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Q. What are the various school of Hindu Law?

Differentiate between
Mitakshara and Dayabhaga School?

Ans: There are two main schools: Mitakshara School and Dayabhaga School. The
Dayabhaga School is confined to Bengal and it takes its name after the work
entitled the Dayabhaga written by Jimutavahana. The Dayabhaga is, in fact, only a
chapter of a larger work of that author, but this chapter alone is now extant.

The rest of India follows the Mitakshara School which is so called after the work
entitled Mitakshara written by Vijnaneswara as a commentary on the Smriti of
Yajnavalkya. The Mitakshara (which means measured words) is regarded as
authority even in Bengal in regard to all matters on which there is no
contradictory opinion expressed in the Dayabhaga. The Mitakshara School is
usually subdivided into four schools, namely, the Benaras School, the Mithila
School, the Maharashtra and the Dravida School.

Differences between Mitakshara and Dayabhaga Schools:


The essential differences between Mitakshara and Dayabhaga relate to the
following—

(i) Joint Family: According to the Mitakshara a son, grandson and great-grandson
acquire by birth a right in the ancestral property. This doctrine is the basis of the
Mitakshara joint family. According to the Dayabhaga the ownership of the son can
arise only after the death of the father.

There, is no right by birth. The father has un-controlled power of alienation over
the family property under the Dayabhaga. Under the Mitakshara the father’s
power are qualified by the son’s equal right by birth.

(ii) Survivorship: Brothers who have inherited property from their father have a
right of survivorship in the Mitakshara joint family. The Dayabhaga does not
recognise any right of survivorship and the brothers hold in quasi-severalty with
full power of alienation.

(iii) Widow’s rights: When one of the brothers dies, his widow can succeed to his
share under the Dayabhaga but under the Mitakshara her rights are excluded by
the right of survivorship of the brothers. The widow can then have only a right to
maintenance.

(iv) Sapinda Heirship: The relationship of Sapinda arises according to Mitakshara


by propinquity or community of blood. Under the Dayabhaga it arises by means
of Pinda offerings to deceased ancestors. Spiritual benefit is the criterion for
heirship under the Dayabhaga while consanguinity (blood relationship) is the
guiding principle under the Mitakshara.

Q. Discuss the grounds for obtaining a divorce. On what special grounds a


Hindu wife can claim a decree of divorce against her husband under
provision of Hindiu Marriage Act 1955?
Ans: Grounds for Divorce under the Hindu Marriage Act, 1955

The following are the grounds for divorce in India mentioned under the Hindu Marriage
Act, 1955.

Adultery – The act of indulging in any kind of sexual relationship including intercourse
outside marriage is termed as adultery. Adultery is counted as a criminal offence and
substantial proofs are required to establish it. An amendment to the law in 1976 states
that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of
mental and physical injury that causes danger to life, limb and health. The intangible acts
of cruelty through mental torture are not judged upon one single act but series of
incidents. Certain instances like the food being denied, continuous ill treatment and
abuses to acquire dowry, perverse sexual act etc are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a
period of two years, the abandoned spouse can file a divorce case on the ground of
desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the
other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse
of the petitioner suffers from incurable mental disorder and insanity and therefore cannot
be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by
the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is
easily communicable, a divorce can be filed by the other spouse. The sexually transmitted
diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly
affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be
‘naturally heard’ of the person for a continuous period of seven years, the person is
presumed to be dead. The other spouse should need to file a divorce if he/she is
interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to


resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed
only by the wife.

 If the husband has indulged in rape, bestiality and sodomy.

 If the marriage is solemnized before the Hindu Marriage Act and the husband
has again married another woman in spite of the first wife being alive, the first
wife can seek for a divorce.

 A girl is entitled to file for a divorce if she was married before the age of fifteen
and renounces the marriage before she attains eighteen years of age.

 If there is no co-habitation for one year and the husband neglects the judgment
of maintenance awarded to the wife by the court, the wife can contest for a
divorce.
Q. Describe the rule of succession in the case of intestate Hindu female
under the Hindu Succession Act?

Ans: the succession in Hindus is governed by the Hindu Succession Act, 1956
(‘HSA’). A peculiar fact about this Act is that it makes a differentiation between
the intestate succession of females and males. The female intestate succession is
further dependent on the source from which the property was received by the
deceased female. This post after critiquing the Act as it stands (it being
discriminatory and therefore unconstitutional) discusses the development in law
brought by a Bombay High Court decision, which I hope will be affirmed by the
larger bench putting an end to the present scheme of female intestate succession
amongst Hindus.

The property of a Hindu female under the HSA has been divided into three
categories, viz. property inherited by a female from her father or mother,
property inherited from her husband or father-in-law and the third kind, the
properties which are not governed by the first two categories. This kind of
differentiation, depending upon the source of property and gender, is not seen in
any other religion across the world. Under §15 r/w §16 of the HSA, the general
rule for succession of all kinds of the properties is that it will pass on to the
children (or if children predeceased the female, to the predeceased children’s
children) and the husband. However, in case there is no one in existence from the
above at the time when succession opens, the first kind of property will be
inherited by the heirs of her father and the second by the heirs of her husband.
Perhaps, the intention of the legislature was that the property should go back to
the source from which it was received. It is the succession procedure of the third
kind of property, which includes the self acquired properties or properties
received in any other manner or from any other source, provided the female has
absolute rights in that property, which is under question in this post. §15(1) of
the act provides for a specific order, in which this property divests;

“(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother”

The discriminatory nature of this law can be understood using the case of Om
Prakash v. Radha Charan (‘Om Prakash’). The case pertains to Narayani, after
whose death, there was a dispute regarding the succession of her properties.
Ramkishori, the mother of Narayani, filed an application for grant of succession
certificate under §372 of the Indian Succession Act, 1925. The respondents, who
were the brothers of Narayani’s husband, also filed a similar application to get
the succession of Narayani’s self acquired properties. To understand the
complication in the situation, it is important to know the background of the way
the properties were acquired.

Narayani’s husband died of snake bite within a short period after marriage. She
was then thrown out of her matrimonial place by her in-laws who were the
respondents here. She was never enquired of for the 42 years she stayed in her
parents place after the husband’s death. She was educated by her parents and
subsequently gained a well paid job. Therefore, she left a huge amount of
property including bank accounts, provident funds, land etc. She died intestate at
the end of these 42 years. Despite these facts, the Judges said that sentiments and
sympathy cannot be a guiding principle to determine the interpretation of law
and it should not be interpreted in a manner that was not envisaged by the
legislature. The court stating so said that the HSA specifically mentioned that the
self acquired properties will pass on to the husband’s heirs in the absence of any
issues and husband, which was the case with Narayani also and so the court will
have to pass the judgment in favor of the respondents.

Q. State the procedure for determination of amount of maintenance under


the Hindu adoption and maintenance act 1956. When a widowed daughter
in law can ask for maintenance from her father in law, explain?

Ans: The right of maintenance arises from the concept of an undivided family.
The head of such family is bound to maintain its members, their wives and their
children. It is declared by Manu that “the aged mother and father, the chaste wife,
and an infant child must be maintained even by doing a hundred misdeeds.”

Definition of Maintenance: It is a right to get necessities which are reasonable.


Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines
maintenance. According to this section Maintenance include

(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment,

(ii) in the case of an unmarried daughter, also the reasonable expenses of an


incident to her marriage, (c) “minor” means a person who has not completed his
or her age of eighteen years.

Section 23 (2) lays down the provision in determining the amount of


maintenance, if any, to be awarded to a wife, children or aged or infirm parents
under this Act, regard shall be had to-

the position and status of the parties;


the reasonable wants of the claimant;
if the claimant is living separately, whether the claimant is justified in doing so;
the value of the claimant’s property and any income derived from such property,
or from the claimant’s own earnings or from any other source;
the number of persons entitled to maintenance under this Act.
In determining the amount of maintenance, if any, to be awarded to a dependant
under this Act, Section 23(3) lays down the following considerations-

the net value of the estate of the deceased after providing for
the payment of his debts; the provision, if any, made under a
will of the deceased in respect of the dependant; he degree of
relationship between the two;

the reasonable wants of the dependant;

the past relations between the dependant and the deceased;

the value of the property of the dependant and any income


derived from such property; or from his or her earnings or
from any other source;

the number of persons entitled to maintenance under this Act.

Section 19 - Maintenance of widowed daughter-in-law.- (1) A Hindu wife,


whether married before or after the commencement of this Act, shall be entitled
to be maintained, after the death of her husband, by her father-in law: Provided
and to the extent that she is unable to maintain herself out of her own earnings
or other property or, where she has no property of her own, is unable to obtain
maintenance- (a) from the estate of her husband or her father or mother, or (b)
from her son or daughter, if any, or his or her estate. (2) Any obligation under
sub-section (1) shall not be enforceable if the father-in law has not the means to
do so from any coparcener property in his possession out of which the daughter-
in-law has not obtained any share, and any such obligation shall cease on the re-
marriage of the daughter-in-law.‟

In Raj Kishore Mishra v. Smt. Meena Mishra, Court held that the obligation of
father-in-law shall not be enforceable if he has no means to maintain his
daughter-in-law from any coparcenary property in his possession out of which
the daughter-in-law has not obtained any share. The object of this Section is to
make it clear that the widowed daughter-in-law can claim maintenance from her
father-in-law only where she is unable to maintain herself out of her own
property or from the estate of her husband, father, mother, son or daughter. It is
also provided that the father-in-law shall be under no obligation to maintain his
daughter-in-law except in cases where there is some ancestral property in his
possession from which the daughter-in-law has not obtained any share.