of
ownership and community of interest. No coparcener has any definite share in the
coparcenary property although his undivided share is existent there, which increases
with the death and decreases with the birth of any coparcener. The coparcener
acquires an interest in coparcenary property by birth, which is equal to that of his
father.

(2) Indeterminability of Shares:

The interest of a coparcener in the coparcenary property is a fluctuating interest
which is liable to diminish with the birth and bound in increase with the death of any
coparcener in the family. So long the family remains united; no individual coparcener
can predicate that he has a definite share in the property of the family.

In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above
view held that so long the family remains undivided; no individual coparcener can
claim any specific share in the joint family property. All the coparceners are the
owners of entire joint family property. Their shares can be specified only after the
partition is effected in the joint family. The share of any coparcener is thus
unpredictable and unspecified before partition.

Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the
Court upholding the above view held that if any coparcener of joint Hindu family
transfer the coparcenary property by way of gift without consent of other
coparceners, it is void, because all the coparceners are the owners of entire joint-
family property and joint family continues, and the coparcenary interest is an
indeterminate. It becomes determinate only when the states of jointness is broken.

(3) Community of Interest:

There is community of interest in the coparcenary property. The moment a person is
born in the family, he acquires an interest in the coparcenary property in the sense
that he has a right of common enjoyment and common use of all the properties,
because as soon as he is born as a son, he assumes the membership of the
community.

It also signifies that no coparcener is entitled to any special interest in the

coparcenery property, nor is he entitled to exclusive possession of any part of the
property. As it has been rightly observed by the Privy Council that “there is
community of interest and unity of possession between all members of the family.”
No coparcener can say with certainty that he is entitled to one half or one fourth as it
is the essence of coparcenary property that there is community of interest and unity
of possession.
The shares of individual coparceners cannot be defined. All the coparceners have a
right of common enjoyment or common use of the property. It signifies two
implications: firstly, possession of one coparcener in the possession of all
coparceners, and secondly, no coparcener has a right of exclusive possession of
any portion of joint property.

(4) Exclusion of Females:

In Mitakshara coparcenary no female can be its members, though they are members
of joint family. Even the wife who is entitled to maintenance enjoys only the right to
maintenance but she can never become a coparcener.

Thus a female does not have the right to demand partition. Since she is not a
coparcener, she cannot become the Karta of the family. An alienation of the property
of the joint family by her will not be binding on her sons and daughters. The
alienation of her own share is not binding upon herself.

It is worthwhile to mention that the Hindu Women’s Right to Property Act, 1937,
conferred a special status on the widow and made them eligible to inherit the
coparcenary interest along with her sons, although she took it as a limited estate.
Thus she acquired the status like that of coparcener entitled to a share, equal to that
of her sons. For example, A who constitutes a coparcenary with his two sons,
namely, В and C, dies leaving behind his widow, W, two sons, В and C. Under the
Hindu Woman’s Right to Property Act, 1937, W inherited the coparcenary property
along with В and С and would get 1/3 share each.

(5) Devolution by Survivorship:

One of the distinctive features of coparcenary is that the coparcenary interest of a
coparcener in coparcenary property on his death does not devolve on his heirs by
succession but on the other hand it passes by survivorship to the other coparceners.
Thus right by birth and right of survivorhsip are necessary incidents of community of
interest and unity of ownership, which signify joint possession not an exclusive
possession.

(6) Right of Maintenance:

All the members of coparcenary are entitled to maintenance by birth out of joint
family property. They continue to enjoy this right so long the coparcenary subsists.
Where any member fails to get any share on the coparcenary property even after
partition he retains the right of maintenance.
Some special provisions have to be made for them at the time of partition. Female
members and other male members who do not get a share on partition such as
unmarried daughters, idiots or lunatics, are entitled to maintenance out of joint family
property. Unmarried daughters have a right to be married out of joint family funds.

Where a coparcener married under Special Marriage Act, 1954, he is separated from
coparcenary. He can form separate coparcenary along with his male descendants.

Property under both Schools

Details of woman’s property

Offerings from relations:-
This is a acknowledged form of the stridhan. Gifts given to woman, throughout
maidenhood, coverture or widowhood, by her parents and their relatives, or by the
husband and his relatives. The Dayabagha School does not identify gifts of
permanent property by spouse as stridhan.
Offerings from strangers:-
Property given by gifts to a woman during her life time by strangers also
acknowledged her stridhan. But these were for the period of her husband’s life time
in the husband’s power. On his death these became her absolute stridhan.
Property achieved by self-exertion and mechanical arts:-
A woman may achieve property at any phase of her existence by her personal self-
exertion such as by physical labour, by service, by playing, dancing etc. or by any
involuntary art. The property thus achieved during her life time by personal effort
is her stridhan.
Property earned with stridhan:-
It is an established law that the properties earned with stridhan or with the
investments of stridhan, as well as accumulations and investments of the profits of
stridhan, also acknowlged stridhan.
Property achieved by cooperation:-
When a person achieves property under a cooperation, where under she gives up
her privileges to her stridhan will be stridhan.
Property acquired by unfavorable control:-
It is a well known law that any property that a woman achieves at any phase of her
existence by unfavourable environment is her stridhan.
Property achieved for protection:-
The expenses given to a Hindu female in total or occasionally for her protection,
and all the fields of such protection recognize her stridhan. Likewise, all
impermanent and permanent properties given to her by way of a fixed gift in
pursuance of protection represent her stridhan.
Property acquired by inheritance:-
A Hindu female can inherit property 8 from her parents as well as from her
husband. Thus properties obtain from parents or from husband also constitute her
stridhan.
Share acquired on division:-
The share obtained on division of property is also her total property or stridhan.

Kartha: His Position, Powers, Privileges and Obligations

Karta
In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There is
no office or institution in any other system of the world can be compared with it. He is a person
with limited power but he possess such vast power with in ambit of joint family which nobody
enjoys.

Who is a Karta:-
Karta means manager of joint family and joint family properties. He is the person who takes care
of day to day expenses of the family looks after the family and protects the joint family properties.

Who can be a Karta:-

It is a presumption that ordinarily senior most male member is the Karta and Karta is always a
member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as
Karta. By his death Kartaship will pass on to next senior most male member.

In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta.

Karta owes his position by consent or agreement of all coparceners.

Female Member:-
Generally female member cannot become Karta but in exceptional circumstances female also
can act as Karta.

Nagpur High Court held the view that mother even though not a coparcener, in the absence of
adult male member can act as Karta.

In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any
female member could not be Karta of joint family and therefore cannot alienate joint family
property.

Position of Karta:-
Karta is sui generis (of its own kind) the relationship between him and members is not like
principal or agent or like partners in a partnership firm.

He is the head of the family and acts on behalf of other members.

He stands fiduciary relationship with other members but he is not a trustee, nobody can question
what he spent unless charges of misappropriation.
When any coparcener charges of improper alienations made by Karta, burden of proof lies on
him to prove such are malafide act of Karta.

Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are absolute.
He may manage the family affairs and family property and business the way he likes for the
benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint
family property must hand over income to Karta. It is for Karta to allot funds to the members and
look after needs and requirements, so long as family remains joint, no member can ask for any
specified share in the income.

3) Right to representation:- He represent the family, represents the family in all matters, legal,
social and religious. He can enter into any transaction on behalf of the family, his acts are binding
on the entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family property
or their management. He can compromise pending suits, family debts, and other transactions.
However if his act is not bonafide can be challenged in a partition.

5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration
and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on

behalf of the family any debt due to the family, also has power to pay debt or to make pack
payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of
business are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family business
joint family is liable to pay such loan.

7) Power to enter into contract:- Karta has power to enter into contract and such contract is
enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property.
However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Kartas Liabilities:-
Karta has vast powers same time his position is fiduciary and has lot of responsibilities and
liabilities.
1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he
improperly excludes any member from maintenance, he can be sued for maintenance and also
arrears of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep
accounts, but when partition takes place at that time he is liable to account for family property. If
any of the coparcener is not satisfied with his account can institute a suit against Karta to
discover the truth and to know any misappropriation is made by Karta.

3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family
with in reasonable time but should not allow them to bar by limitation.
4) Liability to spend reasonably:- As Karta of joint family has control over the income and
expenditure of the family, he is custodian of surplus income. However he should spend family
funds reasonably and for the purpose of the family.

5) Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or for
necessity Karta cannot alienate joint family property without the consent of all the coparceners.

6) Liable not to start new business:- Unless adult coparceners of the family expressly or impliedly
consents, Karta cannot impo

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if
partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to
Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share
at the time of partition she is entitled to take the extent of her husband share.

2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving
behind widow, she took his share at the time of partition she is entitled to take the extent of her
husband share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son’s daughter
and his widow, predeceased son’s predeceased son’s widow, daughter’s daughter are entitled to
their respective shares as per the rules laid down.

An aliened of coparcener’s undivided interest files a suit for partition is entitled to a share to the
extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1. Unqualified coparcener has no right to partition
2. Sons cannot claim partition against their father if the latter is joint with his own father.

Persons who have right to partition

1) Father:- Father has not merely a right to partition between himself and his sons can
also effect partition among his sons. Every father can make partition of his self acquired
property also (means distribution of his property as per his wishes).
While doing this consent of sons is immaterial. Father can impose partition partial or total, even
between minor sons and himself. But this act of him must be bonafide. Otherwise minor son after
attaining majority can file for reopen of partition.

2) Sons, Son’s Son, Son’s Son’s Son:- Every S, SS, SSS are entitled to partition but under
Bombay School when father is joint with his father or brothers consent of father is
essential.
If joint family consist of father and sons then son can ask for partition.

3) Son born after partition:- Smritikaras has different opinions on this.

Vishnu and Yajnavalkya – Partition should be reopened and share has to allot to after born son.

Manu, Gautama, Narada – after born son could get share of his father alone.

Mitakshara school formulated a general procedure by applying both principles but in different
situations.
i) Son conceived at the time of partition but born after partition (unborn son)
When person is in mother’s womb under Hindu Law for many purposes equivalent to born child.
When mother is pregnant partition has to postponed until delivery. But if coparcener does not
want to postpone then has to reserve a share to unborn son and go for partition otherwise child
(son) can file a suit for reopen of partition after his birth.

ii) Son begotten and born after partition (after born son)
If any son born after partition and he was not even in mother’s womb then the following rules
apply.
a) When father has taken his share in partition then he becomes coparcener only in father’s
share.
b) When father has not taken his share then after born son has a right to get partition reopened
and get the estate redistributed.

iii) If father renounces his share

When father renounces his share, son born after renouncement is not entitled to get any right in
the joint family. He will be remained as coparcener in father family.

iv) Adopted Son

Position of adopted son also differs with situation.
a) When there is a subsequently born natural son.
b) When there is no subsequently born natural son.

When natural son born after adoption then adopted son interest differs from school.

Right of Adopted son

1) Bombay and Madras School – 1/5 of estate
2) Benaras School - ¼ of estate
3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son is entitled to
equal share with natural son.
v) Son of void & voidable marriage

Since son of void & voidable marriage is not coparcener, he cannot sue for partition.

vi) Illegitimate son

Any category of illegitimate son is not entitled for partition because he is not a coparcener.

vii) Minor and lunatic coparcener

No difference between major and minor son, lunatic or physically deformed son all are entitled for
partition and if proper partition is not made by not giving equal shares to them. Coparcener can
challenge and reopen to partition.

viii) Absent Coparcener

Any coparcener who is absent at the time of partition, a share to be allotted to him until he
specifically renounces his interest. If share is not allotted he can also challenge and get the
partition reopened.

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if
partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to
Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share
at the time of partition she is entitled to take the extent of her husband share.
2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving
behind widow, she took his share at the time of partition she is entitled to take the extent of her
husband share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son’s

daughter and his widow, predeceased son’s predeceased son’s widow, daughter’s daughter are
entitled to their respective shares as per the rules laid down.

An alienee of coparcener’s undivided interest files a suit for partition is entitled to a share to the
extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1] unqualified coparcener has no right to partition
2] sons cannot claim partition against their father if the latter is joint with with his own father.

Debts

here is a deep moral sense behind the concept of payment of debts under Hindu
law. It has been considered mandatory for the salvation of the soul of the debtor.
Under the ancient law the non-payment of a debt was regarded as a sin, the
consequences of which follow the debtor after his death.

According to a text of Katyayana, “He who having received a sum lent or the like
does not repay it to the owner, will be born hereafter in the creditor’s house a slave,
a servant, a woman or a quadruple.”

ADVERTISEMENTS:

There are other texts also which equally emphasise upon the payment of debts.
Thus a pious obligations has been imposed upon the sons, grandsons and great
grandsons to pay off the debts of their deceased ancestors in order to liberate them
from the torments of hell consequent on non-payment. Thus, Narada says,
“Therefore the son, born, should without keeping his self interest in mind, liberate his
father from debt earnestly so that he (father) may not go to hell.”

According to Myne the liability of a Hindu to pay debts contracted by his ancestors
come out from three considerations:—

(1) Religious;

(2) Moral;

ADVERTISEMENTS:
(3) Legal;

According to religious consideration the sons and grandsons are bound to pay the
debts of their father and grandfather in order to relieve the debtor of the sufferings of
the hell.

There is moral obligation on the male descendants of three generations because the
assets of the debtors on his death have devolved upon them.

The obligation is legal as well because the debt contracted by ancestor was in
capacity of an agent of the joint family.

ADVERTISEMENTS:

The liability of sons to pay the debts, contracted by their father, can be examined in
the context of the following category of property:

(1) Liability on separate property of a Hindu:

The separate property of a Hindu is entirely liable for his personal debts whether
incurred for immoral or unlawful purposes or for lawful objects.

(2) Liability on undivided coparcenary interest:

The undivided interest of a coparcener in the coparcenary property is liable for the
payment of debt and it may be attached in his lifetime in execution of a decree
against him and if so attached, it may be sold even after his death. But it cannot be
attached after his death (except where the coparcener is the father), for then it
ceases to be his interest and passes to other coparceners by survivorship. It is only
an attachment effected during the lifetime of the debtors that will prevent the accrual
of his interest to his coparceners by survivorship.

(3) Liability on Coparcenary Property:

Where coparcenary consists of father and his male descendant’s upto three
generations and the debt was contracted by the father, who dies without having paid
the debt, the entire coparcenary property is liable for his debts subject to the
condition that the debts were not consisted for an immoral or unlawful purpose. The
fact that the father was not the Karta or manager of joint family or that the family
consisted of other coparcenars besides the father and sons does not affect the
liability of the sons in any way. It exists irrespective of these facts.
The liability of the son, grandson and great grandson to pay the debts of their
ancestor is not a personal one that is to say; the father’s creditor is not entitled to
proceed against their person or separate property. It is limited to their interest in the
joint family property.

Doctrine of Pious Obligation

‘Pious obligation’ means the moral liability of sons to pay off or discharge their
father’s non-avyavaharik debts. The debts borrowed may not be of legal necessity or
for benefit of estate. Thus, if the father is the Karta of a Hindu joint family, he may
alienate the coparcenary property for discharging the antecedent debts. The sons
are under the obligation to recover such alienated property by repaying the debts.

The ancient doctrine of pious obligation was governed by Smriti law. There is a pious
obligation on the sons and grandsons to pay the debts contracted by the father and
grandfather. According to Privy Council this obligation extends to great grandsons
also because all the male descendants upto three generations constitute
coparcenary and every coparcener is under a religious obligation to pay the debt
contracted by their ancestor, provided such debt was not taken for an immoral or
unlawful purpose.

ADVERTISEMENTS:

The concept of pious obligation has its origin in Dharmashastras, according to which
non-payment of debt is a sin which results in unbearable sufferings in the next world.
Hence the debts must be paid off in all circumstances provided it was not for immoral
and illegal purposes. Vrihaspati has said, “If the father is no longer alive the debt
must be paid by his sons. The father’s debt must be paid first of all, and after that a
man’s own debts, but a debt contracted by the paternal grandfather must always be
paid before these two events.

The father’s debts on being proved, must be paid by the sons as if their own, the
grandfather’s debt must be paid by his son’s son without interest, but the son of a
grandson need pay it at all. Sons shall not be made to pay (a debt incurred by their
father) for spirituous liquor, for idle gift, for promises made under influence of love or
wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their
father. Yajyavalkya says, “A son has not to pay in this world father’s debt incurred for
spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains
unpaid of a toll; nor idle gifts.” But in case of debts for purposes other than the
above, on the death of the father, or on his going abroad, or suffering from some
incurable disease, the debt contracted by him would be payable by his sons and
grandsons.

The Mitakshara has presented the entire proposition in stronger words. According to
it when the father has gone abroad or is suffering from some incurable disease, the
liability to pay the debt contracted by him would lie on the sons and grandsons
irrespective of the fact that the father had no property. There are reasons for fixing
this liability on sons and grandsons. The liability to pay the debt is in the order, viz.,
in absence of father the son and in absence of son the grandson.

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

Partition and Reunion

PARTITION under Hindu Law

JUNE 1, 2017

Introduction

Partition, is an act by which a coparcener severs his relations with joint family and loses his
status of coparcener and becomes an independent individual from the links of joint family.
An important consequence of such partition is that the share of coparcener or coparceners
seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes
specific and definite, as a result of partition, and thus allotted to the respective members.

According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the
whole, by distributing them into particular portions of the aggregate. Therefore, Mitakshara
partition is used into two distinct senses: firstly, the adjustment into specific shares the
diverse rights of the different members according to the whole family property; secondly; the
severance of the joint status, with the legal consequences resulting therefrom. It has been
defined as the crystallization of the fluctuating interest of a coparcenary into a specific share
in the joint family estate.

According to Lord Westburn- there are two stages in partition under Mitakshara

1. Division of Right – Ascertaining and fixing with an intention to become separate, the
share to which each coparcener is entitled.
2. Division of property- Actually making off, and assigning portions of the erstwhile
joint estate to individual coparcener in portion to the share of each.

Under the Dayabhaga law, it means division of property in accordance with the specific share
of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share
among coparcener according to metes and bound. Division of property in accordance with the
specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity
of possession, while in Mitakshara it is unity of ownership

Under Dayabhaga Law, every adult coparcener whether male or female is entitled to enforce
partition.

Persons not entitled to enforce partition under the Dayabhaga Law are:

1. Sons, Grandsons and great grandsons have no birth interest in ancestor property

against their father, so there is no right for partition.
2. It consider the illegitimate son of shudra becomes a coparcener with legitimate sons
when they inherit the property after the death of the father.
3. Father’s wife-no such right
4. Childless step mother no entitle to a share after partition
PROPERTY LIABLE FOR PARTITION

It is only the coparcenary property which is subject to the partition. The separate property is
not liable to partition at all, as it belongs absolutely to the owner thereof.

Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a
Raj. Nor can family idols and place of worship can be divided. Similarly, the following
properties are not liable to partition:

1. Impartible estate i.e., property which descends to one member only, either by custom
or under any provision of law or by terms of grant.
2. Property indivisible by nature, e.g., ponds, staircase, passage
3. Family idols and relies which are object of warship
 4. Separate property of a member
5. The places of worship and sacrifice or the property which has been dedicated to
religious and charitable purposes.
6. The well and the rights to draw water from the well
7. The ornaments and the dress materials given to the wives of the coparceners
8. The headship of a Math

Manu says- following properties are not subject to in division

1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water
and female slaves, as road, garden, utensils, documents, right to way, furniture etc.
2. Properties meant for pious use, or scarifies, object for worship.3.
3. Separate property of a member

In respect of those properties three methods of adjustment are available-

1. may be enjoyed by coparcenary by jointly or by turn

2. May be allotted to the share of coparcener and its value adjusted.
3. May be sold and distributed the incident
DEDUCTIONS AND PROVISIONS

Some provisions must be made out of the property liable to partition before any partition is
affected.

1. Debts incurred for joint family.

2. Personal debts of the father not incurred for illegal or immoral purposes.
3. Maintenance of dependent female members and disqualified heirs.
4. Marriage expenses of unmarried daughters of the last male holder but not of the
collaterals.
5. Expenses for the funeral ceremony of the widow and the mother of the last male
holder.
PERSONS WHO ARE ENTITLED TO DEMAND PARTITION

Every coparcener has a right of partition and entitle for share in partition.

1. Father- he can impose a partition, partial or total between his minor son and himself
with bonafide intention, else, it will reopen. In case of major son and father, it should
be by mutual consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right
partition without the assent of his father, if the father is join with his own father and in
 case of Punjab Customary Law, as under Punjab Customary law son have no right by
birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be
reopen to give the share after born son. However Gautama, Manu, Nerada says the
after born son could get the share of his father alone
According to Mitakshara we have few rule for this-
1. Son conceived at the time of Partition but born after it – person in the womb is
equated the person exist. The tax lay down that if the pregnancy is know the partition
should be postponed till the time child birth, if the other coparceners are not ready for
this a equal share should be reserve if the child born son share should be allowed to
them, in case female it should be expand on her marriage.
2. Not in the womb when partition take place if the pregnancy is not known and no share
has been reserved then the partition should be reopen after childbirth.
3. Son begotten and born after partition-  in this case two general rule under Mitakshara
4. When Father has taken his share in the partition- son become the coparcener with his
father.
5. When Father has not taken his share in the partition – son has a right to reopen the
partition and get his share.
6. Adopted Son- he has right if partition take place after adoption, but if partition
take place before adoption he has no right.
7. Illegitimate Son- not entitle for partition and share but for maintenance only.
8. Son void marriage and annulled marriage-not entitle.
9. Minor Coparcener- no distinction between major or minor.
PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED
FOR SHARE AFTER PARTITION

No female has a right to partition but if partition takes place, some female (father’s wife,
mother and grandmother) has a right for share in partition. However, after 2005 amendment,
daughters are also entitled for it.

HOW PARTITION IS AFFECTED?

1. Severance of Joint Status or interest-expression of intention- one member of joint
family can express his intention to partition, even though no actual partition take
place.
2. by Notice
3. by Will
4. Conversion to another Religion.
5. Marriage under special marriage act.
 6. by agreement
7. by arbitration
8. by father
9. by suit
ALLOTMENT OF SHARES

Sons are not entitled for any share in presence of father. The share of deceased coparcener
passes to his heir.

Religious and Charitable Endowment

The definition of endowments recognised by the courts since long includes the

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

Endowments are of different kinds which can be placed in different categories in the
following manner—

(a) Public or private; (b) Real or apparent; (c) Absolute or partial; (d) Religious or
charitable; (e) Valid or invalid.

Public and Private Endowment:

In order to ascertain the nature of the endowment as to whether it is public or private
the subsequent conduct of the settler and use of the evidence of the property set
apart by the public at large are to be considered. In fact when a temple is thrown
open for public at large for worship, a valid inference can be drawn that a public trust
has been intended to have been created. Where the outsiders along with the
members of the family of the settler take part in worship in celebration of festivals in
a temple as in public temples, the state of affairs point out to the public nature of the
endowment.
In contrast private endowment is that in which the public has no ingress, as an
endowment for the worship of the family deity of the settler. Where the property is
kept separate safely for the worship of family deity by family members only, with
which the public has nothing to do, it is a private endowment.
ADVERTISEMENTS:

Even if other Hindu worshippers are allowed to worship a family deity, it will not
confer public nature to the endowment. In Venugopalaswamy v. H. R.E. Board, it
was laid down that where the temple was initially set apart for the use of the family
members only and subsequently if some outsiders are allowed ingress therein, it will
not automatically alter the private nature to public.
The Madras High Court too in Keshav Gounder v. D.C. Rajan, held that there is very
minute difference between the public and private endowment. In public endowment
the interest of general public or of a group of persons is protected and involved,
wherein in private endowment the interest of the settler of the trust or his family
members only is protected and involved. In fact in private trust the interest is to
dedicate pleasurly to the family diety something and the public has nothing to do with
it.
Again the Supreme Court in G.S. Kaha Lakshmi v. Shah Ranchod Das, said that the
temple of Sri Gokulnath Nadeyad in a public temple and the trust created is of public
nature dedicated and created by the Ballabh cult and its supporters of Nadiad. The
fact that any individual could enter into the temple only after the worshipping by
goswami is over, does not militate in any way the public nature of the temple. Further
the fact that temple is having house like appearance does not clearly establish that
the temple is not a public temple.
The Supreme Court has delivered an important judgment after a lapse of a decade in
Radha Kant Deo v. The Commissioner, Hindu Religious Charitables. The Court
observed that a religious endowment of private nature cannot be conceived under
English law. It can only be thought of in Hindu law. The court laid down the following
test to determine the public and private nature of endowment—
ADVERTISEMENTS:

(1) Where the origin of endowment cannot be ascertained, the question to be

determined is as to whether the members of public use it by way of right.

(2) Another fact to be determined is that whether it is controlled by a group of

persons or by the founder of endowment only.

(3) It may be concluded that the endowment is of public nature where the document
with respect to its creation is available and it is clear from the language of the deed
that the control over the endowment is vested in the founder or in his family and a
greater part of the property of the founder has been dedicated in the endowment to
that temple.

(4) Again in absence of any evidence to show that the founder has given any
classification with respect to the fact that the member of public would contribute any
share to it, this itself proves that the endowment is of private nature.

The Allahabad High Court too in Suit. Sarjoo v. Ayodhya Pd., founded the view that it
is not possible to conclude about the nature of endowment from a single
characteristic alone. In fact the entire evidence and circumstances are to be
examined under which it was created. Non-appointment of a pujari shows the private
nature; but appointment of pujari by members of different families establish the
public nature.

Even giving permission to the members of public to perform puja will not convert it
into public. In Radha Kant Deo v. The Commissioner of Hindu Religious
Charitables, the Supreme Court took the view that the idea of a private religious trust
could be conceived in Hindu law only and is foreign to the English law.
In such an endowment the prime purpose of the beneficiary is to establish a temple
for the family worshippers. Though public may be allowed access to such a temple
but that will not convert its nature as the property in facts vests with the beneficiaries
and not with the diety. Certain worth mentioning tests were formulated by the court
which are as under—

(1) Where the origin of endowment is not known, the question arises as to whether
members of public use it by way of right.

(2) The fact whether it is controlled by a group of persons or by the founder of

endowment will also be considered.
(3) Where the documentary evidence is available which clearly establishes that the
control invested in the founder or in his family and a greater part has been dedicated
to the temple, so that it may be properly managed, it all will suggest that the
endowment is of a private nature.

(4) Again in absence of any proof available to show that the founder intended the
public to contribute any share to it, it will be treated as a private endowment.

Charitable Endowments:
Where the gifts are made for charitable purposes such as for the institution of
Dharmashala, Anathashram (choultries), Sadavratas of the establishment of
educational and medical institutions or/and for the construction of Anathashrams
(orphanage) tanks, wells and bathing ghats etc., they are known as charitable
endowments. In such endowments property is dedicated through the usual
ceremonies of Sankalpa and Utsarga.

The popular charitable institutions created through endowments and recognised

under the Hindu law are Dharmashala or rest houses, Sadavrats Anathashram,
public institutions, constructions of tanks, wells, groves etc. Dharmashalas are the
rest houses provided for the travellers known as Pratishraya Griha in ancient times.

The property dedicated to the Dharmashalas vest in Dharmashalas itself. Its

management may vest in the founder himself or a committee constituted by the
founder. The benefit of Dharmashala may be available to public in general or it may
be restricted to the members of a community or to the follower’s of a particular
religion.

Sometimes gifts are made for the establishment of educational institutions or

hospitals. Imparting free education to the people in general has been one of the
prime objects of charity throughout the ages amongst Hindus. Similarly hospitals and
dispensaries known as Arogashalas have also been the objects of charitable
endowments.

The establishment and maintenance of Goshalas is also a valid charitable purpose.

Similarly the excavation of tanks and wells has also been recognised as charitable
objects from the very beginning. According to Dharmashastra, construction of a well
is equal to Agnistoma sacrifice; in desert it equals the Aswamedha. The well flowing
with drinking water destroys all sins. The well maker, attaining heaven, enjoys all the
worldly pleasures. The consecration of trees and groves is also a well recognised
charible purpose amongst Hindus. Dedications for groves and trees have been held
valid.

Similarly Sadavrats, where free distribution of food and alms to the needy and poor
are arranged, have been well known charitable institutions amongst Hindus. Langars
and Anathashram are species of Sadavrats. Endowments for them have been held
valid. Similarly endowments for reciting sacred books and for the food and
maintenance of Brahmacharies and Brahamans have also been held valid.

Study Notes on Hindu Law – UNIT IV

Inheritance and Succession

Historical perspective of traditional
Hindu Law relating to Inheritance
A detailed study of Hindu
Succession Act, 1956.
Stridhana- Woman’s Property
Recent State and Central
Amendments to Hindu Succession Act; Gifts and Testamentary
Succession – Wills
Study Notes on Hindu Law – UNIT V

Law relating to Hindu Minority and Guardianship: Kinds of Guardians;

MINORITY AND GUARDIANSHIP

The Hindu Minority and Guardianship Act, 1956

2 Act to be supplemental to Act 8 of 1890
3 Application of Act
4 Definitions
5 Over-riding effect of Act
6 Natural guardians of a Hindu minor
7 Natural guardianship of adopted son
8 Powers of natural guardian
9 Testamentary guardians and their powers
10 Incapacity of minor to act as guardian of property
11 De facto guardian not to deal with minors property
12 Guardian not to be appointed for minors undivided interest in joint family property
13 Welfare
Duties & Powers of Guardians; A detailed study of Hindu Adoption and Maintenance Act, 1956;

CASE LAWS:

 Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act 1956.
ADOPTION AND MAINTENANCE

The Hindu Adoption and Maintenance Act, 1956

2 Application of Act
3 Definitions
4 Overriding effect of Act
5 Adoption to be regulated by this Chapter

6 REQUISITES OF A VALID ADOPTION. – NO ADOPTION SHALL BE VALID UNLESS

–

 (i) the person adopting has the capacity, and also the right, to take in adoption;
 (ii) the person giving in adoption has the capacity to do so;
 (iii) the person adopted is capable of being taken in adoption; and
 (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

Kumar Sursen v. State of Bihar – Under section 6 the law does not recognize an adoption by a

Hindu of any person other than a Hindu;

M. Gurudas v. Rasaranjan – To prove valid adoption, it would be necessary to bring on records that

there had been an actual giving and taking ceremony;

Suma Bewa v. Kunja Bihari Nayak – Law is well settled that adoption displaces the natural line of
succession and therefore, a person who seeks to displace the natural succession to the property
alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials
on record.
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil – Section 6 does not bar a lunatic
person from being adopted.

7 CAPACITY OF MALE HINDU TO TAKE IN ADOPTION

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter
in adoption: 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 a Hindu or has
been declared by a 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 preceding proviso.

Ram Sundar v Kali Narain – it was observed that mere weakness of mind is not sufficient, what is
necessary to be proved is that infirmity of mind has been such as to disable him from understanding
what he was doing.

In Ambarish Kumar v Hatu Prasad, it was held that a person who is deaf and dumb but is in a
position to express himself to signs and gestures though not clearly, cannot be called a person of
unsound mind.

8 CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION. – ANY FEMALE HINDU

(a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose
marriage has been dissolved or whose husband is dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of
unsound mind, has the capacity to take a son or daughter in adoption.

If she is not married

 Earlier, an unmarried female as well as a widow had no power to adopt except under the
authority
 Post amendment of the act, an unmarried woman who completes the age of eighteen can
adopt a child.
 Now possible for a unmarried woman to have a legitimiate adopted son

If she be married

 A married woman whose husband is living has no capacity to adopt even with the consent of
her husband
 A woman can take adoption if
 marriage is dissolved
 dead of the husband
 A married woman can adopt –
 husband has ceased to be a Hindu
 completely renounced the world
 husband has been declared by a court as an unsound mind

9 PERSONS CAPABLE OF GIVING IN ADOPTION –

1. No person except the father or mother or the guardian of a child shall have the capacity to
give the child in adoption.
2. Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the father, if alive, shall
alone have the right to give in adoption, but such right shall not be exercised save with the
consent of the mother unless the mother has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound
mind.
3. The mother may give the child in adoption if the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.
4. 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.
5. Before granting, permission to a guardian under sub- section (4), the court shall be satisfied
that the adoption will be for the welfare of the child, due consideration being for this purpose
given to the wishes of the child having regard to the age and understanding of the child and that
the applicant for permission has not received Or agreed to receive and that no person has made
or given or agreed to make or give to the applicant any payment or reward in consideration of the
adoption except such as the court may sanction.

Explanation. For the purposes of this section-

 (i) the expressions” father” and” mother” do not include an adoptive father and an adoptive
mother;
 (ia) ” guardian” means a person having the care of the person of a child or of both his person
and property and includes-
 (a) a guardian appointed by the will of the child’ s father or mother, and
 (b) a guardian appointed or declared by a court; and
 (ii) ” court” means the city civil court or a district court within the local limits of whose
jurisdiction the child to be adopted ordinarily resides.

Dhanraj v Suraj Bai, it was held that adoption of a ‘step-son’ given in adoption by the step-mother

who has no capacity to do so is invalid by virtue of Section 5(i) read with Section 6(ii) of the Act.

A mother can give her child by her previous husband in adoption if she remarries; Mother of an

illegitimate child can give the child in adoption without the consent of her paramour to whom the child

was born

10 PERSONS WHO MAY BE ADOPTED – CONDITIONS

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

In Rakhi v. 1st Addl. District Judge, it was observed that a person aged about 28 years can never

be adopted. Sec. 10 (iv) of the Act prescribed the age at 15 years. Such adoption is to follow the

prescribed procedure for the adoption namely, actual giving and taking in adoption as prescribed in

Sec. 11(vi) of the Act.

In Maya Ram v. Jainarian, it was held that the adoption of a married Jat boy who was above 15

years of age, as valid on the force of customs prevailing in that community.

In Khazan Singh v. Union of India, where the adopted child originally belonged to the higher caste,

but on adoption was to one beloging to the Scheduled Tribe and Scheduled Tribe Certificate was

granted to him on the basis of adoption and it was held that the certificate could not be cancelled

without giving opportunity to the adoptee to prove that adoption was valid in spite of the bar of age.

11 OTHER CONDITIONS FOR A VALID ADOPTION

12 EFFECTS OF ADOPTION

 the child cannot marry any person whom he or she could not have married if he or she had
continued in the family of his or her birth
 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
 the adopted child shall not divest any person or any estate which vested in him or her before
the adoption

13 RIGHT TO ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES

14 DETERMINATION OF ADOPTIVE MOTHER IN CERTAIN CASES

15 VALID ADOPTION NOT TO BE CANCELLED

16 PRESUMPTION AS TO REGISTERED DOCUMENTS RELATING TO ADOPTION

17 PROHIBITION OF CERTAIN PAYMENTS

18 MAINTENANCE OF WIFE

19 MAINTENANCE OF WIDOWED DAUGHTER-IN-LAW

20 MAINTENANCE OF CHILDREN AND AGED PARENTS

21 DEPENDANTS DEFINED

22 MAINTENANCE OF DEPENDANTS

23 AMOUNT OF MAINTENANCE

24 CLAIMANT TO MAINTENANCE SHOULD BE A HINDU

25 AMOUNT OF MAINTENANCE MAY BE ALTERED ON CHANGE OF

CIRCUMSTANCES

26 DEBTS TO HAVE PRIORITY

27 MAINTENANCE WHEN TO BE A CHARGE

28 EFFECT OF TRANSFER OF PROPERTY ON RIGHT TO MAINTENANCE

29 REPEALS

30 SAVINGS
CASE LAWS:

 Brijendra v. State of M.P., AIR 2008 SC 1058