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Question No.

1:- State the categories of persons to whom


Hindu Law applies. Explain whether the members of any
schedule tribe coming within the clause (25) of Article 366 of
the constitution are governed by the codified Hindu Law?
ANSWER:- INTRODUCTION :- The word Hindu is extremely
popular and famous term. Generally every person is known to
it. But the term of Hindu has not been defined till now. A
person may be called as Hindu, but only few knew why they
are Hindu?
Sh. Radha Krishnan in his book Hindu View of Life
at one place said that there was a time when a person was
identified as a Hindu on the basis of region i.e. a person who
resided in India was called as Hindu, it also represented the
nationality.
A time also came in the middle when a person was
called Hindu who believed in Hindu religion or followed it. But
this identity of Hindu also did not remained for too long,
because it was not required for Hindu o believe in Hindu
religion. It is said that though several codified Hindu Laws
were enacted in 195 and 1956 but the term Hindu was not
defined. Today it can be said broadly that a person who is not
Muslim, Christain, Parsi or Jew shall be Hindu.
The Supreme Court in the case Dr. Ramesh
Yashwant Prabhu v/s Prabhakar Kashinath Kunta -1996 and
Manohar Joshi v/s Nitia Bhausher Patil-1996 explain the term
Hinduism related to Hindu as the life style and mentality of this
continent.
Now the term Hindu can be widely defined the
person to whom Hindu Law applies shall be Hindu.
PERSON TO WHOM HIDNU LAW APPLIES:The following person can be kept in categories mentioned
against each :-

1. Those persons who are Hindu, Jain, Buddhist or Sikh by


birth:i) A person is called Hindu by birth who is the child of Hindu
Parents i.e. whose parents are Hindu but such person is also
considered Hindu whose either of the parent is Hindu and has
been brought up under Hindu traditions.
A case : Maya Devi v/s Uttram -1861, this view was
proved. Another case of Sh Devavasan v/s Jaya Kumari
-1991, Kerala High Court held that male of Nadar caste of
Travancore marry any non-Hindu female and a child born out
of such marriage shall be Hindu
Here pertinent to mention that according to ancient
Dharamshashtras, a child born between Hindu parents only
can be called Hindu, there was no such thing of Hindu
conversion of religion. Therefore it was said that, A Hindu is
born not made
Application of Hindu Law over Schedule tribes :
Several times a question arose that a codified Hindu Law does
not apply to those persons which belongs to schedule tribe
under article 366 clause (25) of the constitution. Section 2(2)
of Hindu Marriage Act 1955 and the case of Dashrath v/s
Guru -1972 Orrisa and Kadam v/s Jeetan -1973 of Patna
given the answer of this question. According to them a codified
Hindu Law shall apply to such persons only when the Central
Government notifies in the official Gazette by a notification.
CHILD FROM HINDU FATHER & CHRISTAIN MOTHER
A question also arosed that whether such person shall be
considered to be Hindu whose father is Hindu and mother is
Christain? A case Commissioner of Income tax v/s Sridharan
-1976 : a positive answer was given and said that if either of
the parent is Hindu and child born out of them is brought up
under Hindu traditions then that child shall be considered as

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

section as Hindu because though they may be governed by


their views or rules but finally are related to the Hindu religion.
APPLICATION OF ENACTED LAWS
The enacted laws applies over the following:i) Who are the followers of Veer Shav, Lingayat or Braham
samaj. Prathna Samaj or Arya Samaj and are Hindu by
religion.
ii) Who are Jain, Buddhist or Sikh by religion.
iii) Who are resident of territory to which enacted law applies
and are not mussalman, Christain, Parsi or Jew and has not
been proved that in the absence of enactment, they would not
have been governed by Hindu Law or a custom or practice of
its part.
THE FOLLOWING PERSONS ARE HINDU, BUDDHIST OR
SIKH BY RELIGION
(a) Any child, legitimate or illegitimate, whose both parents
are Hindu, Buddhist, Jain or Sikh by religion.
(b) Any child legitimate of illegitimate whose either of parent is
Hindu, Buddhist, Jain or Sikh by religion and has been brought
up a member of that tribe community or group to which that
parents was or is member.
(c) Any person who has converted or reconverted to Hindu,
Buddhist, Jain or Sikh religion : Cases : Perumal v/s
Punnuswami-AIR-1971 & Durga Parsad v/s Sudarshan Swami
AIR-1940 Madras. This was proved.
*****************

Question No.2:- Under the Hindu Law, Clear proof of usage


will outweigh the written text of Law. Comment and state
whether custom is still a source of modern Hindu Law?
OR
What are the various sources of Hindu Law? To what extent
custom still continuous to be important source of Hindu Law?
Illustrate your answer.
Answer : INTRODUCTION:- The Hindu Law is credited to be
the most ancient law system which is approximately 6000
years old. The sources of Hindu Law can be kept under two
headings:1. Ancient or original sources.
2. Modern Sources.
1. ANCIENT SOURCES :- According to Manu there are four
sources of Hindu Law as per following details, in addition to
these four there was also that what is agreeable to ones
conscience:1. Shruti
2. Smriti
3. Digest and Commentaries 4.
Custom and Usages.
2 MODERN SOURCES: - Following are the modern sources
of Hindu Law :1. Equity, justice and good conscience.
2. Precedents
3. Legislation.
Sources of Hindu Law
_________________________________________________
_________
Ancient Sources

Modern Sources
Shruti
Smriti Digest & commentaries
Custom and
Usage
_________________________________________________
________
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.

3. Digest and Commentaries :- These are the third important


source of Hindu Law. The commentaries through professing
and purporting the rest on the smrities explains modified and
enlarged tradition recorded there to bring them into harmony
and accordingly to prevent practices of the day. Case :
Atmarao v/s Bajirao -1935: It was held that Digest writers and
commenters has given the statements of Smritis which can
fulfil the present requirements & ahead from smrities. The
period of the commentaries and digest is between 700 AD
-1700Ad. The last commentary was Vajanty written by Nand
Pandit.
4. CUSTOMS AND USAGES :- These are considered an
important source of Hindu Law. Narad Smriti says that,
Customs are powerful they are above the religion. D.F.Mulla
says that, Among the three sources of Hindu Law Custom
and Usage are the one.
According to Holland, Custom is a step of generally followed
conducts As a way is created over gress by repeated walking
similarly custom is created in accordance to the conduct of
everyday life.
Case: Collector of Madurai v/s Mottaramlingam -1868: Privy
Council held that in Hindu Law the clear proof of customs shall
be more relevant then the basic epics of law.
Case: Harparsad v/s Shiv Daya -1816: It was said that, the
custom is family or particular class or area owing o a long
tradition.
Although codified law has given place to custom, but it is
limited. Codified Hindu Law recognises custom only when it
has been expressly given a place. Custom under Hindu
Marriage Act 1955 can be applied over two topics :
i) Any Marriage may be solicited by the customary tradition of
the parties.

ii) Divorce can be obtained be prevailing custom or usage and


a married male of female above the age of 15 years can be
adopted as customary rules.
The Judicial Committee explained that, Custom is a rule
which in a particular family or in particular district has from
long usage, obtained the force of law.
Hindu sages have recognised good custom binding on the
Hindu. Manu says, In memorial is transcendent Law.
Custom is divided in three parts:i) Local custom ii) Class custom iii) Family custom.
5. EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India
the origin of equity is traced the Hindu period when jurists
explained the old law and gave new rules of interpretation and
equitable solutions in cases of conflict between the rules of
various law. In case of a conflict between the rules of smrities
that should be followed which is based on reasons, justice and
principles of equity.
In view of the above observations and its practical
application it will not be incorrect to mention equity justice and
good conscience as the next source of Hindu Law. Actually
Britishers not only established a judicial system in India but
also facilitated though the High Court charters that wherever
their is lack of lawful rules, their the decision should be on the
principles of equity, justice and good conscience.
Case : Gurmukh Singh v/s Kamla Bai -1951: It was held that,
Where their is lack of rules of Hindu Law over any subject,
there court should pronounce their decision on the basis of
principle of equity, justice and good conscience.
6. PRECEDENT :- It is an important source of law. It means
he Judicial decision over any disputed matter which shall be
guideline for the disposition of future similar disputed matters.

Generally the decision of Supreme Court, High Court, Privy


Council have the effect of precedent over the subordinate
court.
The importance of Precedent as a source of Hindu Law
can be understood from the example that if we have to look
into the importance of custom and Usages in Hindu Law, then
we shall have to analyse the case : Collector of Madurai v/s
Mottaramlingam, it is pertinent to mention here that there are
certain rules for the application of precedent like :i) The decision of Supreme Court is binding over all the
subordinate courts.
ii) The decision of Supreme Court is binding to its subordinate
courts.
iii) The decision of Privy Council is binding over all High
Courts provided that it has not be over ruled by the Supreme
Court. Case: Pandurang Kalu Patil v/s State of Maharashtra2002.
7. LEGISLATION :- The last important source of Hindu Law is
the legislation. Their source has originated after the
establishment of English State in India, when English rulers
started enacting several laws. Laws were enacted in
accordance to the state, time and circumstances, there were
amended too. Today most of the subjects of Hindu Law has
been codified. Some of the important Acts in this respect are :1. Hindu Widow Remarriage Act 1856.
2. Prevention of Child Widow Act. 1929.
3. Hindu Womens right to Property Act. 1930.
4. Hindu Womens right to Seperate Residence and
Maintenance Act 1946.
5. Hindu Succession Act 1956
6. Hindu Marriage Act. 1955
7. Hindu Adoption & Maintenance Act. 1956

8. Hindu Minority and Guardianship Act 1956.

Question No.3:- Discuss the main principles on which


Mitakshara and Dayabhaga schools of Hindu Law differ from
each other.
OR
What are the various schools of Hindu Law? Differentiate
between Mitakshara and Dayabhaga Schools.
Answer : INTRODUCION:- As we know that Hindu Law is two
types :
1. Codified Hindu Law
2. Un-codified Hindu Law.
1. The codified Hindu law applies to all Hindu equally
whereas the un-codified Hindu Law the situation is different.
The application of Un-codified Hindu Law depends upon the
context of different schools. As per the context of schools,
Hindu Law is of two types :1. MITAKSHARA SCHOOL
2. DAYABHAGA SCHOOL
The Mitakshara school has further the following sub schools :
a) Banaras or Varanasi sub school.
b) Mithila Sub school.
c) Maharashtra or Mumbai sub school.
d) Dravid or Madras sub school.
e) Punjab sub school.
SCHOOLS OF HINDU LAW
MITAKSHARA SCHOOL
DAYABHAGA
SCHOOL
Banaras
Mithila
Maharashtra
Dravid
Punjab
Case : Collector of Madrai v/s Mottaramlingam 1868: It was

said that, There is only one remote source among the


various schools of Hindu Law, but due to different beliefs of
Digest and its commentaries several schools and sub schools
of Hindu Law have developed.There are mainly two causes to
differentiate between several schools of Hindu Law :-1
.Different Customs and Usages prevail in different parts of the
country.2. These different areas are governed by different
Digest and Commentaries.
MIKAKSHARA SCHOOL
The name of this school came from the Digest Mitakshara of
Vigyaneshwa. The area of its application is whole India
excluding the Assam State. Case : Rohan v/s Laksman
1976. It was held that the effect of mitakshara school is so
strong that it also applies to even undescribed subjects in
Bengal and Assam.
Sub-Schools of Mitakshara
a) Banaras Sub-School :- The area of Banaras sub school is
complete North India, rural area of Punjab, south Bihar, Orissa
and few parts of Madhya Pradesh. The important books
concerning to this are Mitakshara of Vigyaneshwa, Veer
Mitrodaa and Niranaya Sandhu of Mitr Mishra.
b) Mithila sub school : Area= Tirhut and few districts of North
Bihar. Books are Vivadh Chintamani and Vivadh Ratnakar.
c) Maharashtra sub school:- It is also called as Mayuk sub
school. Area of this sub school is Maharashtra, Saurashtra,
Madhya Pradesh and few parts of Andhra Pradesh. Books are
Vyavhar Mayuk, Veer Mitradaya and Nirnaya Sandhu.
d) Dravid sub school :- The whole south of India, i.e. Madras,
Kerala, Mysore. Books are Smriti Chandrika, Parashar
Madhviya, saraswati Vilas, Vyavhar Niranaya.
e) Punjab sub school :- Area of the school is Punjab,
Rajasthan, Jammu-Kashmir. This sub school emphasized on

Customs and Usages. Books are Digest on Yagyavalkya


Smriti written by Aprak, Mitakshara & Veer Mitrodaya.
DAYALBHAGA SCHOOL
Its name came from the Digest Dayabhaga of Jimuthvahan.
The area of its application is Bengal and Assam. The period
of writing of Dayabhaga is considered to be 1090-1130 A.D.
Dayabhaga is mainly on essay on partition and succession.
DIFFERENCE BETWEEN MITAKSHARA DAYABHAGA
SCHOOLS
The above two schools has the principally differences on two
subjects:1. INHERITANCE
2. JOINT FAMIY & COPARCENARY.
1. MITAKSHARA SCHOOL: i) :- I) Inheritance in
Mitakashaara is based on relation by blood. 2. A relative by
blood receives succession in property which is the basic
principle of Hindu succession law. 3. Women have been
excluded in succession. 4. Agnates supersedes the
cognates.5.The area of its application is whole India except
Assam State. The coparcenary evolves with the birth of a son.
Property over which all coparceners have similar ownership.
5. No coparcenary can say before partition that he is the
owner of that particular property. Coparcenary has been
recognised by this school.
2. DAYABHAGA SCHOOL :- i) 1. The succession of property
in Dayabhaga school based on spiritual principles. 2. In this
school successor of property is such person who earns
maximum peace and religious profit for the soul of deceased
by performing Pindadaan & religious rituals etc. 3. This law is
liberal because few women and cognates can also receive
property in succession, but after passing of Hindu Succession
Act this has been ceased. 4 The coparcenary evolves after the

death of the father. In Dayabhaga school the son has no right


during the lifetime of the father.5. On the death of a Hindu
Person his property shall devolve among his heirs on the
basis of succession.6. Coparcenary has been recognised by
this school.
***********

Question :- 4 Discuss the essentials of a valid Hindu Marriage


under the Hindu Marriage Act, 1955.
OR
What is the nature of Hindu Marriage? What are the essential
conditions of a valid Hindu Marriage?
Answer :- INTRODUCTION : Marriage in Hindu culture is
considered to be a sacred ritual. The relation of husband &
wife is considered to made far several life times. Once a
person enters into marriage it cannot then be easily dissolved.
Both have to spend their lives with each other. It is reason that
wife is called the second half.
There are several synonyms in Hindu
Dharamshashtras far husband-wife, husband is also known as
Bhartar, Swami because he maintains his wife and wife is his
responsibility. He is also called the Parmeshwar because the
greatest duty of wife is the service of her husband. Similarly
wife is called Jaya because child is born through her. Wife is
also called Lakshmi she is the best friend of husband.
Every person is required to marry not only for child birth but
also for the performance of religious and spiritual duties and to

release the father from his dept.


ESSENTIAL CONDITIONS OF VALID HINDU
MARRIAGE
Section 5 of Hindu marriage act 1955 mentions essential
conditions of marriage, which are as under :i) Either of the parties at the time of marriage shall not have a
living husband or wife.
ii) Either of the parties at the time marriage shall not be
unsound mind effected or retarded of mental development.
iii) Male shall be of 21 years and female of 18 years of age at
the time of marriage.
iv) Unless both the parties are governed by their custom or
usage the marriage shall not occur between parties under
degrees of prohibited relationship.
v) Unless both the parties are governed by their custom or
usage the marriage shall occur between parties related to
each other by sapinda.
Section 7 of the Act also mentions another condition for valid
marriage. According to it, marriage shall be solemnised
according to customary tradition and rituals. Where saptpadi is
necessary it required to be performed compulsoryily. Case :
Sujeet Kaur v/s Garja Singh 1994, it was proved. But in the
case of Nilabba Somnath Tarapur v/s Divisional Controller
KSRTC Bijapur -2002, it was held that where saptpadi is not
necessary according to tradition and rituals there a marriage
solemnised without Saptpadi shall also be valid.
Section 8 of the act is provides for the registration of marriage
but it is not necessary although Kangawai v/s Saroj -2002, It
was recommended to make the registration of Marriage
necessary.
Now there are some slight changes have been made in the
Hindu Marriage Act, 1955 and certain conditions has been

imposed far a valid marriage which gives it a farm of


agreement :
1. The parties of marriage shall be major i.e. male should be
above 21 years of age and female should be above l8 years of
age.
2. Both parties should be of sound mind.
3. Provision of dissolution of marriage.
4. Saptpadi not necessary.
However there are certain provision of Hindu Marriage Act,
1955 which makes it sacred in its nature :1. Marriage of minor shall not be considered to be void or
voidable.
2. Unsoundness shall not be the ground of void marriage,
rather shall be for voidable marriage.
3. The law & procedure of dissolution of marriage is not
simple.
4. Where Saptpadi is necessary it has to be performed.
5. Caste based customs and usage in marriage are
recognised.
6. Marriage not allowed among sapinda prohibited relations.
As to the question of marriage when there is already living
husband or wife. It was held in the case of Rampyari v/s
Dharamdas 1984: that if any one performs second marriage
when there is already living husband or wife, then such
marriage shall be void.
EFFECT OF VOILATION OF CONDITIONS
If the conditions of valid marriage are violated then it shall
have the following effects :1. i) When at the time of marriage there is living husband or
wife of any party.

ii. When parties of marriage fall within Sapinda reation.


iii. When parties of marriage fall within degrees of prohibited
relationship.
2. If at the time of marriage if any one is un-sound mind
effected or retarded of mental growth then such marriage shall
be voidable.
3. If essential condition of age as to marriage has been
violated then it shall be punishable under section 18 of the Act,
but such marriage shall neither be void nor voidable.
ARYA SAMAJ MARRIGE
Such marriages have been recognised under Arya Samaj
Marriage Validification Act 1937.
SECOND MARRIAGE IN CASE OF LOST PARTY
Several times a question arrises that if any party to marriage
has been lost then whether second party can enter into
second marriage?
Section 13(1)(vii) of Hindu Marriage Act 1955 has to be
analyzed in this respect. It provides that it nothing has been
heared about the living or non living of any party to the
marriage during the period of seven years or more, then a
decree of dissolution of marriage could be passed on this
ground. Thus a second marriage could be performed after
obtaining the decree of dissolution of marriage on above
ground. In fact a person unknown far a period of seven years
or more is considered to have civil death.
Thus at present circumstances the nature of marriage is
neither completely sacred nor completely agreement. It is a
mixture of both. It consist of both.

Q. No. 5 Distinguish between void and voidable marriage?


OR

What is meant by Void and Voidable Marriage?


Answer: - INTRODUCTION: - Section 11 & 12 of Hindu
Marriage Act, 1955 provides far void and voidable marriage
respectively:VOID MARRIAGE
Section 5 of the Hindu Marriage Act 1955 mention about the
essential conditions of a valid marriage. It contain certain such
conditions which if violated shall result into a void marriage.
Section 11 of the Act had considered following marriage to be
void:1. Where at the time of marriage any party has a living
husband or wife.
2. Where parties to the marriage fall within sapinda
relationship.
3. Where parties to the marriage come with degrees of
prohibited relationship
A case: Rampyari v/s Dharamdas 1984: It was said by
Allahabad High Court that an application for declaring a
marriage void is not required to be presented by the victim
only.
Another case : Leela v/s Lakshmi 1968: It was held that void
marriage does not require even the decree of a court.
VOIDABLE MARRIAGE
Section 12 of the Act mention about voidable marriage.
According to it, in case of marriage being voidable, the court
may decae it Null under following conditions :1. Where marital cohabitation has not occurred due to
impotency of the respondent.
2. Where at the time of marriage any party failed to give valid
consent due to unsoundness or has been effected by mental
retardness to such extent that he is incapable to marriage and
giving birth to child, or suffers from frequent insanity or is

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

due to any physical or mental situation. A case Digvijay v/s


Partap Kumai -1970 and Bibi v/s Nath 1970: It was held that
nullity of marriage requires the existence of impotency at the
time of first cohabitation.
UNSOUNDNESS :- A case of Ratneshwari v/s Bhagwati1950: It was said that unsoundness insanity or lunacy for the
purpose of marriage means: The incompetency of any party to
marriage to understand the rituals of marriage.
FRAUD OR FORCE :- Concealment of caste religion or
misrepresenting a mother as a vingin or false praising or
concealing prior marriage etc., are good example of fraud.
LEGITIMACY OF CHILD BORN IN VOIDABLE AND VOID
MARRIAGE
Section l6 provides for the legitimacy of child born in void and
voidable marriages. According to it, it can be said that such
children are considered legitimate. Section 16 says : Where
any decree of nullity has been passed regarding marriage
under section 11 & 12 then any child having born or being in
mothers womb before the decree, if the marriage instead by
decree of nullity to declare null or void would have been
breached shall have been the legitimate child of the parties to
marriage, shall be deemed to be legitimate even after passing
of decree of nullity. Such children does not obtain any right in
the property of persons other than his own parents i.e such
children shall not inherit property from any other relative other
than the parents. A case : Bansidhar v/s Chabi 1967 : It was
held that the children from void and voidable marriage shall be
deemed to be the legitimate children of their parents.
VOID MARRIAGE
VOIDABE
MARRIAGE
It is void ab initio.

It is valid marriage

until it has not


Been declared null by a decree.
No marital rights and obligation arrised between the parties of
void marriage. All marital rights and obligation exists till the
marriage is valid.
Void marriage does not require the decree of court to declare
it null. Voidable marriage can be declared null only by the
decree of court.
Parties to void marriage can remarry again. Parties to
voidable marriage cannot remarry till the prior the marriage
has not been declared null by a decree.
Wife is not entitled to get maintenance under section 125 of
CCP in a void marriage. A case of Yamuna Bai Anantrao v.
Anantrao Shivram, 1988. Wife can claim maintenance in
voidable marriage.

Question No.6 : Discuss the grounds for obtaining a decree of


divorce. On what special grounds a Hindu Wife can claim a
decree of divorce against her husband under the provision of
the Hindu Marriage Act, 1955.
Answer:- INTRODUCTION :-Judicial Separation and
dissolution of marriage are two important matrimonial
remedies. It means suspension of marriage relation and
dissolution means suspension of termination. Any party of the
marriage can present an application for judicial separation and
dissolution of marriage. Both these have been mentioned in
section 10 and 13 of Hindu Marriage Act 1955.
It is pertinent to mention here that although the grounds
of Judicial separation and dissolution of marriage may be the
same but they are different. Dissolution of Marriage terminates
the marriage, no marital relationship exist between husband

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

that the applicant cannot reasonable be believed to live with


the respondent.
vi) When the other party is suffering from incurable leprosy.
vii) When the other party is suffering from veneral discease.
viii) When the other party has declared Renunciation of world.
ix) When the other party is living or not, has not been heared
by those for a period of 7 years or more, who would have
heared naturally if that party would have been living.
x) When the cohabitation has not resumed between the
parties to marriage after the expiry of one year or more from
the date of decree of judicial separation.
xi) When the conjugal rights has not been resituated within
one year or more from the date of decree of restitution of
conjugal right.
GROUNDS AVAILABLE TO WIFE FOR OBTAINING
DIVORCE
Under section 13(2) of Act which provides those grounds on
which wife only can present an application for divorce. These
are as under :1. In case of marriage solemnised prior to the passing of
Hindu Marriage Act, the husband had remarried and living
second wife with whom he had married prior to such passing
provided that in both cases the second wife was living at the
time of presentation of application.
2. When after the solemnisation of marriage the husband had
been guilty of rape solomy or bestiality.
When in a suit under section 18 of Hindu Adoption &
Maintenance Act, 1956, or in a proceeding under section 125
of CPC-1973, a degree or a order had been passed against
the husband for the payment of maintenance to the wife even
when she lived separately and after the time of issuing such
degree or order the cohabitation had not been resumed

between the parties with in a period of one year or more.


3. When wife had married at a time when her age was below
15 years and she after attaining the age of 15 years before
attaining the age of 18 years, had repudiated the marriage.
DIVORCE BY MUTUAL CONSENT
Hindu Marriage (Amendment) Act 1976 added another section
13A to Hindu Marriage Act 1955 to provide mutual consent as
a ground for divorce. According to it both the parties to the
marriage can jointly present an application for divorce on the
ground of mutual consent in the situations mentioned below :a) When husband & wife had been living separately for a
period of more than one year.
b) They are incapable of living together.
c) They have accepted divorce by mutual consent.
****************

Question No.7:- Explain the terms Desertion & Cruelty as


ground of divorce?
Ans :- INTRODUCTION :- Section 13 of Hindu Marriage Act
1955 mentions the various grounds of divorce. Out of these

grounds Desertion and Cruelty are also the grounds for


divorce. The provisions have been made in section 13(1)(ii)
for cruelty and section 13(1)(iii) provides desertion.
DESERTION
Means a party to a marriage permanently leaves the other
party without any reason and without his consent. This also
include ignoring of one party by the other. Thus desertion is
not abandonment of place, but is of situation. When situation
of desertion continues for more than two years, then it shall be
the ground of divorce.
A case of Savtri Pandey and Premchand pandey -2002: The
Supreme Court held that, the desertion means ignorance
from matrimonial duties, instead of leaving any place.
Desertion requires existence of cohabitation between the
parties earlier.
Desertion is mainly of two types :1. Actual desertion
2. Constructive desertion.
ACTUAL DESERTION: - Actual desertion consist of the
following elements:a) Fact of desertion.
b) Intention of desertion.
c) Desertion without any reasonable cause.
d) Desertion without the consent of applicant.
e) Desertion continues for two years.
Actual desertion mainly requires two essential things:
Respondent abondous matrimonial home and there is
intention of desertion. This is also called physical separation
and Animus desertion. Case: Vishwanathdas v/s Maya bala
Das 1994: the court held that there should be intention of
desertion.
One of the important thing that desertion requires guilt

by one of the parties i.e. desertion shall not be by consent.


Case Gurubachan Kaur v/s Pritam Singh-1998. In a case of
Vipin Chandra V/s Prabhawati 1957: is a good example in
this context. Wife was ready to live with husband but the
husband was not willing to live together. The husband also
send a telegram to the father of wife that read : Do not send
Prabha court did not held desertion by Prabha because she
was willing to return to her husband. Thus in all, desertion
requires abandonment of matrimonial home and a permanent
intention of such abandonment. Desertion is required to be
without reasonable cause.
Another case of Roshan Lal v/s Basant Kumari -1967-68
Punjab: The wife does not agree to live with the husband
along-with his parents. She wanted that the husband should
live separately leaving the parents for which husband was not
ready. Wife went to her parents. It was held desertion. The
Court held that It to be desertion by the wife.
Here it is important that desertion requires guilty by one of the
parties i.e. desertion shall not be by consent as stated by the
Court in the case of Gurbachan Kaur V/s Pritam Singh- 1998.
CONSTRUCTIVE DESERTION
As we have seen above, desertion does not mean
abandonment of place, rather is abandonment of situation. It is
constructive desertion. In other words, it can be said that
desertion means not abandoning the place, rather is ignoring
the cohabitation. If any party to marriage devoids the other
party from cohabitation even with living in one house, it shall
be desertion.
Here, it is important that if any party to marriage behaves in
such manners with the party that it becomes difficult for the
other party to live in matrimonial home or is compelled to
leave the matrimonial home, then it shall be considered to be

desertion by the first party. (Jyotish Chandra v/s Meera 1977,


Anil Kumar v/s Shefali 1977, Omprakash v/s Madhu, 1997)
The desertion may terminate in following three situation :1. Resume Marital Life;
2. Resume Cohabitation, or
3. Express willingness to return back to home.
Cruelty:- it is an important ground for judicial separation and
divorce. If any party to marriage behaves with cruelty to the
other party, then the other party can present an application for
divorce against the first party on this ground.
Definition of Cruelty:- Cruelty has not been universally defined
till now. It depends upon the circumstances of the case and
the country and time. Russel v/s Russel, 1897 Cruelty has
been described as such characterial behaviour or conduct
which may put life and body under physical or mental form of
danger or may arise apprehension of such danger.
If the definition is understood in matrimonial context, it shall
show that any party to marriage may behave with other party
in such manner that it shall be difficult for other party to live
with him, this shall be cruelty.
Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been
held that husband along with his parents use to regularly beat
the wife. Father-in-law physically misconducted with her.
Husband neve went to bring back wife nor made any attempt
towards it. Court held this behaviour of husband to be cruelty
because such circumstances arose that it became difficult for
wife to live with the husband.
Similar case is Yadhister Singh v/s Smt. Sarita, 2002 wife
used to live at ancestral home of husband. Husband was
working somewhere else. Husband never wanted to keep wife
along with him. He used to come at his ancestral home once a
week. He did not used to say his wife that he did not liked her,

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.

Ques:-Valid Adoption under Hindu Adoptions and Maintenance


Act, 1956
Introduction:- Section 6 of the Hindu Adoptions and
Maintenance Act, 1956 provides the requisites of a valid

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

wife has completely and finally renounced the world, or


the wife has ceased to be Hindu, or
the wife has been declared by a Court of competent
jurisdiction to be unsound mind.
If a man has more than one wife living at the time of adoption,
the consent of all the wives must be obtained. The Act has
given two qualification for a male Hindu to capable to taka a
child in adoption i.e. the person must be of sound mind and he
must not a minor. The man is required to take consent of the
wives or wife, before adoption. Without the consent of wife or
wives the adoption will be void.
2. Capacity of a female Hindu to take in adoption
Now a female has also the capacity to adopt any child.
Section 8 of the Act provides that any female Hindu who is of
sound mind, who is not minor and who is not married or if
married, whose married has been dissolved or whose
husband is dead has the capacity to take a son or daughter in
adoption.
A woman who is of sound mind and is not a minor can take
child in adoption. The woman has no right to adopt, during the
subsistence of the marriage, if the husband not suffering with
any of the disabilities mentioned in Section 8 of the Act. The
unmarried and widow woman has also the right to take in
adoption any child.
3. Person capable of giving in adoption
Section 9 of the Act down the capacity of person, who may
give the child in adoption to another. No persons except the
father or mother or the guardian of the child shall have the
capacity to give in adoption.
Capacity of the father to give in adoption :- If the father is
alive, he shall alone have the right to give in adoption but such
right shall not be exercise save with the consent of 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

with a ceremony will be valid.


Refer a case of Lakshman Singh Kothari v/s Smt. Rup Kuwar,
1961 the court held that under the Hindu Law there can not be
a valid adoption unless the adoptive boy is transferred from
one family to another by doing the ceremony of given and
taken.

Question: Explain the powers of Karta in a joint Hindu Family?


Whether he can mortgage the undivided shares of other
coparceners in the property.
Answer : INTRODUCTION:- The position of karta n a joint
hindu family is unique. He is that person who takes care of the
whole family and its property and admininsters it and all the
members of family remained disciplined under him. It has
been said regarding the position of karta that no one else is
equivalent to him in the family. The position and powers of the
karta are more wide than anyone
POWERS OF THE KARTA
1. He has the complete control over the family.
2. No one can claim accounts from him nor can say to him to
spend less.
3. There is no binding over him that how much he shall spend
over any coparcener.
4. It is within his power to whom he may educate and whom
he keeps illiterate.
But this does not mean that he is dictator. His position is

extremely sensitive. He has to move along-with all the


members. Thus the position of the karta is mixture of rights
and duties. He has to maintain the control between rights and
duties.
WHO CAN BE A KARTA
1. Hindu Law believes that the seniormost coparcener is the
Karta of the family. Refer case of Ram v/s Khera -1971.
2. Any coparcener becomes Karta of family because of his
seniority not because of anyone appointed him. Refer a case
to this effect Mann V/s Jayani-1918 it was held that such a
person till he lives continues as the karta of the family
although he may be aged, handicapped, week or ill.
3. However any karata becomes unsound mind then the
seniormost coparcener would become the karta.
WHETHER A JUNIOR MOST COPARCENAR BECOMES
KARTA.
1. Generally it does not happen but in a case of Narendera
Kumar V/s Intcome Tax Commissioner-1976, it was held t hat
a junior coparcener can be the karta with the consent or
agreement of all the coparceners.
In another case of Harihar Sethi V/s Ladu Kishore Sethi -2002,
it was held by the Orisa High Court that junior coparcenar
can be the karta when the senior most coparcener waives his
right of karta then a junior member can become Karta.
Whether mother can become the Karta.
In case of Pandurang V/s Pandurang -1947 it was held by the
Nagpur High Court that the mother can become Karta if their
is no other adult coparcener here the Supreme Court does not
agree to this view in case of Commissioner of Incometax Vs
Seth Govind Ram -1986.
The Karta of Joint Hindu Family at a time can only one not
more, but with the consent of other coparcener there can be

more than one Karta: refer a case of Mudrit vs Ranglal 1902


and Shankar v/s Shankar 1943.
THE RIGHTS OF KARTA
1. Right of managemnt: He has the right to manage all the
duties trade, business industry etc., no one can challenge him.
2. Right over Income :- The income of the family remains
under his control. He may spend as per the requirements.
3. Right of Representation : He can represent the family in all
types of social,religious, legal and matrimonial matters. The
decision of karta is binding over all. He can file suit. Refer a
case in this regard: Fatimanisa v/s Raj Gopalacharya -1977.
4. Right to debt. : He can any debt for the requirement of the
family. Such debts shall be taken for legal requirements of the
family. The karta can mortgage or pledge the property of
family for this purpose.
5. Right of settlement:- Karta has the right to make an honest
settlement on behalf of family.If any settlement is made not in
good faith it can be challenged refer a case of Nayathambi v/s
Vijay-1972.
6. Right of arbitration :- He has right to solve the disputes of
family through arbitration see a case of Jangan Nath v/s
Mannu Lal 1894 of Allahabad.
7. Right of Acknowledgement: Karta has the right to
acknowledge the debts and making payment of interest but he
cannot acknowledge the time-barred debts.
8. Right of Alienation :- He has the right to alienate the
property of family and take debt for the family with the
following conditions :i) For the benefit of the family.
ii) For the fulfilment of the legal necessaties.
Refer a case in this regard Devi Kishan v/s Ram Kishan -2002
It was held by the Rajasthan High Court that the karta can

Mortgage the property of joint family for legal necessities, but


the following may not be legal necessaities :i) Debt for child marriage violating child marriage prohibition
Act.
ii) Debt over property already mortgaged.
Question :- Who can give child in Adoption?
Or
Who can give and take in adoption?
Answer :- Section 7,8,9 and 10 of Hindu Adoption and
Maintenance Act 1956 provides the following terms for
adoption:1. Competency if Hindu Male to adopt.
2. Competency of Hindu Female to adopt.
3. Person competent to give adoption.
4. Person who can be adopted.
All these above can be studied under the following heads:1.WHO CAN ADOPT :- Section 7 and 8 mention those person
who can adopt. These section has two types of methods of
adoption by male and adoption by female.
ADOPTION BY MALE:
Section 7 provides that an adoption by male requires the
following three conditions :i) Such male shall be of sound mind.
ii) He is major.
iii) Must have the consent of his wife.
Thus such Hindu male can adopt a child who is major, sound
mind and has obtained the consent of his wife. If the adoption
is performed without the consent of wife then such adoption
shall be void. Refer a case of Bhola v/s Ram Lal -1989, It has
been held that if any male has more than one wife then the
consent of all wives are required. If any wife attend the
adoption ceremony it shall be deemed to have given the

consent refer a case of Praful Kumar v/s Shashi Bewa -1990.


It is pertinent to mention that the consent of wife is not
necessary in all circumstances i.e. the consent of wife is not
necessary in the following conditions :1. When wife had renounced the world.
2. When she is no more Hindu.
3. When she has been declared unsound by the competent
court.
ADOPTION BY FEMALE
Section 8 provides that any female can also adopt a child only
when such female fulfil the following conditions :1. Is unmarried or widow.
2. Is a major
3. Is of sound mind.
It is clear that a female cannot adopt until the husband is
living. Female can adopt a child even when the husband living
only when:
i) The husband had renounced the world.
ii) The husband is not more a Hindu.
iii) The husband has been declared unsound mind by a court.
Here are some important things that if male wants to adopt a
female or vice-versa then the age difference between the two
shall be at-least 21 years.
WHO CAN GIVE ADOPTION
Section 9 mentions those persons who can give a child in
adoption. The followings are eligible for giving a child in
adoption :1. Father 2, Mother 3 Guardian appointed by the court.
If a father gives a child in adoption the consent of mother shall
be required. The consent of mother shall not be required in
following situations :1. When the mother is renounced the world.

2. When the mother is no more Hindu.


3. When the mother has been declared unsound mind by a
court.
Generally a mother cannot give a child in adoption till the
father is living. A mother can give a child in adoption only
when the following occur:1. The father had already died.
2. Father is renounced the world.
3. The father is no more Hindu.
4. The father has been declared unsound mind by a
competent court.
Mother means only the natural mother not the step mother.
Step mother cannot give a child in adoption. Refer a case of
Dharamraj Jain v/s Suraj Bai-1973.
A guardian appointed by the permission of court can give a
child in the
following conditions :
1. When both father and mother had died.
2. When they have renounced the world.
3. When they do not remain Hindu.
4. When they have been declared unsound mind by a
competent court.
It is further to submit that the court will consider the following
points while permission for the adoption:1. The age of child.
2. Knowledge of the child.
3. Intention of the child.
4. Interest and welfare of the child.
5. No consideration by the guardian etc.
WHO MAY BE ADOPTED.
Section 10 mentions that those persons who may be adopted.
According to the provisions such person may be adopted or

may be given in adoption :1. Who is Hindu.


2. Who has not already been adopted.
3. Who is not married where it has been permitted by the
custom or traditions.
4. Who is not above the age of 15 years where it has not been
permitted by the custom or traditions.
The case of Balakrishna v/s Sadashive-1977, another case of
Mayaram vs Jai Naraian -1989 and Kodippa Rama Papal urf
Shirke v/s Kannappam -1990. It was held that where customs
or traditions allow there a person above 15 years of age or
married can be adopted.
Where as among Maharashtra School and Jains a person of
any age can be adopted refer case of Bishan v/s Girish-1986.
Another case of Dev Gonda v/s Sham gonad -1992, the
Bombay High Court held that any insane can also be adopted.
Further any orphan found child or abandon child may be
adopted.
*************

Question : Describe the rules of succession in the case of


intestate Hindu female dying intestate?
OR
Explain the various rules regarding the distribution of the
property of Hindu female dying intestate.
Answer : INTRODUCTION :- Section 14 of the Hindu
succession Act 1956 had brought drastic change in concept of
property of a female. Now a female being considered to be
complete owner of his property provided that at the time of
implementation of this act:1. She is Hindu.

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

succession from her father or mother then such property shall


devolve firstly within her sons and daughter, and if the sons
and daughters does not exists then it shall devolve among the
heirs of father. Refer a case of Mahadevappa v/s
Goraaamma-1973
And another case of Bhagat Ram v/s Teja Singh-1999, the
Supreme Court held that if any female receive property in
succession from her mother then such property shall after her
death go to her sister but not to the heirs of her husband.
A very good example in this content a case of Taramani v/s
Narender Kumar -2002, the court held that, at the time
implementation of the act the unmarried daughter became the
absolute owner of the property. Therefore after her death the
property shall not devolve among the brothers of father, rather
shall devolve to the married sister.
SUCCESSION OF PROPERTY OBTAINED FROM
HUSBAND AND FATHER IN LAW.
Section 15(2) (B) of the act provide that if any female receives
property in succession from her husband or father-in-law then
such property shall firstly devolve among her sons and
daughters and in case of non-existence of her sons and
daughters it shall devolve among the heirs of husband.
SUCCESSION OF OTHR PROPERTY
Excluding the property received in succession from parents
and husband or father-in-law all other properties shall devolve
according to the mentioned heirs of section 15(1). The
general rule of preference is that prior class shall have
preference over the subsequent class.
ILLUSTRATION :- The property received in succession from
brother gifts at time of marriage other gifts etc shall dissolve
under this category.
METHOD OF DISTRIBUTION

Section 16 of the act mentions the method of distribution of


property among the heirs of Hindu female dying intestate.
According to it, the following method could be expressed in
simpler words in the following way :1.Son daughter and husband each shall receive one share.
2.Sons and daughters of predeceased sons and
predeceased daughters shall receive that share which the
predeceased would have receive if alive.
3.The heirs of the branches of predeceased son or
predeceased daughter shall receive share equally among
themselves.
********************

Q. On what grounds can a Hindu wife claim maintenance from


her husband even while living separate form him. When her
right to maintenance is lost?
Ans:- Introduction:- Under the Hindu society and culture its is
the duty of husband to maintain his wife. These duty is not
legal only but moral also. According to Manu, a person has to
maintain his parents, wife and minor children even after doing
100 wrong acts.
Section 18 of HA&M Act, 1956 accept this system and
provides that a Hindu wife whether married before or after the
enforcement of this act shall be entitled for maintenance from
her husband during her lifetime.
A case in this regard of Jayanti v/s Alamellu, 1904, it was held
that it is the duty of husband to maintain his wife without any
excuse of shortage of funds. Another case Mutyal v/s Mutyal,
1958, it was held that a wife is not entitled for maintenance
when she leaves the house without the consent of her
husband.
Ground of maintenance while living separately
It is pertinent to mention here that the wife is entitled for

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.

6. Another Wife:- Under prior Hindu Law polygamy was


allowed. A man might marry more than one wife. But in Hindu
Adoption and Maintenance Act, 1956 makes monogamy
compulsory and abolished bigamy once for all.
7. Any other cause:- If the wife is of immature age and is living
with her parents she will claim maintenance form her
husband.
In a case Siraj Mohammad Khan v/s Hafizunnis, 1981, it was
held by the Court that the impotence of the husband amounts
to mental cruelty for the wife. It was, therefore, just ground
under section 125 of CR. P. C. to claim separate residence
and maintenance.

Who are coparceners and what are there rights. Whether a


daughter who wants to remain unmarried can claim partition in
the coparcenary property?
Ans:- Introduction:- In Hindu Law joint Hindu family and
coparcenay are two different subject. Joint Hindu family is a
wide concept. Whereas coparcenary is limited. Joint Hindu
Family is created by successors, of one ancestor their mother,
wives, unmarried daughter etc. Whereas coparcenary is
created by father, son, Grandson, grandsons son. Thus the
following persons are coparcener:i. Father
ii. Son
iii. Grand Son
iv. Grandsons son.
After the amendment of Hindu Succession Act, 2005 it is now
considered that daughter as coparceners and they shall have
the right in coparcenay property by birth. Coparcenary may
exists even with Grandfather, grandson or grandfathers father
and grandsons son.
In a case Dashrath Rao v/s Ram Chandra Rao, 1961, the

Court held that the last member of coparcener should not be


more than 4 degree away form the ancestor.
A
B (Son) C (Son)
M (Grandson) N (Grandson) P (Grandson) Q (Grandson)
R (Grandson)
X (Grandsons son) Y (Grandsons son)
Right of Coparcenars:- The Coparcenars following rights:a. Coparcenars have right by birth in the property of
coparcenay.
b. Coparcenars can demand partition of the coparcenary
property.
c. Coparcenars have joint ownership and possession over the
coparcenary property.
d. No coparcener can transfer the coparcenary property.
e. Coparcenar is entitled to maintenance from the coparcenary
property.
f. The right of coparcener is base on survivorship, not on
succession.
g. Coparcenar has the right to see accounts of the property
form the Karta.
Right of unmarried Daughter:- Whether any woman who
decides to live unmarried can claim partition of coparcnary
property?
No woman can be the member of coparcenary but she can be
a member of joint family in such situation it is clear that
a. any woman does not have right by birth in the property.
b. no woman can claim the partition of such property.
c. unmarried daughter entitled to maintenance form the joint
family property.

d. the expenses of unmarried daughter is also charged on the


property of joint property.

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:-

(i) When such person that is guardian is no more Hindu.


(ii) When he has renounced the world.
In case of E.M. Nadar v/s Shri Haran, 1992, it was held by the
court that the father is guardian of minor even if living
separately.
In case of Vijaylakshmi v/s Police Inspector, 1991, it was held
that when father converts to be non Hindu then mother shall
be natural guardian.
In case of Chandra v/s Prem Nath, 1969, it was held that the
guardian below the age of 5 years is mother.
But several decision with the time it has been considered that
if the father is unable and do not have sufficient fund then the
natural guardian shall be mother as described by the court in
the following cases:(i) R. Venkat Subaiya v/s M. Kamalamma, 1992
(ii) Smt. Geeta Hariharan v/s Reserve Bank of India, 1999.
The power of Natural Guardian
The power of Natural Guardian can be kept under two
heading:1. Right regarding the body of Minor
2. Right regarding the property of Minor.
Keeping in the view of the importance of above lines the body
of minor under Section 8 (i) that the natural guardian can
perform all the function regarding care of the minor which are
in his benefits.
The Power of Natural Guardian Property of Minor are as
under:1. Transfer of property:- Section 8(2) of Act says that the
mortgage, sale, gift, exchange of immovable property of the
minor shall be made only prior permission of the court. If the
permission is not obtained it will be voidable. As said by the
Court in the case of Narindra Singh v/s Devendra Singh, 1982

and Vishwan Nath v/s Damodar , 1982.


2. Lease of Propert:- Section 8 (2) (b) of the Act lays down that
any natural guardian cannot lease the immovable property of
minor for more than 5 years or not more than one year after
the minor attains the majority.
3. Right to Contract:- The guardian may contract for the minor,
but cannot enter into a contract which makes the minor
personally liable held by the court in case Waghla v/s Shiekh
Masaluddin and Mir Sarwae v/s Fakruddin, 1912.
Minor cannot the guardian of another minor:- As described in
Section 10 of the Act that no minor can not be guardian of
another minor. In the case of Ibrahim v/s Ibrahim, 1916, it was
held the minor can be the guardian of his wife but cannot be
guardian of her property.

Shruti:- It is most ancient source of Hindu Law. It is such level


that they came in direct contact with the God. The God gave
birth to Hindu Law and whatever was heard by the saints, was
provided as Shruti. Shruti is the synonym used for Veda and
it means what was heard from God.
Source of Hindu Law
Ancient or Original Source Modern Sources
Shruti Legislations
Smriti Precedents or Judicial Decisions
Commentaries and Digests
Customs
Definition of Shruti:- According to Manu, the whole Veda or
Shruti is the first and paramount source of Hindu Law. The
Veda here means that not only the direct texts themselves are

authoritative but also those rules are deducible from them.


Vedas are of four types:1. Rigveda, 2. Yujurveda, 3. Samveda, 4. Artarveda
These are the concept of life, living style, traditions, religious
belief etc. of our ancestors.
In a case of Balusu v/s Balusu, 1899 it was held by the Privy
Council that the adoption of only son is valid with reference to
the story of Atri-Aurva.
Smritis:- It is the second important source of Hindu Law. The
literal meaning of Smriti is whatever was remembered. Thus,
smritis were dependent on the remembrance of saints. The
era of creation of Smriti is also known as Golder era because
it is era when well organised and serial wise development of
Hindu Law started.
Smritis are divided into two parts:a. Dharam Sutras
b. DharamaShastras
Dharam Sutras are famous of Gautam, Budhyan, Aapstamb,
Harit, Vishnu and Vasisth and Dharam Shastras are famous of
Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu
Smiriti made of 12 chapters and 2694 Shlokas fulfilled the
requirement of substantive epic of law. Yagyavalkya Smriti is
divided into 3 parts and is extremely clear, brief and
organised. Narad Smriti being the last smriti, is such first legal
code which mentions subjects related to judicial process,
courts and judiciary.
Commentaries and Digests:- Commentaries are the third
important sources of Hindu Law. Smrities are many. But all the
laws are not mentioned in every smriti. Sometimes there are

inconsistencies between the provisions of one smritie and the


provision of other smriti. DharmaShastra writers tried to
reconcile these conflicting texts of Smritis or laws contained in
those Smritis. These learned commentators and digest writers
either commented on particular Smritis or made digests of the
entire body of Smriti material. These writers modified and
supplemented the rules in the Smritis, in part by mean of their
own reasoning and in part in the light of usages that had
grown up. These Commentators and Digest-writers purport to
expound the law almost exlusively with reference to texts of
the Smrities which are supposed to be only interpreted by
them. These commentators while professing to interpret the
law as laid down in the Smritis introduced changes in order to
bring into harmony with the usage followed by the people
governed by that law. The Commentators and Digest writers of
Southern India support the validity of the marriage of maternal
sister.
case Atmaram v/s Bajirao, the Privy Council emphatically laid
down that in the case of a conflict between the ancient text
writers and the commentators, the opinion of the latter must
be accepted.
The principal commentaries are:1. Dayabhaga by Jimutavahana 2. Mitakshara a commentary
of Yajnavalkya by Vijaneshwara 3. Smriti Chandrika by
Devananda Bhatta 4. Vivada Ratnakara by Chandeshwara.
Agnates and Cagnates :- Section 12 of the Hindu Succession
Act, 1956 determines the series of succession among Agnates
and cognates in following waya. That their shall receive the property whose degree of
ascending order is less or do not exist.

b. Where the degrees of ascending order are same or do not


exist, their that heir shall receive property whose degrees of
descending order is less or do not exist.
c. Where are heir is not entitled to receive property in
comparison to others as pert the Rule (1) and (2), their they
shall share the property equally.

Child in womb:- Section 20 of the Hindu Succession Act. 1956,


recognizes posthumous child as an heir. The Section lays
down, A Child who was in the womb at the time of death of
an intestate and who is subsequently born alive shall have the
same right to inherit to the intestate as if he or she has been
born before the death of the intestate and the inheritance shall
be deemed to vest in such a case with effect form the date of
death of the intestate.
A child in womb is presumed to be born before the death of
the intestate although born subsequently. It is by fiction of law
that the rights of a child born in justo martrimonio are regarded
by reference to the moment of conception and not of the birth.
An unborn child in the womb, if born alive is treated as actually
born for the purpose of conferring on him benefits of
inheritance. This rule recognises old Hindu Law.
Illustration
A male dies on 1st July, 1992, leaving his widow W and his
daughter D. On 1, 1992 widow W gave birth to a normal son.
The son dies next day. What will be the share of W and D? At
the first the property will be distributed in three equal shares,
i.e. W=1/3, D=1/3, Son=1/3 because the son was heir of the
intestate male Hindu. On the death of the newly-born son his
share would devolve on his nearest heir. His heir will be his
mother W.

Disabilities of a murderer for succession


Murderer :- Section 25 of the Hindu Succession Act provides
that A person who commits murder or abets the commission of
murder shall be disqualified form inheriting the property of the
person murdered, or any other property in furtherance of the
succession to which he or she committed or abetted the
commission of the murder.
In Kenchova v/s Gilimallappa, 1924 the Privy Council held,
even apart from Hindu Law, principles of justice, equity and
good conscience exclude a murdered from succeeding to the
murdered person and that it must be regarded as a paramount
rule of public policy.
In Chaman Lal v/s Mohan Lal, 1977, a widow was prosecuted
for the charge of murder of her husband and finally acquitted
of the charge by the court. The brother of the deceased raised
the objection that she was not entitled to inherit the property
as she was charged with the murder of her husband. The
Delhi High court held that as the widow had been acquitted so
she would not be disqualified from inheriting. The Court
observed that it was not the scheme of Hindu Succession Act,
1956 that the Civil Court should again examine the charge of
murder and hold an enquiry or trial independently after
acquittal from the criminal Court.