Hindu law notes

Schools of Hindu law

Broadly speaking, there are two main schools of Hindu law, namely:-

1. The Dayabhaga school, and

2. The Mitakshara school.

The Mitakshara is a running commentary on the code of Yajnavalka. It has been written by an
eleventh century jurist by the name of Vijnaneshwar (বিজ্ঞানেশ্বর), and prevails in all parts of
India (except the province of West Bengal) and in Pakistan. The Dayabhaga School, which is
followed mainly in Bengal, Bangladesh, is not a commentary or any particular code, but is a
digest of all the codes. It has been written by Jimutavahana (জিমুতিাহ). It may also be noted
that the Mitakshara is the orthodox school, whereas the Dayabhaga is the reformist school of
Hindu law.

The Dayabhaga is not divided into any sub-schools, However, the Mitakshara is sub-divided
into four schools prevailing in different part of India, and these four sub-schools are as follows:-

a. The Banaras School, which prevails in northern and western India;

b. The Mithila School, which has most of its followers in Bihar

c. The Dravida or Madras School, which prevails in Southern India; and

d. The Maharashtra or Bombay School, which prevails in Western India.

The Mitakshara and the Dayabhaga school differed on important issues as regards the rules of
inheritance. However, this branch of law is now codified by the Hindu succession Act, 1956,
which has dissolved the differences between the two.

Today, the main divergence between the two refers to certain matters connected with the joint
family system. Under the Mitakshara system, rights in the joint family properties are acquired by
birth, and as a rule females have no right of succession to the family property, which passes by
survivorship to the other male members of the family. Under the Dayabhaga system, rights in
the joint family property are acquired by inheritance or by will, and the share of a deceased male
member goes to his widow in default of a closed heir.

Although it is the Dayabhaga schools that prevails in Bengal, the Mitakshara is also regarded
there is being a very high authority on all question in respect whereof there is no express conflict
between the two schools. Likewise, the Dayabhga is also referred to sometimes in a case
governed by Mitakshara law, on points on which the letter is silent.
Case Ref: Mahavir Prasad vs Rai Bahadar Singh

Differences between Mitakshara school & Dayabhaga school.

We know that the Mitakshara is anterior to dayabhaga and it is a running commentary or the
code of Yajnabalka (িগ্যিলন া) written by Vijaneswara (বিজ্ঞানেশ্বর). The Dayabhga is the
digest of all the codes while giving performance to the Code of Manu.

The two schools mainly differ or the following points:-

1. Inheritance

2. Devolution of Property

3. Joint Family Property

4. Factum Valet

1. Inheritence:

Inheritance under the Mitakshara school—

a. The right of inheritance arises from propinquity (রক্তসম্প ীয়).

b. There are there classes of heirs—

ii. Sapinddas,
iii. Samanadakas
iv. Bandhu

c. So long there are gotraja sapindas or samanadakas, no bandhu or bhinn-gotra sapindas can
generally inherit.

d. A large number of cognate (born of the same family- এ ই িংশিাত/ এ ই িংনশর

অন্তর্ভক্ত
ু ) heirs are recognized in Mitakshara than Dayavhaga

Inheritance under Dayabhaga school—

a. The right of inheritance depends on spiritual efficacy.

b. There are three classes of heirs—

v. Sapindas
vi. Sakulyas
vii. Samanodakas
c. Both agnates and cognates come in the list of sapindas and inherit before sakulyas or
samanodakas.

d. Sapindas are those who can confer spiritual benefit on the deceased by offering pindas and
include both agnates and cognates.

2. Devolution of Property:

Under Mitakshara school property devolves in two ways—

1. Survivorship, and
2. Succession.

Under Dayabhaga no living Hindu has got any heir; succession opens after his death. But
survivorship is not recognized death.

3. Joint Family Property:

Joint family property under Mitakshara school—

a. A son, born to one of the coparceners acquires an interest in the property from the moment
of this birth and he cannot be ousted from such interest which he is alive.

b. The karta or manager has got a restricted right of transfer.

c. Property devolves on the male survivors only.

Joint family property under Dayabhaga school:

a. Succession opens to a son only after the death of the father. A Dayabhga father is competent
to make a tesatamentory disposition of the whole of property. A son has got no right to object to
it. A son cannot claim partition during the lifetime of his father.

b. Succession once opens, share of each heir becomes fixed, and every member can alienate his
share in any way he likes.

c. Property passes by inheritance only and may go to female heirs like widows, daughter etc.

4. Factum Valet:

It is recignised by Dayabhaga school to a greater extent than Mitakshara school. But factum valet
is no defense when the act is immoral or against public policy or prohibited by any Act of
Legislature or against express principles of Hindu law.
Effect of migration on the school of Hindu law.

When a Hindu family migrates from one state to another, the law draws a presumption that it
carries with it its personal law. i.e. the laws and customs prevailing in the state from which it
came. The presumption can, however, be rebutted, by showing that such a family has adopted the
law and usages of the new provinu where it has settled down. Thus for interest, where a Hindu
family migrates, say from Maharashtra (where Mitakshara law prevails), to Bengal (where the
Dayabhaga laws prevails), the presumption is that the family continuous to be governed by the
Mitakshara law. This presumption is that the family has abandoned the law of the province of its
origin (i.e. Mitakshara), and adopted the law of the province where it has settled. (i.e. Bengal).

Partition under mitakshara and dayabhaga laws

Introduction

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

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

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

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

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

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

1. Sons, Grandsons and great grandsons have no birth interest in ancestor property
against their father, so there is no right for partition.
2. It consider the illegitimate son of shudra becomes a coparcener with legitimate sons
when they inherit the property after the death of the father.
3. Father’s wife-no such right
4. Childless step mother no entitle to a share after partition

PROPERTY LIABLE FOR PARTITION

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

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

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

Manu says- following properties are not subject to in division

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

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

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

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

DEDUCTIONS AND PROVISIONS

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

1. Debts incurred for joint family.

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

PERSONS WHO ARE ENTITLED TO DEMAND PARTITION

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

1. Father- he can impose a partition, partial or total between his minor son and himself with
bonafide intention, else, it will reopen. In case of major son and father, it should be by
mutual consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right
partition without the assent of his father, if the father is join with his own father and in
case of Punjab Customary Law, as under Punjab Customary law son have no right by
birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be
reopen to give the share after born son. However Gautama, Manu, Nerada says the after
born son could get the share of his father alone

According to Mitakshara we have few rule for this-

 1. Son conceived at the time of Partition but born after it – person in the womb is equated
the person exist. The tax lay down that if the pregnancy is know the partition should be
postponed till the time child birth, if the other coparceners are not ready for this a equal
share should be reserve if the child born son share should be allowed to them, in
case female it should be expand on her marriage.
2. Not in the womb when partition take place if the pregnancy is not known and no share
has been reserved then the partition should be reopen after childbirth.
3. Son begotten and born after partition- in this case two general rule under Mitakshara
4. When Father has taken his share in the partition- son become the coparcener with his
father.
5. When Father has not taken his share in the partition – son has a right to reopen the
partition and get his share.
6. Adopted Son- he has right if partition take place after adoption, but if partition take place
before adoption he has no right.
7. Illegitimate Son- not entitle for partition and share but for maintenance only.
8. Son void marriage and annulled marriage-not entitle.
9. Minor Coparcener- no distinction between major or minor.

PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER

PARTITION

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

HOW PARTITION IS AFFECTED?

1. Severance of Joint Status or interest-expression of intention- one member of joint family

can express his intention to partition, even though no actual partition take place.
2. by Notice
3. by Will
4. Conversion to another Religion.
5. Marriage under special marriage act.
6. by agreement
7. by arbitration
 8. by father
9. by suit
ALLOTMENT OF SHARESSons are not entitled for any share in presence of father. The share
of deceased coparcener passes to his heir.

Hindu Coparcenary and Hindu Joint Family:

Concept of Coparcenary

Who are coparceners ?

Coparceners are those who have interest by birth in the joint family property. In the ancestral
property of a male his son, grandson and great grandson have an interest by Birth.

Example : A→B1→B2→B3→B4→

If A dies B4 is added so on. To begun with the Coparcenary father and son relationship is
necessary and for its continuation father's presence is not necessary.

Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much narrower
body than a Hindu joint family it includes only those persons who acquire by birth an interest in
the coparcenary property, they being the sons, grandsons, and great-grandsons of the holders of
the property for the time being.

Coparecenary: The Black’s law dictionary gives a more comprehensive explanation of the term
coparcenary. It says, “such estate arises where several take by descent from same ancestor as one
heir, all coparceners constituting but one heir and having but one estate and being connected by
unity of interest and of title. A species of estate, or tenancy, which exists where lands of
inheritance descend from the ancestor to two or more persons. It arose in England either by
common law or particular custom. By common law, as where a person, seized in fee- simple or
fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or
their representatives; in this case they all inherit, and these coheirs, are then called
“coparceners”, or, for brevity “parceners” only. By particular custom, as where lands descend, as
in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc…An estate which
several persons hold as one heir, whether male or female. This estate has the three unities of
time, title and possession; but the interests of the coparceners may be unequal.”
The Dharamasastra and coparcenary: In Dharmasastra coparceners are referred to as
Sahadaee. The term coparceners came to be used as a result of influence of Western
Jurisprudence. Therefore, the present concept is not very difficult from the earlier one. The
justification of coparcenary according to the Dayabhaga School is that those who can offer
funeral oblations (Pindh-daan) are entitled to the property. The concept of Pindh-daan is that the
person who offers funeral oblations share the same blood with the person to whom he is offering
a Pindh. A coparcenary is purely a creation of law; it cannot be created by act of parties, except
by adoption. In order to be able to claim a partition, it does not matter how remote from the
common ancestor a person may be, provided he is not more than four degrees removed from the
last male owner who has himself taken an interest by birth.[9]

Hindu Law of Succession: any part of the Hindu law which is yet uncodified is governed by the
two Schools i.e. the Mitakshara and the Dayabhaga.

According to the Mitakshara School, there is unity of ownership – no person has a definite share
as his interest is always fluctuating with the births and deaths in the family. The whole body of
coparceners is the owner. There is unity of possession and enjoyment. Further, while the family
is joint and some coparceners have children and others have few or none or some are absent, they
cannot complain at the time of partition about some coparceners having exhausted the whole
income and cannot ask for an account of past income and expenditure. Katyayana expressly
states that the joint family property devolves by survivorship that is on the death of a coparcener
his interest lapses and goes to the other coparceners.

The difference between Mitakshara and Dayabhaga School’s conception of coparcenary:

The conception of coparcenary under the Dayabhaga School is entirely different from that of the
Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in
ancestral property, but the son’s right arises only on the father’s death and the sons take property
as heirs and not as survivors.

However, the coparcenary in Hindu law is not identical to the coparcenary as understood in
English law. Thus, in the case of death of a member of coparcenary under the Mitakshara law,
his interest devolves on the other members by survivorship while under English law, if one of the
co-heirs jointly inheriting properties dies, his or her right goes to his or her legal heirs.
JOINT HINDU FAMILY

CONCEPT, NATURE AND CONSTITUTION

The institution of joint Hindu Family is very ancient. It has evolved from the ancient patriarchal
family which can be described as the earliest unit of human society. In simple terms, a joint
Hindu family is a group of relatives tied together by ties of kinship & marriage and descended
from a common ancestor. It includes children, children’s children down the line, spouses. A
joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in
laws/widowed daughters who has returned back to their parental side are part of a Hindu joint
family. A joint family may encompass countless generations.

A joint Hindu Family is headed by a Karta, who is normally the eldest living male member of the
family. Karta has some peculiar rights and obligations under traditional Hindu Law and
withholds the maximum power and duty of superintendence such as how the joint family is run,
who is getting what? How the members are being maintained?

He is also entitled with the power to dispose of the property in times of dire need/necessity. After
2005 amendments by which women have been given equal proprietary rights in ancestral
property even women can be Karta.

A joint Hindu Family is not a corporation. It has no legal entity distinct and separate from that of
the members who constitute it. It is not a juristic person either. It is a unit and in all affairs it is
represented by its Karta or Head. Within its fold no outsider, except by adoption, can be admitted
by agreement or otherwise. It confers a status on its members which can be acquired only by
birth in the family or by marriage to a male member. (Ram Kumar v. Commissioner, Income
Tax, 1953 All. 150.)

MEMBERS OF JOINT HINDU FAMILY

The following category of persons constitute a joint Hindu Family:

1. Persons, lineally connected in the male line.

2. Collaterals
3. Any person related by adoption
 4. Dependants
5. Son born out of marriage between a male Hindu and Christian woman under the Special
Marriage Act, 1954.
6. The wife or widows of deceased male members and
7. Maiden daughters

One of the special feature of joint Hindu Family is that it includes the illegitimate children also.
They are treated to be the members of their father’s family. Sometimes, married widowed
daughters also settle in the joint family and are treated as members thereof, entitled to
maintenance.

In Narendera Nath v. Commissioner of Wealth Tax, the Supreme Court held that the
expression ‘Hindu undivided family’ in the wealth Tax Act used in the sense in which a Hindu
joint family is understood in the personal law of Hindus and a joint family may consist of a
single male member and his wife and daughters and there is nothing in the scheme of the Wealth
Tax Act to suggest that a Hindu undivided family as assessable unit must consist of a least two
male members.

In Commissioner of Income Tax v. Gomedalli Lakshminarayan there was a joint family

consisting of a father and his wife and a son and his wife, the son being the present assesse. On
the death of father the Question raised is whether the assesse is to be assessed as an individual or
as a member of the joint Hindu family, It was held that the son’s right over the property is not
absolute because two females in the family has right of maintenance in the property, therefore
the income of the assesse should be taxed as the income of a Hindu undivided family.
In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint
Family is not finally terminated so long as it is possible in nature or law to add a male member to
it. Thus there can also be a joint family where there are widows only.

COPARCENARY

Within the joint family there is a narrower body called the Coparcenary. This includes the eldest
male member + 3 generations. For e.g.: Son – Father – Grandfather – Great Grandfather. This
special group of people are called coparceners and have a definitive right in ancestral property
right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were
coparceners – now daughters are equally coparceners after 2005. They can get their share culled
out by filing a suit for partition at any time. A coparcener’s interest is not fixed it fluctuates by
birth and deaths in the family.

In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case a father and his

son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the
son were domiciled in India and had trading and other interests in India. The undivided son died
and father became the sole surviving coparcener in a Hindu Undivided family to which a number
of female members belonged. In this the court said that the widows in the family including the
widow of the predeceased son had the power to introduce coparceners in the family by adoption
and that power was exercised after the death of son.

In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of father,

his wife, his two unmarried daughters and his adopted son. After the death of father question
arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother
and sisters constitute a Hindu undivided family within the meaning of the Income tax Act? In
this case it was held by the court property of a joint family does not cease to belong to the family
merely because the family is represented by a single coparcener who possesses rights which an
owner of property may possess. The property which yielded the income originally belonged to a
Hindu undivided family.

In Moro Vishvanath v. Ganesh Vithal plaintiffs and defendants are descendants of one Udhav.
The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and
others sixth in descent from him. The question, however, whether, assuming them to be
undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of
considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the
defendants any partition of property descended from that common ancestor. It was held that upon
a consideration of the authorities cited, it seems to me that it would be difficult to uphold the
appellants’ contention that a partition could not, in any case be demanded by descendants of a
common ancestor, more than four degrees removed, of property originally descended from him.
Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common
ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I,
and H has a son J and J has a son K. On E’s death the coparcenary will consist of F,G,H,I,J and
K. Suppose that G,H and J die one after another , and the only survivors of the joint family are
F,I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is
sixth in descent from A.

The reason is that either of them can demand a partition of the family property from Here the
coparcenary consists of three Collaterals, namely, F, I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the
coparcenary property is in the whole body of coparceners. According to the true notion of an
undivided family governed by Mitakshara law, no individual member of that family, whilst it
remains undivided, can predicate, of the joint and undivided property, that he, that particular
member, has a definite share.

His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable
to be diminished by births in family. It is only on partition that he becomes entitled to a definite
share. The most appropriate term to describe the interest of a coparcener in coparcenary property
is ‘undivided coparcenary interest’. If a Mitakshara coparcener dies immediately on his death his
interest devolves on the surviving coparceners.

The Supreme Court has summarized the position and observed that the coparcenary property is
held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents
of coparcenary are:

1. The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person;
2. such descendants can at any time work out their rights by asking for partition;
3. 3 till partition each member has got ownership extending over the entire property
conjointly enjoyment of the properties is common;
4. 4 as a result of such co-ownership the possession and enjoyment of the
properties is common;
5. no alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners and
6. the interest of a deceased member passes on his death to the survivingEvery coparcener
and every other member of the joint family has a right of maintenance out of the joint
family property. The right of maintenance subsists through the life of the member so long
 as family remains joint. No female can be a coparcener under Mitakshara law. Even wife,
though she is entitled to maintenance.

MITAKSHARA COPARCENARY

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

1. First, the lineal male descendants of a person upto third generation, acquire on birth
ownership in the ancestral properties of such person;
2. Secondly, that such descendants can at any time work out their rights by asking for
partition;
3. Thirdly, that till partition, each member has got ownership extending over the entire
property conjointly with the rest;
4. Fourthly, that as a result of such co-ownership the possession and enjoyment of
properties is common;
5. Fifthly, no alienation of the property is possible unless it be necessity, without the
concurrence of the coparceners;
6. Sixthly, that the interest of deceased member lapses o his death to survivors;”

The following are the characteristic features of Mitakshara Coparcenary:

1. Unity of ownership: the ownership of property is not vested in a single coparcener. It is

vested in the whole body of coparcenary. The coparcener acquires an interest in
coparcenary property by birth, which is equal to that of his father.
2. Indeterminability of shares: the interest of a coparcener in the coparcenary property is a
fluctuating interest which is liable to diminish with the birth and bound in increase with
the death of any coparcener in the family. So long the family remains united, no
individual coparcener can predicate that he has a definite share in the property of the
family.
3. Community of interest: there is a community of interest in the coparcenary property. The
moment a person is born in the family, he acquires an interest in the coparcenary property
in the sense that he has a right of common enjoyment and common use of all the
 properties, because as soon as he is born as a son, he assumes the membership of the
community.
4. Exclusion of Females: In Mitakshara coparcenary no Female can be its members, though
they are the members of joint family. Even the wife who is entitled to maintenance enjoys
only the right to maintenance but she can never become coparcener. Thus she cannot
demand partition.
5. Devolution by survivorship: the interest of coparcener in the coparcenary property on his
death does not devolve on his heirs by succession but on the other hand it passes by
survivorship to the other coparceners.
6. Right to maintenance: all the members of coparcenary are entitled to maintenance by
birth out of joint family property. They continue to enjoy this right so long the
coparcenary subsists.

DAYABHAGA COPARCENARY

According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral
property. Their rights arise for the first time on the father’s death. On the death they take such of
the property as if left by him, whether separate or ancestral, as heirs and not by survivorship.
Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be
no coparcenary in the strict sense of the word between a father and sons according to the
Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by
sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since
sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of
such property from the father. A coparcenary under the Dayabhaga law could thus consist of
males as well as females. Every coparcener takes a defined share in the property, and he is owner
of that share. It does not fluctuate with birth and deaths in family.

Difference between Joint Hindu Family and Coparcener

1. In order to constitute a Joint Hindu family the existence of any kind of property is not
required whereas in Coparcenary there exists an ancestral property.
2. Joint Hindu family consist of male and female members of a family whereas in
Coparcenary no female can be a coparcener.
 3. Coparceners are members of the Joint Hindu Family whereas all the members of Joint
Hindu family are not Coparceners.

A hindu joint family setup

Introduction:

A Hindu Joint Family setup is an extended family arrangement prevalent which has an enormous
legal significance in India. Simply, a Hindu Joint Family would at best be described as, the lineal
descendants and their dependants where, the former trace their origin to one common ancestor.
The underlying essence of a joint family is the fact that it traces its origin back to one common
ancestor and with the addition and deaths of members, joint families can continue till eternity.

It is important to understand that though a single familial unit, a Joint Hindu Family does not
have a separate legal identity and is not a juristic person. Though, the only collective statutory
recognition that has been bestowed upon a Joint Hindu Family is for the purposes of taxation.
Though, the definition is highly flexible.

The researcher, through this paper aims at throwing some light upon certain issues associated
with the Hindu Joint Family Setup; especially for a student of Family law. The focal points of the
research are drawn into the following heads:

 Distinction between the Mitakshara and Dayabhaga schools of law – qua the Hindu Joint
Family Setup. An analysis into how, the two schools of law look at the familial
arrangement. For e.g. In a Hindu undivided family governed by the Mitakshara Law, no
individual member of that family can predicate that he has a definite share in the property
of that family.
 A brief insight into who are the Important Role Players – the Karta and the women
(especially in the context of them becoming coparceners post 2005)
 Status of the Property for the Joint Family – An overview over the concept of partition of
property. The researcher also intends to throw some light into the status of the property
for the purposes of Taxation. It may be stated that for the purposes of the Income Tax Act
(S. 171), a partition by metes and bounds i.e. a physical division of property is required.

Distinction Between The Dayabhaga And Mitakshara Schools:

Important terminology:

Before embarking upon an explanation as to what is the distinction between the schools of law, it
is important to define some important terms.

 Coparcenary: Partnership in inheritance; joint heir ship; joint right of succession to an

inheritance.
 Unity of Possession: Though, a coparcenary may exist, yet till partition takes place there
cannot be a definite share for any of the coparceners.
 Doctrine of Survivorship: The concept basically states that, the property would be
devolved upon the death of the coparcener to his next survivor, irrespective of who his
heir is.
 Karta: The eldest member of a Hindu Joint Family is known as the Karta of the
coparcenary. He is the representative of the family.
 Alienation: the voluntary and absolute transfer of title and possession of real property
from one person to another.

Effect Of Coparcenary:

There is a difference in the way a joint family comes into existence in the Mitakshara and the
Dayabhaga systems. Under the Dayabhaga School on the death of the Karta, the succession is
per stirpes; that each son has an equal and absolute share. By absolute, one may note that none of
the descendants of the heir inheriting have any right over the property. In addition to this, if one
of the heirs dies then, even his wife or unmarried daughter have a share over his property which
is not possible under Mitakshara law.

Interest By Possession

Another point of distinction between the Mitakshara and the Dayabhaga schools is that a
coparcener takes a fixed share once the Karta dies. In other words it’s a certain share. Thus, for
example a person dies leaving behind 4 sons, then each son would have a determined 1/4th share
to the property.

Under the Mitakshara school of Hindu law, it may be said that there is a literal presumption of
love and affection in the family, i.e. there is a community interest in the family property. By
community interest one means that all the coparceners have an interest in the joint family
property. Under the Dayabhaga School though, there is a constant notion of having a fixed share
of property. Though, there may be a community interest as long a partition by metes and bounds
hasn’t taken place.

Doctrine Of Survivorship

This doctrine has been explained earlier. The Dayabhaga School allows for devolving of
properties only at the point of succession. Thus, there is no question of inheriting any property. It
is due to the application of this concept that there exists no coparcenary between a grandfather
and his grandson under the Dayabhaga School.

The application of this rule is also related because classical Hindu Law recognised the concepts
of unobstructed heritage and obstructed heritage to property. By unobstructed heritage one
means that between the lineal descendants the coparcenary never ends. Thus, if one of the chain
members dies then the coparcenary shifts to the next lineal descendant. This phenomenon has
been accepted under Mitakshara School. On the other hand, the Dayabhaga School recognizes
only obstructed heritage.

There are two further differences between the two schools of law that the researcher wants to
delve upon but they would be explained in the next part of the essay owing to the fact that they
involve the role players such as the Karta.

Key Role Players In The Hindu Joint Family

The Hindu Joint Family being considered as the close knit unit as it is though has a few
prominent members while its legal status is being considered. The researcher intends to reflect
the legal status of two prominent members: the Karta, the status of a female as a coparcener post
the 2005 amendment.

The Karta:

In a Joint Hindu Family, the Karta being the representative is responsible for the family. He is
supposed to oversee the income and assets of the joint property. He is accountable to all other
family members for the use of their shares of all sums which he spent. The Karta’s powers and
liabilities and his power of alienation are similar in both the Dayabhaga and the Mitakshara
Schools. The difference that draws a contradistinction between the two is that the latter must be
in a position to render full accounts at all points of time. On the other hand the Karta under the
Dayabhaga School should render accounts only at the time of partition.

As per Hindu law’s convention, the senior most male member is generally the Karta of the joint
family. The Andhra Pradesh High Court has stated that the Karta does not owe his position to
agreement or consent of other coparceners. His status has been a part of Hindu Culture for long.
As long as he is alive, irrespective of his age, health or strength, he continues to be Karta.

A conflict arises when in the presence of a senior male member can a junior male member be the
Karta? The position of law decided on this is that if all the coparceners agree, then a junior male
member can be a Karta. Though, this is contingent upon the whims and fancies of the
coparceners who may withdraw their consent at any time.

Can A Female Member Be The Karta?

The Mitakshara School sets a position of law, that on marriage the wife entails ownership rights
to her husband’s separate and joint family property. Similarly, a daughter garners this right at
birth. The contingency to this being that there is a distinction between males and females.
Mitakshara law sets the status of women as bound to the family or asvatantra. Thus, their rights
can be entailed only while they belong to the family.

The Hindu Joint Family Setup has since time immemorial been criticised for being a patriarchal
setup. Thus, even the “manager” of a Joint Hindu Family has not been spared from this
patriarchal approach. The position of law qua the status of women as the Karta has been
inconclusive. The views seem to be rigid which, is a fatal flaw. Courts all over India have given
different views: –

Women, per courts, have been allowed as the Karta as a last resort. She may be a widow who
takes over in the absence of adult male members in the family. The court though does not delve
into what could this absence mean? The true test as per the court is not who transferred/incurred
the liability, but whether the transaction was necessary. The courts though have rejected the
notion of a widow as a coparcener for the want of a legal qualification to become a manger of a
JHF. The mother then may be the Karta as the natural guardian of minor male members. She can
also, represent the HUF for the purpose of assessment and recovery of income tax. After
refreshing through the authorities it was held that the mother or any other female could not be the
Karta of the Joint Family. Per the interpretation of the Court Hindu Law allows only a
coparcener as a Karta and since females cannot be coparceners, they cannot be the Karta.

Dharmashastras are the one and only sure guide. The Dharmashastras give recognition to two of
the above decisions. The status of female members qua debts incurred as the Karta will be
binding upon the family and must be paid out of the joint family funds. Thus, it may be
submitted that there does exist a certain sense of gender neutrality. Dharmashastras also mandate
her acts as manager by accepting positive benefits as well and not merely conservative/negative
acts. Thereby, the texts mandate her judgement as the Karta.

Status Of Female Coparcenary (Pre And Post Amendment)

There is an inherent bond between property and personal laws in India. Before 1956, property
laws qua Hindus lacked coherence and differed on a regional basis. This can be seen in the
distinct application of the Mitakshara and the Dayabhaga Schools.

The Mitakshara School of succession, dominant in North India, was excessively patriarchal and
the heirs had to be males. Under this, only lineal male descendants have a right by birth to
familial property that their father has. Their interest is equal to that of the father. The
coparcenary was exclusive till 2005 for male members. Distinct to this, the Dayabhaga system
did not acknowledge inheritance rights. Though there are instances where the patriarchal
shackles are broken, for instance under the Marumakkattayam law, in Kerala, lineage is traced
through the female line.

Though, with the advent of common law in India, the lawmakers sought to change this
patriarchal bias. Women were bestowed with greater rights but still denied coparcenary rights.
Subsequently, through state amendments, this need of gender neutrality was fulfilled.

For instance the State of Kerala abolished the concept of coparcenary according to the Kerala
Joint Family System (Abolition) Act, 1975. As per the statute the heirs (male and female) did not
acquire property by birth but hold tenancy rights till the property is partitioned. Subsequently,
Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) equal
‘coparcener’ rights on ancestral property by birth to both sons and daughters.
The 15th Law Commission via its 174th report (2000) suggested amendments to balance the
discrimination against women. The present amended Act was modelled upon this report’s
recommendations. The 2005 amendment gives women equal rights in the inheritance of ancestral
wealth, thus, bringing them at par with their male heirs. Section 6 of the Hindu Succession Act,
1956 (amended 2005) embodies this equality. An important question though, is still unanswered
even after the amendment; whether women or daughters can be allowed to become managers or
Karta of the joint family? The issue raised against them being the Karta was their “absence” from
the joint family home post the amendment.

Status Of Property With Respect To Partition

Every adult coparcener has the right to demand a partition of the joint Hindu family. The
conflicting point is whether the son can demand a partition, if the father has an interest with his
brother, father or other coparceners? The position of law qua this point is inconclusive. In
Bombay, it has been held that the son is not entitled to a partition without the consent of his
father, if the father is joint with his father, brothers or other coparceners. However, if the joint
family consists only of the father and the sons, the son can demand a partition against the father
and if the family consists only of the grandfather and the grandsons, the sons can also enforce a
partition against the grandfather.

Right Of Father

A Hindu father joint with his sons and governed by Mitakshara Law in contradistinction to other
manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to
impose a partition on his sons with himself as well as amongst his sons inter se without their
consent, whether the sons are majors or minors.

However, the partition made must be fair and equal, and if not, then the major sons have a right
to repudiate the partition and the minor sons have a right to avoid that partition when they attain
majority. In case of such an unfair partition, it is voidable and not void ab initio. However, a
grandfather cannot bring about a partition amongst his grandsons. The father also has the
superior right to bring about a partial partition of the properties, with the rider that the partition
has to be bona fide and fair and just.

Intention To Separate
Partition is a severance of status and thus is a matter of individual volition. The division of the
joint status may be brought about by any adult member of the family by intimating, indicating or
representing to the other members, in clear and unambiguous terms his intention to separate and
enjoy his share in the family property in severalty. It is immaterial in such a case whether the
other coparceners give their assent to the separation or not. Further, when there is
communication of intention by a single coparcener, the question to be proved on the facts of the
case is whether there was a total partition, or that the other members decided to remain united or
to reunite

The manifestation of the intention should be “declared”, i.e. that it should be to the knowledge of
the person affected thereby. Thus it is a necessary condition that a member of a joint Hindu
family, seeking to separate himself from others will have to make known his intention to the
other members of the family from whom he seeks to separate.

Once a communication of intention has taken place in clear and unambiguous terms which has
resulted in the severance of the joint family status, it is not open for the coparcener to get back to
the original position by merely revoking the same. There has to be an agreement to reunite and
that a mere revocation of the intention cannot amount to an agreement to reunite. However, it has
been held that a notice that been given to the other coparceners can be withdrawn with their
consent.

Thus, it is submitted that once a notice has been issued that has come to the knowledge of the
other members, a severance would take place and such a notice cannot be withdrawn. It is
submitted that this is also reflected from Radhakrishna v. Satya Narayan, where the court held
that when in a suit for partition, the plaint contains a clear and an unambiguous expression of an
intention to separate, and summons have been served on the other coparceners, division in status
is effected from the date of the filing of the suit.

“It sometimes happens that persons make statements which serve their purpose or proceed upon
ignorance of the true position, and it not their statements but their relation with the estate which
should be taken into account while determining the issue.” It is submitted that this statement has
to be read in the context of a further statement in the same case which said that “If the document
clearly shows a division of right, its legal construction and effect cannot be controlled or altered
by evidence of the future conduct”. It is submitted that reading these two statements together, the
conclusion that can be drawn is that, if the document is a clear expression of the intention to
separate, then it does act as a separation and the future conduct of the parties does not matter,
unless it can be shown that the document was never intended to act as one for partition but was a
sham one for another ulterior purpose.

It is also important to note the once a severance of joint status has taken place, the subsequent
conduct of the parties is not relevant to be determined. The mere fact that separated coparceners
chose to live together or act jointly for purposes of business or trade or in their dealing with
properties, would not give them the status or coparceners under the Mitakshara law. The
important point here is that the coparceners must be proved to have been separated, and if so,
then mere subsequent conduct unless a reunion takes place, would not restore the joint family
status.

Joint Hindu family differs from the Coparcenary in the following respects:

No Joint family Coparcenary

1 Both Males and Females are Only male member are the
the members of the joint members of Coparcenary.
family

2 There is no limitation of In Coparcenary, Males upto four

degrees or generations with degrees (including senior most
regard to the membership of male) or generations from the
the Joint Family. senior most male members are the
members of the Coparcenary.

3 Some members, i.e. Female In Coparcenary all members have

members have no right by the right in the property by birth.
birth in the property.

4 Certain females like Father’s In Coparcenary all the members

wife, Mother, Grandmother have the right to demand partition.
 etc. have no right to demand
partition.

The membership of Joint A Coparcenary is, much narrower

5 Hindu Family is acquired by body and it includes only those
birth or by marriage and persons who acquired by birth or
consists of all persons in exceptional case adoption by
literally descended from a sons.
common ancestor and their
wives and unmarried
daughters.

6 Every joint family is not a Every Joint Family is a

Coparcenary. Coparcenary.

7 A Joint Hindu family shall A Coparcenary may come to an

constitute even after the death
of Manager/male/Karta and
consisting only females.
end with the death of the last
coparcener or sole surviving
coparcener.

Karta

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

Who is a Karta:-

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

Who can be a Karta:

It is a presumption that ordinarily senior most male member is the Karta and Karta is always a
member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as
Karta. By his death Kartaship will pass on to next senior most male member.
In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta.

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

Female Member:-

Generally female member cannot become Karta but in exceptional circumstances female also can
act as Karta.

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

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

Position of Karta:-

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

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

He stands fiduciary relationship with other members but he is not a trustee, nobody can question
what he spent unless charges of misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on
him to prove such are malafide act of Karta.

Powers of Karta:-

With in joint family Karta has vast powers with limitations.

1) Power of management:- He is the head of the family, his management powers are absolute.
He may manage the family affairs and family property and business the way he likes for the
benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint
family property must hand over income to Karta. It is for Karta to allot funds to the members and
look after needs and requirements, so long as family remains joint, no member can ask for any
specified share in the income.
3) Right to representation:- He represent the family, represents the family in all matters, legal,
social and religious. He can enter into any transaction on behalf of the family, his acts are
binding on the entire joint family.

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

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

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

behalf of the family any debt due to the family, also has power to pay debt or to make pack
payment of debt.

He has power to contract debts for the family such debts incurred in the ordinary course of
business are binding on entire joint family.

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

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

8) Power of alienation:- Nobody in the family has power to alienate joint family property.
However Karta has power of alienation under 3 circumstances.

a) Legal necessity

b) Benefit of estate.

c) Indispensable duties.

Kartas Liabilities:-

Karta has vast powers same time his position is fiduciary and has lot of responsibilities and
liabilities.

1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he
improperly excludes any member from maintenance, he can be sued for maintenance and also
arrears of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep
accounts, but when partition takes place at that time he is liable to account for family property. If
any of the coparcener is not satisfied with his account can institute a suit against Karta to
discover the truth and to know any misappropriation is made by Karta.
3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family
with in reasonable time but should not allow them to bar by limitation.

4) Liability to spend reasonably:- As Karta of joint family has control over the income and
expenditure of the family, he is custodian of surplus income. However he should spend family
funds reasonably and for the purpose of the family.

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

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

Right of female:-

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

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

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

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

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

The general rule that every coparcener has a right to partition subject to two exceptions:
1. Unqualified coparcener has no right to partition

2. Sons cannot claim partition against their father if the latter is joint with his own father.

Persons who have right to partition

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

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

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

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

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

Mitakshara school formulated a general procedure by applying both principles but in different
situations.

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

ii) Son begotten and born after partition (after born son)

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

iii) If father renounces his share

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

iv) Adopted Son

Position of adopted son also differs with situation.

a) When there is a subsequently born natural son.

b) When there is no subsequently born natural son.

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

Right of Adopted son

1) Bombay and Madras School – 1/5 of estate

2) Benaras School - ¼ of estate

3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son is entitled to
equal share with natural son.

v) Son of void & voidable marriage

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

vi) Illegitimate son

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

vii) Minor and lunatic coparcener

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

viii) Absent Coparcener

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

Right of female:-

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

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

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

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

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

The general rule that every coparcener has a right to partition subject to two exceptions:
1] unqualified coparcener has no right to partition

2] sons cannot claim partition against their father if the latter is joint with with his own father.

Hindu Law : Hindu Marriage Act, 1955

Valid, Void & Voidable Marriages under Hindu Law

Marriage is the voluntary union of one man with one woman to the exclusion of all others,
satisfied by the solemnisation of the marriage.

The Hindu Marriage Act, 1955 provides for three types of marriages:

1. Valid,

2. Void and

3. Voidable.

The difference between these three relates to the pre-marriage impediments to marriage which
are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or
impairments, a marriage is void ab initio.

Section 11 deals with void marriages. If relative disablements or impairments exist, a marriage is
voidable.

Section 12 deals with voidable marriages.

All other marriages which are not covered by these two Sections are valid.

VALID MARRIAGE

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It
contains such conditions which if violated shall result in a void marriage.
Section 5 of Hindu Marriages Act says, A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen
years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two;

Section 7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in
accordance with thecustomary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by
the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.
Section 8. Registration of Hindu Marriages –

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make
rules providing that the parties to any such marriage may have the particulars relating to their
marriage entered in such manner and subject to such condition as may be prescribed in a Hindu
Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of
opinion that it is necessary or expedient so to do, provide that the entering of the particulars
referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in
all cases or in such cases as may be specified and where any such direction has been issued, and
person contravening any rule made in this behalf shall be punishable with fine which may extend
to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be,
after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be
admissible as evidence of the statements therein contained and certified extracts therefrom shall,
on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall
in no way be affected by the omission to make the entry.

VOID MARRIAGE

Section 11 (Nullity of marriage and divorce- Void marriages) of the Act had considered
following marriage to be void:- Any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto, against the other
party be so declared by a decree of nullity if it contravenes any one of the conditions specified in
clauses (i), (iv) and (v), Section 5. It means..

1. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void

2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from

A. Five generation from the paternal side,

B. Three generations from the maternal side,

C. The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu
Marriage Act 1955 talks about the degree of prohibited relationship that is as follows:

3. Where parties to the marriage come with degrees of prohibited relationship.

According to section 3(f)(i) "Sapinda relationship" with reference to any person extends as far as
the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive)
in the line of ascent through the father, the line being traced upwards in each case from the
person concerned, who is to be counted as the first generation;

According to section 3(f) (ii) two persons are said to be "sapinda" of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if they have a common lineal
ascendant who is within the limits of sapinda relationship with reference to each of them;

According to Sec 3(g) "degrees of prohibited relationship” - two persons are said to be within
the "degrees of prohibited relationship"-

(I) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's
or grandmother's brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters.

Explanation.- for the purposes of clauses (f) and (g) relationship includes-

(I) relationship by half or uterine blood as well as by full blood;

(ii) Illegitimate blood relationship as well as legitimate;

(iii) Relationship by adoption as well as by blood; and all terms of relationship in those clauses
shall be construed accordingly.

In the case of Rampyari v. 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.

In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even
the decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by Section 11
are void ipso jure, that is, void from the very inception and have to be ignored as not existing in
law at all if and when such a question arises. Although the Section permits a formal declaration
to be made on the presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If one withdraws
from the society of the other, the other party has no right to the restitution of conjugal rights. If
one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is
not affected because of the first so called marriage.

“On a petition presented by either Party thereto“, It is only the parties to marriage who can
move a petition for the declaration of nullity of marriage. The first wife, during the subsistence
of whose marriage the husband takes the second wife, has no right to move for a declaration of
nullity of the subsequent marriage under this Section. However, there is nothing in the Section or
any other provision of any law to debar a person affected by an illegal marriage from filing a
regular suit in a civil court for its declaration as void, if such party was affected by such
marriage. There can be a civil suit by a person for a declaration that the marriage of A with B
was a nullity and for consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff
has any cause of action for such relief.

In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain a
perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil
Procedure Code and Section 54 of the Specific Relief Act.

Consequences of a void marriage

 The parties have no status of wife and husband

 Children of a void marriage are illegitimate (this is subject to the provision of section 16
of Hindu Marriage Act 1955).

 A void marriage doesn’t give rise to mutual rights and obligations.

According to Section 16. Legitimacy of children of void and voidable marriages.-

(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be legitimate, whether such
a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976,
and whether or not a decree of nullity is granted in respect of the marriage under this Act and
whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any
child begotten or conceived before the decree is made, who would have been the legitimate child
of the parties to the marriage if at the date of the decree it had been dissolved instead of being
annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon
any child of a marriage which is null and void or which is annulled by a decree of nullity
under Section 12, any rights in or to the property of any person, other than the parents, in any
case, where, but for the passing of this Act, such child would have been incapable of possessing
or acquiring any such rights by reason of his not being the legitimate child of his parents.

VOIDABLE MARRIAGE:

A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.

Section 12. Voidable Marriages, says,

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

a) that the marriage has not been consummated owing to the impotency of the respondent; or

b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner was required under Section 5 as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by
force or by fraud as to the nature of the ceremony or as to any material fact or circumstance
concerning the respondent; or

d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the
case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as
husband or wife after the force had ceased to operate or, as the case may be, the fraud had been
discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is
satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the
commencement of this Act within one year of such commencement and in the case of marriages
solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the said ground.

It means according to it, in the case of marriage being voidable, the court may declare it Null
under following conditions:-

1. Where marital cohabitation has not occurred due to the impotency of the respondent.

2. Where at the time of marriage any party failed to give valid consent due to unsoundness or
has been affected by mental retardedness to such extent that he is incapable to marriage and
giving birth to a 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.

GROUNDS OF DECLARING A MARRIAGE VOIDABLE

A 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 the 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 solemnized 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 solemnized after the act came into force then the application shall be presented within one
year from such marriage.

(c) The applicant has not voluntarily co-habitated after the knowledge of pregnancy of wife.

(d) Wife had been pregnant from a person other than the applicant.

(e) She was pregnant before the marriage

Distinction between void and voidable marriage

Marriage is the voluntary union of one man with one woman to the exclusion of all others,
satisfied by the solemnisation of the marriage. The Hindu Marriage Act, 1955 provides for three
types of marriages:

1. Valid

2. Void and

3. Voidable.

The difference between these three relates to the pre-marriage impediments to marriage which
are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or
impairments, a marriage is void ab initio. Section 11 deals with void marriages. If relative
disablements or impairments exist, a marriage is voidable. Section 12 deals with voidable
marriages. All other marriages which are not covered by these two Sections are valid.

VOID MARRIAGE

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It
contains such conditions which if violated shall result in 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 i.e., bigamous
marriage is void

2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from A. Five generation from the
paternal side, B. Three generations from the maternal side, C. The parties are within the
prohibited degree of relationship. The section 3(g) of the Hindu Marriage Act 1955 talks
about the degree of prohibited relationship that is as follows:

3. Where parties to the marriage come with degrees of prohibited relationship.

In the case of Rampyari v. 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.

In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even
the decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by Section 11
are void ipso jure, that is, void from the very inception and have to be ignored as not existing in
law at all if and when such a question arises. Although the Section permits a formal declaration
to be made on the presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If one withdraws
from the society of the other, the other party has no right to the restitution of conjugal rights. If
one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is
not affected because of the first so called marriage.

“On a petition presented by either Party thereto“, It is only the parties to marriage who can
move a petition for the declaration of nullity of marriage. The first wife, during the subsistence
of whose marriage the husband takes the second wife, has no right to move for a declaration of
nullity of the subsequent marriage under this Section. However, there is nothing in the Section or
any other provision of any law to debar a person affected by an illegal marriage from filing a
regular suit in a civil court for its declaration as void, if such party was affected by such
marriage. There can be a civil suit by a person for a declaration that the marriage of A with B
was a nullity and for consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff
has any cause of action for such relief.

In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain a
perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil
Procedure Code and Section 54 of the Specific Relief Act.

Consequences of a void marriage

 The parties have no status of wife and husband

 Children of a void marriage are illegitimate (this is subject to the provision of section 16
of Hindu Marriage Act 1955).

 Avoid marriage doesn’t give rise to mutual rights and obligations.

VOIDABLE MARRIAGE

A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage. According to it, in the case of marriage being voidable, the court may declare it Null
under following conditions:-

1. Where marital cohabitation has not occurred due to the impotency of the respondent.

2. Where at the time of marriage any party failed to give valid consent due to unsoundness
or has been affected by mental retardedness to such extent that he is incapable to
marriage and giving birth to a 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.
GROUNDS OF DECLARING A MARRIAGE VOIDABLE

A 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 the 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 solemnized 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 solemnized 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 than the applicant.

(e) She was pregnant before the marriage.

What are the Void & voidable Marriages? S11& S12

S 11 pertaining to Void and S12 pertaining to Voidable Marriage.

S11 says- any marriage solemnized after the commencement of this Act shall be null and void
and may, on a petition presented by either party thereto (against the other party) be so declared
by a decree of nullity if it contravene any one of the conditions specified in clause (i),(iv) and (v)
of section 5.

Therefore, there are only three grounds, which declared marriage null and void ab initio.

In Suresh Kr. V/s Smt. Asha Rani, held that, any party means only the actual parties not any
third party.

Grounds for void marriages

Bigamy- clause (i) of section 5- Prohibetate the bigamy, and section says- neither party has
spouse living at the time of marriage.

- this is condition precedent for every Hindu Marriage, and it allow only monogamy, means only
one husband or one wife at a time of marriage.
HMA not only makes bigamous and polyandry marriage void but also punishable u/s 17 of
HMA r/w 494 and 495 of IPC

In Gopal Lal v/s State of Maharashtra SC Held – what is to be establish is that the second
marriage is valid but for this provision and the spouse to the first marriage is the legally wedded
spouse and that marriage is having its existence on the date the second marriage is solemnized.

Parties should not be within prohibited degree of relations

The prohibition is also based on the rule of exogamy. The Dharamshastra consider sex
relationship which one’s mother, sister, daughter, son’s wife as the highest sin.

Degree of Prohibited relationship- two person cannot merry if they related to each other within
the degree of prohibited relationship unless customs and usages permits.

Sapinda Relationship- two person cannot marry with each other if they are into sapinda
relationship with each other means upto 5 lenient descendent from paternal side and 3 lenient
descendent form maternal side

Voidable marriage- S13

Voidable means it is not void ab inito, it remain valid or has got some legal sanity till petition for
its nullity is granted by the court.

Section 13 Speaks about the voidable marriage-

Any marriage solemnize whether before or after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the following grounds,-

Marriage has not been consummated owing to the importance of the respondent

Marriage is in contravention of the condition specified in clause (ii) of section 5

The consent of petitioner or consent of the guardian in marriage was obtained by force or
by fraud

Respondent was at the time of the marriage pregnant by some person other than the
petitioner

Impotency -Marriage has not been consummated owing to the importance of the
respondent

Companionship is also a main purpose of marriage, and an individual has a liberty to marring
like an important, eunuch, procreation of child is the secondary aspect and it can be bridged by
way of adoption.
A party is impotent if his or her physical or mental condition makes consummation of marriage a
practical impossibility, or inability to perform to sexual act.

Singh J . Defined –

Consummation is something referred to as vera copula, means erection, intromission

(penetration) by the male of the female. Full and complete penetration is an essential
ingredient of ordinary and complete inter-course, though the degree of sexual satisfaction
obtained by the parties is irrelevant.

After the amendment of 1976, in Rajinder v/s Shanti held a person who is capable of
consummation of the marriage naturally or after a surgical operation of medical treatment cannot
be called important as the consummation of marriage is possible.

Marriage is in contravention of the condition specified in clause (ii) of section 5

I. Incapable of giving valid consent due to unsound of mind

II. Suffering from mental disorder, unfit for marriage or unfit for procreation of
children

III. Subject to recurrent attacks of insanity

Exceptions –

No petition for annulling a marriage on the grounds specified in clause (c) of sub section 1 not be
entertain if-

I. Petition is presented after the one year of consent obtain by force

II. The petitioner has with or her full consent lived with the other party

III. Petition on ground (d) of sub section (1) if the petitioner was at the time of marriage
ignorant of the fact alleged

Originally under the Hindu Marriage Act 1955, it was laid down that- if at the time of marriage
one of the parties to marriage was important and continued to be so till the presentation of the
petition , the other party could sue for annulment of marriage.

Judicial Separation under Hindu Law

Introduction

Judicial Separation is an instrument devised under law to afford some time for introspection to
both the parties of a troubled marriage. Law allows an opportunity to both the husband and the
wife to think about the continuance of their relationship while at the same time directing them to
live separate, thus allowing them the much needed space and independence to choose their path.
It is the last recourse available to both the spouses before the actual legal breakup of marriage
i.e., divorce. It is basically a temporary suspension of marital rights between the spouses as a
result of decree passed by the Court on any one of the grounds mentioned in the Section.

Section 10(1) provides that either party to Marriage may present a petition praying for a decree
of judicial separation on any of the grounds specified in Section 13(1). Further this section also
provides additional grounds to wife besides the above ground as mentioned in Section 13(2) of
the Act. Thus, it is clear that the judicial separation can be seeked on the grounds mentioned for
divorce.

Thus under Section 10 now the grounds of judicial separation are:-

1. Adultery – Under the Marriage Laws (Amendment) Act, 1976, the expression “living in
adultery” has been dispensed with and it has been replace* by a simple requirement of
adultery, that is, where the other party has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her spouse. And thus, even
a single act of adultery may be sufficient now for the relief under this head.

2. Cruelty – Cruelty is a ground for matrimonial reliefs under all matrimonial laws. Where
the other party has treated the petitioner with cruelty, the petitioner can claim the relief of
judicial separation. The term cruelty is nowhere defined, nor is it capable of any
definition. It has no parameters, it is subjective and relative. It would differ from place to
place, from person to person and would also vary depending upon social and cultural
backgrounds of the parties.

3. Desertion – Judicial separation may be granted where the other party has deserted the
petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition. The expression “desertion” means the desertion of the
petitioner by the other party to the marriage without reasonable cause and without the
consent or against the wish of such party and includes the wilful neglect of the petitioner
by the other party to the marriage.

4. Unsoundness of Mind – to get relief on this ground the petitioner has to .prove that, (1)
the respondent has been incurably of unsound mind or, has been suffering continuously
or intermittently from mental disorder of and (2) the nature and degree of the disease is
such that the petitioner cannot reasonably be expected to live with the respondent. Both
the elements must be established for the grant of the relief. The expression ‘mental
disorder’ means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind, and includes
schizophrenia. Further, the expression psychopathic disorder means a persistent disorder
or disability of mind which results in abnormally aggressive or seriously irresponsible
 conduct on the part of the other party, and whether or not it requires or is susceptible to
medical treatment.

5. Conversion/Apostasy – If a party to Marriage has renounced the Hindu religion and

embraced some other religion, it is a ground for the other party to petition for judicial
separation. If a person leaves the Hindu religion to embrace some other religion that he
goes out of the fold of the definition of Hindu as given under Section 2 of the Act, then
he is said to have converted himself.

6. Virulent and Incurable Leprosy – One of the grounds for Judicial separation is that the
respondent has been suffering from a virulent and incurable form of leprosy. The
expression ‘Virulent’ has been interpreted as malignant or Venomous.

7. Venereal Disease – Judicial separation is obtainable if the respondent has been suffering
from venereal disease in a communicable form.

8. Renunciation of World – Under Hindu law renouncing from the worldly affairs by
entering any religious order amounts to civil death and it may amount to desertion of the
petitioner.

9. Presumed death (Missing Spouse) – a person may present a petition for judicial
separation on the ground that the other party to the marriage has not been heard of as
being alive for a period of seven years or more by those persons who would naturally
have heard of him or she had that other party been alive.

ADDITIONAL GROUNDS FOR WIFE TO CLAIM DECREE

The Section has further laid down additional grounds to wife to claim a decree for the judicial
separation on the ground of:-

 Bigamy – In the case of a marriage solemnized before the commencement of this Act, a
wife is entitled to present a petition for judicial separation on the ground (a) that the
respondent husband had married again before the commencement of the Act or (b) that
any other wife of the respondent husband to whom he was married before such
commencement was alive at the time of the solemnization of the marriage of the
petitioner with the respondent. A petition by a wife for judicial separation will lie on
either of these grounds provided that the other wife is alive at the time of the presentation
of the petition.

 Rape, Sodomy or Bestiality – A wife can seek judicial separation on the ground that since
the solemnization of the marriage the husband has been guilty of rape, sodomy or
bestiality.
  Non-resumption of Cohabitation after decree or Order of Maintenance, A wife can seek
judicial separation where a suit under Section 18, HINDU ADOPTION AND
MAINTENANCE ACT or in a proceeding under Section 125 Cr.P.C., a decree or order,
as the case may be, has been passed against the husband awarding maintenance to the
wife and that since the passing of such decree or order, cohabitation between the parties
has not been resumed for one year or upwards.

 An option of Puberty (Repudiation of the Marriage) – If a girl is married before she

completes the age of 15 years she is given an option to repudiate that marriage after
completing the age of 15 years. This option must be exercised before attaining the age of
18 years. The Act provides no particular form of repudiation. It may be by, filing a
petition or by an overt act. If she has exercised this option to repudiate her marriage she
can petition for judicial separation or divorce on this ground after completing 18 years of
age.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial
separation can last. But section 13 of the Act provides that if there is no resumption of
cohabitation between the parties one year after the decree for judicial separation is passed, the
parties can get a decree for divorce on this ground itself. But divorce on this ground will be given
only when one year has expired after the passing of the decree for judicial separation and not
earlier. The reason for this is that one year is a long period and it provides sufficient time to the
parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences
within this period, then there is no fun in allowing the legality of the marriage to just linger on
when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume cohabitation any time after the
passing of the decree for judicial separation, they can get the decree rescinded by applying to the
court. The Act does not refer to any specific grounds on which a decree for judicial separation
can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree
for judicial separation if it considers it just and reasonable to do so. However, Courts have
repeatedly warned that this power of rescission has to be exercised with great circumspection and
not in a hurry and only after satisfying themselves that it would be just and reasonable to allow
such rescission.

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE

Although the procedure of dealing defended and undefended proceedings for both judicial
separation and divorce are similar, yet there are certain differences between them. Judicial
Separation does not terminate marriage whereas in divorce the parties are no more husband and
wife and hence the marriage ends.
  While undertaking proceedings for judicial separation, the court does not have to
consider that the marriage is permanently closed or broken down whereas in divorce it is
required while presenting the petition.

 Both the parties can file for judicial separation any time post marriage whereas in the
case of divorce the parties can only file for divorce only after completion of one year of
marriage.

 A judicial separation goes through one stage judgment procedure, however; divorce goes
through a two stage judgment process.

 There are certain provisions in Matrimonial Causes Act 1973 that are applicable to
divorce but are not applied to judicial separation petitions irrespective of going through a
two or five year separation period.

 Judgments with respect to Wills are not applicable in a case of Judicial separation. In case
the parties are undergoing a separation time and if one of the spouses dies then the
existing spouse will not be benefited out of it and thus the property will devolve.

 A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does
not. However, it is more than a husband and wife living apart. A Decree of Judicial
Separation can be sought on one of the five facts that are available for divorce but it is not
necessary to prove that the marriage has irretrievably broken down.

 In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial
Separation there is one Decree pronouncing Judicial Separation. The parties remain
married and are therefore not able to remarry. The Court is able to make the range of
financial orders that are available on Divorce, save for Pension Sharing or Pension
Attachment Orders

 In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial
Separation there is one Decree pronouncing Judicial Separation. The parties remain
married and are therefore not able to remarry. The Court is able to make the range of
financial orders that are available on Divorce, save for Pension Sharing or Pension
Attachment Orders

 The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce
upon a Will. The spouse can no longer take any benefit under the Will unless there is
a new will specifically stating they are to do so.

Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple
seeking a divorce, to try resolving their differences by living separately, before the initiation of
divorce proceedings. This gives time for introspection and resolving the matrimonial disputes
and misunderstanding between the couple.
What is a judicial separation?

Either party to the marriage, whether solemnized before or after commencement of the Hindu
Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation. After a
decree is passed in favor of the parties, they are not bound to cohabit with each other. Some
matrimonial rights and obligation, however, continue to subsist. They cannot remarry during the
period of separation. They are at liberty to live separately from each other. Rights and
obligations remain suspended during the period of separation. The grounds for judicial
separation are same as for divorce. Under Section 13(1), judicial separation may be sought on
the following grounds:

o Adultery: If other spouse had a voluntary sexual intercourse with any person
other than his or her spouse after solemnization of marriage.

o Cruelty: If after solemnization of marriage, one of the spouse treats the other
with cruelty.

o Desertion: If the other party has deserted the spouse for a continuous period of 2
years without any reasonable ground immediately preceding the presentation of
the petition.

o Conversion: If one of the spouses has ceased to be a Hindu.

o Insanity: If the other party is of unsound mind or has been suffering continuously
from mental disorder of such a kind and to such an extent that the petitioner
cannot live with the other party.

o Leprosy: If the other party has been suffering from a virulent and incurable form
of leprosy.

o Venereal disease: If the other party has been suffering from venereal disease in a
communicable form.

o Renounced the world: If the other spouse has renounced the world by entering
any religious order.

o Has not been heard alive for seven years.

In addition to these grounds some of the grounds are exclusively reserved for women:

 Husband has more than one wife living: If the husband had married before the
commencement of the Act and after the commencement of the Act has again remarried
 either of the wives can present a suit for judicial separation provided the other wife is
alive at the time of presentation of the petition.

 Rape, Sodomy or Bestiality: If a man is guilty of offense like rape, sodomy or bestiality,
the wife can present a petition for judicial separation.

 Marriage before the age of fifteen years: If the marriage of women was solemnized
before attaining 15 years of age, on her attainment of 15 years she could repudiate it but
before attaining the age of 18 years.

Can maintenance be claimed by wife during the period of judicial separation?

In case of judicial separation, the court can also deal with the questions of maintenance of wife,
custody of children and property.

In the case of Sohan Lal vs. Kamlesh it was held that in case of judicial separation, a wife is
allowed to claim maintenance from husband in case she is not able to maintain herself.

What to do in case after judicial separation where the parties want to resume cohabitation?

Since a decree for judicial separation is a judgment in rem, if the parties want to resume
cohabitation, it is necessary for them to get the order of judicial separation annulled by the court.
Normally, the court rescinds the degree on presentation of the petition by consent of both the
parties.

What is the purpose of a judicial separation?

Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an
opportunity to the parties to reconcile their difference.

What is a divorce?

In case of divorce, parties cease to be husband and wife. Divorce puts an end to the marriage and
all mutual rights, and obligations stand terminated. The parties are free to marry again.

Grounds for divorce?

 The grounds for divorce is mentioned under Section 13(1). The grounds of divorce and
judicial separation are the same. Apart from these grounds, the wife may seek divorce on
additional grounds as discussed above.

 The parties are also free to present a petition in case there is no resumption of
cohabitation between the parties to the marriage for a period of one year or more after the
passing of judicial separation by the court. In such a case, the court will not require proof
of any of the grounds of divorce. Merely a presentation of the petition will be sufficient
for the court to grant a decree of divorce.
  In case, the court had ordered restitution of conjugal rights under Section 9 of the HMA,
1955 and the parties do not comply with the decree of the court and fail to cohabit. In
such a case, on presentation of the petition for divorce the court will not enquire into any
grounds for divorce and will pass a decree of divorce on the grounds of failure of
restitution of conjugal rights.

 In a petition for divorce, if the petitioner cannot prove grounds for divorce, or the court is
not satisfied that the act is so grave to pass a decree of divorce it has the power to pass a
decree of judicial separation even if the petitioner did not ask for it. In the case
of Vimlesh v. Prakash Chandra Sharma, the court held that a single instance of cruelty is
not so grave to pass a decree of divorce. Thus, the court granted a decree of judicial
separation to provide an opportunity for the parties to reconcile.

Additional grounds for divorce

The Marriage Law (Amendment) Act, 1976 provides an additional ground for divorce under
Section 13(b). Where both the parties feel that the marriage is torn and there is no scope of
reconciliation, both the parties may by mutual consent present a decree of divorce under Section
13(b) whereby the court will not enquire for any reason for divorce and will grant a decree in
favor of the parties if both of them want a divorce. Under the Act, a period of 6 months for
reconciliation is granted on presentation of a petition for divorce by mutual consent. However, in
the case of Nikhil Kumar V. Rupali Kumar, the Supreme Court has done away with the
mandatory reconciliation period of six months. Now, divorce on the ground of mutual consent
can be granted on presentation of the petition and parties do not need to wait for six months.

Difference between judicial separation and divorce

JUDICIAL SEPARATION DIVORCE

 Can file a petition at any time post marriage.
 Only one stage of judgement. If grounds are satisfied,
decree granted.
 Temporary suspension of marriage.
 Cannot remarry after the passage of decree.
 It is a ground for divorce.
 A single instance of adultery sufficient for Judicial Sep.
 The possibility of reconciliation.
 Can file only after completion o
marriage.
 Judgement is a two-step process. Firs
then divorce.
 Brings marriage to an end.
 Can remarry once decree in favor
passed.
 Living in an adulterous relationship ne
 No possibility of reconciliation.
How to file a petition for divorce or judicial separation?

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction
of whose:

 The marriage was solemnized.

 The respondent, at the time of presentation of petition, resides.

 The parties to marriage last resided together.

 The petitioner is residing, in case the respondent is outside territory of India.

Under Section 21 of the Act, all proceedings under this Act shall be regulated by the Code of
Civil Procedure.

Under order VII, rule 1 of CPC every petition for divorce or judicial separation must contain:

 The place and date of marriage

 Affidavit of being a Hindu

 Name, status, and domicile of husband and wife.

 Name of children, their sex, and date of birth.

 Full particulars of any litigation filed before the presentation of the petition for divorce.

 Evidence of the grounds for divorce or judicial separation. For example- in case of
cruelty, specific act of cruelty, medical report, place of cruelty, etc.

After filing of the petition, the other party is summoned. Both the parties are required to furnish
evidence to strengthen their claim. After furnishing of evidence is over, the judge hears the
argument of each side and passes a decree. Appeals against the decision of the lower court can be
made in a higher court.

Conclusion

Before 1955, there was no provision for separation or divorce. Reforms introduced in the Hindu
Law by way of legislation and amendments is a welcome step by the government. The two
relieves granted by the HMA,1955 have proven to be effective in resolving disputes between
parties by giving them an opportunity to reconcile their difference or by releasing them from
marital ties.

Divorce under hindu law

Introduction

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in any way.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in the discontinuance of
marriage. He declares” let mutual fidelity continue till death; this, in brief, may be understood to
be the highest dharma of the husband and wife[i].”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Theories of Divorce

There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and the only innocent party can seek the remedy of divorce.
However, the most striking feature and the drawback is that if both parties have been at fault,
there is no remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of the relationship
of their own free will. However, critics of this theory say that this approach will promote
immorality as it will lead to hasty divorces and parties would dissolve their marriage even if
there were slight incompatibility of temperament.

The third theory relates to the irretrievable breakdown of the marriage. The breakdown of
marriage is defined as “such failure in the matrimonial relationships or such circumstances
adverse to that relationship that no reasonable probability remains for the spouses again living
together as husband & wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.

Some of the grounds available under the Hindu Marriage Act can be said to be under the theory
of frustration by reason of specified circumstances. These include civil death, renouncement of
the world etc.[ii]

Grounds for Divorce Under Hindu Marriage Act

It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relationship should be surrounded with every safeguard and its severance be
allowed only in the manner and for the cause specified by law. Divorce is not favored or
encouraged and is permitted only for grave reasons.

In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained
on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the
fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or
wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could
seek the divorce.

In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section
13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment
Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by
mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

Adultery

While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery.

In adultery there must be voluntary or consensual sexual intercourse between a married person
and another, whether married or unmarried, of the opposite sex, not being the other’s spouse,
during the subsistence of marriage. Thus, intercourse with the former or latter wife of a
polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse
with the second wife will amount to adultery.

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce[iii].

Since adultery is an offense against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to
the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then
the husband would not be entitled to a divorce.

In Swapna Ghose v. Sadanand Ghose[iv] the wife found her husband and the adulteress to be
lying in the same bed at night and further evidence of the neighbors that the husband was living
with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter
is that direct proof of adultery is very rare.
The offence of adultery may be proved by:

 Circumstantial evidence

 Contracting venereal disease

Cruelty

The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided
on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to
say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts the pain of such a degree and duration that it adversely affects the health, mental or
bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta,[v] the court
has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows[vi]–

 false accusations of adultery or unchastity

 demand of dowry

 refusal to have marital intercourse/children

 impotency

 birth of child

 drunkenness

 threat to commit suicide

 wife’s writing false complaints to employer of the husband

 incompatibility of temperament

 irretrievable breakdown of marriage

The following do not amount to cruelty-

 ordinary wear & tear of married life

 wife’s refusal to resign her job

 desertion per se

 outbursts of temper without rancor.

Desertion

Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute desertion; they must co-exist to present
a ground for divorce:

 the factum of separation

 animus deserdendi (intention to desert)

 desertion without any reasonable cause

 desertion without consent of other party

 statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati[vii] the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently
he shows an inclination to return & is prevented from doing so by the petitioner.

Conversion

When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Insanity

Insanity as a ground of divorce has the following two requirements-

1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner cannot reasonably be expected to
live with the respondent.

Leprosy

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating
psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for
which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).

Renunciation

“Renunciation of the world” is a ground for divorce only under Hindu law, as the renunciation of
the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may
seek divorce if the other party has renounced the world and has entered a holy order. A person
who does this is considered as civilly dead. Such renunciation by entering into a religious order
must be unequivocal & absolute.

Presumption Of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent is
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact[viii]. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the
time when the decree was passed.

Wife’s Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil[ix] where a man had two wives, one of
whom sued for divorce, and while the petition was pending, he divorced the second wife. He
then averred that since he was left only with one wife, and the petition should be dismissed. The
Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.

Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.
Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C.,
1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation
has not been resumed between parties after one year or upwards, then this is a valid ground for
suing for divorce.

Repudiation Of Marriage

This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.

Irretrievable Breakdown Of Marriage

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation, and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

Under the Hindu Marriage Act, 1955 primarily there are three theories under which divorce is
granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in
legal jurisprudence, based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any reason and if the
matrimonial relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouses can live peacefully with each
other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exist only in name and not
in reality[x].

The breakdown of the relationship is presumed de facto. The fact that parties to marriage are
living separately for reasonably longer period of time (say two or three years), with any
reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which
shows the unwillingness of the parties or even of one of the party to live together) and all their
attempts to reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli[xi] has recommended an amendment
to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage
as a reason to seek the divorce. Expressing the concern that divorce could not be granted in a
number of cases where marriages were virtually dead due to the absence of the provision of
irretrievable breakdown, the court strongly advocated incorporating this concept in the law in
view of the change of circumstances.

The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, the public interest requires the recognition
of the fact. The judgment notes that there is no acceptable way in which a spouse can be
compelled to resume life with the consort and that situations causing misery should not be
allowed to continue indefinitely as the law has a responsibility to adequately respond to the
needs of the society. The profound reasoning is that in situations when there is absolutely no
chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep
the marital tie alive. Here the ground of irretrievable breakdown is really needed. But it should
not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no
party is exploited.

Merits

The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be a sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to the marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of the life of the spouses, it is necessary to dissolve such a marriage.

Demerits
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take advantage of his own fault by getting separated and
dissolving the marriage.

Conclusion

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, the time has
changed; situations have changed; the social ladder has turned. Now the law provides for a way
to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors
of such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of
marriage, it is feared that it will completely pause the system of marriages. Every theory has its
negative and positive traits. Their applicability differs from situation to situation. Therefore it is
very essential that the lawmakers of our country should deal with the subject in a very cautious
manner after considering in detail its future implications.

Restitution of Conjugal Rights

Introduction

Marriage is just not only a ceremony, it also includes various marital duties and legal rights
associated with it. One of the fundamental purposes of marriage is that the spouses live together
and one spouse is entitled to the society and comfort. A cause of action, therefore, arises when
one party to the marriage withdraws from the society of the other without reasonable and just
cause and excuse would be proceeded against by the other in the court of law praying for a
decree of restitution of conjugal rights. The expression ‘conjugal rights’ connotes two ideas:

1. Right of couple to have each other’s society, and

2. Right to marital intercourse

During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
Parliament for and against it. In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court
observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery
or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India
came into force, which guarantees personal liberties and equality of status and opportunity to
men and women alike and further confers powers on the State to make special provisions for
their protection and safeguard.”

This remedy of Restitution of Conjugal Rights has been laid down under Section 9 of Hindu
Marriage Act, 1955. It runs as under:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the District Court, for
restitution of conjugal rights and the court on being satisfied with the truth of the statements
made in such petition and that there is no legal ground why the application should not be granted
may decree restitution of conjugal rights accordingly.”

The Explanation attached to the section clarifies that when a question as to the existence of
reasonable excuse for withdrawal from the other person’s society arises, the burden of proof to
prove the same shall be on the person who has withdrawn from the society.

Therefore, for restitution the following three conditions must be satisfied:

1. Respondent has withdrawn from the society of petitioner without reasonable excuse

2. Court is satisfied with truth of statement made in such petition, and

3. There is no legal ground why the relief should not be granted

Withdrawal from the Society:

The expression, “society” used in this Section should be understood as marital cohabitation that
is to say that the husband cherishing and supporting his wife as a husband should do and a wife
rendering duties as a housewife. Though they may not live under the same roof yet there would
be cohabitation in the wider sense of the term if they fulfill the mutual duties to each other as
husband and wife. The expression “withdrawal from the society of the other” involves a mental
process besides physical separation.

It means withdrawal from the totality of conjugal relationships, such as refusal to stay together,
refusal to give comfort to other, refusal to have marital intercourse and refusal to discharge
matrimonial obligations. Where the husband throws out or leaves a wife who is guilty of the
matrimonial offense (adultery, cruelty or apostasy), it cannot be said that she has withdrawn from
the society of the husband. The reason is that she has not left the husband on her own.
Withdrawal by the respondent takes place when the respondent does it voluntarily. In cases
where husband compelled his wife to leave the matrimonial home is not withdrawal by the wife
from the husband’s society.

2. HISTORICAL BACKGROUND-
The remedy of Restitution of Conjugal Rights is a new for the Indian matrimonial jurisprudence
that finds its origin in the Jewish laws. The remedy was unknown to Hindu law till the British
introduced. In fact it is the only matrimonial remedy which was made available under the British
rule to all communities in India under the general law. After independence this remedy found
place in the Hindu Marriage Act, 1955. This remedy opposed by-

 Khardekar had opposed the remedy, saying, “to say the least this particular cause is
uncouth, barbarous and vulgar. That the government should be abettors in a form of
legalized rape is something very shocking”

 Bromley has also opposed this concept in his book.

 Vehemently opposed the remedy saying, “I have not once known a restitution petition to
be genuine, that these were merely a convenient device either to enforce a money demand
or to obtain divorce.”

As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by
the Dharmashastra nor did the Muslim law made any provisions for it. Restitution of conjugal
rights has its roots in feudal England, where marriage was considered as a property deal and wife
was part of man’s possession like other chattels. The concept of restitution of conjugal rights was
introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum 1867,
where such actions were regarded as considerations for specific performance.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act,
1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce
Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1969 and to persons
married according to the provisions of the Special Marriage Act, Section 22 of the Special
Marriage Act, 1954.

3. MEANING OF RESTITUTION OF CONJUGAL RIGHTS-

Restitution of conjugal rights basically comprises of two major words, “Restitution” and
“Conjugal Right”.

 RESTITUTION: The restoration of something lost.

 CONJUGAL RIGHT: rights relating to marriage or the relationship between husband and
wife.

If either party to a marriage withdraws from the society of the other without reasonable cause,
the aggrieved party has a right to file a petition claiming relief for restitution of conjugal rights.
The court will grant the relief if there is no legal bar to such decree.
The legal definition given under Section 9 of Hindu marriage act 1955. The idea of providing for
restitution by a court decree is to preserve the marriage tie as far as possible, by enabling the
court to intervene and enjoin upon the withdrawing party to join the other. The condition to be
satisfied for obtaining such decree are-

1. The other spouse has withdrawn from the society of the petitioner.

2. There is no reasonable excuse for such withdrawal. Should the respondent allege
reasonable excuse, the burden of proof lies on him/her.

3. The court satisfied as to the truth of the statements made in the petition.

4. No legal grounds exist for refusing the decree.

There is withdrawal from society when one of the spouses, without reasonable excuse,
terminates an existing relationship with the intention of forsaking the other, and permanently or
indefinitely abandoning such relationship. Thus, while a husband and wife might be at times
living apart, but maintaining a frequent and regular social and conjugal relationship, in such a
case there would be no withdrawal from society. So after the solemnization of the marriage if
either of the spouses without reasonable excuse withdraws himself or herself from the society of
the other then aggrieved party has a legal right to file a petition in the matrimonial court for
restitution of conjugal rights.

In Ranjana Kejriwal v. Vinod Kumar Kejriwal[1], Petitioner Wife alleged that the husband
was already married and had suppressed the fact from her. The Court held that the petition for
restitution of conjugal rights is not maintainable since there is no legal marriage.

4. SPECIFIC PROVISIONS-

The provisions dealing with restitution of conjugal rights in the various personal laws, the
remedy is available under

1. Section 9 of the Hindu marriage act, 1955.

2. Section 32 or 33 of the Indian divorce act 1869

3. Section 36 of the Parsi marriage & divorce act 1969

4. Section 22 of the Special Marriage Act, 1954 in case of inter-caste marriage.

In order to get the decree of restitution of conjugal rights, the either party has to file for the
decree under the above mentioned provisions and then it will not be obligatory on the parties to
cohabit after such decree.
Cases on Constitutional validity of Section 9

 Sareetha v. Venkata Subbaiah(1983)

The case was decided by the Andhra Pradesh High Court which observed that Section 9 of the
said Act was a savage and barbarous remedy violating the right to privacy and human dignity
and equality guaranteed by Article 14 & 21 of the Constitution.

Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under Part
III of the Constitution. According to the learned Judge, a decree for restitution of conjugal rights
deprived of her choice as and when and by whom the various parts of her body should be
allowed to be sensed. The court relied on the Scarman Commission’s Report in England that
recommended its abolition.

 Harvinder Kaur v. Harmander Singh 1983

It was held that sec 9 was not violative of Articles 14 and 21 of the Constitution since the leading
idea behind Sec 9 was to preserve the marriage. The remedy of restitution was aimed at
cohabitation and consortium and not merely at sexual intercourse

 Saroj Rani v. Sudarshan Kumar

The above contradictions about the constitutional validity of Sec 9 were set at rest by the Apex
Court in this case. The case primarily raised 3 issues:

1. Determination of husband entitlement to divorce when petitioning of restitution of

conjugal rights was filed by the wife. – Since a spouse is not barred by Sec 23(a) from
claiming relief under Sec 13(1A), the decree was passed.

2. Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the

Act. – It was held that Sec 9 is not violative of Article14 and 21 of Constitution.

3. Determination of maintenance – Separate maintenance was ordered for the wife and the
daughter.

 Vuyyuru Pothuraju v. Radha 1965

In the instant case, there was a pre- nuptial agreement between the husband and wife that after
marriage, the husband would live with wife at her foster- father’s house. Subsequently, he was
ill-treated there and returned to his village and requested his wife to come over to him. On her
refusal, he initiated a suit of restitution of conjugal rights. The Court held that pre- nuptial
agreement was unenforceable and subsequently allowed the petition.

As a general principle, any agreement, be it under Hindu law or Muslim law, between husbands
wife to live separately, is considered to be void for being contrary to public policy.
  Mirchumal v. Devi Bai

This case primarily deals with the effect of husband and wife serving in different places. In this
case, the husband was in service near Ajmer and the wife worked in Adipur. On the wife’s
refusal to quit her job, the husband moved the petition for restitution of conjugal rights. The
court held that if there is no refusal on the part of the wife to allow access to her husband and no
reluctance on her part in going to her husband, then the mere refusal on her part to resign her job
is sufficient ground for the husband to seek relief for restitution of conjugal rights. Hence the
petition was dismissed.

6.
APPLICATION OF THE PROVISION IN DIFFERENT COMMUNITIES-

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress
in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in
case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India
in case of all communities have passed decrees for restitution of conjugal rights.

 Hindu

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The
aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights.
One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it
provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the
Hindu Marriage Act, 1955. The legal grounds for refusing to grant relief are:

 For instance, any ground on which the respondent could have asked for a decree for
judicial separation or for nullity of marriage or for divorce;

 Reasonable excuse for withdrawing from the society of the petitioner;

 Any conduct on the part of the petitioner or fact tantamount to the petitioner taking
advantage of his or her own wrong or any disability for the purpose of such relief;

 Unnecessary or improper delay in instituting the proceeding.

6.2 Muslim

If the husband either deserts a wife or neglects to perform his marital obligations without any
proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply
for restitution of conjugal rights. But the court can refuse to grant order of restitution of conjugal
rights for following reasons:

 Cruelty by husband or in-laws

  On the failure by the husband to perform marital obligations

 On non-payment of prompt dower by the husband

6.3 Christian

A Christian husband and wife can also apply for an order of restitution of conjugal rights. The
Court cannot pass the decree for following reasons:

 Cruelty of husband or wife

 If either of the spouse is insane

 If any one of the spouse marries again.

CONCLUSION-

In the above paper I familiarized with the legal provisions related to restitution of conjugal
rights. Here one question arises whether any one forced to live with a partner he/she does not
want to live with? Marriage is a pure relation between two person but it is not right to only
prevent for this relation force to live together However, there is a bigger debate we need to dwell
into. As understood, the restitution of conjugal rights is a part of the personal laws of the
individual, thus they are guided by ideals such as religion, tradition and custom. A very
important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed
at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation.
It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage.
The decree of restitution of conjugal right or right to stay together is not obeyed for a period of
more than one year, subsequent to the date of the decree, it becomes a good ground for divorce.

So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties
and maintenance of matrimonial. It tries to protect the society from denigrating. But the final
decision is that of the parties whether to obey the decree of restitution of conjugal rights and to
continue with the matrimony or not.

Adoption

in modern time, our present Hindu Law enactments are concerned with only three kinds of
sons, namely-

 Legitimate

 Illegitimate

 Adoption

ADOPTION
MEANING: According to Manu, adoption is the “taking of a son, as a substitute for the failure
of a male issue.” Thus it is a transplantation of a son from one family in which he is born to
another family where he is given by the natural parents by way of gift. Adoption is a legally
recognised mode of affiliation as the son of a person, of one who in fact was not his son.

On adoption, ties of the son with his old family are severed and he is taken being born in the new
family, acquiring rights, duties and status in the new family.

Now, in the present scenario, the Hindu Adoption and Maintenance Act, 1956 has completely
codified the law of adoption and has materially modified it in correspondence to the needs of
dynamism of Hindu society. Therefore, every adoption shall be made in conformity with this act
and any contravention of the provisions of this act shall be void.

ESSENTIALS OF VALID ADOPTION

Section 6 of the Act enumerates the requisites of a Valid Adoption

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 this Chapter

Therefore, no adoption is considered valid unless it fulfils the abovementioned conditions under
Section 6 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.

 Capacity of a male Hindu to take in adoption

According to 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 on the consent
of his wife.

In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P & H), the Court
upheld that if adoption taken by the husband without the consent of the wife, that adoption will
be illegal.

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.

In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114, the Court held that where
the above three disabilities of wife have not been established the consent of such wife would be
mandatory for a valid adoption. If the consent of wife is not established, the Court will declare
the Adoption null and void.

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 be capable to take a child in
adoption i.e. the person must be of sound mind and he must not be 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.

 Capacity of a female Hindu to take in adoption

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
marriage has been dissolved or whose husband is dead or her husband has renounced the world
finally and conclusively or her husband has become a convert or her husband has been declared
to be of unsound mind by a court of competent jurisdiction 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.

In the case of Narinderjit Kaur v. Union of India and another, AIR 1997 P&H 280, it was
held that the adoption of a child under the authority of parents is valid. Where a child was given
in adoption willingly by natural parents and was taken in adoption by the adoptive mother
through her attorney, it was held to be a valid adoption. It was also held that subsequent marriage
of adoptive mother does not invalidate the adoption.

However the 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu Law.

The newly enacted Section 8 reads as under,

“Any female Hindu who is of sound mind and is not a minor has the capacity can take a son or
daughter in adoption,

Provided that, if she has a husband living, she shall not adopt a son or daughter except with, the
consent of her husband unless the husband has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of
unsound mind.”

 Person capable of giving in adoption

Section 9 of the Act lays 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 completely 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 or to be unsound mind or had finally renounced the world, is 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:-

1. That the adoption will be for welfare of the child.

2. That the applicant for permission has not received any payment in consideration
of the adoption.

3. 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.

 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:-

1. He or she should be Hindu.

2. He or She not already be adopted any child adopted.

3. He or She has not been married unless there is a custom applicable which permits being
can adopt.
 4. He or She has not completed the age of fifteen years which is to be considered being
taken for adoption.

Adoption of an orphan-

Under the present law an orphan could also be taken in adoption. In such cases the guardian of
the orphan can obtain the permission of the court to this event and thereafter could give the child
in adoption.

The case of Balakrishna v. Sadashive-1977, another case of Mayaram v. Jai Naraian -

1989 and Kodippa Rama Papal urf Shirke v. 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. Girish-1986.

Another case of Dev Gonda v. 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.

 Other conditions for a valid adoption

According to Section 11, in every adoption, the following conditions must be complied with:

1. if the adoption is of a son , the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;

2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son’s daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;

3. if the adoption is by a male and the person to be adopted is a female, the adoptive father
is at least 21 years older than the person to be adopted;

4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother
is at least twenty-one years older than the person to be adopted;

5. the same child may not be adopted simultaneously by two or more persons (does not refer
to if both persons are adoptive mother and father) ;

6. the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the
family of its birth or in the case of an abandoned child or child whose parentage is not
known, from the place or family where it has been brought up to the family of its
adoption:
Provided that the performance of datta homam shall not be essential to the validity of adoption.

Effects of a valid adoption – Section 12

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from such date all the ties of the child in
the family of his or her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family:

Provided that- (a) the child cannot marry any person whom he or she could not have married if
he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth;

(c) The adopted child shall not divest any person of any estate which vested in him or her before
the adoption.

Right of adoptive parents to dispose of their properties – Section 13

Section 13 lays down that where there is no agreement to the contrary, an adoption does not
deprive the adoptive father or mother of the power to dispose of his or her property by transfer
inter vivos or by will.

Thus an adoptive parent is in no way restrained in the disposal of their property by reason of
adoption.

Adoptive parent’s right to disposing off his property is subject to an agreement to the contrary
that might have been entered into at the time of adoption between the adoptive parents and the
natural parents on behalf of the child for his benefit. Under the Act, thus, agreements restricting
the power of alienation of the adoptive parents is void.

Relationship of adopted child – Section 14

Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The Section provides for the determination of adoptive mother in certain cases. The Section lays
down that –

(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive
mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior-most in
marriage among them shall be deemed to be the adoptive mother and the others to be step-
mothers.
(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall
be deemed to be the step-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries
subsequently shall be deemed to be the step-father of the adopted child.

Valid adoption not to be cancelled – Section 15

Section 15 lays down that no adoption which has been validly made can be cancelled by father
or mother. An adopted child also cannot renounce his/her status as the adopted child and
return to the family of his/her birth.

Prohibition of certain payments – Section 17

Section 17 prohibits certain payments.

Section 17 (1) states that no person shall receive and no person shall make or give to any other
person any payment or reward the receipt of which is prohibited by this section.

Section 17 (2) provides that if any person contravenes the provisions of Section 17 (1), he shall
be punishable with imprisonment which may extend to six months, or with fine, or with both.

Finally, Section 17 (3) states that no prosecution under this section shall be instituted without
the previous sanction of the State Government or an officer authorized by the State Government
in this behalf.

Effects of invalid adoption

The adopted son does not acquire any right in the adopted family. He does not forfeit his right in
the natural family.

 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 cannot be a valid adoption unless the adoptive boy is transferred from one
family to another by doing the ceremony of given and taken.

Guardianship

Introduction

In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to
the concept of joint families where a child without parents is taken care of by the head of the
joint family. Thus no specific laws were required regarding the guardianship. In modern times
the concept of guardianship has changed from the paternal power to the idea of protection and
the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and
guardianship with the welfare of the child at the core.

Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor that is below
the age of Eighteen years who is incapable of taking care of himself or of handling his
affairs and thus requires help, support and protection. Then, under such a situation a
guardian has been appointed for the care of his body and his property.

According to Section 4 of HMG Act, 1956 Guardian means a person having the care of a person
of a minor or of his property or of both the person and his property. This includes:

 natural guardian

 guardian appointed by the will of a natural guardian (testamentary guardian)

 a guardian appointed or declared by court

 A person empowered to act as such by the order of Court of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor
without authority of law, can also be a guardian under the above definition and is called a de
facto guardian. De facto guardians include self-appointed guardians and guardians by affinity,
such as guardians for a minor widow. However, a person does not have right to sell or deal with
minor’s property if he is merely a de-facto guardian as per section 11.

Who are the natural guardian:-

Under Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the expression natural
guardian refers to the father and after him the mother of the Minor. The natural guardian of 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.
Provided that upto age of five year mother is generally the natural guardian of a child. The
guardian of illegitimate boy or illegitimate unmarried girl shall be firstly the mother and later the
father. The guardian of married girl is her husband.
The guardianship can be terminated in the following situations:-

(i) When such guardian is no more Hindu.

(ii) When he has renounced the world.

In case of E.M. Nadar v. 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. 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. Prem Nath, 1969, it was held that the guardian below the age of 5 years
is mother.

But in several decision, 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. M. Kamalamma, 1992

(ii) Smt. Geeta Hariharan v. 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 – Section 8 of HMGA 1956 describes the
powers of a natural guardian as follows:

 A guardian can do any act, subject to provisions of this section, that are necessary or are
reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But
the guardian, in no case, shall bind the minor by a personal covenant.

 The guardian cannot, without prior permission from the court,

o Mortgage, charge, or transfer the immovable property of the minor by way of

sale, gift, exchange, or otherwise.
 o Lease the immovable property for a term more than 5 years or where the lease
ends one year after the minor attains majority.

 Any sale of immovable property in violation of the above two points, is voidable at the
insistence of the minor.

 The court shall not give permission for sale of immovable property unless it is necessary
or clearly in the benefit of the minor.

These powers also include the following:-

 right in education

 right to determine religion

 right to custody

 right to control movement

 right to chastisement

In the case of Manik Chandra v. Ram Chandra AIR 1981 SC has held that the meaning of
“necessity” and “advantage” of a minor are quite wide and the courts have the power to widen
their scope as per the case facts before giving the permission. As per section 12, no guardian can
be appointed for the undivided interest in the joint property of the minor. However, the court
may appoint a guardian for the complete joint family if required.
Minor cannot the guardian of another minor: – As described in Section 10 of the Act that no
minor cannot be guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was
held the minor can be the guardian of his wife but cannot be guardian of her property.

Testamentary Guardian (Sec 9) – a person who becomes a guardian due to the will of a natural
guardian is called a testamentary guardian. Section 9 defines a testamentary guardian and his
powers.

 For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any
person to act as the guardian of the child after the death of the father. However, if the
mother is alive, she will automatically become the natural guardian and after her death, if
she has not named any guardian, the person appointed by the father will become the
guardian.

 A widow mother who is a natural guardian, or a mother who is a natural guardian

because the father is not eligible to be a natural guardian, is entitled to appoint a person to
act as a guardian after her death.
  For an illegitimate child, the power of appointing a testamentary guardian lies only with
the mother.

Powers
A testamentary guardian assumes all powers of a natural guardian subject to limitations
described in this act and to the limitations contained in the will. A testamentary guardian is not
liable personally for the expenses and he can ask the guardian of the property of the minor to
meet the expenses through the property. The rights of the guardian appointed by will cease upon
the marriage of the girl.

Guardianship by Affinity

In Paras Nath v. State, Allahabad HC 1960, held that the father-in-law is the rightful guardian
of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also
did not hold this view and held that the welfare of the child is to be considered first before
anything else.

De Facto Guardian

Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the
minor merely on the ground of his being the de facto guardian. There is controversy regarding
the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void
while alienation by de jure guardian is voidable (Ashwini Kr v. Fulkumari, Cal HC 1983),
while some HC have held that both are voidable (Sriramulu’ case 1949). It is now well settled
that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or to
make reference to arbitration.

Custody of a minor

Custody of a minor is also subordinate to section 13, which declares the welfare of the child to
be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to
be considered, though his wishes may be disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic condition of the
father than maternal grandfather is considered to be in favour of the father. In Kumar v.
Chethana AIR 2004, SC has held that mother’s remarriage is not a sufficient cause in itself to
lose custody of a minor. It was further held that convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third person as was
given to the mother and grandfather by SC in case of Poonam v. Krishanlal AIR 1989.
In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor
and after a long time demanded the guardianship. His claim was rejected.
In the case of Chakki v. Ayyapan 1989, a mother who says she will keep living with friends and
may beget children from others, was not considered appropriate for custody in the minor’s
interest.
Power over minor’s property

In general, a guardian may do all acts that are in the interest of the minor. A third party may deal
safely with the guardian in this respect. However, this excludes fraudulent, speculative, and
unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate
the minor’s property if it is necessary as determined by SC in Hanuman Prasad v. Babooee
Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts
permission before alienating the minor’s interest in the minor’s property. Also, a guardian does
not have any right over the joint family interest of a minor.
In the case of Vishambhar v. Laxminarayana, 2001, SC has held that a sale of minor’s
immovable property without courts permission is voidable and not void ab-initio. It further held
that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction.

In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the
consideration.

Liabilities of a guardian

since the legal position of a guardian is fiduciary, he is personally liable for breach of trust.

 He is not entitled to any compensation unless explicitly specified in a will.

 A guardian cannot take possession of minor’s properties adversely.

 Must manage the affairs prudently.

 Liable to render all accounts.

If the minor, after attaining majority, discharges the guardian or reaches a settlement of account,
the guardian’s liability comes to an end.

Rights of a guardian:

A guardian has a right to:-

 Represent the minor in litigations.

 Get compensation for legal expenses from minor’s property.

 Sue the minor after he attains majority to recover expenses.

 Refer matters to arbitration if it is in the best interest of the minor.

 Have exclusive possession of minor’s property.

Removal of a guardian
Court has the power to remove any guardian in accordance to section 13.

 Ceases to be a Hindu.

 Becomes hermit or ascetic.

 Court can remove if it finds that it is not in the best interest of the child.

Welfare of the minor is of paramount importance (Sec 13)

 While appointing or declaring a guardian for a minor, the count shall take into account
the welfare of the minor.

 No person shall have the right to guardianship by virtue of the provisions of this act or
any law relating to the guardianship in marriage if the court believes that it is not in the
interest of the minor.

Thus, under this doctrine, any guardian may be removed depending on the circumstances on per
case basis and the court may appoint a guardian as per the best interests of the minor.

Stridhan

INTRODUCTION

One of the most widespread social evil that has plagued our modern society is the ‘dowry
system’. This evil has already taken the lives of many girls while many continue to suffer
because of it like slow poison throughout their lives. Even though we have to a great extent
succeeded in creating awareness, the country in which we live has wide ethnic, linguistic,
cultural diversities. As such in our society people may not pay heed to the calls of any particular
organization when it comes to the eradication of social evils. It is, therefore, important that the
task to remove these evils is carried forward at the individual level in a big way.

However, there is one more aspect which we need to understand and that involves the right to
avail ‘Streedhan’. We should be careful that even if dowry is denied, the bride does not lose her
right to ‘Streedhan’ and in places where she has received the ‘Streedhan, her husband does not
absorb it as his own money. There is a basic difference between ‘Streedhan’ and ‘dowry’ It is
pertinent to mention here that under the pretext of a dowry-less marriage, patriarchal parents
often deprive their girl children of equal rights to the property.

The parents should give the daughter’s share of property in her name voluntarily to ensure
financial security for an independent life, once she leaves her parental home for good. In many
well-off families, dowry has become a tool to deprive daughters of their rightful share with a car,
some gold, and some furniture while the lion’s share including land, houses, and bank balances
etc. are kept exclusively for the benefit of sons[1].
Salient features of stridhan

The salient features of Stridhan can be described as under:

(1) The test as to whether it is Stridhan:

A Hindu female can secure the property from numerous sources but every such property cannot
be Stridhan. Whether a property constitutes Stridhan, depends upon the following factors:

(a) Source of acquiring the property,

(b) The status of the female at the time of acquiring the property, i.e., maidenhood, married
status or widowhood,

(c) The school to which she belonged.

(2) Succession:

In the matters of succession to Stridhan, a new order of heirs was provided under law which
included her own heirs upon whom Stridhan devolved after the death of the female. This rule
does not apply to the succession of woman’s estate. But now under the Hindu Succession Act,
1956 the distinction between the two categories of property have been abolished and an uniform
rule of succession has been provided with respect to Stridhan.

(3) Power of alienation:

A Hindu female possessed absolute ownership over Stridhan and hence she enjoyed absolute
right of alienation of such property. She could voluntarily dispose it of.

After the commencement of the Hindu Succession Act, 1956, every property held by a Hindu
female on the date of the enforcement of Act, whether acquired prior or subsequent to the Act,
became her absolute property. Hence she has got the absolute power to alienate the same at her
volition.

CONSTITUENTS OF STREEDHAN

The word ‘’Streedhan’ has been derived from the words ‘Stri’ meaning a woman and the word
‘dhana’ means property. Therefore on combining these two words, we get ‘property of woman’
her ‘Streedhan’. This is a concept, which came down all the centuries from the Hindu Smritis but
has today, engulfed all forms of marriages in all visible castes and regions.

According to the age-old Smritis and all old schools of Hindu law such as Dayabhaga,
Mitakshara etc. the following was Streedhan in the hands of a woman whether she is a maiden,
married woman or widow[2].

1. Gifts made to a woman before the nuptial fire.

 2. Gifts made to a woman at the bridal procession

3. Gifts made in token of love by father-in-law, mother-in-law

4. Gifts made by father, mother and brother

This cannot be said to be a complete list so gifts made after marriage by a woman’s husband’s
relations or parent’s relations and gifts from sons and relations got added to the list as so did
many more as can be seen here. The question as to if a particular kind of property acquired by a
woman was Streedhan or not also depended upon the source from which the property was
acquired, the marital status of the woman at the time of acquisition whether she acquired it
during her maidenhood, subsistence of marriage or widowhood. Gifts and bequests from a
woman’s relations during maidenhood, subsistence of marriage or widowhood is all to be
construed as her Streedhan.

Gifts and bequests from strangers during maidenhood, subsistence of marriage or widowhood is
also Streedhan. In effecting Partition if as an absolute gift or interest in a share is given to a
woman whether during her maidenhood, marriage or widowhood the same amounts to her
Streedhan. Property inherited by a woman becomes her Streedhan or property acquired by a
woman by mechanical arts or by her own exertions during maidenhood, subsistence of marriage
and during widowhood is Streedhan.

Property obtained by a woman by compromise or family arrangement where there is no

presumption of her taking only a life interest becomes her Streedhan[3]. Property obtained by a
woman by adverse possession during maidenhood, subsistence of marriage and during
widowhood is Streedhan. Property purchased with Streedhan is a woman’s Streedhan. Gifts
made to the husband during and after marriage are not Streedhan. In case of a dispute over who
were the gifts made to, more often than not woman is given a priority over the husband.

For a married woman Streedhan falls under two heads[4]:

1. The saudayika(gifts of love and affection) – gifts received by a woman from relations on
both sides (parents and in-laws).

2. The non-saudayika– all other types of Streedhan such as gifts from stranger, property
acquired by self-exertion or the mechanical arts.

Sources of Stridhan:

Properties acquired from the following sources fall under the expression Stridhan—

(i) Gift received from relatives.

(ii) Gifts and bequests received from strangers during maidenhood.

(iii) Property obtained in partition.

(iv) Property got in lieu of maintenance.

(v) Property acquired by inheritance.

(vi) Property acquired through technical skill and art.

(vii) Property acquired by compromise.

(viii)Property acquired by adverse possession.

(ix) Property purchased with the earnings of the Stridhan or with savings of income from
Stridhan.

(x) Property acquired lawfully from sources other than those mentioned above.

Kinds of Stridhana and incidents thereof:

(i) Adhayagni—gifts given at the time of nuptial fire.

(ii) Adhyavaharika—gifts given to bride while going to her husband’s house.

(iii) Pritidatta—gifts given to the daughters-in-law by mother and father-in-law out of love and
affection.

(iv) Patidatta—gifts given to her by her husband.

(v) Padvannadanika—gifts given by the elders while wishing them and paying them respect.

(vi) Anvadhyeyaka—gifts received from husband after her marriage.

(vii) Adhivedanika—gift given to first wife when the second wife was brought.

(viii) Shulk—money received for marriage.

(ix) Bandhudatta—gifts given by relatives of mother and father.

(x) Vritti—money given for maintenance and properties purchased from the money given
towards her maintenance.

(xi) Yavtaka—when the bride and bridegroom sat together after marriage and received gifts i.e.,
the gifts given to wife during marriage.

(xii) Ayavtaka—those which did not fall in the yavtaka category mentioned above.

(xiii) Savdayika and Asavdayika—this kind of Stridhan covers those properties which are
received by a woman from her husband, father or at husbands’ or father’s house. The division of,
Stridhan by Katyayana into Saudayika and Asaudayika depends upon right of alienation. She has
an absolute right over all the Saudayika properties. Over Asaudayika Stridhan the husband too
has the right of ownership.

(xiv) Paribhashit and aparibhashit—Technical stridhan—Mayukha law divides the Stridhan into
paribhashit and aparibhasit categories. The paribhasit one is given to the woman before fire or at
the time of her departure for husband’s home. Other properties given to her fall under
aparibhashik category.

DOWRY VERSUS STREEDHAN

In a country like India, where stringent laws have even failed to completely uproot the menace of
dowry from society, ‘Streedhan’ becomes a necessity of every woman. It is the right of women
to claim their wealth any time and use it in whichever way. Streedhan, as the name suggests, is
the wealth and other belongings of the woman which she has brought from her parents’ house
before, during or after marriage.

However, it is a common misbelieve prevailing in the society regarding this age-old ritual where
parents offer their daughter her share during the marriage. Streedhan is very often misinterpreted
as dowry even when the law of the land has an entirely different definition for it. The domestic
law perceives dowry as any property or valuable security given or agreed by the bride’s side to
the family of the bridegroom before, during or after marriage, by exploiting or threatening the
girl or her family while Streedhan is a voluntary gift given by members of the bridal side to the
bride as a stepping stone to establishing her own property. There are strict Streedhan laws and
the grooms’ side may face stringent action under Section 405 & 406 of the Indian Penal
Code if they deny returning wealth when claimed.

The Judiciary has tried to make references of two distinguished case-laws, in order to put light
on the Streedhan laws and laws against Dowry in the country.

1. Bhai Sher Jang Singh vs Smt. Virinder Kaur[5], while hearing the case, Punjab &
Haryana High Court had ruled that the groom’s side is bound to return back all the items
including property, ornaments, money and other belongings offered by the bride’s side at
the time of marriage if claimed. In the case of denial, the groom’s family is tending to get
strict punishment.

The court found that Bhai Sher Jang Singh and his family have committed an offense under
Section 406 of IPC by committing criminal breach of trust of the ornaments and other articles
owned by Virinder Kaur which were her Streedhan and were entrusted to her husband for safe
custody and which he has dishonestly misappropriated.

2. Pratibha Rani vs. Suraj Kumar[6]

While hearing the case, the Supreme Court observed that the complainant (Pratibha Rani) had
suffered by their in-laws when she was harassed and denied her Streedhan by his husband’s
family. The Apex Court observed that the case portrays the plight of an estranged married
woman. She even suffered large during the legal process, the court observed.

Pratibha Rani was married to Suraj Kumar on February 4, 1972. Rani’s family had given Rs
60,000, gold ornaments, and other valuable items to Kumar’s family on their demand. But soon
after Rani entered her marital home she was started being tortured by her in-laws for dowry. She
was forcefully kicked out of her in-law’s house with her two minor children and was denied
money and other essentials for survival[7].

She had lodged two complaints against her husband and in-laws under section125 Criminal
Penal Code and breach of trust. The lower court gave judgment in her favor but she got a
seatback from Punjab & Haryana High Court which was later on given in her favor by the
Hon’ble Supreme Court.

LEGAL STATUS OF STREEDHAN

1. Application u/s. 405 of IPC

The S. 405 of IPC reads as follows:

“Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or willfully suffers any other person so to do, commits
‘criminal breach of trust.

The offence under Section 405 can be said to have committed only when all of its essential
ingredients are found to have been satisfied. As in the case of criminal misappropriation, even a
temporary misappropriation could be sufficient to warrant a conviction under this section. Even
if the accused intended to restore the property in the future, at the time misappropriation, it is a
criminal breach of trust[8].

In Rashmi Kumar vs. Mahesh Kumar Bhada[9] the Supreme Court held that when the wife
entrusts her Streedhan property with the dominion over that property to her husband or any other
member of the family and the husband or such other member of the family dishonestly
misappropriates or converts to his own use that property, or willfully suffers and other person to
do so, he commits criminal breach of trust.

2. Application under allied laws

A woman’s right to her Streedhan is protected under law. S. 14 of the Hindu Succession Act,
1956 R/w S. 27 of the Hindu Marriage Act, 1955 make a female Hindu an absolute owner of
such property. In the case of Pratibha Rani vs. Suraj Kumar[10], the Hon’ble Supreme Court of
India explained the concept of ‘Streedhan’ and its legal position under the Indian Laws. The
Hon’ble Supreme Court of India held that:

“a Hindu married woman is the absolute owner of her Streedhan property and can deal with it
in any manner she likes and, even if it is placed in the custody of her husband or her in-laws they
would be deemed to be trustees and bound to return the same if and when demanded by her”.

It is, therefore, manifest that the position of Streedhan of a Hindu married woman’s property
during covertures is absolutely clear and unambiguous; she is the absolute owner of such
property and can deal with it in any manner she likes-she may spend the whole of it or give it
away at her own pleasure by gift or will without any reference to her husband.

Ordinarily, the husband has no right or interest in it with the sole exception that in times of
extreme distress, as in famine, illness or the like, the husband can utilize it but he is morally
bound to restore it or its value when he is able to do so. This right is purely personal to the
husband and the property so received by him in marriage cannot be proceeded against even in
execution of a decree for debt, such being the nature and character of Streedhan of a woman[11].
If her husband or any other member of his family who is in possession of such property,
dishonestly misappropriates or refuse to return the same, they may be liable to punishment for
the offence of criminal breach of trust under S. 405 & 406 IPC.

S. 12 of the Domestic Violence Act, 2005 provides for women right to her Streedhan in cases
where she is a victim of domestic violence. The provisions of this law can be easily invoked for
the recovery of Streedhan. Under the residence orders: Prov. (8) the magistrate may direct the
respondent to return to the possession of the aggrieved person her Streedhan or any other
property or valuable security to which she is entitled.

Again u/s 18(ii) of the Domestic Violence Act the law says that a woman is entitled to receive
the possession of the Streedhan, jewelry, clothes, and other necessary items. The term ‘economic
abuse’ has also been provided under the Act. It includes deprivation of all or any economic or
financial resources to which the woman is entitled under al the existing customary laws whether
payable at the concern of the court or in any other manner. These resources are however not
limited to the household necessities of the aggrieved person.

3. Application u/s. 498A of IPC invalid

For recovering the Streedhan, if a woman invokes S.498-A, it would be deemed as miss-use of
that section until the ingredients laid down in that provision are not satisfied. This is the reason
why Courts are continuously warning the estranged wife not to invoke S.498- A. Section 498-A
is a sacrosanct provision to protect the wife to lead a normal life in the matrimonial home in the
new and often foreign and sometimes hostile atmosphere.

If wife’s ‘Streedhan’ is usurped by the in-laws, then section 406 I.P.C can be used easily. S.498-
A is meant to protect the wives from physical and mental harassment for any reason including
the reason of dowry demand. It does not say, that refusal of returning Streedhan by the husband
or his relatives give scope to a wife to invoke S.498-A. Even civil lawsuit for recovery of
Streedhan can also be used by the wife to recover Streedhan.

If invoking Section 406 is utilized to recover Streedhan and further it is used only to protect the
wives, who are facing physical and/or mental harassment, then genuine victims will get
protection[12]. It should be noted that for recovery of Streedhan there are other provisions in the
law, which are equally effective and may not spoil the relationship of husband and wife beyond
repair.

RIGHTS OF A WOMAN OVER HER STREEDHAN

The bride has got an absolute, exclusive dominion over all her Streedhan, received during the
marriage. This includes both movable and immovable property, while she has the power to sell,
alienate or give it away as she pleases both during her lifetime and thereafter. Her husband and
in-law’s family members have no rights over a woman’s Streedhan. We need to understand that
the marriage expenses and dowry are not Streedhan as held in Ashok Laxman Kale vs Ujwala
Ashok Kale[13].

It is usually practical and preferable that any girl especially educated girls of today maintain a list
of their Streedhan has also become capable of looking after their own Streedhan in terms of its
security such as opening a bank locker in their single names for the purposes of storing jewelry
and instruments of money, property etc. or keeping it under their lock and key[14].

Some of the precautionary steps in keeping the check on the Streedhan could involve:

1. The woman should make a list of all the gifts and properties received before, during and
after marriage from her family, husband’s family, friends, and other acquaintances.

2. The woman should keep evidence for all the gifts received such as wedding pictures.
Also, ensure that the gifts and their bills are in her name and preserve these bills.

3. The woman should have witnesses – statements of witnesses will be important evidence –
for gifts of movables (including jewelry) at the time of marriage.

4. The woman should maintain a separate account in her name for her salary.

5. The woman should get involved in the family financial decision-making and keep a
record of bank accounts and the investments made out of her Streedhan.
 6. The woman should ensure that the title to the property given to her and those bought from
her Streedhan are clear and that the investments made from these assets are in her name.

7. The woman should open a bank locker in her name for storing jewelry and instruments of
money, property and so on.

8. It is advisable for the woman’s parents to gift her income-generating property, rather than
expensive consumer items. It becomes often difficult to give full detail accounts for the
consumer items.

The right depends upon the status and source of the Stridhan.

Unmarried Status:

Any Hindu woman can dispose of the Stridhan voluntarily. However if she is minor, minority
renders the incompetency to the right of disposal.

Married Status:

The right of disposal of the Stridhan varies with the nature of the Stridhan. For this purpose the
Stridhan has been divided into saudayika and asaudayika Stridhan.

During marriage the saudayika Stridhan could be alienated freely by her, but asaudayika Stridhan
could be alienated by her with the consent of her husband only. This rule is subject to the
condition that where husband and wife live together.

Where both have departed, asaudayika Stridhan can be disposed of by the wife even without the
consent of her husband. Generally husband has no control over the Stridhan of his wife, yet in
emergency he could still use and dispose the same without the consent of his wife. In calamities
or for religious purpose or if the wife has taken the Stridhan, then its return or repayment
depended upon the wishes of the husband.

During Widowhood:

During widowhood the woman has an absolute and unrestricted right of alienation of property,
irrespective of the fact whether it has been acquired prior or after the death of the husband. Thus
she can alienate the properties without any constraint.

So far as the question of succession to the property of a woman of bad character is concerned,
her bad character does not extinguish the blood relationship. Thus her near relatives who have
not professed the profession of bad character, can inherit the property. Her legitimate son will
thus exclude her illegitimate daughter and her husband will exclude his illegitimate son.
So far as the dancing girls are concerned the rules of succession were entirely different. These
girls followed this practice due to their family custom or due to their family trends. In their
reference no distinction existed between legitimate and illegitimate children. For these girls all
children born to them were on the same footing and were treated legitimate whether the
daughters of such girls were natural born, i.e., Avras or Dattaka, they inherited as daughters. In
Jagdamba v. Saroswati, it was held that a dasi putri and married daughter inherited equal shares
in their mother’s property. This view has also been approved by the Supreme Court.

Succession to property of Devadasis and Dancing girls was carried out according to the customs
and prevailing usages. No coparcenary developed between daughters and mothers. Hence no
daughter could claim partition against her mother.

Religious endowment

INTRODUCTION

“Let him without tiring always offer sacrifices (istha) and perform works of charity (purta) with
faith, for offering and charitable works made with faith and with lawfully earned money procure
endless rewards. Let him always practice according to his ability with a cheerful heart, the duty
of liberality (danadharma) both by sacrifices (istha) and charitable work (purta) if he finds a
worth recipient for his gifts.” - Manu Smriti, IV, 216-217.

The Hindu society has always been, at least apparently, a religious society. Therefore, there are
innumerable religious and charitable endowments built here and there all over the country. But
strangely enough the legal literature of the subject is very meagre. It does not figure in the
eighteen topics listed of legal action listed by Manu.2 There is no treatise in it unlike on subject
of adoption and partition. This absence was for two reasons. First, the priests who managed the
institution has a high character giving little rise to disputes of claim. Dispute is the mother of
law, little dispute little law. 3 Secondly, the religious endowments were regulated by their own
customs and usage which were as much binding as the smritis.4 Thus the law on the subjects has
been largely constructed and developed by the courts. The English judges who took considerable
part in this job naturally introduced their own ideas and ideals of such endowments.

The Shastric Hindu law authorized the ruler to exercise a right of supervision and protection over
the management and functioning of the religious and charitable endowments. The British
asserted this right as rulers. They passed a number of regulations and acts dating from 1810.
They were revised and at present there are only two all India enactments on the subject of
endowment.

The Charitable Endowments Act, 1890 and the Charitable and Religious Trusts Act, 1920. The
former relates to charitable endowments but not religious ones and the latter touches both. These
Acts are not comprehensive: they legislate on only a fraction of the subject. Section 92 of the
CPC also provides for instituting a suit for the proper management of endowment. The
Charitable Trusts Bill, 1960 was introduced in the Lok Sabha but it was permitted to lapse
because a report on the subject was awaited from the Law Commission. In 1962 the Law
Commission submitted its report with the suggestion that early steps should be taken to
implement its recommendation. So far the Central Government has paid little heed to this
suggestion.

But several States have passed their own acts in order to secure the proper management and
administration of the endowments situated in their territories.

THE HISTORICAL SIGNIFICANCE

It is certain that temples and Mutts did not exist in the Vedic period. In the Sutra period also
mutts did not exist, though it seems that temples in some form existed. GautamaDharmasutra
mentions a temple of God at more than one place, but we do not know what type of temple that
existed and which were the deities that Hindus worshipped then.

It is not easy to say when exactly idol worship came into existence. It is certain that it did not
exist in the vedic period. The Hindus have been worshipping Pouranic gods. The age of the
Pourannas is uncertain. Between 4th century and 8th century A.D., the worship of the pouranic
gods became very popular. The Gupta Emperors were the patrons of Pouranic faith. The idea of
trinity of God- Brahma as God of creation, Vishnu as God of preservation and Siva as the God of
destruction is a Pouranic concept.

With the emergence of idol worship, there came to existence and dedication of property for the
construction and maintenance of temples, mutts and construction of idols. From this time onward
Hindus have been dedicating property for religious and charitable purpose. This has been mainly
under two heads, Ista and Purta. The former indicates the vedic sacrifices and rites associated
with such sacrifices, while the latter stands for all other religions and charitable acts and
purposes unconnected with the vedic sacrifices. The ista-purta have been considered as means
for going to heaven. The istha works as enumerated by Pandit Pran Nath Saraswati in his work
on Endowments are- (a) Vedic Sacrifices, (b) gift offered to priests at the vedic sacrifice, (c)
preserving the Vedas, (d) religious austerity, (e) rectitude, (f) Vaiswaradeva sacrifices, (g)
Hospitality. The Purta works signify works of Public utility such as building tanks, wells, groves,
the gift of food, dharmashalas, schools, asylums, supplying drinking water, relief for sick, gift for
promotion of education and knowledge, temples and processions of deities, etc. It is evident that
no clear cut distinction was made between religious and charitable acts. Hospitality was an
Ishtha work and the construction of temples was a purta work.

It is submitted that the philosophy that Hindu propounded the social structure that they founded
and the concept of law that they enunciated did not have any scope for such distinction that we
make today between religious objects and charitable objects. All objects of dana enunciated by
sages were meritorious as all dana led to heaven. In that context any distinction between the
religious charity and the charity proper were wholly unfounded. Various types of gifts were
emphasized. But merely by making gifts of performing sacrifices, a charitable or religious
endowment does not come into existence. An endowment will come into existence only when
some property or fund is dedicated for a religious or charitable purpose or object.

ENDOWMENTS

Endowments are the dedication or entrustment of property either for a religious purpose or for a
charitable purpose or both: religious and charitable purposes. It may be called a religious
endowment or a charitable endowment depending upon its objects. A Hindu who is of sound and
not a minor may dispose of his property by gift or will for religious and charitable purposes shall
as the establishment and worship of an idol, feeding the Brahmins and the poor, 7 performance
of religious ceremonies like shradh, endowment of a hospital, etc. No list of what conduces to
religious merit in Hindu law can be exhaustive. However, when any purpose is claimed to be a
valid one for perpetual dedication on the ground of religious merit though lacking in public
benefit, it must be shown to have a Shastric basis. The heads of religious purposes determined by
belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with
public policy and needs of modern society.

Requisites of a valid endowment:

Following are the requisites of a valid endowment- (1) The author or settler of the endowment
must be competent to settle it. (2) The object must be either religious or charitable or both. (3)
The dedication by the settler must be bona fide and unambiguous. (4) The object or purpose of
dedication must be definite or certain. (5) The property dedicated must be ascertainable. (6) The
dedication must not be made in contravention of any provision of law. When the question as to
whether the endowment is real or fictitious, the mode of dealing with it by its donors and
successors is an important element for consideration.

Doubt as to certain gifts-

The High Court of Calcutta has expressed a doubt as to whether gifts to Pandits holding tolls for
learning in the country at the time of the Durga Puja, or for the reading of the Mahabharata and
Purana, or for the prayer of God during certain months are valid.

Superstitious uses not forbidden-

The English law relating to superstitious uses does not apply to Hindu religious endowments.
Thus, a gift in favour of an idol or for the performance of the worship of a deity is valid
according to the Hindu law, though it may not be valid according to the English Law.
Disposition for religious purposes are highly favoured by Hindu law and the learning of the court
is also in the same direction. Dedication of property by a Hindu to a deity is not only lawful, but
also commendable in a high degree from the Hindu point of view.

THE NEW LEGISLATION

A number of statutes have been enacted by State legislature in the last few years dealing with
religious and Charitable trusts and endowments. The validity of the provisions of a number of
them has been challenged under various Articles of the Constitution and courts have considered
those provisions inter alia in context of property of the trust or endowments, deities, idols,
temples and institutions as also the income and management of the property and affair of the
same including the right to and management of the worship of certain deities and idols. It is not
necessary in this chapter to refer to those decisions in any detail or to the constitutional questions
raised and it will suffice only to mention several decisions.

Competence of an Endower

A person who has the following three qualifications can donate his property for an endowment
by a gift inter vivos or by testamentary disposition.

(a) Age of Majority- He must have attained the age of majority. It is not the Shastric Hindu law
which decides the age of majority here. There is no statutory provision a so for this purpose
under any act relating to the personal Hindu law. The age of majority here is to be settled by the
provisions of the Indian Majority act, 1875. Section 7 of the Indian Trusts Act, 1882 provides
that a trust may be created by or on behalf of a minor also with the permission of a principal civil
court of original jurisdiction. But that does not govern the public or private religious
endowments. Hence, a minor is totally incompetent to settle or create a religious or charitable
endowment.

(b) Mental Soundness- He must be of a sound mind. Here, the law as laid down in Section 12 of
the Indian Contract Act, 1872 is to be followed. The settler is of a sound mind if at the time he
endows the property, he is capable of understanding it and of forming a rational judgment as to
its effect upon his interests. A person who is usually of unsound mind but occasionally of sound
mind may settle his property for an endowment during a lucid interval. Similarly, a person who
is usually of sound mind but occasionally of unsound mind is not capable of making the
endowments when he is of unsound mind.

(c) Right over Property- An endowment is made by making a gift of one’s property either inter
vivos or by one‟s will. The settler must respect the limitations, restrictions and conditions
imposed upon him while making a donation by gift or will for an endowment. It was held by the
Calcutta High Court that an endowment by a Hindu Widow in 1948 was invalid because she
exceeded the reasonable limits within which she could endow out of her Hindu women’s estate.

Religious or Charitable purpose

The purpose of an endowment may be either exclusively religious or exclusively charitable or

both braided together. It is difficult to define which are religious purposes exclusively. The
religions are all pervasive and consider nothing to be out of fold of religious purposes. But the
secular and scientific thinkers limit the bounds of religion to what is considered as the other-
worldly and spiritual affairs. Even if the ultimate aim is the good of human beings or any other
creatures they are charitable purposes and not religious ones. The religionists hold the charitable
purposes also as religious purposes and vice versa.

(i) Ishta-Purta- The Hindu Shastras make little distinction between religious and charitable
purposes. They describe religious purpose by the concept of Ishta-Purta. Prannath Saraswati has
perused the Hindu shastras in his Tagore Law Lectures on the Hindu Law of Endowments14 and
compiled the following as the ishti deeds which include Vedic sacrifices, gifts offered to priests
at the vedic offerings (Yajna), Preserving the Vedas, Religious austerity, Rectitude, Vaisvadara
sacrifices and hospitality. While the Purta deeds included Gifts offered outside the Yajna ground,
gifts offered in an eclipse or solstice, the construction of well or tank, the construction of temples
for the gods, the gift of food, and the relief for the sick.

The distinction between the Ishta and Purta is that the former is vedic and the latter is based on
the smritis. According to Yama, smriti-writer, heaven is attained by Ishta and one gets
emancipation by Purta. Eg- the Ardajame Kattalai grants in South India, which is an endowment
for midnight service.

(ii) Religious purpose under Hindu religion- There are several religions in the world. Mostly
they agree among themselves but there are areas of disagreements also. Therefore what is a
religious purpose according to the Hindu religion has to be decided by the Hindu religion itself.
If a purpose is not considered as religious by Hinduism, it cannot be admitted as a religious
purpose simply because some other religion considers it to be so. The Supreme Court has made it
clear in the case of Saraswati Ammal v. Rajagopal Ammal that “now it is correct to say that
what is a religious purpose under the Hindu Law must be determined according to Hindu
notions.”

(iii) English Law- The English Law includes the religious endowments within the meaning of
„charitable‟ endowments. In his celebrated judgment in Income Tax Special Purposes
Commissioners v. Pemsel, Lord Macnaghten grouped the charitable purposes under the
following heads: Relief of Poverty, education, the advancement of religion, and other purposes
beneficial to the community not coming under any of the proceeding heads. Thus the Indian Law
and the English Law are inclined not to separate the religious and charitable purposes. The
former includes charitable within the meaning of the religious while the latter does it otherwise.
In the Hindu Public v. Rajdhani Puja Samithee 18, the Supreme Court held that under the
Societies Registration Act, 1860 “charitable purposes” include religious purposes. The only
condition is that it should be for the benefit of the public.

(iv) Seperation between religious and charitable purposes- Theoretically speaking, the
distinction and separation between the exclusive religious purposes and the exclusive charitable
purposes is the contribution of the scientific and secular philosophies. They hold that all the
purposes which have been traditionally claimed as religious purposes by the religions of the
world are essentially not religious purposes. The purposes which relate to the management of our
life here in this world are not religious. If they purport to promote the well- being of mankind or
even other creatures without profit motive they are simply charitable and can be severed from the
religious purposes. The religious purposes are exclusively those which relate to the other world:
the relation between man and God. It is submitted that it would be profitable if we treat these
purposes as separate. It will enable the State to prevent mismanagement of those affairs of the
endowments which are not spiritual and divine. In India, a proper recognition is being given to
the distinction between these two purposes. The Charitable Endowments Act, 1890 does not
include the purposes which relate exclusively to religious teaching or worship within the
meaning of the charitable purposes. It includes within the charitable purposes the relief of the
poor, medical relief and the advancement of any other object of general public utility.

(v) Legislature on religious or charitable purposes- The ultimate decision on whether or not
an endowment is religious or/and charitable rests not with the settler but with the legislature and
the court. The definition of charitable and religious endowments as given in the Rajasthan Public
Trusts Act, 1950 may be taken as a model for the legislature‟s understanding of these
endowmwents,

“Section 2(3) „Charitable Endowments‟ means all property given or endowed for the benefit of,
or used as of right by the community or any section thereof for the support or maintenance of
object of utility to the said community or section such as rest-houses, pathshalas, schools,
colleges, houses for feeding the poor and institutions for advancement of education, medical
relief and public health or other subjects of a like nature and includes institutions concerned.

Section 2(13) „Religious Endowments‟ or endowments means all property belonging to or given
or endowed for the support of a religious institution or given or endowed for the performance of
any service or charity connected therewith and includes the premises of the religious institution
as well as the idols, if any, installed therein and nay public charity associated with a festival or
observance of a religious character whether connected with a religious institution or not, but does
not include gifts of property made as personal gifts to the trustee or hereditary trustee or working
trustee of such institution or to any service holder or other employee thereof.”

(vi) Courts on Religious and Charitable purposes- In the following cases the court held the
endowment to be for religious purposes under the Hindu Law: for the worship of the family
deity21 for the performance of the shradha of one‟s self and of one‟s ancestors, for the
propagation of Nama Dharma and continuance of Sarban Kirtan Dharma for the shelter of
sadhus, saints and religious mendicants. In the following cases the object of the endowment was
held not to be religious or charitable: entombment of the settler and worship at his tomb. The
Supreme Court held that the entombment of ordinary individuals is not enjoined by the Hindu
Shastras, nor does it enjoy wide recognition as a religious practice of a substantial and large class
of persons. But if the Samadhi is that of a great saint who is deified and worshipped, it is a valid
endowment.
Endowments- how to be created

No writing is necessary to create an endowment25 except where the endowment is created by a

will, in which case the will must be in writing and attested by atleast who witnesses if the case is
governed by the Indian Succession Act, 1925, s. 57.

A mere entry in the account of a firm of moneylenders showing that the firm is indebted to the
temple followed by creating of interest does not create an endowment. 26 A Hindu who wishes
to establish a religious or charitable institution may according to his law express his purpose and
endow it. A trust is not required for that purpose. All that is necessary is that the religious or
charitable purposes should be clearly specified and that the property intended for the endowment
should be set apart for or dedicated to those purposes. Even in the case of a dedication to an idol
which cannot itself physically hold lands, it is not necessary, though it is usual to vest the land in
trustees. Nor it is necessary that there should be any express words of gift to the idol.27 No
religious ceremony such as sankela, samarpan or pranapratishta is necessary and a clear and
unequivocal manifestation of intention to create a trust vesting of the same in the donor or
another as a trustee is enough to constitute dedication. Such a dedication is valid, but the subject
of the endowment has to be certain.

The Indian Trusts Act does not apply to public or private religious or charitable endowments.

The Transfer of Property Act 1882, s.123- it has been held by the High Court of Madras that a
dedication of land for a public temple is not a gift within the meaning of s. 122 of the Transfer of
Property Act. The provisions therefore of s. 123 of the Act, which require a gift of land to be
effected by registered instrument, do not apply to such a dedication.

Further, section 5 of Transfer of Property Act which states that “transfer of property” means an
act by which a „living person‟ conveys property, in present or in future, to one of more other
„living persons‟, or to himself, or to himself and one or more other living persons, and “to
transfer property” is to perform such act. Hence this provision does not apply in the case of
Hindu Endowments.

A valid endowment once created cannot be revoked by the donor.

Religious and Charitable Endowments under Hindu Law

The definition of endowments recognised by the courts since long includes the properties set
apart or dedicated by gift or devise for the worship of some particular deity or for the
maintenance of a religious or charitable institution, or for the benefit of the public or some
section of the public in the advancement of religion, knowledge, commerce, health, safety or for
any other object beneficial to the mankind.

Amongst the religious and charitable endowments, hospitals, schools, univerisaties alms
houses (for distribution of food to Brahmanas or poor), establishment of idols etc., are included.
According to Raghvachariar an endowment is referred to as the setting apart of property for
religious and charitable purposes in which there is a Karta and a specific thing which can be
ascertained. A disposition in India to be a public trust must be made with the purpose of
advancement of either religion, knowledge, commerce, health, safety or other objects beneficial
to the mankind.

Different Kinds of Endowments

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

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

Public and Private Endowment:

In order to ascertain the nature of the endowment as to whether it is public or private the
subsequent conduct of the settler and use of the evidence of the property set apart by the public at
large are to be considered. In fact when a temple is thrown open for public at large for worship, a
valid inference can be drawn that a public trust has been intended to have been created. Where
the outsiders along with the members of the family of the settler take part in worship in
celebration of festivals in a temple as in public temples, the state of affairs point out to the public
nature of the endowment.

In contrast private endowment is that in which the public has no ingress, as an endowment for
the worship of the family deity of the settler. Where the property is kept separate safely for the
worship of family deity by family members only, with which the public has nothing to do, it is a
private endowment.

Even if other Hindu worshippers are allowed to worship a family deity, it will not confer public
nature to the endowment. In Venugopalaswamy v. H. R.E. Board, it was laid down that where
the temple was initially set apart for the use of the family members only and subsequently if
some outsiders are allowed ingress therein, it will not automatically alter the private nature to
public.

The Madras High Court too in Keshav Gounder v. D.C. Rajan, held that there is very minute
difference between the public and private endowment. In public endowment the interest of
general public or of a group of persons is protected and involved, wherein in private endowment
the interest of the settler of the trust or his family members only is protected and involved. In fact
in private trust the interest is to dedicate pleasurly to the family diety something and the public
has nothing to do with it.

Again the Supreme Court in G.S. Kaha Lakshmi v. Shah Ranchod Das, said that the temple of
Sri Gokulnath Nadeyad in a public temple and the trust created is of public nature dedicated and
created by the Ballabh cult and its supporters of Nadiad. The fact that any individual could enter
into the temple only after the worshipping by goswami is over, does not militate in any way the
public nature of the temple. Further the fact that temple is having house like appearance does not
clearly establish that the temple is not a public temple.

The Supreme Court has delivered an important judgment after a lapse of a decade in Radha Kant
Deo v. The Commissioner, Hindu Religious Charitables. The Court observed that a religious
endowment of private nature cannot be conceived under English law. It can only be thought of in
Hindu law. The court laid down the following test to determine the public and private nature of
endowment—

(1) Where the origin of endowment cannot be ascertained, the question to be determined is as to
whether the members of public use it by way of right.

(2) Another fact to be determined is that whether it is controlled by a group of persons or by the
founder of endowment only.

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

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

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

Even giving permission to the members of public to perform puja will not convert it into public.
In Radha Kant Deo v. The Commissioner of Hindu Religious Charitables, the Supreme Court
took the view that the idea of a private religious trust could be conceived in Hindu law only and
is foreign to the English law.

In such an endowment the prime purpose of the beneficiary is to establish a temple for the family
worshippers. Though public may be allowed access to such a temple but that will not convert its
nature as the property in facts vests with the beneficiaries and not with the diety. Certain worth
mentioning tests were formulated by the court which are as under—

(1) Where the origin of endowment is not known, the question arises as to whether members of
public use it by way of right.
(2) The fact whether it is controlled by a group of persons or by the founder of endowment will
also be considered.

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

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

Charitable Endowments:

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

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

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

Sometimes gifts are made for the establishment of educational institutions or hospitals. Imparting
free education to the people in general has been one of the prime objects of charity throughout
the ages amongst Hindus. Similarly hospitals and dispensaries known as Arogashalas have also
been the objects of charitable endowments.

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

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

5 Main Conditions which are to be established for a Valid Endowment under Hindu Law

In absence of a written gift or in absence of specific proof of exclusive income of temple, simply
the proof that since long the entire income of village is used for temple purposes, does not go to
establish dedication to the village.

Further the fact that the income of a land is used for idol is not proof of dedication; however this
fact may be taken into consideration when the document pertaining to dedication is being
construed and is not in clear language and unless the dedicator does not relinquish the property,
merely the writing of a document will not establish dedication. In fact the endowment is created
from that date when the property has been dedicated. Following are the conditions which are to
be established for a valid endowment.

(1) Absolute Dedication:

For the creation of a valid endowment it is necessary that the property is absolutely and in
perpetuity dedicated for the worship of diety by the donor or the dedication is for a charitable
purpose. It is necessary that the donor has divested himself of the beneficial interest in the
property.

It is not necessary that the normal religious procedure for Sankalp, and construction is
observed. The Supreme Court had in the case of Devakinandan v. Murlidhar, observed “The
essentials of a dedication are sankalapa (determinations), utsarga (renunciation of ownership in
the property) and prathista (installation). There should be formal declaration by the settler of his
intention to dedicate the property. The owner of the property should secondly renounce his
interest in the property. If the renunciation is made for the public interest or for the use of public
it becomes a public endowment. Thirdly, there should be formal installation, if it is of temple, the
installation should be of deity. In case of creation of an endowment there is no question of
acceptance of the dedication of property, whereas in case of a gift in secular sense the acceptance
of gift is necessary.”

Similarly the court in the case of Nirmala Bala v. Balaichand, has held that where renunciation of
the property is made and none of its part is retained for the successors then the dediction is
absolute. The fact that the ancestors gave other persons the right to U80, will not affect the
validity of the trust.

(2) Object Must Be Definite:

It is necessary that the object of the dedication is definite, meaning thereby it should be made
explicit as to for which diety the dedication has been made or the charitable purpose for which
the bequest has been made. A dedication to the Dharma is invalid, the dedication being vogue
and uncertain. In the same manner leaving the charitable trust at the will of trustees to decide the
purpose is invalid.

A trust created for the worship of any diety, is invalid, the specific name of the diety being not
mentioned. According to Madras High Court there cannot be dedication under charitable trust or
endowment for the Samadhi of a person or for Gurupuja and other rites (anosthana). In Saraswati
v. Raj Gopal, the Supreme Court held that building of a Samadhi of an ordinary person cannot be
the object of charitable endowment. But where an institution has emerged out of a Samadhi and
it has become the place of worship and archana for the members of the public, a charitable
endowment can be created for it.

Similarly in Nagu v. Ваnu, the Supreme Court said where an ancestor’s Samadhi has been built
up, raising of a memorial over it for performing shardha ceremonies and conducting periodical
worship over it could be done through creation of an endowment.

In Radha Govindji v. Smt. Kewala Devi, the Calcutta High Court has held that no valid
endowment is created simply by the execution of an instrument to this effect by the donor. It has
to be clearly proved that (1) the donor virtually intended to dedicate the property in the name of
the deity; and (2) he has divested himself of all the benefits from that property. Both these
conditions are essential for the creation of a valid endowment.

Reiterating the above view the Andhra Pradesh High Court has said later on in a case that
following are the incidents which are to be considered for deciding as to whether an endowment
is real or nominal—

(1) The fact that the endowment was created, and

(2) The conduct of the parties (donor and donee) and the surrounding circumstances. Where an
endowment or a trust is created, the conduct of the parties with respect to enjoyment of the
property, as laid down in the deed of endowment is not very much material”.

(3) Property Must Be Definite:

Any endowment is not valid unless some definite property is dedicated. Any uncertainty
regarding the subject matter of the bequest is fatal for its validity.

Hence the subject matter of the property given in the endowment must be specified, for example,
A by means of a will has directed that the income of a property be spent for a specified charitable
purpose; but he did not mention in it the exact amount to be spent. Such a bequest will be invalid
for uncertainty.

In Gokul v. Ishwar Lochana, the executor of a Will directed the administrators of instrument that
a temple should be constructed by incurring reasonable expenses in the courtyard of his house.
Here the amount was not fixed for the construction of temple, yet the court held that in such a
case the expenses upto the tune of 39% of the income would be considered as reasonable
expense.

(4) Person setting or creating the Endowment should be Competent Person:

It is necessary that the settler is major, of sound mind and is not legally disqualified for creating
an endowment. A person governed by Mitakshara can only dedicate his separate or self acquired
property but not his coparcenary interest. But a person governed by Dayabhag School, i.e., a
father is competent to create an endowment of his whole property in which his coparcenary
property is also included.

Even a woman after the passing of Hindu Succession Act, 1956, can dedicate her property as she
is now an absolute owner of the property. Earlier her right of dedication was limited. A Karta of
H.U.F. can also make a gift inter vivos of small portion of joint Hindu family property for pious,
religious and charitable objects. In Raghunath v. Govind a Karta alienated providing permanent
shrine to a family idol, such an alienation was held valid.

(5) Endowment must not be opposed to Law:

In spite of the fact that the endowment must not be opposed to law, yet bequests to idols and
temples are not treated invalid for transgressing the rule which forbids perpetuities.But an
endowment created for saving the property from creditors is void or if it is made within two
years of the insolvency of the transferor. Where a part of the property is dedicated for performing
puja of a diety it does not give rise to a valid religious endowment.

In M. Appala Ramanujacharyalu v. Venkatavanara Sorhacharyulu, the Andhra Pradesh High

Court has held that mere execution of a deed of dedication without the donor intending to act
upon the terms of the deed would not create a valid endowment. To constitute a valid
endowment, it must be established that the donor intended to divest himself of his ownership in
the property dedicated.

Where, in fact, an endowment is created or a trust came into existence, the subsequent conduct of
the parties with regard to the enjoyment of the property settled or endowed, is not very much
material. The principle upon which a gift cannot be made in favour of unborn person is
inapplicable upon idols.

Temples and Maths:

The religious needs of the Hindus are served by Temples and Maths. God is worshipped in
temples. It is usual to install a particular idol in the temple representing the deity as an aid to
concentration in worship.
The Maths are monasteries where Hindu scriptures are studied by monks or sanyasis. They are
centres for preaching and propagating Hinduism. For these purposes property may be dedicated
resulting in a religious endowment.

A religious endowment may be set up orally by dedicating the property for the particular
religious object in view. Thus property may be given to idols and Maths and the particular
purpose for which it should be applied may also be specified.

Shebaits and Mohants:

The Manager of a temple is called Shebait or Dharmakarta. The Manager of a Muth is called a
Mohant or Matadhipati. In Vidyavaruthi v. Baluswami, 44 Mad. 831 (PC), the Privy Council
pointed out that the Dharmakarta of a temple is not the legal owner of the endowed property. He
is only the Manager. The Supreme Court has pointed out in Sirur Muth case as regards the office
of Mohant: “In the office of Mohantship, the elements of office and property, of duties and
personal interest are blended together and neither can be detached from the other”. The head of
the Mutt is a saintly religious preacher and his devotees and disciples present offerings at his
feet. These are entirely in the personal disposition of interest of the Shebait in debut tar property,
i.e. property of the deity.

Alienatory Powers:

The alienatory power of the Shebait and the Mohant over the endowed property is analogous to
the power of limited owners. That is, this power is governed by the rule in Hanooman Persaud’s
case.

Devolution of the Office:

It is open to the Shebait to nominate his successor. A similar power is enjoyed by the Mohant.
Custom and practice regulates the devolution of the office. Greedharee Doss v. Nundokisore
Doss, 1857 (11) MIA 405. These offices may also be hereditary by custom; Sirur Mutt Case. The
Shebait right, i.e., right to management in such a case is virtually a property right and the heir of
the Shebait succeeds to the office. Even a female may thus become the Shebait as heir of the
previous Shebait. Angur Bala v. Debobrata, 1951 SCR 1125.

Local Legislation:

Religious Endowments have been the subject matter of local legislation. The State Legislatures
in various states have passed legislative enactments to regulate the management of religious
endowments. Such legislation should not conflict with the guarantee relating to religious
freedom and freedom of every religious denomination to manage the religious institutions under
its control. Sirur Mutt Case.

Legal Provisions Regarding Mode of Creation of an Endowment by Will under Hindu Law
In case of creation of an endowment by will a written deed is necessary. The will must be in
writing attested by at least two witnesses if the case is governed by the Indian Succession Act,
but the creation of a trust for the purpose is not necessary.

Although no religious ceremony such as Sankalpa or Samarpana is necessary yet a clear and
unequivocal manifestation of the intention to create the endowment is required to constitute
dedication.

A mere entry in the account book of a firm of money lenders showing that the firm is indebted to
the temple allowed by crediting of interest does not create an endowment. Even in tine case of
dedication to an idol it is not required that the property may be allowed to vest in the trustees.
Mere express intention is sufficient and Sankalpa and Samarpana is not necessary. As in English
law it is not necessary under Hindu law that the property may be made to vest in the trustees.

However specific evidence will be required to prove the creation of an endowment in absence of
such a trust where endowment is created for the benefit of idol, the idol being a legal person, the
stipulation that the benefit shall vest in the trustees, will not affect the liability of the endowment.
Any Hindu can dedicate whole of his property to a religious endowment by a will or gift and no
Hindu can object the dedication of the whole property to such an endowment. A pond can also be
a subject of public endowment.

Why the Religious Endowment made by a Will cannot be revoked under Hindu Law?

When the donor completely divests himself of the property and creates an endowment, he cannot
revoke that endowment. Where the testator reserved any of his interest, then apart from that
interest he cannot earn any other profit from it.

Only that religious endowment can be transferred, converted or revoked which has been created
in favour of a family idol and that too with the consent of all the members of the family,
otherwise after the creation of a religious endowment, it no longer remains alienable, revokable
or convertible.

Any dedication or gift which was non-existent at the time of the death of the dedicator, the
dedication or gift would not be valid. When a property is fully dedicated for the worship of a
deity, the property gets vested in the idol in the capacity of a legal person but the position of the
idol is not like that of a minor.

Hindu succession act

Succession implies the act of succeeding or following, as of events, objects, places in a series. In
the eyes of law however, it holds a different and particular meaning. It implies the transmission
or passing of rights from one to another. In every system of law provision has to be made for a
readjustment of things or goods on the death of the human beings who owned and enjoyed them.
Succession, in the sense of the partition or redistribution of the property of a former owner is, in
modern systems of law, subject to many rules. Such rules may be based on the will of a deceased
person. However, there are cases in which a will cannot be expressed and eventually, there needs
to be some broadly accepted rules upon which the property shall devolve upon those succeeding
him. There can be no doubt, however, that these rules primarily are the characteristics of the
social conditions in which that individual lived. They represent the view of society at large as to
what ought to be the normal course of succession in the readjustment of property after the death
of a citizen.

Succession of A Hindu Male Dying Intestate Under The Hindu Succession Act:

Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of
succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession of
property of a Hindu male who dies intestate after the commencement of the Act. These rules are
to be read along with the Schedule as well as other Sections pertaining to the same (Sections 9 to
13).

Section 8 lays down as follows:

Section 8: General rules of succession in the case of males. - The property of a male Hindu dying
intestate shall devolve according to the rules set out in this chapter:

(a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the
relatives specified in class II of the Schedule;

(c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being
the agnates specified in Section 12; and

(d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section 13.

Thus, Section 8 groups the heirs of a male intestate into four groups and lays down that the
property first devolves upon the heirs of Class I of the Schedule. They are the son, daughter,
widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased
daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased
son of a predeceased son, daughter of a predeceased son of a predeceased son and widow of a
predeceased son of a predeceased son. All these heirs inherit simultaneously. If heirs of Class I
are not available, the property goes to the enumerated heirs specified in Class II of the Schedule,
wherein an heir in a higher entry is preferred over an heir in a lower entry.

In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates
of the deceased in succession. Now, one person is said to be the agnate of the other if the two of
them are related by blood or adoption wholly through the males. Similarly, one person is said to
be the cognate of the other if the two of them are related by blood or adoption, but not totally
through males, i.e. there has to be some intervention by a female ancestor somewhere.

Now, the term 'property' includes all those properties of the deceased intestate that is heritable
under the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary
if he is survived by any of the female heirs or daughter's son as mentioned in Class I of the
Schedule. It also includes the property that he might have inherited from his grandfather or father
after the Act came into force.

(A) Heirs In Class I:

i. The adopted children (sons or daughters) are also to be counted as heirs.

ii. The children born out of void or voidable marriages are considered to be legitimate by virtue
of Section 16, and hence they are entitled to succession.

iii. The widow is also entitled to property along with the other heirs and in case there is more
than one widow, they will inherit jointly one share of the deceased's property, which is to be
divided equally among them.

iv. The widow is entitled to inherit from her deceased husband's property even if she remarries
after his death.

v. The widow of the predeceased son will inherit with the other heirs. However, her right along
with rights of the children of the predeceased son will exist to the extent of the share of the
predeceased son, had he been alive. However, if she remarries before the death of the intestate,
then she is not entitled to the property.

vi. The daughter inherits simultaneously along with the other heirs in her individual capacity.
Moreover, even if she is married, she is entitled to such property.

vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has
been held in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her
inheriting from her son. Even if she is divorced or remarried, she is entitled to inherit from her
son. Here the term mother also includes an adoptive mother. Moreover, if there is an adoptive
mother, the natural mother has no right to succeed to the property of the intestate. A mother is
also entitled to inherit the property of her illegitimate son by virtue of Section 3(i)(j).

(B) Heirs In Class II:

i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of
Entries I to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry
excludes all the heirs in the lower entries.
ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any
property from the illegitimate son as opposed to the mother. However, he is entitled to share
from children born out of void or voidable marriage under Section 16. Also, a step mother is not
entitled to inherit from the step son.

iii. All brothers and sisters inherit simultaneously. Here the term 'brother' includes both a full and
a half brother. However, a full brother is always preferred to a half brother (according to Section
18). Uterine brother is not entitled to the intestate's property. However, when the intestate and his
brother are illegitimate children of their mother, they are related to each other as brothers under
this entry.

(C) Agnates:

A person is said to be the agnate of another if the two of them are related by blood or adoption
entirely or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the
intestate do not include widows of lineal male descendants because the definition of agnates does
not include relatives by marriage but only relatives by blood or adoption. Since these widows
would be relatives by marriage hence they will not fall under the definition of agnates and hence,
they will not be entitled to inherit in this capacity.

Moreover, there is no limit to the degree of relationship by which an agnate is recognized.

Hence, an agnate however remotely related to the intestate may succeed as an heir. Also, this
relationship does not distinguish between male and female heirs. There is also no distinction
between those related by full and half blood. However, uterine relationship is not recognized.

(D) Cognates:

A person is said to be the cognate of another if the two of them are related by blood or adoption,
but not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line
of succession is by one or more females. As long as there is at least one female intervening, it is
a cognate relationship. As in agnate relationship, cognate relationship is also not based on
marriage and only on blood or adoption. Hence widow or widowers of those related by cognate
relationship do not fall under this category and hence they are not entitled to succeed on this
ground.

Section 9. Orders of succession among heirs in the Schedule. - Among the heirs specified in the
Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those
in the first entry in Class II shall be preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so on in succession.

Section 9 explicitly points out the order of succession between the Class I and the Class II heirs
and also among the Class II heirs interse.
According to this Section, Class I heirs may be termed as preferential heirs of the intestate
because the property first devolves upon them on the death of the intestate. All the Class I heirs
succeed simultaneously and there is no question of any preference or any priority among them.
However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated
in the Schedule in the nine Entries.

However, there is one basic distinction between the Class I and the Class II heirs. While all the
heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute
distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such
concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate
leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased
son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously
because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies
intestate leaving behind his sister and his brother's son, the sister being an heir in Entry II of
Class II will get preference over his brother's son who is an heir in Entry IV of Class II.

Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an
intestate shall be divided among the heirs in Class I of the Schedule in accordance with the
following rules:

Rule 1- The intestate's widow, or if there are more widows than one, all the widows together,
shall take one share.

Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one
share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the
intestate shall take between them one share.

Rule 4- The distribution of the share referred to in Rule 3-

i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or
widows together) and the surviving sons and daughters get equal portions; and the branch of his
predeceased sons gets the same portion;

ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving
sons and daughters get equal portions.

Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take
simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do
not mention any priority among them, but it nowhere follows that every individual heir who
succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs of
the Class. The computation of the share of each is done in accordance with Section 10 which
may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted
that the Act tries to put the males and the females on equal footing. So it allots the shares to the
males and the females pari passu.

The object of Section 10 is to deal with the amount of shares each person will be entitled to when
there are more than one to inherit simultaneously. The widow, the son, the daughter and the
mother will inherit to the property. However, this does not mean that each one of them will get
1/4th of the property. The four rules given in this Section are explanatory to the extent of
understanding how much share each one will get.

The rules are:

1) The widows, if there are more than one, shall take together only one share and [read with
Section 19(b)] inherit that share equally as tenants-in-common and not joint tenants.

2) When there are more than one son, each son will get a share and similarly each daughter will
get a share and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be
entitled to take together a share of the property of their father or mother as the case maybe, and
divide them equally among themselves. The family of the predeceased son would be entitled to
one part that the predeceased son would have been entitled to, had he been alive. Same thing
applies to a predeceased daughter. Thus these heirs succeed to the intestate's property not as per
capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a

predeceased son of a propositus, she will take the share of the predeceased son equally with her
sons and daughters.

The four rules in Section 10 are to be read in consonance with Section 19 which gives the two
basic rules in case there is more than one heir succeeding to the property of the intestate.

The rules are:

(a) save as otherwise expressly provided in the Act, per capita and not per strip.

(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the
contrary.

Section 11. Distribution of property among heirs in Class II of the Schedule.- The property of an
intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule
so that they share equally.
This Section provides that when there are more than one heirs in one entry of Class II, they
shall inherit equally. For example, Entry III contains four heirs:

(a) the daughter's son's son

(b) the daughter's son's daughter

(c) the daughter's daughter's son

(d) the daughter's daughter's daughter.

Thus according to this Section, they all share equally. It should be noted that the legislation does
not lay down any rule of discrimination between any male or female. If two heirs are enlisted in
the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the
entries stand aequali jura and take per capita subject to the only exception that full blood is
preferred over half-blood.

In the case of Arunachalathammal v. Ramachandran, it was contended that the different heirs
mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry
and they do not inherit simultaneously but here again there is a question of preference i.e. the
first subdivision inherits and then in its absence, the later. The question arose because there were,
in his case, one brother and five sisters of the intestate and no other heir and the brother
contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister
who was in subcategory (4) of entry I and thus he was entitled to the full property. However the
same was negated and it was held that all heirs in an entry inherit simultaneously and there is no
preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in
the same entry. Thus we find that the equality is between every individual heir of the intestate
and not between the sub-division in any particular entry. In fact, the court went on to say that
there were no subdivisions in any entry in Class II. They were just roman numerals representing
the heirs in the entry.

Section 12. Order of succession among agnates and cognates.- The order of succession among
agnates or cognates, as the case may be, shall be determined in accordance with the rules of
preference laid down hereunder:

Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who
has fewer or no degree of descent.

Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take
simultaneously.

This Section deals with the order of succession among agnates and cognates. Agnates come
within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The
question of succession of cognates come only when there are no cognates and the question of
succession of agnates and cognates come only when there are no heirs in Class I and Class II.

Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the
fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent
is the same or none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays
down that in case of a tie even after applying Rules 1 and 2, they shall take simultaneously.

In accordance with the above three rules, the agnate and cognate relationship maybe
categorized as follows:

Agnates:

(a) agnates who are descendants, for example, son's son's son's son and son's son's daughter.
(b) agnates who are ascendants, for example, father's father's father and father's father's mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and
descent, for example, father's brother's son and father's brother's daughter.
Cognates:

(a) cognates who are descendants, for example, son's daughter's son's son and daughter's son's
son's son.

(b) cognates who are ascendants, for example, father's mother's father and mother's father's
father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and
descent, for example, father's sister's son and mother's brother's son.
In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be
preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn
shall be preferred over collaterals.

Section 13. Computation of degrees.

1) For the purpose of determining the order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or
degrees of descent or both, as the case may be.

2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

3) Every generation constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his
agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of
degrees of relationship with the intestate as the starting point. There is no discrimination or
preference between male and female heirs.

The second rule states that the computation of the degrees of ascent and descent are to be made
inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees
with a propositus as terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the
total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the
Act.

The following are examples of rules of computation of degrees:

(a) The heir to be considered is the father's mother's father of the intestate. Hence there is no
degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the
intestate's father, (iii) that father's mother and (iv) that mother's father.

(b) The heir to be considered is the son's daughter's son's daughter of the intestate. Hence there is
no degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii) the
intestate's son, (iii) that son's daughter, (iv) that daughter's son and (v) that son's daughter.

(c) The heir to be considered is the mother's father's sister's son (i.e. the mother's father's father's
daughter's son) of the intestate. He has four degrees of ascent represented in order by (i) the
intestate, (ii) the intestate's mother, (iii) that mother's father and (iv) that father's father and two
degrees of descent i.e. (i) the daughter of the common ancestor and (ii) her son (the heir).

What is to be remembered is that when degrees, both of ascent and descent, are to be computed
in case of collateral, the degrees of ascent computed from the intestate are inclusive of him, but
in counting the degrees of descent from the ancestor, only generations of descent are computed,
that is, the ancestor does not constitute a degree of descent.

Succession of A Hindu Female Dying Intestate Under The Hindu Succession Act

The great ancient lawgivers Manu and Baudhyana had described the good woman as a
profoundly non-autonomous self, ruled by father in childhood, by husband in youth, by son in
old age. In the 19th century debates, on the contrary, she came to be re-envisaged as a person
with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even
when the family, the community or religion refused to accept them. The demand for the new
laws stemmed from an understanding about Indian a necessary, autonomous core of female
personhood that the state must underwrite.

Under the Hindu law in operation prior to the coming into force of the Act, a woman's ownership
of property was hedged in by certain delimitations on her right of disposal and also on her
testamentary power in respect of that property. Doctrinal diversity existed on that subject.
Divergent authorities only added to the difficulties surrounding the meaning of a term to which it
sought to give technical significance. Women were supposed to, it was held and believed, not
have power of absolute alienation of property. The restrictions imposed by the Hindu law on the
proprietary rights of women depended upon her status as a maiden, as a married woman and as a
widow. They also depended upon the source and nature of property. Thought there were some
fragmented legislation upon the subject (regard being made to the Hindu Woman's Right to
Property Act, 1937), the settled law was still short of granting a status to woman where she could
acquire, retain and dispose off the property as similar to a Hindu male. The Hindu Succession
Act, 1956 and particularly Section 14 brought substantial change, thus, upon the aspect of a right
of a Hindu female over her property and thereby settled the conflict.

Section 15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in
Section 16,-

(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

(2) Notwithstanding anything contained in Sub-Section (1), -

(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any pre-deceased son
or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified therein,
but upon the heirs of the father; and

(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the order
specified therein, but upon the heirs of the husband.

This Section propounds a definite and uniform scheme of succession in the property of a female
Hindu who dies intestate after the commencement of the Act. The rules laid down under this
Section are to be read with Section 16. This Section groups the heirs of a female intestate into
five categories as laid in sub-Section (1).
However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to
the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without
leaving any issue then,

(i) in respect of property inherited by her from her father or mother, that property will devolve
not according to the order laid down as in sub-Section (1) but upon the heirs of her father, and

(ii) in respect of the property inherited by her from her husband or father-in-law, that property
will not devolve according to the order laid down in sub-Section (1) but upon the heirs of her
husband.

It is important to note that the two exceptions herein referred are confined to only the property
inherited from the father, mother, husband and father-in-law of the female and does not affect the
property acquired by her by gift or other by other device. The Section has changed the entire
concept of stridhana and the mode and manner of acquisition of property by the female, which
earlier determined how the property would be inherited, has been changed and amended by the
Section. Considering Section 17, it is important to note that Section 16 does not apply to persons
governed by Marumakkattayam and Aliyasantana laws.

As specified in the beginning of the sub-Section (1), in the devolution of heritable property of a
female intestate, those in a higher entry are preferred to those in a lower entry.

The order of succession, as by the effect of rules under Section 15 can be summarized as
follows:
(1) the general order of succession laid down in entries (a) to (e) in sub-Section (1) applies to all
property of a female intestate however acquired except in case of property inherited by her from
her father, mother, husband or father-in-law.

(2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of
a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves
on such issue regardless of the source of acquisition of the property and such issue takes the
property simultaneously; and if the husband of the intestate is alive they take simultaneously
with him in accordance with entry (a). In such a case, sub-Section (2) does not apply.

(3) In case of a female intestate dying without issue but leaving her husband, the husband will
take her property, except property inherited by her from her father or mother which will revert to
the heirs of the father in existence at the time of her death.

(4) In case of female intestate dying without issue property inherited by her from her husband or
father-in-law (the husband being dead), will go the heirs of the husband and not in accordance
with the general order of succession laid in sub-Section (1).
(5) In case of a female intestate dying without issue property inherited by her from her father or
mother will revert to the heirs of the father in existence at the time of her death and not in
accordance with the general order of succession laid down in sub-Section (1).

Section 16. Order of succession and manner of distribution among heirs of a female Hindu.- The
order of succession among the heirs referred to in Section 15 shall be and the distribution of the
intestate's property among those heirs shall take place according, to the following rules, namely:

Rule 1.- Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be
preferred to those in any succeeding entry and those including in the same entry shall take
simultaneously.

Rule 2.- If any son or daughter of the intestate had predeceased the intestate leaving his or her
own children alive at the time of the intestate's death, the children of such son or daughter shall
take between them the share which such son or daughter would have taken if living at the
intestate's death.

Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and
according to the same rules as would have applied if the property would have been the father's,
the mother's or the husband's as the case maybe, and such person had died intestate in respect
thereof immediately after the intestate's death.

Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15,
those heirs referred to in prior entry are to be preferred to those in any subsequent entry and
those included in the same entry are to succeed simultaneously.

Rule 2 states that in case of the children of a predeceased son or daughter, they shall not take per
capita with the son and daughter of the intestate but shall take per stripes i.e. the children and the
predeceased son or daughter shall succeed to the property of the intestate as if the predeceased
son or daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1).
This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the
mother are to be ascertained for purpose of distribution of property.

Distribution of property after death, if there is no Will

DISTRIBUTION OF PROPERTY AMONG CLASS I HEIRS

Distribution of property after death, if there is no Will

The property of a Hindu male dying intestate is distributed among his heirs in accordance
with section 8 and 9 of The Hindu Succession Act, 1956. As per these the property of a Hindu
dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all
other heirs. But what if there are more than one Class I heirs among whom the property of the
deceased devolves? What rules are to be followed in such devolution. Section 10 of the Act lays
down the rules to be followed in such cases. Section 10 provides as under:

Distribution of property among heirs in class I of the Schedule: The property of an

intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:-

Rule 1.-The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.

Rule 2.-The surviving sons and daughters and the mother of the intestate shall each take
one share.

Rule 3.-The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share.

Rule 4.-The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-decease son shall be so made that
his widow (or widows together), and the surviving sons and daughters get equal portions ;
and the branch of his pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that
the surviving sons and daughters get equal portions.
Rule 1: The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.

Suppose A, a Hindu, dying intestate at the time of his death is survived by two windows and a
son. A was the owner of one house. Now as per the rule, heirs in Class I shall take the property
simultaneously and to the exclusion of all others. And in the above case all are Class I heirs. But
two of them are widows of A. Therefore, as per the provisions of Rule 1 of section 10, both the
widows of A shall take one-half share in the house of A and the other half shall go to A’s son.
Hence the property of A by virtue of the above rule would be divided in only two parts and not
three as all the widows together are entitled to only one part by virtue of Rule 1 of section 10.
However, among themselves, both the widows shall inherit equally and one-half of the portion of
A’s house that they are entitled to shall be divided equally among them. Therefore share of A’s
son in A’s house upon A’s death shall be one-half while the share of each widow of A shall be
one-fourth. Similarly if in the above example A is survived by three widows and three sons, the
house of A upon A’s death shall be divided in four equal parts. Three parts, i.e. one part each
shall be inherited by each son while the fourth part shall be inherited equally by the three
widows.

However, if at the time of A’s death he is survived by only two widows, both of them shall
inherit the house of A equally, i.e. both of them shall be entitled to one-half share, there being no
other Class I heir.

Rule 2: The surviving sons and daughters and the mother of the intestate shall each take
one share.

A, a Hindu male dies intestate and is survived by his mother, two widows, two sons and two
daughters. Now reading both Rule 1 and Rule 2 together, it becomes clear that the property of A
shall be divided in 6 parts. Each daughter shall inherit one part. So shall each son. There being
two sons and two daughters surviving A, each shall inherit one part. Hence, four parts of the
property shall be distributed among A‘s four sons and daughters. Of the remaining two parts, A’s
mother alone shall be entitled to one part and by virtue of Rule 1, both the widows of A shall be
together entitled to one part.

Rule 3: The heirs in the branch of each pre-deceased son or each pre-deceased daughter
of the intestate shall take between them one share.

A, a Hindu male dying intestate, is survived by one widow, one son, one daughter and two
grandsons from one predeceased son, i.e. a son who had already expired at the time of A’s death.
Now A’s widow shall take one share of A’s property. One share each shall be taken by A’s
surviving son and daughter. As far as A’s grandsons are concerned, by virtue of Rule 3, they
shall together take one share as they are the heirs of A’s predeceased son. Therefore, A’s
property on his death shall be divided in 4 parts. The one part inherited by A’s two grandsons
from a predeceased son shall be divided equally among them. Here it may be mentioned that the
position of the heirs of the deceased’s predeceased sons is similar to the deceased’s widows.
Deceased’s widows, irrespective of their number are entitled to only one share in the property of
the deceased. Similarly irrespective of the number of Class I heirs of a predeceased son of a
deceased, they all together take one share. Here even if the widow of A’s predeceased son was
alive, even then she would have inherited together with her two sons only one part of A’s
property.

Rule 4 (i): The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-decease son shall be so made that his widow
(or widows together), and the surviving sons and daughters get equal portions ; and the
branch of his pre-deceased sons gets the same portion;
(ii) [Explained in next point]

Rule 4(i) deals with distribution of the share that the branch of a deceased’s predeceased son is
entitled to on the deceased’s death. As mentioned above, the branch of the predeceased son of a
male Hindu dying intestate gets one share in the deceased’s property. That one share is to be
distributed among the heirs of that predeceased son in accordance with this Rule. Thus if A’s
predeceased son had two widows and two sons, then at the time of A’s death, they all together
would have inherited just one part of A’s property. Among themselves however, the distribution
of this one share shall be made in accordance with this rule. Hence the one part that they have
inherited shall be divided in three equal parts – one part each to the two sons of A’s predeceased
son and one part to the two widows of A’s predeceased son. Here if A’s predeceased son say B,
had along with his two widows and two sons also got another son C who had already
predeceased B and on his death was survived by one widow and one son, then the one part of A’s
property that B’s branch inherits shall be divided into 4 parts – one part each to his two surviving
sons, one part to his two widows and one part to the branch of his predeceased son C.

Rule 4(ii):

The distribution of the share referred to in Rule 3-

(i) [Explained in point above]

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.

This rule deals with the distribution of the share of property of a Hindu male dying intestate that
devolves under Rule 3 upon the branch of his predeceased daughter. Now as per Rule 4(ii), this
distribution shall be so made that that the surviving sons and daughters of the predeceased
daughter get equal portions. Therefore, if A, a Hindu male dying intestate is survived by a widow
and a grandson and granddaughter from a predeceased daughter B, then A’s property upon his
death shall be divided in two parts- one part to his widow and one part to B’s branch. The part
inherited by B’s branch shall be divided equally between B‘s son and daughter.

Women’s right to property under Hindu succession act 1956

INTRODUCTION

From the Vedic society onwards, the rights of Hindu women’s property has been undergoing
vicissitudes. Now the position has reached where the equal status of women with men is being
denied and given a very inferior position.

According to Manu:-“a wife, son and a slave are declared to have no property and if they
happened to acquire it would belong to male under whom they are in protection.”
Under ancient Hindu Law, the right to ownership has been recognized by great commentators
notably Narada, Yajnavalkya,Vyas etc. According to them, the right to ownership of property
should be used for noble cause and good motives. The ancient Hindu Law has invested duties to
behave in a particular manner regarding the acquisition of property. As per ancient Hindu texts,
there can be seven modes for acquisition of ownership of property such as: (a) inheritance (b)
purchase (c)gain (d) conquest (e)employment (f) investment of wealth and acceptance of gifts.

According to Salmond , the ‘property’ takes the following applications in legal terms such as:-
(a) All legal rights (b) proprietary rights and (c) corporeal property rights.

In the case, R C Cooper v. Union of India[1] (commonly known as Bank Nationalization case), a
very extensive definition of property has been observes by the Hon’ble SC as

“Property means the highest right a man can have to anything being that right which one has to
lands or tenements , good or chattels which does not depend on other’s courtesy; it includes
ownership, estates and interests in corporeal things, and also rights such as trade- marks,
copyrights ,patents and even rights in personam capable of transfer or transmission, such as
debts; and signifies a beneficial right to or a thing considers as having money value, especially
with reference to transfer or succession, and of their capacity of being acquired.”

Most of the modern legal systems are using term ‘property’ in a full sense including Hindu
Succession (Amendment) Act, 2005.The constitution of India as per Art.19 (1)(f) giving the right
to property before the 44th Amendment Act ,1978 and it has been dropped from the category of
fundamental rights for the reason that the importance of property has been diminishing
nowadays. In the present legal world, property has been developed as social institution.

HINDU WOMEN’S COPARCENARY RIGHTS

“Coparcenary is a narrower body of persons within a joint family and consists of father, son,
son’s son’s son.”[2]

Mulla defines coparceners as “the three generations next to the holder in unbroken male
descent”. [3]

In Venugopala v. Union of India[4], SC observed as “The Mitakshara concept of coparcenary is

based on the concept of birth right of son, son’s son and son’s son’s son.”

Under ancient Hindu Joint Family system, property rights were within the hands of male
members of family. Women had no rights and it was the duty of male members to administrate
the property of the whole family and women hasn’t enjoyed any freedom for expression of
opinion regarding the property administration.

Later by the virtue of Section 6(1) of Hindu Succession (Amendment) Act, 2005, daughter has
also been made a coparcener. The crux of the Section is that if there is no female or male heir
claiming through a female heir, the rule of survivorship is not, in any way affected, otherwise, if
there is any such heir, the interest will devolve in accordance with this Act either by testamentary
succession under Section 30 of the Act or by intestate succession under Section 8.

In Subhash Eknathrao Khandekar v. Pragyabai Manohar Birader[5], Bombay High Court has
stated that “The widow of a son is not a coparcener”.

In Commissioner, Income tax, Bihar II, Ranchi v. Sandhya Ram Datta[6], SC ruled as “A
coparcenary cannot be formed by the female heirs by entering into an agreement”.

As per The Hindu Women’s Right to Property Act, 1937,

“The undivided interest of a coparcener on his death did not go by survivorship to other
coparceners, but his widow took it as heir, though she took it as a limited estate.”

Before the Act of 1937, the undivided interests of a coparcener on his death is passed by
survivorship to the other coparceners. But with the Act of 1937, the situation has changed.
Section 3(3) of The Hindu Women’s Right to Property Act, 1937 says that the right of a widow
for partition of property. Therefore she will have the same right to claim a partition as a male
owner.

In Sahadeo Singh v. Chhabila Singh[7], Patna High Court held that “widow cannot be a Karta of
joint family as she is not a coparcener. She has no legal qualification to become Karta.
Therefore, the mother can’t alienate share of a minor in Joint Hindu Family property. It is
possible only with the permission of court.”

Moreover, she cannot represent in a suit. Under Dayabhaga and Mitakshara schools, a
coparcenary cannot begin with females. But under Dayabhaga, females can become a coparcener
and she has the right to call for the partition of the coparcenary property. When we compare the
Dayabhaga and Mitakshara law, the Dayabhaga law can be preferred as it is in line with the
growing spirit of the modern society, where there is recognition of equal status of men with
women.

In Guramma Bhatar v. Mullappa Bhatar [8] , SC examined as “it is competent to a father under
Mitakshara law to make a gift of immovable property to a daughter if the gift is of reasonable
extent having regard to the properties held by the family”.

But in Kandammal v. Kandish Khevar [9] Madras High Court held that “the gift made by the
father (Karta) in favor of his wife of an immovable ancestral property is void”.

Under Hindu Joint Family system, a female member cannot be Karta but once the Nagpur H.C
held the view that it is possible for a female member to become a Karta though not a coparcener.
In Commissioner Of Income Tax v. Seth Govind Ram[10], SC held that a mother or any other
female is not entitled to Kartaship and In Gangoji v. H .K Channappa[11], Karnataka High Court
held that mother as a natural guardian of her minor sons can manage Joint Family property.

Though India’s constitution provides gender equality, it is not followed regarding the right to
inheritance of property for Hindu women and it is evident in The Hindu Succession Act, 1956.
Later the limitation on the intestate succession in Mitakshara system has been changed through
the Amendment of 2005 which helped Hindu woman to acquire equal status with men. It has
given emancipation in related to right to inheritance of property from the male dominated
dynasty. The amendments were enacted by Andhra Pradesh, Maharashtra, Karnataka, and Tamil
Nadu in 1986, 1989, 1994, and 1994, respectively. Kerala abolished joint family property
altogether in 1975.

HINDU WOMEN’S PROPERTY RIGHTS

Before 1956, there were two kinds of women’s property,

1. STREEDHAN

2. WOMEN’S ESTATE

As per Section 14 of Hindu Succession Act, 1956, the women’s estate has been abolished.

The word ‘streedhan’ means women’s property. According to Smritikars, the streedhan
constituted those properties which she received by way of gift from the relations which included
mostly movable property (though sometimes a house or a piece of land was also given in gift)
such as ornaments, jewelry and dresses.[12]

Jimutvahana gave a different enumeration of streedhan, so did the schools of Mitakshara. The
enumeration of streedhan can be as follows:-

1. Gifts and bequests from relations

2. Gifts and bequests from strangers

3. Property acquired by self-exertion and mechanical arts

4. Property purchased with streedhan

5. Property acquired by compromise

6. Property obtained by adverse

7. Property obtained in lieu of maintenance.

Similarly, Women Estate also has the following forms:-

 1. Property obtained by inheritance

2. Share obtained on partition

The Above Stated Women Estate Has The Following Features:

 It gives women an absolute ownership of property.

 She has the full rights of its disposal or alienation.

 She can sell ,gift, mortgage ,lease, exchange or if she chooses , she can put it on fire,

 Her property can be passed on to her own on heirs on her death.

The old law of succession has put an end by The Hindu Succession Act, 1956. As per Section 15
of the Hindu Succession Act, 1956:

General rules of succession in the case of female Hindus are as follows

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in
Section 16 :

(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.

(2) Notwithstanding anything contained in sub-section (1)-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any pre-deceased son
or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,
but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband.

As per Section 16 of the Act,

“The order of succession among the heirs referred to in section 15 shall be, and the distribution
of the intestate’s property among those heirs shall take place, according to the following rules,
namely:-

Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be
preferred to those in any succeeding entry and those including in the same entry shall take
simultaneously.

Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her
own children alive at the time of the intestate’s death, the children of such son or daughter shall
take between them the share which such son or daughter would have taken if living at the
intestate’s death.

Rule 3-The devolution of the property of the intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and
according to the same rules as would have applied if the property had been the father’s or the
mother’s or the husband’s as the case may be, and such person had died intestate in respect
thereof immediately after the intestate’s death.”

The above stated two sections constitutes new law of succession to women’s property.

Under Section 14(1) of The Hindu Succession Act, 1956, the Act has abolished the Hindu
women’s limited estate and confers on the women the absolute ownership over all her property
acquired by her.as per Section 14 of the act:

Property of a female Hindu to be her absolute property are as follows:

(1) Any property possessed by a Female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance
or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after
her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as streedhan immediately before the
commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or
under a will or any other instrument or under a decree or order of a civil court or under an award
where the terms of the gift, will or other instrument or the decree, order or award prescribe a
restricted estate in such property.

Under this Section , any property acquired by a Hindu female except that which is covered by
sub-section 2 before the Act came into force will became her absolute property and any property
acquired by a Hindu female except that which covered by the commencement of Act will be her
absolute property.[13]

The above stated changes could be seen while going through the observation of courts at
different periods:-

In Janaki v. Narayana Swami[14] Privy Council observed regarding women’s estate as “her right
is of the nature of right of property, her position is that of owner; her powers in tat character are,
limited…So long as she is alive , no one has vested interest in succession.”

In another case, Kalawati v. Suraj[15], SC stated that in the context of section 14 “ ‘women’
does not mean any woman , but that woman who is the owner of woman’s estate. If the holder of
woman’s estate had alienated the estate to a woman, that woman is not the woman whose estate
is enlarged to full estate.”

“The effect of rule laid down in the Section 14 of The Hindu Succession Act, 1956 is to abrogate
the stringent provisions against the proprietary rights of a female which are often regarded as
evidence of her perpetual tutelage and to recognize her status as independent and absolute owner
of property.”[16]

Before the enactment of The Hindu Succession Act, 1956, Hindu women has streedhan as:-

 Absolute property and (b) Limited estate.

When the constitutionality of the Act has been challenged and SC has observed that the Act has
the object of enhancing women’s limited estate concept regarding property into absolute interest.
It is within the spirit of court of India. Hence it is not violative of any fundamental rights
especially Art.14, 15(1) of the Constitution of India.[17]

S.14 has been given retrospective effect. But this Section has no application for those who has
already inherited and alienated the property before the Act came into force. In Anandibhai v.
Sundarabhai[18] , High Court has been observed as “the expression ‘any property possessed by a
female Hindu’ in Section 14 means ‘any property owned by a female Hindu’ at the date of the
commencement of the Act, and, these words are prospective in their application. Any property
‘acquired before’ the commencement of the act shall be the absolute property. The expression
‘whether acquired before or after the commencement of this act’ shows that section is operative
retrospectively.

There are two conditions to be fulfilled for the application of Section 14 of The Hindu
Succession Act, 1956:

1. Ownership of the property must vest in her, and

2. She must be in the possession of the Estate when the Act came into force.
Supreme Courts and High courts have given wider connotations for the term possession.
According to their observation, it can be in the form of actual and constructive possession. In
Santosh v. Saraswathi[19], a question has been raised regarding the possession of property of
female Hindu and Court held the view that where property was given to the woman by way of
maintenance over which she had a right, her possession was accepted, it became her absolute
property. Even when the property is in the possession of a trespasser, it has been held that she is
in constructive possession.[20]

RIGHT OF INHERITANCE OF PROPERTY FOR HINDU WOMEN

When we check the systems of inheritance in Hindu law, there can find two different systems of
inheritance, namely:

1. THE MITAKSHARA SYSTEM

2. THE DAYABHAGA SYSTEM

The former system prevails in Bengal and the latter system prevails in other parts of India. Both
the systems are based upon the text of Manu that “to the nearest Sapinda the inheritance next
belongs; after them, the Sakulyas, the preceptor of the Vedas, or a pupil.”[21] The guiding
principles of the two systems are different. The Mitakshara interprets the law of inheritance as
nearest blood will be the heir ie; based on the principles of consanguinity. Whereas according to
Manu, the dayabhaga system is based on the principle of religious efficacy or the nearest Sapinda
can offer oblation to the souls. Modes of devolution of property is also different in both schools.

MITAKSHARA SYSTEM

Devolution Of Mitakshara School Can Be In The Form of:

1. Separate Property Of The Last Owner;

2. Joint Family Property.

The Classification Of Heirs Under Mitakshara Are As Follows:

 Sapindas

 Samanodakas, And

 Bandhus

Under Mitakshara law, females takes only limited estate whereas males takes absolute interest in
estate. Males succeeding as heirs, whether to a male or to a female, took absolutely. Females
succeeding as heirs to a male took a limited estate in the property inherited by them, except in
certain cases. If a separated Hindu under Mitakshara or any Hindu under Dayaghaga died leaving
a widow, and brother the widow succeeded to the property as his heir but she being a female did
not take the property absolutely. She was entitled to the income of the property. She could not
make a gift of the property nor could she sell it unless there was some legal necessity. On her
death, the property would pass not to her heirs, but to the next heir of her husband, ie; his
brother.

DAYABHAGA SYSTEM

Under Dayabhaga system, there is only one mode of devolution of property ie; succession.

The Order Of Succession Has The Following Features;

1. Religious efficacy

2. One mode of succession

Under the first order of succession, the right to inherit the property is bestowed with spiritual
benefit on the deceased owner. And under the second order, there is no right by birth or
survivorship.

It does not recognize the rule of survivorship in the Joint Family property. Moreover, 2 or more
persons can become joint tenants but with the exception of widows and daughters. The joint
family property is passed on to heirs, males or females or even to his legatees as if he were
absolutely seized thereof and not to the surviving coparceners on the death of owner. It cannot be
found in Mitakshara law.

Illustrations

 A AND B, TWO HINDU BROTHERS, GOVERNED BY THE MITAKSHARA

SCHOOL OF HINDU LAW, ARE MEMBERS OF A JOINT AND UNDIVIDED
FAMILY. A DIES LEAVING HIS BROTHER B AND A DAUGHTER. A’S SHARE
IN THE JOINT FAMILY PROPERTY WILL PASS TO HIS BROTHER, THE
SURVIVING COPARCENER AND NOT TO HIS DAUGHTER AS HEIR.

 A AND B, TWO HINDU BROTHERS, GOVERNED BY THE DAYABHAGA

SCHOOL OF HINDU LAW, ARE MEMBERS OF A JOINT AND UNDIVIDED
FAMILY. A DIES LEAVING HIS BROTHER B AND A WIDOW. A’S SHARE IN
THE JOINT FAMILY PROPERTY WILL GO TO HIS WIDOW AS HIS HEIR
EXACTLY AS IF A AND B WERE SEPARATE[22].

Under Mitakshara law, the right of inheritance was a right which vested immediately on the
death of the owner of the property in the person who was the nearest heir at that time. But it has
some exceptions:-

 A son or daughter in the mother’s womb at the time of death of owner is not entitled to
inheritance.[23]
  A son validly adopted to the deceased owner by his widow.[24]

 “Apart from the case of a child en ventre sa mere or of an adopted child , the estate once
vested in an heir will not be divested by the subsequent birth of a person who would have
been a preferable heir had been alive at the time of the time of the death of last
owner.”[25]

However both under Mitakshara and Dayabhaga schools, in certain special cases women has
excluded from inheritance of property. Under Mitakshara the only heir liable to be excluded
from inheritance on unchastity is widow of the deceased.[26]

Sections 24 and 25 of “The Hindu Succession Act, 1956” have also laid down the grounds for
excluding a person from inheritance while Section 28 of the said Act of 1956 provides that no
person shall be disqualified from succeeding to any property on the ground of any disease, defect
or deformity or on any ground except as provided in the said Act of 1956. Therefore, the
disabilities left after the Hindu Inheritance (removal of disabilities) Act, 1928, have been
removed by the Hindu Succession Act, 1956.

The Section 8 -13 of The Hindu Succession Act, 1956, deals with the rules of succession with
separate property of a male Hindu, dying intestate. The Act applies to cases of succession which
opens after the Act came into force. The property of a male Hindu dying intestate devolve firstly
on heirs in clause (1) which include widow and son.[27]

The Section Divides The Heirs Of A Male For The Purposes Of Inheriting The Property Into
Four Classes. These Include:

 Relations Mentioned In The Class I Of The Schedule

 Relations Mentioned In The Class Ii Of The Schedule

 Agnates Of The Deceased And

 Cognates of the Deceased.

The Section 6 and 8 Of The Hindu Succession Act, 1956

The relationship between the above stated Sections can be read out from decisions of courts.

Section 6 is applied to the devolution of coparcenary property of a male Hindu who dies after the
commencement of the Act. Section 8 is applied to the devolution of a self-acquired property of
male Hindu.[28]

In Narayanan v. Pushparajani,[29] Kerala High Court observed that where a person dying
intestate does not have wife or children and leaves behind him brother by half blood and a sister
by full blood. In such a case, the sister by full blood would be excluded by the brother by half
blood. Thus sister by full blood alone would inherit the property excluding the brother by half –
blood.

Illustration: A Hindu dies intestate leaving a widow. The widows together will take the whole.

Under Mitakshara Law, father’s widow and brother’s widow were not heirs. But now they are
recognized as heirs and are given a high place in the order of succession. Similarly, in the case of
persons mentioned under class ii of schedule (brother’s brother, sister’s daughter and father’s
father) were used to inherit property as ‘bandhus’ after all the agnates are exhausted, are now
placed in the high place of order of succession.

Hence it is possible to conclude that, the recent developments regarding the law of Hindu
women’s property rights has definitely enriched the possibilities of providing extensive rights on
deserved property.