hindu law - thelegal.co.in notes/llb books main/hundu...hindu law question no. 1:- state the...

Marupaka Venkateshwarlu

M.A,B.Ed,L.L.BTheLegal.co.in

Hindu Law

Question No. 1:- State the categories of persons to whom Hindu Law applies.Explain whether the members of any schedule tribe coming within the clause(25) of Article 366 of the constitution are governed by the codified Hindu Law?

ANSWER:- INTRODUCTION :- The word Hindu is extremely popular and famousterm. Generally every person is known to it. But the term of Hindu has not beendefined till now. A person may be called as Hindu, but only few knew why they areHindu? Sh. Radha Krishnan in his book ‘Hindu View of Life’ at one placesaid that there was a time when a person was identified as a Hindu on the basis ofregion i.e. a person who resided in India was called as Hindu, it also represented thenationality. A time also came in the middle when a person was called Hinduwho believed in Hindu religion or followed it. But this identity of Hindu also did notremained for too long, because it was not required for Hindu o believe in Hindureligion. It is said that though several codified Hindu Laws were enacted in 195 and1956 but the term Hindu was not defined. Today it can be said broadly that a personwho is not Muslim, Christain, Parsi or Jew shall be Hindu. The Supreme Court in the case “Dr. Ramesh Yashwant Prabhu v/sPrabhakar Kashinath Kunta” -1996 and Manohar Joshi v/s Nitia Bhausher Patil-1996explain the term Hinduism related to Hindu as the life style and mentality of thiscontinent. Now the term Hindu can be widely defined the person to whomHindu Law applies shall be Hindu.PERSON TO WHOM HIDNU LAW APPLIES:-The following person can be kept in categories mentioned against each :-1. Those persons who are Hindu, Jain, Buddhist or Sikh by birth:-i) A person is called Hindu by birth who is the child of Hindu Parents i.e. whoseparents are Hindu but such person is also considered Hindu whose either of theparent is Hindu and has been brought up under Hindu traditions. A case : Maya Devi v/s Uttram -1861, this view was proved. Anothercase of Sh Devavasan v/s Jaya Kumari -1991, Kerala High Court held that male ofNadar caste of Travancore marry any non-Hindu female and a child born out of suchmarriage shall be Hindu Here pertinent to mention that according to ancient Dharamshashtras, achild born between Hindu parents only can be called Hindu, there was no such thing

Marupaka Venkateshwarlu MA,B.Ed,LLB.

of Hindu conversion of religion. Therefore it was said that, “A Hindu is born notmade” Application of Hindu Law over Schedule tribes : Several times a question arose that a codified Hindu Law does not apply to thosepersons which belongs to schedule tribe under article 366 clause (25) of theconstitution. Section 2(2) of Hindu Marriage Act 1955 and the case of Dashrath v/sGuru -1972 Orrisa and Kadam v/s Jeetan -1973 of Patna given the answer of thisquestion. According to them a codified Hindu Law shall apply to such persons onlywhen the Central Government notifies in the official Gazette by a notification. CHILD FROM HINDU FATHER & CHRISTAIN MOTHERA question also arosed that whether such person shall be considered to be Hinduwhose father is Hindu and mother is Christain? A case Commissioner of Income taxv/s Sridharan -1976 : a positive answer was given and said that if either of the parentis Hindu and child born out of them is brought up under Hindu traditions then thatchild shall be considered as Hindu. Also in our society the religion of father appliesover the son In a case Sapna v/s State of Kerala : 1993: It was held that if a child is broughtup as a member of Christain famiy then in that situation the child shall be christaininstead of being Hindu. Those persons who are Hindu, Jain, Buddhist or Sikh by religion:-TheHindu Law also applies to those persons who are not Hindu by birth but haveaccepted Hindu religion by conversion. Case: Abrahim v/s Abrahim, 1863, is an important case in this respect. It was held inthis case that the Hindu Law applies not only to those who are Hindu by birth butalso applies to those persons who have become Hindu by conversion. Another caseMorarji vs Administrator General-1929 Madras: It was said that persons becomingHindu by conversion are also Hindu and the Hindu Law applies over them too.Modern Hindu Law includes both Hindu by birth and Hindu by religion under the termHindu. Those persons who are not Mussalman, Chistain, Parsi Or Jew.In wider sense Hindu Law applies to all those who are not Mussalman, Christain,Parsi or Jew. Case : Rajkumar v/s Warwara-1989: Calcutta: The Calcutta High Courtheld that this category includes all those person who donot believe in any religion. Inother words, it can be said that all persons different from Mussalman, Christain,Parsior Jew are Hindu and the Hindu Law applies over them, who are i) atheist or ii)believes in all religion, or iii) believes in religion which is maximum of all. Another case: Yagyapurushdasji v/s Mooldas -1966: The Supreme Courtheld that the followers of Narayan Swami section as Hindu because though they maybe governed by their views or rules but finally are related to the Hindu religion. APPLICATION OF ENACTED LAWS The enacted laws applies over the following:-i) Who are the followers of Veer Shav, Lingayat or Braham samaj. Prathna Samaj orArya Samaj and are Hindu by religion.ii) Who are Jain, Buddhist or Sikh by religion.iii) Who are resident of territory to which enacted law applies and are notmussalman, Christain, Parsi or Jew and has not been proved that in the absence ofenactment, they would not have been governed by Hindu Law or a custom orpractice of its part.THE FOLLOWING PERSONS ARE HINDU, BUDDHIST OR SIKH BY RELIGION


(a) Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jainor Sikh by religion.(b) Any child legitimate of illegitimate whose either of parent is Hindu, Buddhist, Jainor Sikh by religion and has been brought up a member of that tribe community orgroup to which that parents was or is member.(c) Any person who has converted or reconverted to Hindu, Buddhist, Jain or Sikhreligion : Cases : Perumal v/s Punnuswami-AIR-1971 & Durga Parsad v/sSudarshan Swami AIR-1940 Madras. This was proved.

*****************

Question No.2:- Under the Hindu Law, “Clear proof of usage will outweigh the writtentext of Law.” Comment and state whether custom is still a source of modern HinduLaw? ORWhat are the various sources of Hindu Law? To what extent custom still continuousto be important source of Hindu Law? Illustrate your answer.Answer : INTRODUCTION:- The Hindu Law is credited to be the most ancient lawsystem which is approximately 6000 years old. The sources of Hindu Law can bekept under two headings:-1. Ancient or original sources.2. Modern Sources.1. ANCIENT SOURCES :- According to Manu there are four sources of Hindu Lawas per following details, in addition to these four there was also that what isagreeable to one’s conscience:-1. Shruti 2. Smriti 3. Digest and Commentaries 4. Custom and Usages.2 MODERN SOURCES: - Following are the modern sources of Hindu Law :- 1. Equity, justice and good conscience.2. Precedents3. Legislation. Sources of Hindu Law__________________________________________________________Ancient Sources Modern SourcesShruti Smriti Digest & commentaries Custom and Usage _________________________________________________________ Equity, Justice and Good conscience Precedent Lagislation1. SHRUTI :- The name “shruti” is derived from the word “sru” which means to hearand it signifies what is heard. Shruties are considered as the primary and paramountsource of Hindu Law. The shruti consist of the four Vedas and Upanishads dealingwith the religious rites that contain the meaning of attaining true knowledge andmoksh as salvation. Dr. P.V.Kanne in his book, “History of Dharamshashtra” said that,” If we want to seereligion(Law) in a proper way, then we should analysis Shruti and Smritis.”


2. SMRITIS :-Means ,”What was remembered” thus smritis were Smritis is known asgolden era, because it is era when well organised dependant on the remembrance ofsaints and the era of creation of and serial wise development of Hindu Law started. Itis the second Important source of Hindu Law. It is of two types first is prose style andthe other is of poetry style. Smritis are divided into two :i) Dharam Surtra :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb,Harit, Vishnu and Vasith.ii) Dharam Shashtra :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smritietc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti isdivided into 3 parts and is extremely clear, brief and organised. Narad Smriti beingthe last smiriti is such first legal code which mentions subjects related to Judicialprocess, courts and Judiciary.3. Digest and Commentaries :- These are the third important source of Hindu Law.The commentaries through professing and purporting the rest on the smritiesexplains modified and enlarged tradition recorded there to bring them into harmonyand accordingly to prevent practices of the day. Case : Atmarao v/s Bajirao -1935: Itwas held that Digest writers and commenter’s has given the statements of Smritis which can fulfil the present requirements & ahead from smrities. The period of thecommentaries and digest is between 700 AD -1700Ad. The last commentary wasVajanty written by Nand Pandit.4. CUSTOMS AND USAGES :- These are considered an important source of HinduLaw. Narad Smriti says that, “Customs are powerful” they are above the religion.D.F.Mulla says that, “ Among the three sources of Hindu Law Custom and Usage arethe one.”According to Holland, “ Custom is a step of generally followed conducts As a way iscreated over gress by repeated walking similarly custom is created in accordance tothe conduct of everyday life.”Case: Collector of Madurai v/s Mottaramlingam -1868: Privy Council held that inHindu Law the clear proof of customs shall be more relevant then the basic epics oflaw.”Case: Harparsad v/s Shiv Daya -1816: It was said that, “ the custom is family orparticular class or area owing o a long tradition.”Although codified law has given place to custom, but it is limited. Codified Hindu Lawrecognises custom only when it has been expressly given a place. Custom underHindu Marriage Act 1955 can be applied over two topics :i) Any Marriage may be solicited by the customary tradition of the parties.ii) Divorce can be obtained be prevailing custom or usage and a married male offemale above the age of 15 years can be adopted as customary rules.The Judicial Committee explained that, “ Custom is a rule which in a particular familyor in particular district has from long usage, obtained the force of law. Hindu sages have recognised good custom binding on the Hindu. Manu says, “ Inmemorial is transcendent Law.”Custom is divided in three parts:-i) Local custom ii) Class custom iii) Family custom.5. EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity istraced the Hindu period when jurists explained the old law and gave new rules ofinterpretation and equitable solutions in cases of conflict between the rules of variouslaw. In case of a conflict between the rules of smrities that should be followed whichis based on reasons, justice and principles of equity.


In view of the above observations and its practical application it will not beincorrect to mention equity justice and good conscience as the next source of HinduLaw. Actually Britishers not only established a judicial system in India but alsofacilitated though the High Court charters that wherever their is lack of lawful rules,their the decision should be on the principles of equity, justice and good conscience.Case : Gurmukh Singh v/s Kamla Bai -1951: It was held that, “ Where their is lack ofrules of Hindu Law over any subject, there court should pronounce their decision onthe basis of principle of equity, justice and good conscience.

6. PRECEDENT :- It is an important source of law. It means he Judicial decisionover any disputed matter which shall be guideline for the disposition of future similardisputed matters. Generally the decision of Supreme Court, High Court, PrivyCouncil have the effect of precedent over the subordinate court. The importance of Precedent as a source of Hindu Law can be understoodfrom the example that if we have to look into the importance of custom and Usagesin Hindu Law, then we shall have to analyse the case : Collector of Madurai v/sMottaramlingam, it is pertinent to mention here that there are certain rules for theapplication of precedent like :- i) The decision of Supreme Court is binding over all the subordinate courts.ii) The decision of Supreme Court is binding to its subordinate courts.iii) The decision of Privy Council is binding over all High Courts provided that it hasnot be over ruled by the Supreme Court. Case: Pandurang Kalu Patil v/s State ofMaharashtra-2002.7. LEGISLATION :- The last important source of Hindu Law is the legislation. Theirsource has originated after the establishment of English State in India, when Englishrulers started enacting several laws. Laws were enacted in accordance to the state,time and circumstances, there were amended too. Today most of the subjects ofHindu Law has been codified. Some of the important Acts in this respect are :-1. Hindu Widow Remarriage Act 1856.2. Prevention of Child Widow Act. 1929.3. Hindu Women’s right to Property Act. 1930.4. Hindu Women’s right to Seperate Residence and Maintenance Act 1946.5. Hindu Succession Act 19566. Hindu Marriage Act. 1955 7. Hindu Adoption & Maintenance Act. 19568. Hindu Minority and Guardianship Act 1956. Question No.3:- Discuss the main principles on which Mitakshara and Dayabhagaschools of Hindu Law differ from each other. ORWhat are the various schools of Hindu Law? Differentiate between Mitakshara andDayabhaga Schools.

Answer : INTRODUCION:- As we know that Hindu Law is two types :1. Codified Hindu Law2. Un-codified Hindu Law.1. The codified Hindu law applies to all Hindu equally whereas the un-codified HinduLaw the situation is different. The application of Un-codified Hindu Law depends


upon the context of different schools. As per the context of schools, Hindu Law is oftwo types :-1. MITAKSHARA SCHOOL2. DAYABHAGA SCHOOLThe Mitakshara school has further the following sub schools :a) Banaras or Varanasi sub school.b) Mithila Sub school.c) Maharashtra or Mumbai sub school.d) Dravid or Madras sub school.e) Punjab sub school. SCHOOLS OF HINDU LAWMITAKSHARA SCHOOL DAYABHAGA SCHOOL Banaras Mithila Maharashtra Dravid Punjab Case : Collector of Madrai v/s Mottaramlingam 1868: It was said that, “ There is onlyone remote source among the various schools of Hindu Law, but due to differentbeliefs of Digest and its commentaries several schools and sub schools of HinduLaw have developed.”There are mainly two causes to differentiate between severalschools of Hindu Law :-1 .Different Customs and Usages prevail in different parts ofthe country.2. These different areas are governed by different Digest and Commentaries. MIKAKSHARA SCHOOLThe name of this school came from the Digest Mitakshara of Vigyaneshwa. The areaof its application is whole India excluding the Assam State. Case : Rohan v/sLaksman – 1976. It was held that the effect of mitakshara school is so strong that italso applies to even undescribed subjects in Bengal and Assam. Sub-Schools of Mitaksharaa) Banaras Sub-School :- The area of Banaras sub school is complete North India,rural area of Punjab, south Bihar, Orissa and few parts of Madhya Pradesh. Theimportant books concerning to this are Mitakshara of Vigyaneshwa, Veer Mitrodaaand Niranaya Sandhu of Mitr Mishra.b) Mithila sub school : Area= Tirhut and few districts of North Bihar. Books areVivadh Chintamani and Vivadh Ratnakar.c) Maharashtra sub school:- It is also called as Mayuk sub school. Area of this subschool is Maharashtra, Saurashtra, Madhya Pradesh and few parts of AndhraPradesh. Books are Vyavhar Mayuk, Veer Mitradaya and Nirnaya Sandhu.d) Dravid sub school :- The whole south of India, i.e. Madras, Kerala, Mysore. Booksare Smriti Chandrika, Parashar Madhviya, saraswati Vilas, Vyavhar Niranaya.e) Punjab sub school :- Area of the school is Punjab, Rajasthan, Jammu-Kashmir.This sub school emphasized on Customs and Usages. Books are Digest onYagyavalkya Smriti written by Aprak, Mitakshara & Veer Mitrodaya.DAYALBHAGA SCHOOL Its name came from the Digest Dayabhaga of Jimuthvahan. The area of itsapplication is Bengal and Assam. The period of writing of Dayabhaga is consideredto be 1090-1130 A.D. Dayabhaga is mainly on essay on partition and succession. DIFFERENCE BETWEEN MITAKSHARA DAYABHAGA SCHOOLS The above two schools has the principally differences on two subjects:-1. INHERITANCE 2. JOINT FAMIY & COPARCENARY.


1. MITAKSHARA SCHOOL: i) :- I) Inheritance in Mitakashaara is based on relationby blood. 2. A relative by blood receives succession in property which is the basicprinciple of Hindu succession law. 3. Women have been excluded in succession. 4.Agnates supersedes the cognates.5.The area of its application is whole India exceptAssam State. The coparcenary evolves with the birth of a son. Property over whichall coparceners have similar ownership. 5. No coparcenary can say before partitionthat he is the owner of that particular property. Coparcenary has been recognised bythis school.2. DAYABHAGA SCHOOL :- i) 1. The succession of property in Dayabhaga schoolbased on spiritual principles. 2. In this school successor of property is such personwho earns maximum peace and religious profit for the soul of deceased byperforming ‘Pindadaan’ & religious rituals etc. 3. This law is liberal because fewwomen and cognates can also receive property in succession, but after passing ofHindu Succession Act this has been ceased. 4 The coparcenary evolves after thedeath of the father. In Dayabhaga school the son has no right during the lifetime ofthe father.5. On the death of a Hindu Person his property shall devolve among hisheirs on the basis of succession.6. Coparcenary has been recognised by this school.

***********

Question :- 4 Discuss the essentials of a valid Hindu Marriage under the HinduMarriage Act, 1955. ORWhat is the nature of Hindu Marriage? What are the essential conditions of a validHindu Marriage?Answer :- INTRODUCTION : Marriage in Hindu culture is considered to be a sacred ritual. The relation of husband & wife is considered to made far several life times.Once a person enters into marriage it cannot then be easily dissolved. Both have tospend their lives with each other. It is reason that wife is called the second half. There are several synonyms in Hindu Dharamshashtras far husband-wife, husband is also known as ‘Bhartar’, Swami because he maintains his wife andwife is his responsibility. He is also called the ’Parmeshwar’ because the greatestduty of wife is the service of her husband. Similarly wife is called ‘Jaya’ because childis born through her. Wife is also called ‘Lakshmi’ she is the best friend of husband. Every person is required to marry not only for child birth but also for theperformance of religious and spiritual duties and to release the father from his dept. ESSENTIAL CONDITIONS OF VALID HINDU MARRIAGE Section 5 of Hindu marriage act 1955 mentions essential conditions of marriage,which are as under :-i) Either of the parties at the time of marriage shall not have a living husband or wife.ii) Either of the parties at the time marriage shall not be unsound mind effected orretarded of mental development.iii) Male shall be of 21 years and female of 18 years of age at the time of marriage.iv) Unless both the parties are governed by their custom or usage the marriage shallnot occur between parties under degrees of prohibited relationship.


v) Unless both the parties are governed by their custom or usage the marriage shalloccur between parties related to each other by sapinda.Section 7 of the Act also mentions another condition for valid marriage. According toit, marriage shall be solemnised according to customary tradition and rituals. Wheresaptpadi is necessary it required to be performed compulsoryily. Case : Sujeet Kaurv/s Garja Singh 1994, it was proved. But in the case of Nilabba Somnath Tarapur v/sDivisional Controller KSRTC Bijapur -2002, it was held that where saptpadi is notnecessary according to tradition and rituals there a marriage solemnised withoutSaptpadi shall also be valid.Section 8 of the act is provides for the registration of marriage but it is not necessaryalthough Kangawai v/s Saroj -2002, It was recommended to make the registration ofMarriage necessary. Now there are some slight changes have been made in the Hindu Marriage Act,1955 and certain conditions has been imposed far a valid marriage which gives it afarm of agreement : 1. The parties of marriage shall be major i.e. male should be above 21 years of ageand female should be above l8 years of age.2. Both parties should be of sound mind.3. Provision of dissolution of marriage.4. Saptpadi not necessary.However there are certain provision of Hindu Marriage Act, 1955 which makes itsacred in its nature :-1. Marriage of minor shall not be considered to be void or voidable.2. Unsoundness shall not be the ground of void marriage, rather shall be for voidablemarriage.3. The law & procedure of dissolution of marriage is not simple.4. Where Saptpadi is necessary it has to be performed.5. Caste based customs and usage in marriage are recognised.6. Marriage not allowed among sapinda prohibited relations.

As to the question of marriage when there is already living husband or wife. It washeld in the case of Rampyari v/s Dharamdas 1984: “that if any one performs secondmarriage when there is already living husband or wife, then such marriage shall bevoid.”

EFFECT OF VOILATION OF CONDITIONS If the conditions of valid marriage are violated then it shall have the followingeffects :-1. i) When at the time of marriage there is living husband or wife of any party.ii. When parties of marriage fall within Sapinda reation.iii. When parties of marriage fall within degrees of prohibited relationship.2. If at the time of marriage if any one is un-sound mind effected or retarded ofmental growth then such marriage shall be voidable.3. If essential condition of age as to marriage has been violated then it shall bepunishable under section 18 of the Act, but such marriage shall neither be void norvoidable. ARYA SAMAJ MARRIGE Such marriages have been recognised under Arya Samaj Marriage Validification Act1937.SECOND MARRIAGE IN CASE OF LOST PARTY


Several times a question arrises that if any party to marriage has been lost thenwhether second party can enter into second marriage?Section 13(1)(vii) of Hindu Marriage Act 1955 has to be analyzed in this respect. Itprovides that it nothing has been heared about the living or non living of any party tothe marriage during the period of seven years or more, then a decree of dissolutionof marriage could be passed on this ground. Thus a second marriage could beperformed after obtaining the decree of dissolution of marriage on above ground. Infact a person unknown far a period of seven years or more is considered to have civildeath.Thus at present circumstances the nature of marriage is neither completely ‘sacred’nor completely ‘agreement’. It is a mixture of both. It consist of both. Q. No. 5 Distinguish between void and voidable marriage? ORWhat is meant by Void and Voidable Marriage?Answer: - INTRODUCTION: - Section 11 & 12 of Hindu Marriage Act, 1955 providesfar void and voidable marriage respectively:- VOID MARRIAGE Section 5 of the Hindu Marriage Act 1955 mention about the essential conditions of avalid marriage. It contain certain such conditions which if violated shall result into avoid marriage. Section 11 of the Act had considered following marriage to be void:-1. Where at the time of marriage any party has a living husband or wife.2. Where parties to the marriage fall within sapinda relationship.3. Where parties to the marriage come with degrees of prohibited relationshipA case: Rampyari v/s Dharamdas 1984: It was said by Allahabad High Court that anapplication for declaring a marriage void is not required to be presented by the victimonly.Another case : Leela v/s Lakshmi 1968: It was held that void marriage does notrequire even the decree of a court. VOIDABLE MARRIAGE Section 12 of the Act mention about voidable marriage. According to it, in case ofmarriage being voidable, the court may decae it Null under following conditions :- 1. Where marital cohabitation has not occurred due to impotency of the respondent.2. Where at the time of marriage any party failed to give valid consent due tounsoundness or has been effected by mental retardness to such extent that he isincapable to marriage and giving birth to child, or suffers from frequent insanity or isinsane.3. Where the consent of guardian is necessary for the marriage and such consenthas been obtained by force or by fraud as to nature of rituals or any actual facts orcircumstances as to the respondents.4. Where the respondent is pregnant at the time of marriage from a person otherthan the applicant.Here is important that if marriage is voidable on the ground of consent obtained byfraud 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 asforce used.


(b) The parties have not lived as husband and wife after the knowledge of force usedor fraud.Similarly if the marriage is voidable due to the pregnancy of wife then such marriageshall be declared null only when the court is satisfied that :- (a) The applicant was unaware of the pregnancy of the wife at the time of marriage.(b) If the marriage has been solemnised before this Act came into force, then theapplication shall be presented within one year from the date of enforcement of theAct or if the marriage has been solemnised after the act came into force then theapplication shall be presented within one year from such marriage.(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy ofwife.(d) Wife had been pregnant from a person other then the applicant.(e) She was pregnant before the marriage. IMPOTENCY Impotency means the incompetency of any party to cohabit due to any physical ormental situation. A case Digvijay v/s Partap Kumai -1970 and Bibi v/s Nath 1970: Itwas held that nullity of marriage requires the existence of impotency at the time offirst cohabitation.UNSOUNDNESS :- A case of Ratneshwari v/s Bhagwati- 1950: It was said thatunsoundness insanity or lunacy for the purpose of marriage means: Theincompetency of any party to marriage to understand the rituals of marriage.FRAUD OR FORCE :- Concealment of caste religion or misrepresenting a motheras a vingin or false praising or concealing prior marriage etc., are good example offraud.LEGITIMACY OF CHILD BORN IN VOIDABLE AND VOID MARRIAGESection l6 provides for the legitimacy of child born in void and voidable marriages.According to it, it can be said that such children are considered legitimate. Section 16 says : “ Where any decree of nullity has been passed regarding marriage undersection 11 & 12 then any child having born or being in mother’s womb before thedecree, if the marriage instead by decree of nullity to declare null or void would havebeen breached shall have been the legitimate child of the parties to marriage, shallbe deemed to be legitimate even after passing of decree of nullity. Such childrendoes not obtain any right in the property of persons other than his own parents i.esuch children shall not inherit property from any other relative other than the parents.A case : Bansidhar v/s Chabi 1967 : It was held that the children from void andvoidable marriage shall be deemed to be the legitimate children of their parents.VOID MARRIAGE VOIDABE MARRIAGE

It is void ab initio. It is valid marriage until it has not Been declared null by a decree.

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


Question No.6 : Discuss the grounds for obtaining a decree of divorce. On whatspecial grounds a Hindu Wife can claim a decree of divorce against her husbandunder the provision of the Hindu Marriage Act, 1955. Answer:- INTRODUCTION :-Judicial Separation and dissolution of marriage are twoimportant matrimonial remedies. It means suspension of marriage relation anddissolution means suspension of termination. Any party of the marriage can presentan application for judicial separation and dissolution of marriage. Both these havebeen mentioned in section 10 and 13 of Hindu Marriage Act 1955. It is pertinent to mention here that although the grounds of Judicialseparation and dissolution of marriage may be the same but they are different.Dissolution of Marriage terminates the marriage, no marital relationship existbetween husband and wife. Their duties & matrimonial rights also ceased. They canremarry also. Whereas in Judicial Separation neither marriage terminates normatrimonial relationship ceases only the relations get suspended.GROUNDS OF JUDICIAL SEPARATION &DISSOLUTION OF MARRIAGE Section 10 of the Act provides for judicial separation whereas section 13 ofact provides for dissolution of marriage (divorce). Earlier grounds for above purposeswere different but after the amendment of Hindu Law Act 1976 made the grounds ofboth as same.Grounds:- Section 13 of Hindu Marriage Act 1955 mentions the ground for Judicialseparation and divorce. These grounds can be divided into three such as :-1. Grounds available to both husband and wife (Section 13(i).2. Grounds available to wife only ( sec. 13(2).3. Ground of mutual consent ( sec. 13B). GROUNDS TO BOTH HUSBAND & WIFESection 13(1) of the Act mentions the following grounds on which both husband andwife can present an application for divorce:- i) When other party after the solemnisation of the marriage had sexual intercoursevoluntarily with person other than husband or wife.ii) When other party after the solemnisation of the marriage, had behaved withcruelty with husband or wife.iii) When the other party prior to two or more years from the date of presentation ofapplication had deserted the applicant.iv) When the other party does not remain Hindu due to conversion.v) When the other party is of unsound mind or is frequently or regularly and up-tosuch limit, affected by mental retardness that the applicant cannot reasonable bebelieved to live with the respondent.vi) When the other party is suffering from incurable leprosy.vii) When the other party is suffering from veneral discease.viii) When the other party has declared Renunciation of world.ix) When the other party is living or not, has not been heared by those for a period of7 years or more, who would have heared naturally if that party would have beenliving.x) When the cohabitation has not resumed between the parties to marriage after theexpiry of one year or more from the date of decree of judicial separation.xi) When the conjugal rights has not been resituated within one year or more fromthe date of decree of restitution of conjugal right.


GROUNDS AVAILABLE TO WIFE FOR OBTAINING DIVORCEUnder section 13(2) of Act which provides those grounds on which wife only canpresent an application for divorce. These are as under :-1. In case of marriage solemnised prior to the passing of Hindu Marriage Act, thehusband had remarried and living second wife with whom he had married prior tosuch passing provided that in both cases the second wife was living at the time ofpresentation of application.2. When after the solemnisation of marriage the husband had been guilty of rapesolomy or bestiality.When in a suit under section 18 of Hindu Adoption & Maintenance Act, 1956, or in aproceeding under section 125 of CPC-1973, a degree or a order had been passedagainst the husband for the payment of maintenance to the wife even when shelived separately and after the time of issuing such degree or order the cohabitationhad not been resumed between the parties with in a period of one year or more. 3. When wife had married at a time when her age was below 15 years and she afterattaining the age of 15 years before attaining the age of 18 years, had repudiated themarriage. DIVORCE BY MUTUAL CONSENT Hindu Marriage (Amendment) Act 1976 added another section 13A to HinduMarriage Act 1955 to provide mutual consent as a ground for divorce. According to itboth the parties to the marriage can jointly present an application for divorce on theground of mutual consent in the situations mentioned below :-a) When husband & wife had been living separately for a period of more than oneyear.b) They are incapable of living together.c) They have accepted divorce by mutual consent. ****************

Question No.7:- Explain the terms ‘Desertion’ & ‘Cruelty’ as ground of divorce?Ans :- INTRODUCTION :- Section 13 of Hindu Marriage Act 1955 mentions thevarious grounds of divorce. Out of these grounds Desertion and Cruelty are also thegrounds for divorce. The provisions have been made in section 13(1)(ii) for crueltyand section 13(1)(iii) provides desertion. DESERTION Means a party to a marriage permanently leaves the other party without any reasonand without his consent. This also include ignoring of one party by the other. Thusdesertion is not abandonment of place, but is of situation. When situation ofdesertion continues for more than two years, then it shall be the ground of divorce.


A case of Savtri Pandey and Premchand pandey -2002: The Supreme Court heldthat, “ the desertion means ignorance from matrimonial duties, instead of leaving anyplace. Desertion requires existence of cohabitation between the parties earlier.”Desertion is mainly of two types :-1. Actual desertion2. Constructive desertion.ACTUAL DESERTION: - Actual desertion consist of the following elements:-a) Fact of desertion.b) Intention of desertion.c) Desertion without any reasonable cause.d) Desertion without the consent of applicant.e) Desertion continues for two years.Actual desertion mainly requires two essential things: Respondent abondousmatrimonial home and there is intention of desertion. This is also called physicalseparation and Animus desertion. Case: Vishwanathdas v/s Maya bala Das 1994:the court held that there should be intention of desertion. One of the important thing that desertion requires guiltby one of the parties i.e. desertion shall not be by consent. Case Gurubachan Kaurv/s Pritam Singh-1998. In a case of Vipin Chandra V/s Prabhawati – 1957: is a goodexample in this context. Wife was ready to live with husband but the husband wasnot willing to live together. The husband also send a telegram to the father of wifethat read : “ Do not send Prabha” court did not held desertion by Prabha becauseshe was willing to return to her husband. Thus in all, desertion requiresabandonment of matrimonial home and a permanent intention of such abandonment.Desertion is required to be without reasonable cause.Another case of Roshan Lal v/s Basant Kumari -1967-68 Punjab: The wife does notagree to live with the husband along-with his parents. She wanted that the husbandshould live separately leaving the parents for which husband was not ready. Wifewent to her parents. It was held desertion. The Court held that It to be desertion bythe wife.” Here it is important that desertion requires guilty by one of the parties i.e. desertionshall not be by consent as stated by the Court in the case of Gurbachan Kaur V/sPritam Singh- 1998. CONSTRUCTIVE DESERTION As we have seen above, desertion does not mean abandonment of place, rather isabandonment of situation. It is constructive desertion. In other words, it can be saidthat desertion means not abandoning the place, rather is ignoring the cohabitation. Ifany party to marriage devoids the other party from cohabitation even with living inone house, it shall be desertion. Here, it is important that if any party to marriage behaves in such manners with theparty that it becomes difficult for the other party to live in matrimonial home or iscompelled to leave the matrimonial home, then it shall be considered to be desertionby the first party. (Jyotish Chandra v/s Meera 1977, Anil Kumar v/s Shefali 1977,Omprakash v/s Madhu, 1997)The desertion may terminate in following three situation :-1. Resume Marital Life;2. Resume Cohabitation, or 3. Express willingness to return back to home.


Cruelty:- it is an important ground for judicial separation and divorce. If any party tomarriage behaves with cruelty to the other party, then the other party can present anapplication for divorce against the first party on this ground. Definition of Cruelty:- Cruelty has not been universally defined till now. It dependsupon the circumstances of the case and the country and time. Russel v/s Russel,1897 Cruelty has been described as such characterial behaviour or conduct whichmay put life and body under physical or mental form of danger or may ariseapprehension of such danger. If the definition is understood in matrimonial context, it shall show that any party tomarriage may behave with other party in such manner that it shall be difficult forother party to live with him, this shall be cruelty.Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been held that husband alongwith his parents use to regularly beat the wife. Father-in-law physically misconductedwith her. Husband neve went to bring back wife nor made any attempt towards it.Court held this behaviour of husband to be cruelty because such circumstancesarose that it became difficult for wife to live with the husband.Similar case is Yadhister Singh v/s Smt. Sarita, 2002 – wife used to live at ancestralhome of husband. Husband was working somewhere else. Husband never wanted tokeep wife along with him. He used to come at his ancestral home once a week. Hedid not used to say his wife that he did not liked her, but he did say that she shouldlive only with the other members of family at the ancestral property. Court held it tocruelty.There are several cases of cruelty. Actually the definition of cruelty depends upon thecircumstances of the case. Types of Cruelty:- a. Physical Cruelty.b. Mental Cruelty. Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that itincludes both physical and mental type of cruelty. Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that MentalCruelty is a state of mind and feelings. In this case, wife refused intercourse form thefirst day after marriage. She also refused to undergo medical examination. She usedto misbehave always with her husband. She also left her matrimonial home. Courtheld it to be cruelty by wife towards husband. Rakesh Sharma v/s Surbhi Sharma, 2002 - Wife left the matrimonial home withoutthe permission of the husband. She used to charge husband with adultery andmaking constant demand of dowry. Court held it to be a conduct of mental crueltytowards husband. Shobha Srinivas v/s Srinivas Veranna, 2002, Court did not considered such a singleact of wife as cruelty in which the illiterate wife emotional anger threw the MangalSutra. In all, it means that cruelty is determined by the facts and circumstances of everymatter. Ques:-Valid Adoption under Hindu Adoptions and Maintenance Act, 1956Introduction:- Section 6 of the Hindu Adoptions and Maintenance Act, 1956 providesthe requisites of a valid adoption. The person adopting has the capacity and also theright to take in adoption. The person giving in adoption has the capacity to do so, theperson adopted is capable of being taken in adoption and the adoption made in


compliance with the other conditions mentioned in Chapter II of the Hindu Adoptionand Maintenance Act, 1956.No adoption shall be valid unless:- 1. The person adopting has the capacity and also the right to take in adoption. 2. The person giving in adoption has the capacity to do so. 3. The person adopted is capable of being taken in adoption: and 4. The adoption made in compliance with the other conditions mentioned in ChapterII of the Hindu Adoption and Maintenance Act, 1956.

According Section 5 of the Act, an adoption made in contravention of the provisionsof Chapter II of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singhv/s Shakuntla, 2002 the Supreme Court opined that Section 16 of the HinduAdoptions and Maintenance Act, 1956envisages a statutory presumption that in theevent of there being a registered pertaining adoption, adoption would be presumedto have been made according to law. 1. Capacity of a male Hindu to take in adoption According Section 7 of Hindu Adoption and Maintenance Act, 1956 any male Hinduwho is of sound mind and is not a minor has the capacity to take a son or a daughterin adoption. But if the male Hindu has a wife living at the time of adoption, he shallnot adopt except the consent of his wife. But the consent of the wife of a male Hinduis 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 unsoundmind. If a man has more than one wife living at the time of adoption, the consent of all thewives must be obtained. The Act has given two qualification for a male Hindu tocapable to taka a child in adoption i.e. the person must be of sound mind and hemust not a minor. The man is required to take consent of the wives or wife, beforeadoption. Without the consent of wife or wives the adoption will be void. 2. Capacity of a female Hindu to take in adoption Now a female has also the capacity to adopt any child. Section 8 of the Act providesthat any female Hindu who is of sound mind, who is not minor and who is notmarried or if married, whose married has been dissolved or whose husband is deadhas 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. Thewoman has no right to adopt, during the subsistence of the marriage, if the husbandnot suffering with any of the disabilities mentioned in Section 8 of the Act. Theunmarried and widow woman has also the right to take in adoption any child. 3. Person capable of giving in adoption Section 9 of the Act down the capacity of person, who may give the child in adoptionto another. No persons except the father or mother or the guardian of the child shallhave the capacity to give in adoption. • Capacity of the father to give in adoption :- If the father is alive, he shall alone havethe right to give in adoption but such right shall not be exercise save with the consentof the mother. • Capacity of the mother to give in adoption :- The mother may give the child inadoption if the father is dead or had completey and finally renounced the world orhas ceased to be a Hindu or has been declared by a court jurisdiction to be unsoundmind.


• Capacity of the guardian to give in adoption :- Where both the father and motherare dead and to be unsound mind and finally renounced by the world declare by thecourt then the guardian of a child may give the child in adoption with the followingconditions laid down by the courts:- o That the adoption will be for welfare of the child. o That the applicant for permission has not received any payment in consideration ofthe adoption.o That no person has given any payment to the applicant for consideration of theadoption of child. The father has preferential right to give the child in adoption. If he is unsound mind orsuffering from chronic disease has the right to give a child in adoption. The guardianmay give the child in adoption with the prior permission of the court. 4. Who can be adopted:- Section 10 of the Hindu Adoption and Maintenance Act,1956 the following person who fulfil the conditions are capable for adoption:- a) He should be Hindu. b) He or She not already be adopted any child adopted.c) He or She has not been married unless there is a custom applicable which permitsbeing can adopt. d) He or She has not completed the age of fifteen years which is to be consideredbeing taken for adoption. 5. Formalities of Adoption:- (i) The child to be adopted must be actually given andtaken in adoption by the parents/guardian. (ii) Only after the transfer of a boy from one family to another with a ceremony will bevalid. Refer a case of Lakshman Singh Kothari v/s Smt. Rup Kuwar, 1961 the court heldthat under the Hindu Law there can not be a valid adoption unless the adoptive boyis transferred from one family to another by doing the ceremony of given and taken.

Question: Explain the powers of Karta in a joint Hindu Family? Whether he canmortgage the undivided shares of other coparceners in the property.Answer : INTRODUCTION:- The position of karta n a joint hindu family is unique. Heis that person who takes care of the whole family and its property and admininsters itand all the members of family remained disciplined under him. It has been saidregarding the position of karta that no one else is equivalent to him in the family. Theposition and powers of the karta are more wide than anyone POWERS OF THE KARTA1. He has the complete control over the family.2. No one can claim accounts from him nor can say to him to spend less.3. There is no binding over him that how much he shall spend over any coparcener.4. It is within his power to whom he may educate and whom he keeps illiterate.But this does not mean that he is dictator. His position is extremely sensitive. He hasto move along-with all the members. Thus the position of the karta is mixture of rightsand duties. He has to maintain the control between rights and duties. WHO CAN BE A KARTA


1. Hindu Law believes that the seniormost coparcener is the Karta of the family.Refer case of Ram v/s Khera -1971.2. Any coparcener becomes Karta of family because of his seniority not because ofanyone appointed him. Refer a case to this effect Mann V/s Jayani-1918 it was heldthat such a person till he lives continues as the karta of the family although he maybe aged, handicapped, week or ill.3. However any karata becomes unsound mind then the seniormost coparcenerwould become the karta. WHETHER A JUNIOR MOST COPARCENAR BECOMES KARTA. 1. Generally it does not happen but in a case of Narendera Kumar V/s Intcome TaxCommissioner-1976, it was held t hat a junior coparcener can be the karta with theconsent or agreement of all the coparceners.In another case of Harihar Sethi V/s Ladu Kishore Sethi -2002, it was held by theOrisa High Court that junior coparcenar can be the karta when the senior mostcoparcener waives his right of karta then a junior member can become Karta. Whether mother can become the Karta. In case of Pandurang V/s Pandurang -1947 it was held by the Nagpur High Courtthat the mother can become Karta if their is no other adult coparcener here theSupreme Court does not agree to this view in case of Commissioner of IncometaxVs Seth Govind Ram -1986.The Karta of Joint Hindu Family at a time can only one not more, but with theconsent of other coparcener there can be more than one Karta: refer a case ofMudrit vs Ranglal 1902 and Shankar v/s Shankar 1943. THE RIGHTS OF KARTA1. Right of managemnt: He has the right to manage all the duties trade, businessindustry etc., no one can challenge him.2. Right over Income :- The income of the family remains under his control. He mayspend as per the requirements.3. Right of Representation : He can represent the family in all types ofsocial,religious, legal and matrimonial matters. The decision of karta is binding overall. He can file suit. Refer a case in this regard: Fatimanisa v/s Raj Gopalacharya-1977.4. Right to debt. : He can any debt for the requirement of the family. Such debts shallbe taken for legal requirements of the family. The karta can mortgage or pledge theproperty of family for this purpose.5. Right of settlement:- Karta has the right to make an honest settlement on behalf offamily.If any settlement is made not in good faith it can be challenged refer a case ofNayathambi v/s Vijay-1972.6. Right of arbitration :- He has right to solve the disputes of family througharbitration see a case of Jangan Nath v/s Mannu Lal 1894 of Allahabad.7. Right of Acknowledgement: Karta has the right to acknowledge the debts andmaking payment of interest but he cannot acknowledge the time-barred debts.8. Right of Alienation :- He has the right to alienate the property of family and takedebt for the family with the following conditions :-i) For the benefit of the family.ii) For the fulfilment of the legal necessaties.Refer a case in this regard Devi Kishan v/s Ram Kishan -2002 It was held by theRajasthan High Court that the karta can Mortgage the property of joint family forlegal necessities, but the following may not be legal necessaities :-


i) Debt for child marriage violating child marriage prohibition Act.ii) Debt over property already mortgaged. Question :- Who can give child in Adoption? Or Who can give and take in adoption?Answer :- Section 7,8,9 and 10 of Hindu Adoption and Maintenance Act 1956provides the following terms for adoption:-1. Competency if Hindu Male to adopt.2. Competency of Hindu Female to adopt.3. Person competent to give adoption.4. Person who can be adopted.All these above can be studied under the following heads:-1.WHO CAN ADOPT :- Section 7 and 8 mention those person who can adopt. Thesesection has two types of methods of adoption by male and adoption by female. ADOPTION BY MALE:Section 7 provides that an adoption by male requires the following three conditions :-i) Such male shall be of sound mind.ii) He is major.iii) Must have the consent of his wife.Thus such Hindu male can adopt a child who is major, sound mind and has obtainedthe consent of his wife. If the adoption is performed without the consent of wife thensuch adoption shall be void. Refer a case of Bhola v/s Ram Lal -1989, It has beenheld that if any male has more than one wife then the consent of all wives arerequired. If any wife attend the adoption ceremony it shall be deemed to have giventhe consent refer a case of Praful Kumar v/s Shashi Bewa -1990.It is pertinent to mention that the consent of wife is not necessary in allcircumstances i.e. the consent of wife is not necessary in the following conditions :-1. When wife had renounced the world.2. When she is no more Hindu.3. When she has been declared unsound by the competent court. ADOPTION BY FEMALESection 8 provides that any female can also adopt a child only when such femalefulfil the following conditions :-1. Is unmarried or widow.2. Is a major3. Is of sound mind.It is clear that a female cannot adopt until the husband is living. Female can adopt achild even when the husband living only when:i) The husband had renounced the world.ii) The husband is not more a Hindu.iii) The husband has been declared unsound mind by a court.Here are some important things that if male wants to adopt a female or vice-versathen the age difference between the two shall be at-least 21 years.WHO CAN GIVE ADOPTION Section 9 mentions those persons who can give a child in adoption. Thefollowings are eligible for giving a child in adoption :-1. Father 2, Mother 3 Guardian appointed by the court.


If a father gives a child in adoption the consent of mother shall be required. Theconsent of mother shall not be required in following situations :-1. When the mother is renounced the world.2. When the mother is no more Hindu.3. When the mother has been declared unsound mind by a court.Generally a mother cannot give a child in adoption till the father is living. A mothercan give a child in adoption only when the following occur:-1. The father had already died.2. Father is renounced the world.3. The father is no more Hindu.4. The father has been declared unsound mind by a competent court.Mother means only the natural mother not the step mother. Step mother cannot givea child in adoption. Refer a case of Dharamraj Jain v/s Suraj Bai-1973.A guardian appointed by the permission of court can give a child in the following conditions :1. When both father and mother had died.2. When they have renounced the world.3. When they do not remain Hindu.4. When they have been declared unsound mind by a competent court.It is further to submit that the court will consider the following points while permissionfor the adoption:-1. The age of child.2. Knowledge of the child.3. Intention of the child.4. Interest and welfare of the child.5. No consideration by the guardian etc.WHO MAY BE ADOPTED.Section 10 mentions that those persons who may be adopted. According to theprovisions such person may be adopted or may be given in adoption :-1. Who is Hindu.2. Who has not already been adopted.3. Who is not married where it has been permitted by the custom or traditions.4. Who is not above the age of 15 years where it has not been permitted by thecustom or traditions.The case of Balakrishna v/s Sadashive-1977, another case of Mayaram vs JaiNaraian -1989 and Kodippa Rama Papal urf Shirke v/s Kannappam -1990. It washeld that where customs or traditions allow there a person above 15 years of age ormarried can be adopted.Where as among Maharashtra School and Jains a person of any age can beadopted refer case of Bishan v/s Girish-1986.Another case of Dev Gonda v/s Sham gonad -1992, the Bombay High Court heldthat any insane can also be adopted. Further any orphan found child or abandonchild may be adopted.

*************

Question : Describe the rules of succession in the case of intestate Hindu femaledying intestate? OR


Explain the various rules regarding the distribution of the property of Hindu femaledying intestate.Answer : INTRODUCTION :- Section 14 of the Hindu succession Act 1956 hadbrought drastic change in concept of property of a female. Now a female beingconsidered to be complete owner of his property provided that at the time ofimplementation of this act:-1. She is Hindu.2. She is living 3. The property is in her possession. As regard to question of possession isconcerned the cases of Mangal Singh v/s Smt Ratnu-1967 and Monomayi v/sUpeshwari-1994, it was held that such possession may be actual or constructive. SUCCESSION OF PROPERTY OF FEMALESection 15 of the Act provides for the succession of Hindu female dying intestate.Section 15(1) distributes the heirs of deceased Hindu female in the following fiveclasses :-a) Sons and daughters ( which includes the children of predeceased son ordaughter) and husband.b) The heirs of husband.c) Father and mother.d) Heirs of Father.e) Heirs of Mother.It is pertinent to mention here that son and daughter includes illegitimate sons anddaughters refer a case of R.A.Patil v/s AB redekar – 1969. Similarly it includesadopted sons and daughters but does not include step-sons and step-daughters acase may refer in this context Gurbachan v/s Khechar Singh-1971. When a Hindu female dying intestate does not have any heirs then her propertyshall devolve with the State refer a case of Punjab v/s Balwant Singh 1991.However the property of female can be divided into three categories in respect ofsuccession:-1. Property obtained in succession from father or mother.2. Property obtained in succession from husband as father in law.3. Other property.SUCCESSION OF PROPERTY OBTAINED FROM PARENTSSection 15(2) says that if any female had received property in succession from herfather or mother then such property shall devolve firstly within her sons anddaughter, and if the sons and daughters does not exists then it shall devolve amongthe heirs of father. Refer a case of Mahadevappa v/s Goraaamma-1973 And another case of Bhagat Ram v/s Teja Singh-1999, the Supreme Court held thatif any female receive property in succession from her mother then such propertyshall after her death go to her sister but not to the heirs of her husband.A very good example in this content a case of Taramani v/s Narender Kumar -2002,the court held that, at the time implementation of the act the unmarried daughterbecame the absolute owner of the property. Therefore after her death the propertyshall not devolve among the brothers of father, rather shall devolve to the marriedsister.SUCCESSION OF PROPERTY OBTAINED FROM HUSBAND AND FATHER INLAW. Section 15(2) (B) of the act provide that if any female receives property insuccession from her husband or father-in-law then such property shall firstly devolve


among her sons and daughters and in case of non-existence of her sons anddaughters it shall devolve among the heirs of husband. SUCCESSION OF OTHR PROPERTYExcluding the property received in succession from parents and husband or father-in-law all other properties shall devolve according to the mentioned heirs of section15(1). The general rule of preference is that prior class shall have preference overthe subsequent class.ILLUSTRATION :- The property received in succession from brother gifts at time ofmarriage other gifts etc shall dissolve under this category. METHOD OF DISTRIBUTIONSection 16 of the act mentions the method of distribution of property among the heirsof Hindu female dying intestate. According to it, the following method could beexpressed in simpler words in the following way :- 1.Son daughter and husband each shall receive one share. 2.Sons and daughters of predeceased sons and predeceased daughters shallreceive that share which the predeceased would have receive if alive. 3.The heirs of the branches of predeceased son or predeceased daughter shallreceive share equally among themselves. ******************** Q. On what grounds can a Hindu wife claim maintenance from her husband evenwhile living separate form him. When her right to maintenance is lost?Ans:- Introduction:- Under the Hindu society and culture its is the duty of husband tomaintain his wife. These duty is not legal only but moral also. According to Manu, aperson has to maintain his parents, wife and minor children even after doing 100wrong acts. Section 18 of HA&M Act, 1956 accept this system and provides that a Hindu wifewhether married before or after the enforcement of this act shall be entitled formaintenance from her husband during her lifetime. A case in this regard of Jayanti v/s Alamellu, 1904, it was held that it is the duty ofhusband to maintain his wife without any excuse of shortage of funds. Another caseMutyal v/s Mutyal, 1958, it was held that a wife is not entitled for maintenance whenshe leaves the house without the consent of her husband. Ground of maintenance while living separately It is pertinent to mention here that the wife is entitled for maintenance only when sheis living with her husband but she is not entitled to maintenance if she is livingseparately from her husband. Whoever according to Hindu Adoption andMaintenance Act, 1956 also makes a provision that a Hindu wife may also obtain adecree for separate residence and maintenance from her husband under thefollowing grounds:-1. Desertion:- Desertion as a ground for separate residence and maintenance meansthe abandoning of the wife without reasonable cause and without her consent oragainst her wish. Under Section 13 (1) of Hindu Adoption and Maintenance Act, 1956the duration of the desertion need not be a period of two years. It may be less thantwo years. 2. Cruelty:- If the husband treated his wife with cruelty and the wife apprehension inher mind that it will be harm full or injurious to live with him. It will be a ground ofseparate residence and maintenance. The duty has to prove the following facts:• That the husband treated her with cruelty,


• The cruelty was of such nature which she apprehended in her mind that it will beharm full or injurious to live with him. 3. Leprosy:- If the husband suffering a virulent form of leprosy it will be a ground forwife to claim maintenance and separate residence. The duration of leprosy is notmaterial. 4. Keeping a concubine:- If the husband keeps the concubine in the same house inwhich his wife living with a concubine then the wife may claim separate residenceand maintenance. 5. Conversion:- If the husband has ceased to be a Hindu and conversion to anotherreligion also a good ground for the wife to live separate and claim maintenance formhis husband. However, a Jain converted to Sikh it is not a ground for wife to claimseparate residence and maintenance. 6. Another Wife:- Under prior Hindu Law polygamy was allowed. A man might marrymore than one wife. But in Hindu Adoption and Maintenance Act, 1956 makesmonogamy compulsory and abolished bigamy once for all. 7. Any other cause:- If the wife is of immature age and is living with her parents shewill claim maintenance form her husband. In a case Siraj Mohammad Khan v/s Hafizunnis, 1981, it was held by the Court thatthe impotence of the husband amounts to mental cruelty for the wife. It was,therefore, just ground under section 125 of CR. P. C. to claim separate residenceand maintenance. Who are coparceners and what are there rights. Whether a daughter who wants toremain unmarried can claim partition in the coparcenary property?Ans:- Introduction:- In Hindu Law joint Hindu family and coparcenay are two differentsubject. Joint Hindu family is a wide concept. Whereas coparcenary is limited. JointHindu Family is created by successors, of one ancestor their mother, wives,unmarried daughter etc. Whereas coparcenary is created by father, son, Grandson,grandson’s son. Thus the following persons are coparcener:-i. Fatherii. Soniii. Grand Soniv. Grandson’s son. After the amendment of Hindu Succession Act, 2005 it is now considered thatdaughter as coparceners and they shall have the right in coparcenay property bybirth. Coparcenary may exists even with Grandfather, grandson or grandfather’sfather and grandson’s son. In a case Dashrath Rao v/s Ram Chandra Rao, 1961, the Court held that the lastmember of coparcener should not be more than 4 degree away form the ancestor.A

B (Son) C (Son)

M (Grandson) N (Grandson) P (Grandson) Q (Grandson) R (Grandson) X (Grandson’s son) Y (Grandson’s son)Right of Coparcenars:- The Coparcenars following rights:- a. Coparcenars have right by birth in the property of coparcenay. b. Coparcenars can demand partition of the coparcenary property.c. Coparcenars have joint ownership and possession over the coparcenary property. d. No coparcener can transfer the coparcenary property.


e. Coparcenar is entitled to maintenance from the coparcenary property. f. The right of coparcener is base on survivorship, not on succession. g. Coparcenar has the right to see accounts of the property form the Karta. Right of unmarried Daughter:- Whether any woman who decides to live unmarriedcan claim partition of coparcnary property?No woman can be the member of coparcenary but she can be a member of jointfamily in such situation it is clear that a. any woman does not have right by birth in the property.b. no woman can claim the partition of such property. c. unmarried daughter entitled to maintenance form the joint family property.d. the expenses of unmarried daughter is also charged on the property of jointproperty. Q. Who are the natural guardian of Hindu minor? What are the powers of suchguardian?Answer:- Introduction:- Hindu Minority and Guardianship Act, 1956 is for such personwho minor that is below the age of Eighteen years and a guardian has beenappointed for the care of his body and his property. This act lays down four types ofguardian:- (i) Natural guardian(ii) Testamantary Guardian(iii) De-fects Guardian (iv) Guardian appointed by court.Who are the natural guardian:- Under Section 4 (c) of the Hindu Minority andGuardianship Act, 1956 the meaning of natural guardian is the father of and after himthe mother. The natural guardian of minor wife is her husband. Section 6 of Actprovides that the natural guardian consists of the three types of person:- (i) Father(ii) Mother(iii) HusbandThus the natural guardian can only be father, mother and husband and according toit:- In case of a boy or unmarried girl firstly the father and later mother is the guardian ofa minor upto age of five year is generally mother. The guardian of illegitimate boy orillegitimate unmarried girl shall be firstly the mother and later the father. The guardianof married of girl is husband but here in the case of minor the step-mother and step-father can not be guardian. The guardianship can be terminates in the followingsituations:- (i) When such person that is guardian is no more Hindu. (ii) When he has renounced the world. In case of E.M. Nadar v/s Shri Haran, 1992, it was held by the court that the father isguardian of minor even if living separately. In case of Vijaylakshmi v/s Police Inspector, 1991, it was held that when fatherconverts to be non Hindu then mother shall be natural guardian. In case of Chandra v/s Prem Nath, 1969, it was held that the guardian below the ageof 5 years is mother. But several decision with the time it has been considered that if the father is unableand do not have sufficient fund then the natural guardian shall be mother asdescribed by the court in the following cases:-


(i) R. Venkat Subaiya v/s M. Kamalamma, 1992(ii) Smt. Geeta Hariharan v/s Reserve Bank of India, 1999.The power of Natural GuardianThe power of Natural Guardian can be kept under two heading:-1. Right regarding the body of Minor2. Right regarding the property of Minor.Keeping in the view of the importance of above lines the body of minor under Section8 (i) that the natural guardian can perform all the function regarding care of the minorwhich are in his benefits.The Power of Natural Guardian Property of Minor are as under:- 1. Transfer of property:- Section 8(2) of Act says that the mortgage, sale, gift,exchange of immovable property of the minor shall be made only prior permission ofthe court. If the permission is not obtained it will be voidable. As said by the Court inthe case of Narindra Singh v/s Devendra Singh, 1982 and Vishwan Nath v/sDamodar , 1982.2. Lease of Propert:- Section 8 (2) (b) of the Act lays down that any natural guardiancannot lease the immovable property of minor for more than 5 years or not morethan one year after the minor attains the majority. 3. Right to Contract:- The guardian may contract for the minor, but cannot enter intoa contract which makes the minor personally liable held by the court in case Waghlav/s Shiekh Masaluddin and Mir Sarwae v/s Fakruddin, 1912.Minor cannot the guardian of another minor:- As described in Section 10 of the Actthat no minor can not be guardian of another minor. In the case of Ibrahim v/sIbrahim, 1916, it was held the minor can be the guardian of his wife but cannot beguardian of her property.

Shruti:- It is most ancient source of Hindu Law. It is such level that they came indirect contact with the God. The God gave birth to Hindu Law and whatever washeard by the saints, was provided as Shruti. Shruti is the synonym used for ‘Veda’and it means what was heard from God.Source of Hindu Law

Ancient or Original Source Modern Sources

Shruti LegislationsSmriti Precedents or Judicial DecisionsCommentaries and DigestsCustoms Definition of Shruti:- According to Manu, the whole Veda or Shruti is the first andparamount source of Hindu Law. The Veda here means that not only the direct textsthemselves are authoritative but also those rules are deducible from them. Vedas areof four types:-1. Rigveda, 2. Yujurveda, 3. Samveda, 4. ArtarvedaThese are the concept of life, living style, traditions, religious belief etc. of ourancestors. In a case of Balusu v/s Balusu, 1899 it was held by the Privy Council that theadoption of only son is valid with reference to the story of Atri-Aurva.


Smritis:- It is the second important source of Hindu Law. The literal meaning of Smritiis whatever was remembered. Thus, smritis were dependent on the remembrance ofsaints. The era of creation of Smriti is also known as Golder era because it is erawhen well organised and serial wise development of Hindu Law started. Smritis are divided into two parts:-a. Dharam Sutras b. DharamaShastrasDharam Sutras are famous of Gautam, Budhyan, Aapstamb, Harit, Vishnu andVasisth and Dharam Shastras are famous of Manu Smriti, Yagyavalkya Smriti, NaradSmriti etc. Manu Smiriti made of 12 chapters and 2694 Shlokas fulfilled therequirement of substantive epic of law. Yagyavalkya Smriti is divided into 3 parts andis extremely clear, brief and organised. Narad Smriti being the last smriti, is such firstlegal code which mentions subjects related to judicial process, courts and judiciary.

Commentaries and Digests:- Commentaries are the third important sources of HinduLaw. Smrities are many. But all the laws are not mentioned in every smriti.Sometimes there are inconsistencies between the provisions of one smritie and theprovision of other smriti. DharmaShastra writers tried to reconcile these conflictingtexts of Smritis or laws contained in those Smritis. These learned commentators anddigest writers either commented on particular Smritis or made digests of the entirebody of Smriti material. These writers modified and supplemented the rules in theSmritis, in part by mean of their own reasoning and in part in the light of usages thathad grown up. These Commentators and Digest-writers purport to expound the lawalmost exlusively with reference to texts of the Smrities which are supposed to beonly interpreted by them. These commentators while professing to interpret the lawas laid down in the Smritis introduced changes in order to bring into harmony withthe usage followed by the people governed by that law. The Commentators andDigest writers of Southern India support the validity of the marriage of maternalsister. case Atmaram v/s Bajirao, the Privy Council emphatically laid down that in the caseof a conflict between the ancient text writers and the commentators, the opinion ofthe latter must be accepted. The principal commentaries are:-1. Dayabhaga by Jimutavahana 2. Mitakshara a commentary of Yajnavalkya byVijaneshwara 3. Smriti Chandrika by Devananda Bhatta 4. Vivada Ratnakara byChandeshwara.

Agnates and Cagnates :- Section 12 of the Hindu Succession Act, 1956 determinesthe series of succession among Agnates and cognates in following way- a. That their shall receive the property whose degree of ascending order is less or donot exist.b. Where the degrees of ascending order are same or do not exist, their that heirshall receive property whose degrees of descending order is less or do not exist. c. Where are heir is not entitled to receive property in comparison to others as pertthe Rule (1) and (2), their they shall share the property equally.

Child in womb:- Section 20 of the Hindu Succession Act. 1956, recognizesposthumous child as an heir. The Section lays down, “ A Child who was in the womb


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

Disabilities of a murderer for successionMurderer :- Section 25 of the Hindu Succession Act provides that A person whocommits murder or abets the commission of murder shall be disqualified forminheriting the property of the person murdered, or any other property in furtheranceof the succession to which he or she committed or abetted the commission of themurder. In Kenchova v/s Gilimallappa, 1924 the Privy Council held, even apart from HinduLaw, principles of justice, equity and good conscience exclude a murdered fromsucceeding to the murdered person and that it must be regarded as a paramountrule of public policy. In Chaman Lal v/s Mohan Lal, 1977, a widow was prosecuted for the charge ofmurder of her husband and finally acquitted of the charge by the court. The brotherof the deceased raised the objection that she was not entitled to inherit the propertyas she was charged with the murder of her husband. The Delhi High court held thatas the widow had been acquitted so she would not be disqualified from inheriting.The Court observed that it was not the scheme of Hindu Succession Act, 1956 thatthe Civil Court should again examine the charge of murder and hold an enquiry ortrial independently after acquittal from the criminal Court.


hindu law - thelegal.co.in notes/llb books main/hundu...hindu law question no. 1:- state the...

Documents