Unit: - one

Sources, school and joint Family

Ques.1 Who is a Hindu and to whom Hindu law is applicable.

Synopsis

 Who are Hindus?

 Person to Hindu Law applies
 Nature of Hindu Law
 Old Law & Present Law

Since the passing of Hindu Marriage Act of 1955, Hindu. Succession Act of 1956, Hindu Adoptions and
Maintenance Act of 1956 and Hindu Minority and Guardianship Act of 1956, the following persons shall be
deemed to be Hindus:

1. Any person who is Hindu by religion irrespective of or regardless of its forms or developments,
including-
(a) a Virashaiva, (b) a Lingayat, (c) a follower of the Brahmo, Prarthana or Arya Samaj.
2. Any person who is either-
(a) a Buddhist by religion; (b) a Jain by religion; or (c) a Sikh by religion.
3. Any other person domiciled in the territories to which this Act extends who is not-
(a) A Muslim by religion; or (b) A Christian by religion; or (c) a Parsi by religion; or (d) a Jew by
religion, except when it is proved that any such person would or usage as a part of that law (Hindu
Law) in respect of any of the matters which are dealt with in these Acts, if these had not been passed.

The following persons are Hindus, Buddhists, Jains or Sikhs by religion

(a) Any child, legitimate or illegitimate, both of whose parents belong to any of the above religion.
(b) Any child, legitimate or illegitimate, both of whose parents (father and mother) are Hindus,
Buddhists, Jains or Sikhs.
(c) Any child, legitimate or legitimate, one of whose parents (either father or mother) is a Hindu,
Buddhists, Jain or Sikh by religion and who is brought up as a member of the tribe, community,
group or family to which such parent (either the father or the mother)belongs or belonged;
(d) Any person who is a convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.
It was the old belief that Hindu Law applies only to those who are the followers of the rigid orthodox traditions
of Hindu religion. But the case of Ram Bhagwan Koer v. F.C Bose, [(1903) 30 I.A 2 : 31Cal. 11] has settled a
rule that a Hindu does not cease to be governed by Hindu Law only because of the lapse from orthodox Hindu
practices or by deviation from its central doctrines.

In the case of Abraham v. Abraham, it has been decided that Hindu law is applicable to those persons who are
born as Hindus and have continued to be so. Those Hindus who have converted to another religion will not be
governed by Hindu Law.

The applicability of Hindu Law is not restricted or confined to those persons who are Hindus by birth. Its
application has been extended to those persons also who have accepted the Hindu religion.

Persons to whom Hindu law applies

1. Hindus by birth and also Hindus by conversion in any of its forms ore developments including
Brahmans, Arya Samajists, etc.
2. Illegitimate children whose parents are Hindus.
3. Illegitimate children born of a Christian father and a Hindu mother and brought up as Hindus.
4. Buddhists, Jainism and Sikhs and Namburdy Brahmans except, so far as such law is buried by
custom and Lingayats who are considered as Shudras.
5. Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism where the sons are
taken into the family of Hindu grandparents and are brought up as Hindus.
6. A Hindu by birth who having renounced Hinduism, has reverted to it after performing the religious
rites of expiation and repentance, or even without a formal ritual of reconversion when he
recognized as a Hindu by the community.

Nature of Hindu Law

According to jurists of modern Europe, “Law is the command which the sovereign power, political society,
imposes on subject or members of the society. As the Hindu Codes do not profess to embody the commands of
any king on Earth, it might seem that the Hindus had never such a thing as could be called their law. It is true
that our Codes do not embody the commands of any scepter monarch. But is must be conceded by everyone
who knows anything of the mechanism of our society that the Brahmins were the real rulers of the country. As
long at least as Hindu Kings occupied the every one of the Hindu community, the Brahmins enjoyed supreme
legislative power, and the commands imposed by them were generally obeyed.”
Mayne defines Hindu Law “as the law of the ‘Smritis’ as expounded in the Sanskrit Commentaries and Digests
which, as modified and supplementary by custom, is administered by courts.”

It is very significant that the term ‘Hindu’ even before the codification of some branches of Hindu law in 1955-
96 had not been defined strictly in terms of religion. Before 1955, a person who was a Hindu by religion was
certainly a Hindu, but the converse was not true. There were persons who certainly a Hindu, but the converse
was not true. There were persons, who could hardly be called Hindus by religion, yet Hindu law applied to
them; and, since Hindu law applied to them, they were called Hindus. Thus, at the time of codification we had
reached a stage when it was easier to indicate a Hindu negatively: a person who was not a Muslim, Christan,
Parsi or Jew was a Hindu. It was in respect of religious endowments that the definition of “Hindu” in terms of
religion was of some significance.

The persons to whom Hindu law applies may be put in the following three categories:

(a) Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.
(b) Any person who is born of Hindu parents (viz., when both the parents or one of the parents is a Hindu,
Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and
(c) Any person who is not a Muslim, Christan, Parsi or Jew, and who is not governed by any other Law.

Old Law- Hindu is born not made - This statement refers to the general rule that the status of a person as Hindu
is determined not by the person himself but by birth. According to the ancient Hindu textual rules a Hindu is
born and cannot be made. If a person is born of Hindu parents he is a ‘Hindu’ unless he alters his existing status
as a Hindu by becoming a member of such religion as would destroy his status as ‘Hindu’ and given him a new
one. A Hindu on his conversion to Christianity, Islam or Zoroastrianism ceases to be governed by the Hindu
Law.

Present Law- Statement not correct i.e., Hindus born as well as made.- But the above statement is no longer
correct as according to their Lordships of the Privy Council includes those born as ‘Hindu’ and also those who
become converts to Hinduism. Therefore, Hindus are born as well as made and thus the applicability of Hindu
Law is not restricted or confined to those persons only who are Hindus by birth. Its application has been
extended to those persons also who have accepted the Hindus religion or converted to Hinduism.

Que-2. Discuss the various sources of Hindu Law and dwell on the role of custom in the development of
Hindu Law. Is it true to say that the clear proof of usage will out weight the written text of law Discuss.

Ans-.SYNOPSIS
  SOURCES OF HINDU LAW
I. Ancient Sources
1. Shruti 2.Smruti 3.Commentaries and Digest 4.Customs
II. Modern Source
1. Equity, Justice, and Good conscience 2. Precedent 3. Legislation
Sources of Hindu Law
Sources of Hindu Law can be divided into two parts –

sources of
Hindu Law

Ancient Modern
source source

Ancient Sources-
Before the codification of Hindu Law, the ancient literature was the only source of the Law. These sources can
be divided into four categories:-

Ancient Sources

Commentaries
Shruti Smruti Customs
and Digest

1. Shruti
Shruti means "what is heard". It is believed that the rishis and munis had reached the height of spirituality
where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas - rig, yajur, sam, and
athrava along with their brahmanas.
The brahmanas are like the appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals,
and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to
be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage,
requirement of a son, exclusion of women from inheritance, and partition but these are not very clearcut laws.

2.Smruti
Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many
sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a
written memoir of the knowledge of the sages.
Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and
the incorporation of local culture and customs became important. It is believed that many smrutis were
composed in this period and some were reduced into writing.

3. Commentaries and Digest:

The work done to explain a particular smriti is called a commentary. Digests were mainly written after that and
incorporated and explained material from all the smruitis. As noted earlier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is
applicable in the Bengal and Orissa area. Mitakshara literally means 'New Word' and is paramount source of
law in all of India. It is also considered important in Bengal and orissa where it relents only where it differs
from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in
smritis.

4. Customs
Most of the Hindu law is based on customs and practices followed by the people all across the country. Even
smrutis have given importance to customs. They have held customs as transcendent law and have advised the
Kings to give decisions based on customs after due religious consideration.
Valid custom

I. Ancient
II. Not against morality
III. Not against public policy
IV. Not against any law

II. Modern Sources

The following are the modern sources of Hindu law:-

Modern
Sources

Equity, Justice,
and Good Precedent Legislation
conscience
1.Equity, Justice, and Good conscience -Equity means fairness in dealing. Modern judicial systems greatly
rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation
where no rule is given, a sense of 'reasonableness' must prevail.

2.Precedent The doctrine of stare decisis started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts across
India and the judgment of HC is binding on all courts in that state.

3.Legislation In modern society, this is the only way to bring in new laws. The parliament, in accordance with
the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu
that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented.

_______________________

.Q.3 Mitakshra Coparcenary in a creation of Law and is not limited to four degrees. Comment.
Or

How the coparcenary is formed under Dayabhag School? What are the special features of Dayabhag
Coparcenary?

SYNOPSIS
 SCHOOLS OF HINDU LAW
 PRINCIPLE OF SCHOOLS
 MITAKSHARA
 DAYABHAGA
The two main schools of Hindu Law are the “Mitakshara” and the ‘Dayabhaga’. These two schools of Hindu
Law are marked by a vital difference of opinion and interpretation of the Smritis. The Mitakshara written by
Vijnaneshwara is a running commentary on the Smriti of Yajnavalkya and ‘the Dayabhaga’ written by
Jimutavahana is not a commentary on any particular Code, but professes to be a digest of all the Codes. The
Mitakshara School prevails throughout India except Bengal where the Dayabhaga School prevails.
Mitakshara School of Hindu Law can be again divided into five sub-schools.
(1) Dravi da or Madras School of Hindu Law.
(2) Punjab School of Hindu Law.
(3) Banaras School of Hindu Law.
(4) Mithila Schools of Hindu Law.
(5) Maharashtra or Bombay Schools of Hindu Law.
All these schools acknowledge the supreme authority of Mitakshara, but give preference to certain treaties and
commentaries which control the certain passage of the Mitakshara.
In Rutcheputty v. Rajendra, it has been observed by the privy Council that the different schools of Hindu Law
have originated due to different local customs prevailing in different provinces of India. The commentators on
the Smritis could not ignore the local customs and usages and while interpreting the texts, they eventually
incorporated different local customs. The local conditions and customs of the different provinces have,
therefore, gone to mould the principles of law prevailing in each province.
Process of development- In the case of Collector of Madras V/s Moottoo Ramalinga, [(1968) 12 MIA 397], the
Privy Council has held, “The remoter sources of the Hindu Law (that is Smritis) are common to all the different
schools. The process by which those schools have been developed seems to have been of this kind. Works
universally or very generally received became the subjects of subsequent commentaries. The commentator put
his own gloss on the ancient text; and his authority having been received in one and rejected in another part of
Indian schools with conflicting doctrines arose.”
The variance between the sub-divisions of the Mitakshara school are comparatively few and slight. Following
are the reasons for these differences:-
(1) One reason which used to be given for this division is that “the glosses and commentaries upon the
Mitakshara are received by some of the schools but are not received by all”.
(2) Another reason given for this division into schools is that the commentaries in a particular province
which follow the Mitakshara put a particular gloss on it and are agreed upon it among themselves.
Dayabhaga- This school prevails in West Bengal as well as in Assam except in one point in which the written
law is at variance with the custom of the locality.
The following authorities are the chief exponents of this school:-
(i) Dayabhaga,
(ii) Dayatatva,
(iii) Dayakrama-Sangraha,
(iv) Viramitrodaya and
(v) Dattaka-Chandrika.
As a result of the above process two principles schools of Hindu Law sprang up, i.e.,
(i)Mitakshara and the
(ii) Dayabhaga.

Essential differences between the Mitakshara and the Dayabhaga Schools

The fundamental differences between the Mitakshara and Dayabhaga Schools of Hindu Law lie in the following
points:
1. As regards alimentation
MITAKSHARA DAYABHAGA
1. Members of joint family cannot dispose 1. Any member of joint family may sell or
of their shares while undivided. give away his share even when
undivided.

2. As regards inheritance
1. Before the Hindu Succession Act, 1956 1. Before the Hindu Succession Act, 1956
the principle of inheritance was the principle of inheritance was
consanguinity (i.e. blood-relationship). spiritual efficacy (offering of Pindas).
2. But cognates are postponed to agnates. 2. But cognates like sister’s son are
preferred to many agnates.

3. As regards joint property

1. Right to property arises by birth (of the 1. Right to property arises by death (of the
claimant); hence the son [and after the last owner); hence, son has no right to
Hindu Succession (Amendment) Act, ancestral property during father’s life-
2005, daughter] is a co-owner with the time.
father in ancestral property. 2. Father has absolute power of alienation
2. Father has a restricted power of and son can not claim partition or even
alienation and son (now daughter also) maintenance during the life time of the
can claim partition even against the father after attaining majority.
father. 3. The interest of every person would, on
3. Before the Hindu Succession his death, pass by inheritance to his heirs,
(Amendment) Act, 2005 the interest of like widow or daughters.
the members of joint family would on his
death, pass to the other members by
survivorship. The principle of
survivorship has been abolished by the
Hindu Succession (Amendment) Act,
2005 in Mitakshara law also.
 As regards inheritance of separate property there is no difference between Mitajshara and the Dayabhaga
law after the commencement of the Hindu Succession Act, 1956.
4. As regards Doctrine of Factum Valet, i.e., a fact cannot be altered by hundred texts
1. It is recognised to a very limited extent. 1. Doctrine of factum valet is fully
2. Mitakshara is a commentary. recognised.
3. Mitakshara is an orthodox school. 2. Dayabhaga is a digest of all the Codes.
3. Dayabhaga is a reformed school.

4.

Codified Law relating to adoption, Maintenance, Minority and Guardianship.

SYNOPSIS

 THE HINDU MINORITY AND GUARDIANSHIP ACT 1956

 OBJECT AND REASONS
 MINOR OR MINORITY
 GUARDIANS
 NATURAL GUARDIAN
 TESTAMENTARY GUARDIAN
 GUARDIAN DECLARED / APPOINTED BY COURT
 DE FACTO GUARDIAN
 AD HOC GUARDIAN

The Hindu Minority and Guardianship Act 1956

The Hindu Minority and Guardianship Act in both a codifying and supplemental Enactment It was passed in
1956 and come into force from 24th Aug 1956. The Act deals with the Law relating to minority and
Guardianship among Hindu. It contains 13 sections. The Indian Majority Act 1875 and the Guardian and wards
Act 1890 are the other statutes which deal with the minority and guardianship.

Object and Reasons

1. This is another installment of the Hindu Code and it deals with the law relating to minority and
Guardianship.
2. Under the Indian Majority Act 1875, a person attains majority on his. Completing the age of 18 years.
3. Guardians May be divided into three claries namely.
1. Natural guardians
2. Testamentary guardian
3. Guardian appointed under the guardians and wards Act 1890 or
4. De facts guardians.
(1) Minor or Minority
According to see-4 (a) Minor means a person who has not completed the age of 18 year. In case any
guardian is appointed by the court under the Guardian and wards Act 1890 to look after minor’s person
or property. The minority Extends till attaining the age of 21 years.
(2) Guardians
According sec 4 (b) of H.M. Act guardian means a person having the care of the person of a minor or of
his property or of both his person and property and includes.
a) Natural guardian
b) A guardian appointed by the will of the minor father or mother
c) Guardian appointed or declared by a court
d) De facto Guardian and hoc guardian

1) Natural Guardian
A Natural guardian is one who becomes so by reason of his natural relationship with minor Section 6 of
the H.M.G Act give a list of Nature guardian as hereunder:-
a) Boy or unmarried girl

In case of a boy or an unmarried girl:-

The father and after him the mother provided that the custody of a minor who has not completed the age
of five years shall ordinarily be with the mother.

b) Illegitimate Boy or Girl: In the case of an illegitimate boy and illegitimate unmarried girl. The
mother and after her, the father is Natural guardian.

c) Married Girl:- The husband is the Natural guardian of his minor wife.
Restriction (Section 6)

A person cannot act as a Natural guardian:-

a) If he/she is ceased to be a Hindu

b) If he/she has completed and finally renounced the world by becoming a hermit.

Power of Natural Guardian (Section 8) Section 8 of the H.M.G Act deals with powers of a Natural guardian
with respect to minor’s person or property.

1) Necessary or reasonable and proper acts for the benefit of the minor The Natural guardian of a
Hindu minor has power subject to the provision of this section to do all acts which are necessary or
reasonable and proper for the benefit of the minor or for the realization perfection or benefits of the
minor estate.

2) Benefit of the Estate A transaction to be binding on the minor must be one which not only confers a
benefit upon the estate but is necessary for its good management.

3) Compromise It is competent of Natural guardian to enter into a compromise on behalf of his wend.

4) Family among The Natural guardian has the power to enter into family settlement on behalf of a
family.

Power of alienation

The Natural guardian of a Hindu minor has power in the management of the estate to sell or Mortgage
any part of the estate in case of necessity or for benefit of the estate provided the natural guardian has
taken permission of the court prior to such alienation as provided in Section 8(2) of the Act. Section 8(2)
lays down. The Natural guardian shall not without the previous permission of the court.

(a) Mortgage or charge or transfer by sale, gift, exchange or otherwise any part of immovable property
of the minor
(b) Please any part of such property for a term exceeding five years or for a term extending more than
one year beyond the date on which the minor will obtain majority.

(2) Testamentary Guardian

 The testamentary guardian of a minor are those guardian who are appointed by a will of the natural
guardian entitled to act as a guardian for the minor. It is to be noted that a will become effective only
after the death of the Executor.

Power of testamentary Section- (9)

a) A Hindu Father entitled to act as the Natural guardian of his minor legitimated children may be will
appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s
property.
b) An appointment made under sub Section (9) shall have no effect. if the father pre deceases the
mother but shall revive if the mother dies without appointing by will; any person as guardian.
c) A Hindu widow entitled to act as the Natural guardian of her minor legitimated children and a Hindu
mother entitled to act as the Natural guardian of her minor.
d) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may by will
appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s
property:
e) The right of the guardian so appointed by will shall, where the minor is a girl cease on her marriage.
f) The guardian so appointed by will her the power to act as the minor’s guardian after the death of the
minor’s father or mother as the case may be and the Exercise all the powers of a natural guardian
under this Act to Such Extent and subjects to such restrictions, if any, as are specified in the minors
is a girl, cease on her marriage.

3) Guardian Declared/Appointed by Court:

Where the court is satisfied that it is for the welfare of a minor that an under should be made
appointing a guardian of his person or property or both the court may make an order under the
guardian and wards Act 1890, appointing a guardian. This ahs been laid down in section 13 of the
H.M & G. Act 1956 ran as follows:-S13 (1) in the appointment or declaration of any person as
guardian of a Hindu minor by a court the welfare of the minor shall be the paramount consideration.

S-43 (2) no person shall be entitle to the guardianship by virtue of the provision of this Act or any
law relating to guardianship in marriage among Hindu if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.

Who can apply for appointment as guardian

 1) The person desirous of being or claiming to be the guardian of the minor or
2) Any relative or friend of the minor or
3) The collector of the district or other local area in which:-
a) The minor ordinarily resides
b) The minor holds properly
4) If the minor belongs to a class, the collector who has authority with respect to that class.

Power of guardian appointed by the court

Power of the guardian appointed by the court and the control imposed by the Act over such powers are the
same as that of a natural or testamentary guardian.

4. De facto Guardian – (Section 11)

A de facto guardian of a minor, is neither a legal guardian, nor a testamentary guardian, nor a guardian
appointed by the court, but he is a person, who himself takes over the management of the affairs of the
minor as if he was a natural guardian this type of guardian having the care of properties of a minor but
who is neither a natural guardian, testamentary guardian nor a guardian appointed by the court is only a
de facto guardian and the restriction under 5-11 will apply to his acts.

Section 11 runs as follows:

“After the commencement of this Act, no person shall be entitled to dispose of or deal with the property
of Hindu minor merely on the ground of his or her being the de facto guardian of the minor”.

5. Ad hoc Guardian

When a person acts as guardian of the minor for temporary period or for a single transaction, he is called
‘Guardian and hoc”. He is not recognized as a de jure (natural) guardian. He is to de facto guardian An
ad hoc guardian does not fixed any place in the Act and any alienation of minors property by him would
be void.

Other Important provisions:

1) According to Section 10 a minor cannot act as the guardian of any other minor.
2) Section 11 says that a de facto guardian is not entitled to dispose of or deal with the property of minor.
 3) Section 12 says that no guardian can be appointed for a minor’s undivided interest in the joint family
property.
4) Section–13 provides that, the court while appointing a guardian must give maximum consideration to
the welfare of the minor.

Q 2. Explain the (A) Distinction between Hindu Minority & Guardianship Act1956.
(B)Distinction between ‘De Sure Guardian’ & ‘De Facto Guardian’.
(C)Distinction between ‘Testamentary Guardian’ &‘De Facto Guardian’.

(A) THE HINDU MINORITY & GUARDIANSHIP ACT1956

SECTIONS 13

OLD HINDU LAW ON MINORITY AND THE HINDU MINORITY AND

GUARDIANSHIP GUARDIANSHIP ACT 1956.
Natural Guardians:
1. The natural guardian did not cease the 1. The natural guardian ceases to be the
guardianship of the minor, on charge of guardian of the minor, as a result of
religion. conversion of religion.

2. The natural guardian did not lose the 2. The natural guardian ceases to sbe
guardianship, if he enunciated the guardian of the minor, if the
world be becoming vanaprastha renunciates the world by becoming
(sanyasi) vanaprastha (sanyasi).

3. The natural guardian could claim the 3. The Act 32/1956 allows the children
custody of his children irrespective of below age of 5 ye4ars under the
their age. custody of mother only.

4. The minor husband was the natural 4. The Position is clear now the child
guardian of the minor wife. Restraint Marriage Act, 1929 and the
Hindu Marriage Act, 1955 clearly
 prohibited the child marriages.

Even if under the Doctrine of Factum

Valet, the Marriage takes place between
the minors, the minor husband cannot
become the natural guardian of the
minor wife sec-10 of the Act of 32 of
1956 clearly says. “No minor can
himself be a guardian of the person or
property of the another minor.”

5. For the illegitimate children, it is only

Testamentary Guardian the mother who can appoint a
5. Under the old law, the law was not testamentary guardian. The
clear in this respect. testamentary guardian will start the
function after the death of the mother,
even though the Putative father is alive.

6. Under the new Act, the mother is give

testamentary power for the appointment
of her own testamentary guardian, after
6. Under the old Law, only father had the the death of the father.
power of appointing the testamentary
guardian.
7. Sec-11 of the Act 32/1956 abolishes the
de facto guardian.
De Facto Guardian 8. The Act 32 of 1956laid down the
7. Under the old law, the de facto express provision for the removal of the
guardian was recognised. guardianship whether he is a natural
8. There were no such express provisions guardian of testamentary guardian, on
in the old law. the grounds:-
 (a) Conversion of religion from Hindu to
other religion.
(b) Renunciation the world by becoming
the Vanaprastha/Sanyasa.

(B) DISTINCTION BETWEEN ‘DE SURE GUARDIAN AND DE FACTO GUARDIAN

Sec-11 De facto guardian not to deal with minor’s property- After the commencement of this Act, no person
shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her
being the de facto guardian of the minor.

DE SURE GUARDIAN DE FACTO GUARDIAN

1. The natural guardian, testamentary 1. De facto guardian is not recognised by
guardian and a guardian appointed by the law.
the court are de sure guardians and they
are recognised by the law.

2. Sections 6 to 8 HMGA, 1956 provide 2. Section. 11 of the HMGA, 1956

the definition, appointment and powers abolishes the system of de facto
of testamentary guardians. The courts guardianship.
and wards Act 1890 lays down the legal
Provisions relating to the guardians,
 appointed by

3. The natural guardianship is recognised

in almost all Jurisprudences in the past 3. The position of de facto guardian in the
and present. ancient Hindu Jurisprudence was
unique. This system is not or was not
seen in any Jurisprudence. However, it
4. The de Jure guardian can alienate the was abolish by the HMGA.
minor’s property, subject to certain 4. The de facto guardian has no power of
circumstances and conditions, and prior alienation.
permission of the court.

5. The de jure guardian can perform

contracts for the benefit of the minor.
6. The de jure guardian has the power to 5. The de facto guardian is not entitled to
acknowledge debt on behalf of the contracts for minor.
minor, to make reference to arbitration,
or to make a gift of minor’s property. 6. It is now settled law that de facto
guardian has no power to acknowledge
debt on behalf of the minor; to make a
gift of minor’s property.

(C) DISTINCTION BETWEEN ‘TESTAMENTARY GUARDIAN’ AND ‘DE FACTO GUARDIAN’

Section 11
TESTAMENTARY GUARDIAN DE FACTO GUARDIAN

1. Testamentary guardian is a de Jure 1. De facto guardian is not recognised

guardian and is recognised by law. by law.

2. The Testamentary guardian can 2. He has no such Powers.

perform contracts for the benefit of
 the minor.
3. Section 9 of the HMGA 1956 3. Section 11 abolishes the appointment
explains the appointment and powers of de facto guardian.
of the testamentary guardian.
4. Testamentary guardianship is 4. De facto guardianship is not and was
recognised in almost all the not seen in any Jurisprudence, except
Jurisprudences. in Hindu old law.
5. Section 9 of the HMGA, 1956 5. Section 11 abolishes the appointment
explains the appointment and powers of de facto guardian.
of the testamentary guardian.

Q3. Explain the (A) Doctrine of Relation Back.

(B) Doctrine of Factum valet.

EFFECTS OF ADOPTION BEFORE THE ACT OF 1956

A. DOCTRINE OF RELATION BACK PATERNAL AFFILIATION
Before the Act, the doctrine of relation Back was in operation.
The Doctrine of Relation Back (Paternal Affiliation) Adoption confers rights on the chil w.e.f. the date
of adoption. This position was the same in the old law also. But under old law, when the adoption was made by
a widow, the adoption would come into force from the date of the death of her (widow’s) husband. This
doctrine gives retrospective effect to adoption by a widow under the old Law. In other words, all the rights of
the adoptee (person taking the son in adoption) related back from the date of death of the adoptive father
(widow’s husband).

The reason was the woman could not adopt on her own without the consent/authority of her husband or
his Sapindas. Therefore, the adoption is deemed to have taken place on the date of the death of her husband.The
Relevant leading case on this Point is Sawan Ram vs. Kalawati AIR 1967 S.C 1761.

The Supreme Court held that the son adopted by the widow was deemed to be the son of her deceased husband
and the adoption would be effective from the date of the death of her husband (i.e. in 1948). Therefore, the
adopted son was entitled to inherit the property of the deceased husband. The above view laid down in sewan
Ram’s case was followed by, the Supreme Court in Sitabai vs. Rama Chandran, AIR 1970 SC 345.The Doctrine
of Relation Back, “has been abolished by section 12 of the Hindu Adoptions and Maintenance Act 1956 and
hence, it is no more a law at present.

B. THE DOCTRINE OF FACTUM VALET

The maxim “Quod fiery non debris factum valet or the Doctrine of Factum valet” is a Latin maxim, which
means ‘what ought not to be done is valid, when done”.
After adoption the child becomes the aurasa (naturally burn son of the adoptive parents) and also gets
disqualified to perform ‘sradha karma, Pinda Karma or kanyadan of his natural parents. In case, there is no
other person competent to perform the ceremonies, shastras permit the adopted son to perform the Sradha
karma, panda Karma and Kanyadan. This is known as ‘Factum Valet’. This doctrine was recognised both by the
Mitakshara and Dauyabhaga Schools. When there is a rule, which governs an act (not to be done) and the act is
done, it cannot be rendered invalid. This doctrine does not have universal application since every prohibit Act,
when done cannot be ratified.

Under the Hindu law, this doctrine gets recognition mainly in the law of Marriage and law of Adoption.
Non-compliance of certain things relates to a moral precept, and then the violation does not vitiate the
proceedings e.g. Marriage over looking age limit, marriage of a minor without the consent of the guardian. But
where a violation relates to an imperative provision of law viz. Incapacity, non-compliance of essential
ceremories (Homa, saptapadi) renders the marriage void and the doctrine does not apply in such cases. There
may be other ceremonies, which are not essential, If they are omitted, such doctrine. The doctrine, applies
where there is no fraud or force.

Q.4 What is the rights of maintenance of widow daughter in law under the Hindu Adoption and
Maintenance Act 1956 and point out the difference, if any from the pure Hindu law. When does a Widow
loss her right to maintence?

SYNOPSIS

 NATURE OF ADOPTION UNDER THE OLD HINDU LAW

 OBJECTS OF ADOPTION UNDER THE OLD HINDU LAW
 REQUISITES OF A VALID ADOPTION
Meaning of adoption- According to “Manu” A son equal in caste and affectionately disposed whom his mother
or father (or both) give with water at a time of calamity, is known as the Dattrima son. Thus it is the
transplantation of a son from the family in which he is born into another family by gift made by his natural
parents to the adopting parents. The adopted son is then taken as being born in the new family, and he acquires
rights, duties and status in new family, and his tie with the old family become severed . Some writers have said
that adoption is the civil death in the natural family and legal birth in the adoptive family.

Objects of adoption under the old Hindu Law- The object of adoption under the old Hindu law ere two-fold-
one spiritual and the other secular, the existence of male issue being favoured mainly for the sake of the parent’s
beautitude in the further life and the other secular. On the other hand, the secular objects could be gained only
by a son real or subsidiary. The main object of adoption is to continue the family line for according to Shastras,
those who do not have a son will not find a place in heaven. So it was the pious duty of every Hindu to have a
son.

Objects of adoption under the Hindu Adoptions and Maintenance Act- However, the Hindu Adoptions and
Maintenance Act, 1956, has steered off clearly from all the religious and sacramental aspects of adoption and
has made adoption a secular institution and secular act, so much so that even a religious ceremony is now not
necessary for adoption. Under the Hindu Adoptions and Maintenance Act, there cannot be two types of
adoptions, one purely secular, and the other sacramental. All adoptions after 1956 are secular and to be void
must conform to the requirements of the Act.

Requisites of a valid adoption- Section 6 of the Hindu Adoptions and Maintenance Act, 1956 lays down the
requisites of a valid adoption.

It says that no adoption shall be valid unless-

(i) The person adopting has the capacity, and also the right, to take in adoption;
(ii) The person giving in adoption has the capacity to do so;
(iii) The person adopted is capable of being taken in adoption;
(iv) The adoption is made in compliance with the other conditions mentioned in Chapter II of the Hindu
Adoptions and Maintenance Act, 1956.

According the Sec. 11 of the Act in every adoption the following conditions must be complied with-

(i) 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;
 (ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made 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;
(iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least
twenty-one years older than the person to be adopted;
(iv) If the adoption is by a female and the person to be adoption is a male, the adoptive mother is at least
twenty-one years older than the person to be adopted;
(v) The same child may not be adopted simultaneously by two or more persons;
(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardians or
under their authority with intent to transfer the child from the family of its birth to the family of its
adoption :

Capacity of a male Hindu to take in adoption Section 7 of the Hindu Adoptions and Maintenance Act, 1956
lays down that 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
with the consent of his wife. But this consent of the wife of a male Hindu is not necessary in the following three
conditions:-

(i) The wife has completely and finally renounced the world, or
(ii) The wife has ceased to be a Hindu, or
(iii) The wife has been declared by a court of competent jurisdiction to be of unsound mind.

If a man has than one wife living at the time of adoption the consent of all the wives must be obtained. But
if any f them is suffering from any of the three disabilities (i.e. civil death, apostacy or unsoundness) the consent
of such wife who is under such disability may be dispensed with and the consent of all other wives must be
taken. Under the old Hindu Law, a male Hindu could take a son in adoption without the consent or against the
wish of his wife.

Q5. Discuss the capacity of a male and female Hindu to take a son or a daughter in adoption.

SYNOPSIS
 CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION
 ADOPTION UNDER THE PRESENT HINDU LAW
 PERSONS CAPABLE OF GIVING A CHILD IN ADOPTION
 WHO MAY BE ADOPTED- (THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956)
Capacity of a female Hindu to take in adoption.-According to Section 8 of the Act, any female Hindu-
 (a) Who is of sound mind,
(b) Who is not a minor, and
(c) Who is not married, or if married,

whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be of unsound
mind, has the capacity to take a son or daughter in adoption. During the continuance of marriage the wife has no
right to adopt except where the husband is suffering from any of the disabilities.

Adoption under the present Hindu Law- The Hindu Adoption and Maintenance Act, 1956, differs from the
pure Hindu law of adoption in the following respect.

(1) Now no minor who has attained the age of discretion has the capacity to take a son or daughter in
adoption as in the pure Hindu law of adoption.
(2) Now a male Hindu shall not adopt except with the consent of his wife unless the wife 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 a Hindu or has been declared by a court of competent jurisdiction to be of
unsound mind. In case of a Hindu male having more than one wife the consent of all the wives is
necessary unless the consent of any one of them is dispensed with for any of the reasons specified
above. But under the pure Hindu Law no consent of the wife necessary.
(3) Now a female who is not married, or if married whose marriage has been dissolved or whose husband is
dead or 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, has the capacity to take a son or a daughter
in adoption. This has been an important change in the law giving wide powers to a female. Under the old
Hindu Law an unmarried female had no power to adopt as the adoption was intended to adopt to her
husband and not to herself. A widow as has been discussed above had no power to adopt except under
the authority given by her husband.

Persons capable of giving a child in adoption-

Under the prior law only father or mother could give in adoption. At present the only persons can
lawfully give a boy in adoption are his father or his mother or the guardian (whether testamentary or appointed
by the court). Thus one brother cannot give another in appointed by the court. Thus one brother cannot give
another in adoption. Similarly a step-mother cannot give step-son in adoption. Nor can a grandfather give his
grandson in adoption. Under the present law following persons are capable of giving a child in adoption.
Right of father-

The primary right to give in adoption is that of the father. Sub-section (2) of Section 9 of the Hindu
Adoptions and Maintenance Act lays down that subject to the provisions of sub-section (3) and sub-section (4)
the father, if alive, shall alone exercised have the right to give in adoption, but such right shall not be exercised
save with the consent of the mother unless the mother 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.

Right of mother- The mother may give the child in adoption if the father is dead, or has renounced the world or
has ceased to be Hindu or has been declared by a Court of competent jurisdiction to beof unsound mind.

Right of guardian- When both the parents are dead or when both the parents have completely and finally
renounced the world or both have been declared to be of unsound mind or where the parentage of the child is
not known or when both the parents have abandoned the child the guardian of the child may, with the
permission of the court to which he may be subordinate, give the child in adoption.

Delegation of power- Neither parents, therefore, can delegate the power to give a child to another person. But
the physical act of giving a son in adoption may be delegated to another, as such an act involves no exercise of
discretion.

Renunciation of Hindu Religion-

A Hindu father, who has become a convert to Mohammedanism does not by reason of his conversion,
lose his power of giving his son who has remained a Hindu in adoption. But since the physical act of giving a
son in adoption is accompanied by religious ceremonies such act must be delegated to another person who is a
Hindu.

Mental capacity-

The person giving in adoption, must have attained the age of discretion, and must be of sound mind.

The Hindu Adoptions and Maintenance Act thus give wider powers to female:

(i) The father, if alive shall alone have the right to give in adoption, but right such right shall not be
exercised save with the consent of the mother unless the mother 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. So the consent of the mother under the ordinary conditions is
essential, but no such consent was necessary under the pure Hindu Law of adoption.
 (ii) Secondly, the mother’s right to give in adoption comes after the father and there is no question of
any express or implied prohibition from husband.
(iii) Thirdly, the power given to a guardian of a child (whether a testamentary guardian or a guardian
appointed or declared by a court) to give a child in adoption with the previous permission of the
court is quite new. No such power was given under the pure Hindu law to a guardian to adopt.
Sub-section (4) of Section 9 of the Hindu Adoptions and Maintenance Act lays down- “Where
both the father and mother are dead, or have completely and finally renounced the world or have
abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound
mind or where the parentage of the child is not known, the guardian of a child may give the child
in adoption with the previous permission of the Court to any person including the guardian
himself.”

Who may be adopted- (The Hindu Adoptions and Maintenance Act, 1956) –

(1) Section 10 provides that the persons who may be adopted, includes females also among the persons who
may be adopted. This is an important change and daughter and son are on the equal footing.

(2) A superfluous clause as a precautionary measure has been added by mentioning that he or she has been not
already adopted; this simply means that a boy or girl cannot be adopted twice and reiterates the old law that two
persons cannot adopt the same boy and such an adoption is not valid.

(3) The controversy that an adoption must be done before upanayana. Now the child to be adopted should not
be to married unless there is a custom or usage applicable to the parties which permits persons who are married
being taken in adoption; another condition has also been prescribed that an adoption must be made before he or
she has not completed the age of fifteen years unless here is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being taken in adoption.

Hindu Adoptions and Maintenance Act there are other condition for a valid adoption.

(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not
have a Hindu son or grandson or great-grandson (whether by legitimate blood relationship or by
adoption) living at the time of adoption;
(ii) 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;
 (iii) 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.
(iv) If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least
21 years older than the person to be adopted.

UNIT:-FIVE

Codified Law relating to Succession, Partition and Alienations.

Q:- Define Joint Family Under Mitakshara Law . Examine Briefly The Features Of Joint And Undivided
Family.

SYNOPSIS
 THE HINDU KRAT FAMILY
 MEMBER OF JOINT FAMILY
 THE JOINT FAMILY AND COPARCENARY
 DISTINCTION BETWEEN JOINT FAMILY AND COPARCENARY
 THE POSITION OF KARTA
 DUTIES AND LIABILITIES OF KARTA

THE HINDU KRAT FAMILY:

The institution of the Hindu joint family has it, origin in ancient tends and writings of smirikars. A joint Hindu
family and at best may be defined by stating the jointers of members of whom it is made up. Thus it consists of
all person lineally descended from daughters. A daughter ceases to be a member of her father family on
marriage and become a member of her husband family. The existence of a joint estate is not an essential
requirement to constitute joint family.
MEMBER OF JOINT FAMILY:
1. Person lively 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 special marriage Act. 1954.
FEMALE:
1. The wife or widows of deceased male members, and
2. Maiden daughters.
One of the special features of joint family is that it includes illegitimate child also. They are treated to be the
members of their father’s family.

THE JOINT FAMILY AND COPARCENARY

Management of joint family:
The affairs of a joint family are managed by the head of the joint family who is called the manager or “Karta”.
The father if living would generally be the “karta” of the joint Hindu family. He is the representative of the
family and is considered supreme in management of the property. There is a presumption that senior most
member would be regard or Karta of the joint family.

Enjoyment of joint family properly:

Every member of a Mitatkshra joint family has got certain right such as:
1. The right to maintenance and are residence.
2. The right to have a partition.
3. The right to call for an account as incidental to the right.
4. The right to joint possession and enjoyment.

The Hindu joint family is an institution suigeneris. It is mostly governed by the Hind religion and
customary practices. It consists of male, has wife, unmarried daughters and his male descendants, their
wives and unmarried daughter.

Within the joint family there is coparcenary. In other words coparcenary is a narrowes body than the
joint family. The coparceners are the owners of joint family properly. It includes only those who acquire
by birth an interest in the joint or as it is called Coparcenary properly, there being the sons, grandsons, and
great grandson of the holder of the joint properly for the time being. In the other words only male member
can be the coparceners.

A woman cannot be a coparcener since she has no right to enforce the partition. The female member
may be allotted share, if partition take place but they cannot ask for partition. The head of the joint family is
called the ‘Karta’. Very coparcener been a right to bound by the alienation made by the Karta and has a
right to question/challenge the alienation made by the Karta.
 Mullah defines coparceners as “The three generation next to the holder in unbroken male deviant but the
commencement of the Hindu scicersion amendment Act 2005 in a joint Hindu family governed by the
Mitakshara law the daughter of a coparcener also. According to Mitakshara joint family, every coparcener
gets right by the birth in the joint family property. He cans partitions. On his death his interest devolves
upon the other coparceners an illegitimate son cannot be coparcener, but is entitled to maintenance out of
joint family fund.

DISTINCTION BETWEEN JOINT FAMILY AND COPARCENARY

JOINT FAMILY COPARENARY
1. Both male and females is the member 1. Only male members are the member of
of the joint family. the Coparcenary.
2. There is no limitation of degree or 2. Male up to 4 degree, (including senior
generation with regard to the most male) or generation from the
membership of the joint family. senior most male members are the
3. Some member i.e. female member has Coparcenary.
no right by birth in the property. 3. All the members of the Coparcenary
4. Certain females like father’s wife, have the right by birth in the property.
Mother, Granel mother etc. has no right 4. All the member have the right to
to demand partition. demand partition.
5. Every joint family is not a 5. Every coparcenary has a joint family.
Coparcenary.

Karta (The manager, The position of Karta or the duties, liabilities and power of Karta)
Karta is the Head of the Hindu joint family. He occupies unique position in the management of the joint family.
The father or the senior not male member acts as Karta. A woman cannot be a coparcener and hence she cannot
become the manger/karta of the H Joint family.

THE POSITION OF KARTA

The Karta, being the head of Ho joint family gets on the behalf of the member of the joint family. The position
of the ‘Karts’ is “sui generis” Sui generis in the sense that his position in not that of the manger of a commercial
Firm and his relationship with the other members is not that of the principal and agent or Firm and Partners.
DUTIES AND LIABILITIES OF KARTA
 1) He is responsible to maintain all member of the joint family. It he joint to do so any member can sue him
for the maintenance and can also recover the arrears of the maintenance.
2) He is responsible to perform the marriage of all the unmarried members, particularly the female
member.
3) He has to prepare the accounts if a suit is filed by a Coparcener for Partition.
4) He bond to pay taxes and all other dues on behalf of the joint Family.
5) Finally he may be sued for failure to discharge the above duties and obligations.

POWER OF KARTA
The Powers of Karta are categorised:
1) Power of Alienation
(a) Legal Necessity
(b) Benefit to the Estate
(c) Indispensable Religious Duties
2) Other Powers
(a) Power over income and expenditure
(b) Power to manage joint family business
(c) Power to contract debt for family purpose
(d) Power to enter into Contracts
(e) Power to enter into arbitrations
(f) Power to give discharge
(g) Power to acknowledge debts
(h) Power to represent in suits
(i) Power to alienation of joint family property

Q2. Distinguish between the succession and the rule of Survivorship according the Mitakshara School.
When a Hindu succession (Amendment) Act, 2005 his interest in the Mitakshra Joint Family property
shall devotee by intestate succession or by the rule of survivorship? Discuss.

SYNOPSIS
 HINDU SUCCESSION ACT 1956 OBJECT OF THE ACT
 SCHEME OF THE ACT
 MAIN FEATURES OF A THE ACT
 SUCCESSION TO HINDU MALE: Sec 8 to 13
  CLASS – I HEIRS
 SHARES OF CLASS I HEIRS (SECTION-10)

HINDU SUCCESSION ACT 1956 OBJECT OF THE ACT

The main object in passing the Hindu succession Act 1956 is to meet the need of a progressive Society. The old
law did not fulfil the desired ends and remained hardly acceptable to a dynamic Hindu Society of contemporary
era-Hence there was a need for a uniform system of law of succession which may be acceptable to all section of
Hindu and be equally enforceable upon them with this end in view the H.S. Act. 1956 come into existence. It
removes inequalities between main and women with respect to right in property and it lays down a common list
of heirs entitled to succeed on intestacy. The Act has been passed to amend and codify the entire law of
succession.

SCHEME OF THE ACT

The Act has completely on hauled the law of succession as it existed before the commencement of the present
Act. It now provides the following four scheme of devolution of properly of a Hindu who dies intestate:

1. Devolution of Coparcenary interest of Mitakshra coparceners, dying intestate leaving only male heirs
mentioned in class I of the schedule (Sec5-6)
2. Succession to separate or self acquired property of a male Hindu dying intestate (S-8-12)
3. Devolution of Coparcenary interest of a Mitakshra coparcener dying intestate leaving male and female
heirs given in class I of the schedule (Sec-6)
4. Succession to the property of a female Hindu decency interstate (Sec-15-16)

MAIN FEATURES OF A THE ACT

1. The Act applies to all Hindus.

2. The Act has overriding of effect. It abrogates all the rules of the law of succession hit thereto applicable
to Hindu, whether by way of any text austoms or usage having force of law.
3. The Act provides the order of succession of many heirs in the schedule (Sec-9) rules relating the
distribution of properly among heirs in class I of the schedule (Sec-10) and among heir in class II of the
schedule (Sec-11).
 4. Any properly acquired by a Hindu female in any lawful manner whatever and possessed by her becomes
her absolute properly and she enjoys absolute power to dispose in a way she desire.
5. The Act lays down new provisions for the devolution of the property of male Hindu dying intestate.
6. The Act down same general rules of succession inter alia to the effect that heirs related to enable or
female intestate by full blood are to be preferred to those related by half blood if the nature of
relationship is the same in every other respect.
7. No person shall be disqualified from succeeding on the ground of any disease, defect or deformity or
any other ground not provided in the Act.
8. A Male Hindu is entitled to dispose of by will his interest in a Mitakshara Coparcenary property.
9. In the schedule to the Act lists of heir in class I and class II are given as explanation to (Sec8) of the Act.

SUCCESSION TO HINDU MALE: Sec 8 to 13

Section 8 to 13 of the Hindu – Succession Act deal with Hindu Male intestate succession, Section 8 says that
male dies intestate (without testament/will) his property devolve as follows:

1. Firstly upon the heirs specified in class I of the schedule (class I Heirs)
2. Secondly if there are no class-I heirs, the properly devolves upon the heirs specified in class II of the
schedule (class II heirs)
3. Thirdly in the absence of above two class (class I and class II heirs) the properly devolve upon the
agnates, an agnate is a blood relation by birth or adoption through male relation who do not come under
class I or class II heirs.
4. Lastly if there are no agnates, then the property devolves upon the cognates of the deceased. A cognate
is a person related to the deceased wholly through the female link either by blood or by adoption.
All the absence of all the above, the properly goes to the government by escheat. It is to be noted that
Section 8 of the Act applied when:

1. There must be death of a male.

2. The male must be a Hindu.
3. He has left behind some property.
4. He has not made any valid will in regard to his property.
5. The male has dies after the coming into operation of the Hindu succession Act. 1956.

CLASS – I HEIRS
Class-I heirs are 12 in the number as state below

1. Son
2. Daughter
3. Widow
4. Mother
5. Son of a pre deceased son
6. Daughter of a pre deceased son
7. Son of pre-deceased daughter
8. Daughter of a pre deceased daughter
9. Son of a pre deceased son of a pre-deceased son
10. Daughter of a pre deceased son of a pre deceased son
11. Widow of pre-deceased son
12. Widow of a pre deceased son of as pre deceased son.

But the Hindu succession Amendment Act. 2005 in the list of heirs of class I the following heirs have
been added.

1. Son of a pre-deceased daughter of a pre-deceased daughter.

2. Daughter of a pre deceased daughter of a pre deceased daughter.
3. Daughter of a pre deceased daughter of a pre deceased daughter.
4. Daughter of a pre deceased daughter of a pre deceased son.

SHARES OF CLASS I HEIRS (SECTION-10) section 10 of the Act deals with the distribution of properly
of the propose his among the class I heirs. The rules are:

Rule 1: The interstate 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 stake 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 10 in the rule 3.
 1. Among the heirs in the branch of the pre- deceased son shall be so made that his widow (widows
together) and the surviving sons and daughter get equal portions and the branch of his pre-deceased
shows gets the same portions.

2. Among the heirs in the branch of the pre deceased daughter shall be so made that the surviving sons and
daughter get equal portions.

Q3. What is Woman’s estate? Explain its nature and features.

SYNOPSIS
 WOMAN STATE
 NATURE AND INCIDENTS OF A WINDOWS ESTATE
 THEREFORE THIS QUESTION WILL BE DEALT HERE UNDER TWO PARTS
 POSITION BEFORE PASSING OF HINDU SUCCESSION ACT 1956
 INCIDENT OF WINDOW ESTATE
 POSITION OF WOMAN ESTATE UNDER HINDU SUCCESSION ACT 1956

WOMAN STATE
The Hindu women is limited estate has been abolished by section 14 of the Hindu succession Act. 1956 and
now every property in possession of the Female Hindu is her absolute property.

NATURE AND INCIDENTS OF A WINDOWS ESTATE

The property held by women was classified in Hindu law into two kinds before the commencement of the
Hindu succession Act. 1956.

1. Property over which the woman owner had absolute rights of disposition which was called her
‘stridhana.
2. Property over which the women owner had but limited power of dispositions which was called “Hindu
women’s limited estate or more generally widow’s estate or women estate, we are concerned here with
this kind of property.

The Hindu succession Act. 1956 has materially changed the Nature and incidents of a widow’s estate.The
Hindu women’s limited estate has been abolished by the said Act. And now every property in possession of the
female Hindu is her absolute property and she is the absolute owner of it Accumulation of properties
comprised in the widow’s estate may according to her intention be part of her husband’s property.

THEREFORE THIS QUESTION WILL BE DEALT HERE UNDER TWO PARTS

(a) Position before passing of Hindu succession Act. 1956 and
(b) Position under the Hindu succession Act. 1956.

POSITION BEFORE PASSING OF HINDU SUCCESSION ACT 1956

It should not be supposed that though a widow took as her only a specified and qualified estate, she was a
more life tenant of the property, as being merely entitle to the enjoyment of the property without any power
of disposal over it. A widow or her lim heir was the owner of the property inherited to her subject to certain
restrictions on alienation and subject to its devolution upon the next of the its full owner upon her death.
Her right was of the nature of a right of property and her position was that of the owner, her powers in that
character were however limited but so being she was alive no one had any interest in the succession.

It was hold that a window or other limited he is could in the exercise of her power of on an agreement grant
leases of properties, belonging to the estate. But she had no power to grant a permanent lease for long term
so Sec16 bind the reversions unless it was justified by legal necessity, or it was for the benefit of the estate
or made with the consent of the next reversioners.

INCIDENT OF WINDOW ESTATE

 The woman holding the window the estate was entitled to absolute possession of it if. She was dispossessed
of any portion of it she could sue to recover it.
 She could transfer her life even without necessity.
 She was entitled to manage the estate and was allowed reasonable latitude in the management so long an
she acted fairly to the expectant heir.
 Her life interest in the estate was liable to be seized and sold in Execution of a decree against her for
personal debts.
 The estate was liable to be divested on her marriage or moiety of the estate on not her subsequent uncharity.

POSITION OF WOMAN ESTATE UNDER HINDU SUCCESSION ACT 1956

The Hindu succession Act 1956 change the position of women estate, this Act. Section 14 has been says very
clearly that “Any property by a female Hindu whether acquired before or after. The commence of the Act, shall
be held by her as full owner thereof and not as a limited owner.In this sub-section ‘property’ included both
movable and immovable property acquired.

Que1 Is Hindu marriage a sacrament or a contract would it be useful for society to make it a full contract
keeping intact the sacramental rituals?

SYNOPSIS
 NATURE OF MARRIAGE UNDER THE OLD HINDU LAW
 HINDU MARRIAGE IS NOT A CIVIL CONTRACT
 NATURE OF MARRIAGE UNDER THE HINDU MARRIAGE ACT PRESENT LAW

Nature of marriage under the old Hindu Law

If we turn over the pages of our Hindu Shastras or if we have a glance over ancient Hindu Jurisprudence, we
find that marriage ceremony is the last of the ten sacraments of the purifying ceremonies. Marriage tie is a tie
which can never be broken and it is a relation established from birth to birth, according to ancient Hindu Law.
The object of marriage, according to the Hindus, it is getting of children and the proper performance of
religious ceremonies. The sanctity of marriage was held to be so great that it was regarded to have some divine
origin and was thought to be predestined. The husband receives his wife from the gods and must always
support his wife if she is Faithful.
In case of Gopal Kishan v. Mithilesh Kumari, (A.I.R. 1979 All, 316), the Allahabad High Court observed that
the institution of matrimony under the Hindu Law is a sacrament, and not a mere socio-legal contract. Marriage
as a sacramental union implies several things; first, the marriage between man and woman is of religious or
holy character not a contractual union. For a Hindu, marriage is obligatory not merely for begetting a son in
order to discharge; the debt of his ancestors but also for the performance of other religious and spiritual duties.
Marriage, according to Shastras, is a holy sacrament and the gift of the girl to a suitable person is a sacred duty
put on the father on the performance of which the father gets great spiritual.

Hindu Marriage is not a civil contract(sacrament) – Thus under the Old Hindu Law. Hindu marriage is
unlike a Christian marriage where marriage is treated as a contract and can be made and broken by mere offer
and acceptance. This is different from any Muslim marriage which is contractual and has its objects to be
procreation and the legalization of children. It is a sacrament of a holy union for the performance of
religious duties. Divorce was unknown to old textual Hindu Law of marriage. The reason was that a
marriage, from the Hindu point of view, creates an indissoluble tie between the husband and the wife
Following are some points which support that Hindu marriage is not a civil contract
i. Hindu has always considered their marriage as a sacrament which has the implication that it is
permanent indissoluble (valid not merely in this life but in lives to come)
ii. Hindu marriage is holly marriage(performance of religious ceremonies is essential )
iii. Wife is also ardhangini (half of man) under Hindu concept.
Nature of marriage under the Hindu Marriage Act present Law – The Hindu marriage contemplated by the
Act hardly remains sacramental. Hindu Law concludes that a Hindu marriage under the Act is not entirely or
necessarily a sacrament but a union of one man with one woman to the exclusion of all others satisfied by
solemnization of the customary rites and ceremonies of either party essential for a marriage and directly it
exists, creates a relation and status not imposed or defined by contract but by law.
Section 13 and Section 13B of the Hindu Marriage Act, 1955, introduce a very vital and dynamic change in the
Hindu Law of marriage. Section 13 gives to both husband and wife the right to petition the court for divorce on
anyone of the grounds mentioned in this section. Section 13 provides the circumstances in which the right to
divorce accrues. Under Section 13B the Court may grant decree of divorce on the ground of mutual consent of
the parties.
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Que2 what are the grounds for Judicial separation under the Hindu Marriage Act.

SYNOPSIS
 Judicial separation—Section10
I ) Adultery Ii) Cruelty Iii)Unsound Iv) Mind V) Conversion Vi) Leprosy Vii) Venereal Disease
Viii) Missing Spouse
 In case of wife she would be entitled to a degree of judicial separation on follow additional
grounds: - 13(2)
 Effect of Degree

Judicial separation—Section10 of the Hindu Marriage Act deals with judicial separation. Under the Textual
Hindu Law there was no scope either for judicial separation or for divorce. Nowhere these two terms have been
introduced except in recent enactments. It was pious duty of the husband to keep the wife under his roof and
maintain her. She was shown as better half (Ardhangini). Without the wife husband was not complete. He alone
could not perform any religious ceremony. Wives were to be honoured and respected by the husbands as they
were known Grihlakshmi (wealth of the house). But our recent enactments have prescribed separation and
divorce. Section10 of the Marriage Act deals with topic of judicial separation.

Section 10 (1) provides that either party to a marriage may present a petition to District Court praying for a
degree for separation on any of the Grounds specified in sub-section (1) of Section 13, and in the case of a wife
also on any of the grounds specified in subsection (2) there of as grounds on which a petition for divorce might
have been presented.

Section 10(2) of the act lays down,” where a degree for judicial separation has been passed, it shall, no longer,
be obligatory for the petitioner to cohabit with the respondent, but the Court may on the application by petition
of either party and on being satisfied of the truth of the statements made in such petition, rescind the degree if it
considers it just and reasonable to do so.”Now, under the Marriage Laws (Amendment) Act, 1976, the grounds
for divorce and judicial separation are virtually the same. Whatever the grounds of divorce under the amended
section 13 (10 have been similarly adopted in Section10. Thus under Section 10 now the grounds for judicial
separation are:

(i) Adultery: Where the other party has, after the solemnization of the marriage had voluntary
sexual intercourse with any person other than his or her spouse;

(ii) Cruelty: Where the other party has treated the petitioner with cruelty; or

(iii) Desertion: 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; or
(iv) Unsound mind: Where the other party has been incurably of unsound mind or has been
suffering continuously or intermittently from mental cannot reasonably be expected to live with
the respondent.
(v) Conversion: Where the other party has ceased to be a Hindu by conversion to another religion.
On this ground court direct provide divorce instead of judicial separation
(vi) Leprosy: Where the other party has been suffering from a virulent and an incurable form of
leprosy;
(vii) Venereal disease: Where the other party has been suffering from venereal disease in
communicable form;
 (viii) Missing Spouse,- Where the other party 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 had that party been
alive. On this ground court directly provide divorce instead of judicially separation.
(ix) Renunciation of world - Where the other party has renounced the world by entering any
religious order. This is direct ground of divorce instead of judicial separation.

In case of wife she would be entitled to a degree of judicial separation on follow additional grounds: -
13(2)

(1)Bigamy: In case of any marriage solemnized before the commencement of this Act where the
husbands has married again before the commencement of this Act or the other wife was alive at the time
of solemnization of the marriage, or

(2)Rape, Sodomy or Bestiality: Where the husbands, since the solemnization of the marriage been
guilty of rape, sodomy or bestiality, or
(3)Degree or order awarding maintenance: Where a degree has been passed against the husband
awarding maintenance to wife and cohabitation has not resumed for a period of one year, or
(4)Repudiation of the marriage: Where her marriage was solemnized before she attained the age of
fifteen years and she repudiated the marriage before that age but before attaining the age of eighteen
years.
Section 10 sub-clause (2) provides that it shall no longer be obligatory for the petitioner to cohabit with
the respondent where degree for judicial separation has been passed. But the court may, on the
application by petition of either party and on being satisfied of the truth of the statements made in such
position, rescind the degree if it considers it just and reasonable to do so.
Effect of Degree-
A degree of judicial separation does not snap the legal bond of marriage between the parties. However,
it gives a legal license to the petitioner to live separate from the respondent and the latter can no more
insist that the former cohabit and children may be decided by the court while deciding on a petition for
judicial separation and even earlier whole the petition is pending for disposal. If the cohabitation has not
been resumed for one year on more following a degree of judicial separation it is a ground for divorcé
available to either party. By implication of Section 10(2) it appears that in the absence of a degree for
judicial separation it is not legally obligatory for the parties to cohabit with one another.
Difference between Divorce and Judicial Separation
Judicial separation is different from divorce. Divorce puts the marriage to an end. All the mutual
obligations and right of husband and wife cease. In short after a decree of dissolution of marriage,
 marriage comes to an end; parties ceased to be husband and wife and are free to go their on ways. There
remain no bonds between them except in relation to section 25(maintenance and alimony) and sec 26
custody, maintenance and education of children). After divorce parties are free to remarry. On the other
hand judicial separation merely suspends marital rights and obligation during the period of subsistence
of the decree parties continues to be husband and wife.
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Que4 What are the different types of marriage under Hindu Marriage Act, 1955?

SYNOPSIS
1. Valid Marriage 2.Void Marriages 3.Voidable Marriage

Valid Void Voidable

Marriage Marriages Marriage
Conditions of Valid marriage under Hindu Marriage Act, 1955
Now, under the Hindu Marriage Act, 1955, the identity of caste or sub-caste is not necessary for a valid
marriage. The Act does not recognize the prohibition in marriage on the basis of Sagotra relationship. The Act
has, however, provided five conditions prerequisite for a valid Hindu marriage which are as follows:-
(1) Monogamy- Section 5 (i) – The first condition of a valid marriage is that “neither party has a spouse
living at the time of the marriage.” A second marriage while a previous married wife is living is null and
void. Thus this clause provides the rule of monogamy and prohibits polygamy which was permitted
before this Act. This is a mandatory provision, the violation of which renders the party, marrying liable
for punishment under section 17 of the Act. In Smt. Yamunabai Anant Rao Adhar v. Anant Rao
Thiraram Adhar, (AIR 1988 S.C 644), it has been held that the marriage becomes null and void where
it is in violation of the first condition of section 5 .It becomes void ab initio and ipso facto the wife of a
void marriage cannot claim maintenance under Section 125 of the Code of Criminal Procedure.
(2) Sanity – Section 5 (ii)- The second condition for a valid marriage as provided under the ‘Marriage Laws
(Amendment) Act, 1976 is that at the time of marriage, neither party-
(a) Is capable of giving a valid consent to 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 recurring attacks of insanity.
A marriage an account of lack of mental capacity is void able at the instance of the other party.
(3) Age of marriage – Section 5 (iii) – It is provided as the third condition that “the bridegroom has
completed the age of twenty-one years and the bride the age of eighteen years at the time of the
marriage.” But in case a marriage is solemnized in contravention of this provision it is neither void nor
voidable but it would render the party, responsible for procuring the marriage, liable for punishment
which is given under sec-18 of Hindu marriage Act 1955 with simple imprisonment which may
extend to fifteen days or fine which may be extend to one thousand rupees or with both.
According to the Marriage Law(Amendment) Act, 1976, where the marriage of a girl has been effected
before she attained the age of fifteen years and after attaining the age of fifteen years but before
attaining the age of eighteen years, if she repudiates the marriage, the girl can obtain a decree of
dissolution of marriage. This is an additional ground made available to a girl, where marriage has been
solemnized below the age of fifteen years.
(4) Beyond prohibited degrees (Section 5 (iv)). The fourth condition lays down that “the parties are not
within the degrees of prohibited relationship, unless the custom or usage governing each of permits of
marriage between the two”. The custom, however, must be reasonable and not opposed to decency or
morality. [Balusami v.Balkrishna, A.I.R mad,79]. Where the parties to marriage are related to each
other within prohibited degrees the party responsible for procuring the marriage is liable for punishment
under Section 18(b) of the Act.
(5) Beyond Sapinda Relationship Section 5(v). This condition prohibits marriage between persons who
are ‘Sapindas’ of each other. A, marriage in contravention of this clause, i.e., section5 (v) will be ‘void’
and may be so declared under section11. The person contravening, the provisions of this clause will be
liable to simple imprisonment extending to one month or to fine of one thousand rupees or to both under
section 18 (b) of the Act.

Void marriages

Section 11 of the Hindu Marriage Act, says that “any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party there to be so declared by a degree of
nullity if it contravenes any one of the conditions specified in clauses (i),(ii) and (v) of section 5.” Thus a
marriage will be void ‘ab initio’-

(i) Bigamy: If any party to the marriage has a spouse living at the time of the marriage the degrees
[Section 5(i), (AIR 1964 SC 1625).
 (ii) Prohibited degrees of relationship- if the parties are within the degrees of prohibited
relationship unless the custom or usage governing each of them permits such a marriage [Section
5 (iv)].
(iii) Sapind Relationship- if the parties are Sapindas of each other, unless the custom or usage
governing each of them permits such a marriage [Section 5 (v).

Effect of Void marriage

The provisions of Section 11 of Hindu Marriage Act for declaration of a marriage null and void, and of Section
for divorce require that a petition under these sections is to be presented by either the husband or the wife.
Therefore, where the first wife of a person seeks declaration as to nullity of marriage between her husband and
some other lady, the suit shall not be governed by this Act, but shall be governing by Section 9 of C.P.C read
with Section 34 of specific Relief Act

Voidable marriage – According the Sec-12 any marriage solemnized, whether before or after commencement
of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds,
namely-

(a) Impotency: that the marriage has not been consummated to the impotence of the respondent.
[Section 12 (1) (a)].The wife need not prove that the husband was impotent at the time of marriage
and continued to be so when the petition was filed. It is enough if it is proved that the marriage has
not been consummated and the non-consummated is due to the impotency of the husband.
(b) Insanity, Unsoundness of mind: that the marriage is in contravention of the condition specified in
clause (ii) of section 5. [Section 12 (1) (b)].Section 12 (i) (b) refers that any marriage shall be
voidable and may be annulled if the Marriage is in contravention of the condition specified in clause
(ii) of Section 5. On a plain reading of the said provision it is manifest that the condition prescribed
in that section, if established, disentitles the party to a void marriage. The marriage is not per se void
but voidable under the clause [R. Lakshmi Narayan v.Santhi, 2001 (45) ALR 515 (S.C)]
(c) Consent obtained by force or fraud: that the consent of the petitioner, or where the consent of the
guardian in marriage of the petitioner is required under section 5, the consent of such guardian, was
obtained by force or by fraud as to the nature of the ceremonies or as to any material fact or
circumstances concerning the respondent; [Section 12(1) (c).
(d) Pregnancy of the Respondent: that the respondent was at the time of marriage pregnant by some
person other than the petitioner. [Section 12 (1) (d)] Can divorce be granted on customary right?
Point out the difference between divorce and judicial separation.
Effect of voidable marriage

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable marriage can be
avoided by only on the petition of one of the parties to the marriage. If one of the parties does not petition for
annulment of marriage the marriage will remain valid.

Distinction between void and voidable marriage.

A void marriage is void-ab- initio. It does not alter the status of the parties they do not become husband and
wife and it does not give rise to mutual rights and obligation of the parties. On the other hand a voidable
marriage remains valid and binding and continues to subsist for all purpose unless a decree annuls it. The
parties to a void marriage may perform another marriage without getting a decree declaring their marriage as
void and neither will be guilty of bigamy.

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Que5 What are the grounds under the Hindu Marriage Act, 1955 to file a petition for divorce.
SYNOPSIS
 GROUNDS OF DIVORCE
 GROUNDS OF DIVORCE AVAILABLE TO EITHER HUSBAND OR WIFE
 ADDITIONAL GROUNDS TO WIFE ONLY

GROUNDS OF DIVORCE AVAILABLE TO EITHER HUSBAND OR WIFE

A marriage on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the
ground mentioned hereunder; under the Marriage Laws (Amendment) Act, 1976, the grounds for divorce and
judicial separation are virtually the same and we have mention here again divorce ground in detailed.

(1) Adultery- Where either party has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse. [Section 13 (1) (i)]Under the Marriage
Laws (Amendments) Act, 1976, the expression ‘living in adultery’ has been replaced by “voluntary
sexual intercourse with any person other than his or her spouse”.
(2) Cruelty [Section 13 (1) (1-a) and Desertion [Section 13 (1) (1-b)] – By the Marriage Laws
(Amendment) Act, 1976 the cruelty and desertion, which were the grounds of judicial separation,
have been made the grounds of divorce also.
 (3) Conversion {Section 13 (1) (b) – Where the other party has ceased to be a Hindu by conversion to
another religion; or
(4) Unsoundness of mind [Section 13 (1) (iii)] – Where either party has been incurably of unsound
mind, or 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.
(5) Leprosy [Section 13 (1) (iv) – Where the other party has immediately preceding the presentation of
the petition, been suffering from virulent and incurable form of leprosy.
(6) Venereal disease [Section 13 (1) (v)] - Where the other party has been suffering from venereal
disease in a communicable form.
(7) Renunciation of the world [Section 13 (1) (vi) – Where the other party has renounced the world by
entering any religious order; or
(8) Presumed death [Section 13 (1) (vii) – Where the other party has not been heard of as being alive
for a period of seven years or more by those persons who would have naturally heard of it, had that
party been alive; or
(9) Non-resumption of cohabitation after decree of judicial separation [Section 13 (1-A) (D) –
Where there has been no resumption of cohabitation between the parties to the marriage for a period
of one year after the passing of a decree for judicial separation in a judicial proceedings to which
they were parties; or
(10) No resumption of conjugal rights after the passing of such decree [Section 13 (1-A) (ii)-
Where there has been no restitution of conjugal rights between the parties for a period of one year
after the passing of the decree for restitution of conjugal rights.

ADDITIONAL GROUNDS TO WIFE ONLY

The section has further provided additional grounds to a wife to secure divorce, namely that –

(i) Bigamy [Section 13 (2) (i)] – The husband had married a second time before the commencement
of the Act, and that the other party is alive; and
(ii) Rape, sodomy or Bestiality [Section 13 (2) (ii)] – That the husband, has since the solemnization
of marriage been guilty of rape, sodomy, or bestiality; or
(iii) Decree or order awarding maintenance [Section 13 W(2) ] – Where a decree or order for
maintenance has been passed under section 18 of the Hindu Adoptions and Maintenance Act,
1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under
the corresponding Section 488 of the Code of Criminal Procedure, 1898) against the husband
awarding maintenance to wife not withstanding that she was living apart and since the passing of
 such degree or order, cohabitation between the parties has not been resumed for one year or
upwards; or
(iv) Repudiation of the marriage [Section 13 (2) (iv)]—That her marriage (whether consummated
or not) was solemnized before she attained the age of fifteen years and she has repudiated the
marriage after attaining that age but before attaining the age of eighteen years. Divorce can be
now also be obtained by mutual consent of the parties to marriage under Sec.13-B added by the
Marriage Laws (Amendment) Act1976.
A petition for dissolution of marriage may be presented by both the parties to a marriage together on the ground
that they have been living separately for a period of one year or more and they have been not been able to live
together and they have mutually agreed that the marriage should be dissolved. If the petition is not withdrawn
within eighteen months after the presentation of the petition, the court shall, on being satisfied after hearing the
parties pass a degree of divorce.

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