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Hindu. Also in our society the religion of father applies over the
son
In a case Sapna v/s State of Kerala : 1993: It was held that
if a child is brought up as a member of Christain famiy then in
that situation the child shall be christain instead of being
Hindu.
Those persons who are Hindu, Jain, Buddhist or Sikh by
religion:-The Hindu Law also applies to those persons who are
not Hindu by birth but have accepted Hindu religion by
conversion.
Case: Abrahim v/s Abrahim, 1863, is an important case in this
respect. It was held in this case that the Hindu Law applies not
only to those who are Hindu by birth but also applies to those
persons who have become Hindu by conversion. Another case
Morarji vs Administrator General-1929 Madras: It was said that
persons becoming Hindu by conversion are also Hindu and
the Hindu Law applies over them too. Modern Hindu Law
includes both Hindu by birth and Hindu by religion under the
term Hindu.
Those persons who are not Mussalman, Chistain, Parsi
Or Jew.
In wider sense Hindu Law applies to all those who are not
Mussalman, Christain, Parsi or Jew. Case : Rajkumar v/s
Warwara-1989: Calcutta: The Calcutta High Court held that
this category includes all those person who donot believe in
any religion. In other words, it can be said that all persons
different from Mussalman, Christain,Parsi or Jew are Hindu
and the Hindu Law applies over them, who are i) atheist or ii)
believes in all religion, or iii) believes in religion which is
maximum of all.
Another case: Yagyapurushdasji v/s Mooldas -1966: The
Supreme Court held that the followers of Narayan Swami
Modern Sources
Shruti
Smriti Digest & commentaries
Custom and
Usage
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Equity, Justice and Good conscience
Precedent
Lagislation
1. SHRUTI :- The name shruti is derived from the word
sru which means to hear and it signifies what is heard.
Shruties are considered as the primary and paramount source
of Hindu Law. The shruti consist of the four Vedas and
Upanishads dealing with the religious rites that contain the
meaning of attaining true knowledge and moksh as salvation.
Dr. P.V.Kanne in his book, History of Dharamshashtra said
that, If we want to see religion(Law) in a proper way, then we
should analysis Shruti and Smritis.
2. SMRITIS :-Means ,What was remembered thus smritis
were Smritis is known as golden era, because it is era when
well organised dependant on the remembrance of saints and
the era of creation of and serial wise development of Hindu
Law started. It is the second Important source of Hindu Law. It
is of two types first is prose style and the other is of poetry
style.
Smritis are divided into two :
i) Dharam Surtra :- Dharam sutra are famous of Gautam,
Buddhyan, Apastamb, Harit, Vishnu and Vasith.
ii) Dharam Shashtra :- Are famous for Manu Smriti,
Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12
chapters and 2694 shlokas. Yagyavalkya smriti is divided into
3 parts and is extremely clear, brief and organised. Narad
Smriti being the last smiriti is such first legal code which
mentions subjects related to Judicial process, courts and
Judiciary.
insane.
3. Where the consent of guardian is necessary for the
marriage and such consent has been obtained by force or by
fraud as to nature of rituals or any actual facts or
circumstances as to the respondents.
4. Where the respondent is pregnant at the time of marriage
from a person other than the applicant.
Here is important that if marriage is voidable on the ground of
consent obtained by fraud as force, then such marriage shall
be declared null only when:(a) The applicant is presented within one year from the date of
knowledge of fraud as force used.
(b) The parties have not lived as husband and wife after the
knowledge of force used or fraud.
Similarly if the marriage is voidable due to the pregnancy of
wife then such marriage shall be declared null only when the
court is satisfied that :(a) The applicant was unaware of the pregnancy of the wife at
the time of marriage.
(b) If the marriage has been solemnised before this Act came
into force, then the application shall be presented within one
year from the date of enforcement of the Act or if the marriage
has been solemnised after the act came into force then the
application shall be presented within one year from such
marriage.
(c) The applicant has not voluntarily cohabitated after the
knowledge of pregnancy of wife.
(d) Wife had been pregnant from a person other then the
applicant.
(e) She was pregnant before the marriage.
IMPOTENCY
Impotency means the incompetency of any party to cohabit
It is valid marriage
and wife. Their duties & matrimonial rights also ceased. They
can remarry also. Whereas in Judicial Separation neither
marriage terminates nor matrimonial relationship ceases only
the relations get suspended.
GROUNDS OF JUDICIAL SEPARATION &DISSOLUTION OF
MARRIAGE
Section 10 of the Act provides for judicial separation
whereas section 13 of act provides for dissolution of marriage
(divorce). Earlier grounds for above purposes were different
but after the amendment of Hindu Law Act 1976 made the
grounds of both as same.
Grounds:- Section 13 of Hindu Marriage Act 1955 mentions
the ground for Judicial separation and divorce. These grounds
can be divided into three such as :1. Grounds available to both husband and wife (Section 13(i).
2. Grounds available to wife only ( sec. 13(2).
3. Ground of mutual consent ( sec. 13B).
GROUNDS TO BOTH HUSBAND & WIFE
Section 13(1) of the Act mentions the following grounds on
which both husband and wife can present an application for
divorce:i) When other party after the solemnisation of the marriage
had sexual intercourse voluntarily with person other than
husband or wife.
ii) When other party after the solemnisation of the marriage,
had behaved with cruelty with husband or wife.
iii) When the other party prior to two or more years from the
date of presentation of application had deserted the applicant.
iv) When the other party does not remain Hindu due to
conversion.
v) When the other party is of unsound mind or is frequently or
regularly and up-to such limit, affected by mental retardness
but he did say that she should live only with the other
members of family at the ancestral property. Court held it to
cruelty.
There are several cases of cruelty. Actually the definition of
cruelty depends upon the circumstances of the case.
Types of Cruelty:a. Physical Cruelty.
b. Mental Cruelty.
Kusum v/s Kamata, 1965, it was said that the definition of
cruelty is so wide that it includes both physical and mental
type of cruelty.
Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court
said that Mental Cruelty is a state of mind and feelings. In this
case, wife refused intercourse form the first day after
marriage. She also refused to undergo medical examination.
She used to misbehave always with her husband. She also
left her matrimonial home. Court held it to be cruelty by wife
towards husband.
Rakesh Sharma v/s Surbhi Sharma, 2002 - Wife left the
matrimonial home without the permission of the husband. She
used to charge husband with adultery and making constant
demand of dowry. Court held it to be a conduct of mental
cruelty towards husband.
Shobha Srinivas v/s Srinivas Veranna, 2002, Court did not
considered such a single act of wife as cruelty in which the
illiterate wife emotional anger threw the Mangal Sutra.
In all, it means that cruelty is determined by the facts and
circumstances of every matter.
adoption. The person adopting has the capacity and also the
right to take in adoption. The person giving in adoption has the
capacity to do so, the person adopted is capable of being
taken in adoption and the adoption made in compliance with
the other conditions mentioned in Chapter II of the Hindu
Adoption and Maintenance Act, 1956.
No adoption shall be valid unless:1. The person adopting has the capacity and also the right to
take in adoption.
2. The person giving in adoption has the capacity to do so.
3. The person adopted is capable of being taken in adoption:
and
4. The adoption made in compliance with the other conditions
mentioned in Chapter II of the Hindu Adoption and
Maintenance Act, 1956.
According Section 5 of the Act, an adoption made in
contravention of the provisions of Chapter II of the Hindu
Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s
Shakuntla, 2002 the Supreme Court opined that Section 16 of
the Hindu Adoptions and Maintenance Act, 1956envisages a
statutory presumption that in the event of there being a
registered pertaining adoption, adoption would be presumed
to have been made according to law.
1. Capacity of a male Hindu to take in adoption
According Section 7 of Hindu Adoption and Maintenance Act,
1956 any male Hindu who is of sound mind and is not a minor
has the capacity to take a son or a daughter in adoption. But if
the male Hindu has a wife living at the time of adoption, he
shall not adopt except the consent of his wife. But the consent
of the wife of a male Hindu is not necessary in the following
three conditions:-
the
mother.
Capacity of the mother to give in adoption :- The mother may
give the child in adoption if the father is dead or had
completey and finally renounced the world or has ceased to
be a Hindu or has been declared by a court jurisdiction to be
unsound mind.
Capacity of the guardian to give in adoption :- Where both the
father and mother are dead and to be unsound mind and
finally renounced by the world declare by the court then the
guardian of a child may give the child in adoption with the
following conditions laid down by the courts:o That the adoption will be for welfare of the child.
o That the applicant for permission has not received any
payment in consideration of the adoption.
o That no person has given any payment to the applicant for
consideration of the adoption of child.
The father has preferential right to give the child in adoption. If
he is unsound mind or suffering from chronic disease has the
right to give a child in adoption. The guardian may give the
child in adoption with the prior permission of the court.
4. Who can be adopted:- Section 10 of the Hindu Adoption
and Maintenance Act, 1956 the following person who fulfil the
conditions are capable for adoption:a) He should be Hindu.
b) He or She not already be adopted any child adopted.
c) He or She has not been married unless there is a custom
applicable which permits being can adopt.
d) He or She has not completed the age of fifteen years which
is to be considered being taken for adoption.
5. Formalities of Adoption:- (i) The child to be adopted must be
actually given and taken in adoption by the parents/guardian.
(ii) Only after the transfer of a boy from one family to another
2. She is living
3. The property is in her possession. As regard to question of
possession is concerned the cases of Mangal Singh v/s Smt
Ratnu-1967 and Monomayi v/s Upeshwari-1994, it was held
that such possession may be actual or constructive.
SUCCESSION OF PROPERTY OF FEMALE
Section 15 of the Act provides for the succession of Hindu
female dying intestate. Section 15(1) distributes the heirs of
deceased Hindu female in the following five classes :a) Sons and daughters ( which includes the children of
predeceased son or daughter) and husband.
b) The heirs of husband.
c) Father and mother.
d) Heirs of Father.
e) Heirs of Mother.
It is pertinent to mention here that son and daughter includes
illegitimate sons and daughters refer a case of R.A.Patil v/s
AB redekar 1969. Similarly it includes adopted sons and
daughters but does not include step-sons and step-daughters
a case may refer in this context Gurbachan v/s Khechar
Singh-1971.
When a Hindu female dying intestate does not have any heirs
then her property shall devolve with the State refer a case of
Punjab v/s Balwant Singh 1991.
However the property of female can be divided into three
categories in respect of succession:1. Property obtained in succession from father or mother.
2. Property obtained in succession from husband as father in
law.
3. Other property.
SUCCESSION OF PROPERTY OBTAINED FROM PARENTS
Section 15(2) says that if any female had received property in
maintenance only when she is living with her husband but she
is not entitled to maintenance if she is living separately from
her husband. Whoever according to Hindu Adoption and
Maintenance Act, 1956 also makes a provision that a Hindu
wife may also obtain a decree for separate residence and
maintenance from her husband under the following grounds:1. Desertion:- Desertion as a ground for separate residence
and maintenance means the abandoning of the wife without
reasonable cause and without her consent or against her
wish. Under Section 13 (1) of Hindu Adoption and
Maintenance Act, 1956 the duration of the desertion need not
be a period of two years. It may be less than two years.
2. Cruelty:- If the husband treated his wife with cruelty and the
wife apprehension in her mind that it will be harm full or
injurious to live with him. It will be a ground of separate
residence and maintenance. The duty has to prove the
following facts:
That the husband treated her with cruelty,
The cruelty was of such nature which she apprehended in her
mind that it will be harm full or injurious to live with him.
3. Leprosy:- If the husband suffering a virulent form of leprosy
it will be a ground for wife to claim maintenance and separate
residence. The duration of leprosy is not material.
4. Keeping a concubine:- If the husband keeps the concubine
in the same house in which his wife living with a concubine
then the wife may claim separate residence and
maintenance.
5. Conversion:- If the husband has ceased to be a Hindu and
conversion to another religion also a good ground for the wife
to live separate and claim maintenance form his husband.
However, a Jain converted to Sikh it is not a ground for wife to
claim separate residence and maintenance.
Q. Who are the natural guardian of Hindu minor? What are the
powers of such guardian?
Answer:- Introduction:- Hindu Minority and Guardianship Act,
1956 is for such person who minor that is below the age of
Eighteen years and a guardian has been appointed for the
care of his body and his property. This act lays down four
types of guardian:(i) Natural guardian
(ii) Testamantary Guardian
(iii) De-fects Guardian
(iv) Guardian appointed by court.
Who are the natural guardian:- Under Section 4 (c) of the
Hindu Minority and Guardianship Act, 1956 the meaning of
natural guardian is the father of and after him the mother. The
natural guardian of minor wife is her husband. Section 6 of Act
provides that the natural guardian consists of the three types
of person:(i) Father
(ii) Mother
(iii) Husband
Thus the natural guardian can only be father, mother and
husband and according to it:In case of a boy or unmarried girl firstly the father and later
mother is the guardian of a minor upto age of five year is
generally mother. The guardian of illegitimate boy or
illegitimate unmarried girl shall be firstly the mother and later
the father. The guardian of married of girl is husband but here
in the case of minor the step-mother and step-father can not
be guardian. The guardianship can be terminates in the
following situations:-