HINDU LAW JH

FAMILY LAW-NEW
1. Pious Obligation
2. Notional Partition
3. Maintenance Pendente lite
4. Dwelling House
5. Legal Guardian
6. Object of Adoption
7. Schools of Hindu Law
8. Survivor Ship
9. Monogamy & Polygamy
10. Marriage
11. Women Property : Stridhan (Absolute Estate) & Women Estate (Limited Estate)
12. Restitution of Conjugal Rights
13. Judicial Separation
14. Void Marriage
15. Voidable Marriage
16. Divorce
*****

1. Pious Obligation:-
1. Pious means Godly, Religious, devout (=deep), reverential (=respectable)
2. Hindu Law states – who received lent(=borrow) and if not repay it to the creditor, he
will be born as slave /servant /women / quadruped (=animal) in the creditors house.
3. The ancient doctrine of pious obligation was governed by Smriti law.
4. ‘Pious obligation’ means the moral liability of sons to pay off or discharge their
father’s non-avyavaharik debts.
5. If the father is the Karta of a Hindu joint family, he may alienate the coparcenary
property for discharging the antecedent (=old) debts.
6. The sons are under the obligation to recover such alienated property by repaying
the debts.
7. There is a pious obligation on the sons and grandsons to pay the debts contracted
by the father and grandfather.
8. The concept of pious obligation has its origin in Dharmashastras, according to which
non-payment of debt is a sin which results in unbearable sufferings in the next
world.
9. Hence the debts must be paid off in all circumstances provided it was not for
immoral and illegal purposes.
10. Brihaspati has said, “If the father is no longer alive the debt must be paid by his
sons. The father’s debt must be paid first of all, and after that a man’s own debts,

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but a debt of the paternal grandfather must always be paid before these two
events.
11. The father’s debts on being proved, must be paid by the sons as if their own, the
grandfather’s debt must be paid by his son’s son without interest, but the son of a
grandson need not pay it at all.
12. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor,
for idle gift, for promises made under influence of love or wrath, or for surety ship,
nor the balance of a fine or toll liquidated in part by their father.
13. There are reasons for fixing this liability on sons and grandsons. The liability to pay
the debt is in the order, viz., in absence of father the son and in absence of son the
grandson.
14. This doctrine of pious obligation does not extend the liability to females even she
has been given a share in the joint family property on partition.
15. Where the wife gets a share on partition between husband, sons and herself, still
she would not be under any obligations to pay the debt of the ancestor (father).
16. Abolition of Pious Obligation, by enacting the Hindu Succession (Amendment) Act,
2005, the Government of India abrogated this doctrine.

2. Notional Partition (or) Deemed Partition:-

Explanation to sub-section 3 of the section 3 of the Hindu Succession Act,
1956 provides that:
“For the purpose of this sub-section, the interest of a Hindu Mitakshara
Coparcener shall be deemed to be the share in the property that would have
been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to
claim partition or not”.
-Gurupad v Hira Bai (1978): ¼ + 1/24 = 7/24
Notional partition is not a real partition and it taken into consideration to compute and
demarcate the shares. It’s only a legal device, for the purpose of demarcating the shares.
Section 6(3) of the Hindu Succession Act, 1956 (as amended) provides rules of Notional
Partition.
The coparcenary property shall be deemed to have been divided as if a partition had taken
place and,—
(a) The daughter is allotted the same share as is allotted to a son;

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(b) The share of the pre-deceased son or a pre-deceased daughter, as they would have got
had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) The share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the partition,
shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-
deceased daughter, as the case may be.
Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.

3.Maintenance Pendente lite (Sec 24) :

Pendent= pending, Lite = Litigation
Section 24 Hindu Marriage Act 1955 (HMA) deals with Maintenance pendente lite.
Maintenance pendent lite means any of the spouses is financially weak, and filed any
matrimonial relief against the other spouse and the proceedings are still pending, the
spouse weak in financial position can claim maintenance during the pending of the litigation.
-Grounds for granting pendente lite,
The question of maintenance pendent lite arises in the cases when the proceedings are
going on in the court in between the parties to the marriage i.e., husband and wife
concerning:-
1. Restitution of conjugal rights (Sec 9),
2. Judicial separation (Sec 10),
3. Nullity of a void or voidable marriage (Sec 11 and 12),
4. Divorce (Sec 13).
-

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(i) During the pendency of the divorce proceedings at any point of time if the wife
establishes that she has no sufficient independent income for her support, it is open to her
to claim maintenance pendente lite;
(ii) Section 24 entitles not only the wife but also the husband to claim maintenance
pendente lite on showing that he has no independent source of income. However, the
husband will have to satisfy the court that either due to physical or mental disability he is
handicapped to earn and support his livelihood. Held that since the husband was able-
bodied and was not mentally ill and only because his business had closed down, he could
not be granted any maintenance, it being opposed to spirit of section 24 of the Act;
Kanchan v. Kamalendra, AIR 1993 Bom 493.

4. Dwelling House:-
According to Section 23 of Hindu Succession Act 1956 deals with dwelling house. With this
act the female cannot claim the partition. But daughters have rights of residence in the fully
occupied house by the members of the deceased’s family, if unmarried or deserted,
widowed or separated.
Janaki Ammal Vs. Palani Madaliar AIR 1981
The court held that female heir could demand partition in the residential house only when
male members of the joint family wants partition
After enacting the Amendment Act 2005 in the Succession Act, the Section 23 is omitted.
Now daughters have the same rights as sons to reside in and claim partition of the parental
dwelling house, if she is married or un-married.

5. Legal Guardian:-
A guardian is a person having the take care of another person or his property or both.
According to Hindu Minority and Guardianship Act 1956, guardian means.. –“a person
having the care of the person of a minor or his property or both his person and property”-

Natural guardian
A minor child's parent is the child's natural guardian.

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Legal guardian
A legal guardian is a person who has the legal authority (and the corresponding duty) to care
for the personal and property interests of another person.

Guardians are typically used in three situations:

1. Guardianship for an incapacitated senior (due to old age or illness),
2. Guardianship for a minor,
3. Guardianship for mentally disabled adults.

Courts generally have the power to appoint a guardian for an individual in need of special
protection.
Depending on the jurisdiction, a legal guardian may be called a "conservator", "custodian",
or curator.

6. Objects of Adoption
The Hindu adoption and Maintain Act passed in the 1956, for to deal with adoption and
maintenance.
Adoption is an act of giving and taking a child, male or female into the family having no son
or daughter.
The objects of adoption are two-fold:-
The first object is religious, namely, to secure spiritual benefit to the adopter and his
ancestors, by having a son to offer funeral cakes and libations of water.
The second object of adoption is secular, namely, to secure an heir and perpetuate the
name of the adopter.

Effects or Consequences of Adoption:

 Sec 12 of the Act deals with Effects of the adoption
 An adopted child shall be deemed to be the child of his/her adopted mother/father,
with effect from the date of the adoption.
 The adapted child severs (=cuts) all the ties from his natural family.

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7. Schools of Hindu Law

The schools of the Hindu law emerged from commentaries, digests& smritis. There are
different Hindu schools are existed, among them Mitakshara and Dayabhaga are the main
schools.

Mitakshara School Dayabhaga School

Smritis (Name Yajnavalkys) commentary by Smritis (Name Dayabhaga) written by
Vijnaneswara Jeemuthavahana
It prevails all over India expect in Bengal & It prevails in Bengal & Assam
Assam
Mitakshara having 5 Sub-schools It Does not have such sub-schoolS

Majority of Hindus follows this school Only small fraction of Hindus follows this
school
Mitakshra deals with the titles of law. Dayabhaga deals with partition and
inheritance
Under Mitakshara the right to property of Under Dayabhaga the right of property
the coparcener arises by birth, so that the arises after the death of last owner.
son is a co-owner with father in ancestral Therefore the son has no right in the
property. property during life time of his father.
In Mitakshra Father has restricted power of In Dayabhaga Father has absolute power
alienation of ancestral property. of alienation of ancestral property.
In Mitakshara, the son can ask for partition In Dayabhaga, the son cannot ask for
of the Joint family property against the partition of the Joint family property
father. against the father.
On the death of a joint family member, his Interest of member on his death, pass by
interest pass to other members by inheritance to his heirs names widow, son
survivorship and daughters.

Coparceners are there No coparceners.

In Mitakshara members can not dispose In Dayabhaga, members can dispose their
their share while undivided share while undivided
In Mitakshara, law of inheritance means In Dayabhaga, law of inheritance means
blood-relationship. religious efficacy.
The widow of deceased coparcener cannot The widow of deceased coparcener can
enforce partition enforce partition
This school is considered as the Orthodox Dayabhaga school is considered as the
School Reformed school.

Written in 11th century Written in 12th century.

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8. Survivorship:-
29B of Hindu Succession Act 1956 provides that — when a female Hindu dies after the
commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 having at
the time of her death an interest in a Mitakshara coparcenary property, her interest in the
property shall devolve(=transfer) by survivorship upon the surviving.
Explanation I : For the purposes of this section the interest of a female Hindu Mitakshara
coparcener shall be deemed to be the share in the property.
The share is allotted to her if a partition of the property had taken place immediately
before her death irrespective of whether she was entitled to claim partition or not.
Explanation II .—Nothing contained in the provison this section shall be took as enabling a
person who before the death of the deceased, had separated himself or herself from the
coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred
to therein.

9. Monogamy & Polygamy:-

Monogamy:- Two types :
1. Serial Monogamy
2. Non-serial Monogamy(only one marriage in life)

- It is the first essential condition of Hindu Marriage.

- ‘Neither Party has spouse living’ at the time of marriage.
- ‘Neither Party has spouse living’ means spouse must not be alive at the time
of marriage.
- Spouse here used as lawfully married husband and wife.
- Monogamy is the voluntary union for life of one man with one women.
- Both the parties before marriage either single i.e. bachelor not at all married
or divorced or widow or widower.
- Sambireddy Vs. Jayamma 1972
Bigamous marriage is void, Sec 5 prohibits and Sec 11 makes it void.
- The person, guilty of offence of Bigamy is liable to punishment under section
494 and 495 IPC
Polygamy:-
In Polygamy, one man has two or more wives at a time. It has two forms. They are
i) Sororal Polygamy : In this, all the wives of man are sisters.

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ii) Non-Sororal Polygamy: In this, the wives are not sisters, but belongs to different
families.
Polygamy became illegal in India in 1956, uniformly for all of its citizens except for
Muslims, who are permitted to have four wives and for Hindus in Goa where bigamy is
legal. A polygamous Hindu marriage is null and void.

10. Marriage:-
According to Law Dictionary a Marriage – ‘is a civil and religious contract whereby a man is
joined and united to a women, for the purpose of civilized society’-
According to Vedas, a marriage is, “the union of flesh with flesh and bone with bone”.
According to Earnest R.Groves – ‘Marriage is a public confession and legal registration of
an adventure in fellowship’-
Objects of Marriage:
According to Mitakshra Law, marriage is for 3 obejcts.
i) Dharma Sampati
ii) Praja Sampathi
iii) Rati Sukham

Kinds of Marriages
Regular Marriages
- Brahma
- Daiva
- Arsha
- Prajapatya
Irregular Marriages
- Asura
- Gandharva
- Rakshasa
- Paisachika

11.Women’s Property: Stridhan (Absolute Estate) & Women Estate (Limited

Estate)
Before the commencement of the Hindu Succession Act 1956, the Hindu females had no
equal rights with males.
Accordion to Section 6 of the act:-
1. Daughter shall have the same rights in the coparcenary property as son;
2. The daughter shall be subject to the same liability as that of a son;
3. The daughter shall be allotted the same share as is allotted to a son;

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4. The share of the per-deceased son/ daughter shall be allotted to the surviving
child.
5. The share of the per-deceased child of a per-deceased son or of a per-deceased
daughter shall be allotted to the child of such per-deceased child of the per-
deceased son or a per-deceased daughter.
6. Furthermore, after the commencement of the Hindu Succession (Amendment)
Act, 2005, the pious obligation, came to an end.

The property held by a female was classified under 2 heads.

1) Stridhan or Absolute Estate
2) Women’s Estates (Widow Estate) or Limited Estate

Stridhan (or) Absolute Estate:-

 Property held by women in their right called as Sridhan (as per Hindu Law)
 The term stridhan firstly used in smritis in Dharma Shastras of Guathama

According to Manu Stridhan is ..

 What was given at Nuptial fire (Wedding Fire)
 At bridal Procession (Marriage Procession)
 Token to love
 From Mother
 From brother
 From father

Rights of Women under Stridhan:-

1) During maidenhood (=condition of become young), she can dispose her property at
her pleasure.
2) During coverture (=during life time of the husband), she can dispose the Property i.e.
called saudayika (gift from relation expect from husband)

Women’s Estate (or) Limited Estate (or) Widows Estate :-

A Hindu female can also be granted property for her maintenance under a family
arrangement or a partition.

When a female inherited property from male/female, treated as non-stridhan property,

which she has no power of disposition by way if sale, mortgage, lease, gift or will; such
property is called Women’s estate or Limited estate.

She is the owner but with the limited powers. She entitled to manage it, in careful manner
not assigned it for succession. Once she died, the property goes back to the last fully owner
called ‘Reversioner’.

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Section 14 of Hindu Succession Act 1956, lays down that any property which a Hindu female
gets on partition after the commencement of the Act will be her absolute property.

Hindu Joint Family & Coparcenary

Joint Family:
 It consists of all persons lineally descended from a common ancestor and include
their wives and unmarried daughters.
 Existence of joint estate is not essential requirement for the formation of Joint
Family.
 It is mostly governed by Hindu religion and customary practices.

Members of the Joint Family:

The following category of persons constitute joint family:
- Persons lineally connected with male line.
- Collaterals
- Any person related to adoption
- Dependants
- Son born from male Hindu and Female Christian under Special marriage act
1956

Females:
- The wife or widows of deceased male member
- Maiden daughters (=young and unmarried women)

Coparcenary:

A coparcenary is a joint Hindu Family constituting from a common male ancestor with his
lineal descendants in the male line 4 degrees from inclusive of such ancestor.

No coparcenary consists without common male ancestor, after his death it may consists of
collaterals, such as brothers, uncles, nephew etc..

The females are excluded from the Coparcenary

SOURCES OF HINDU LAW

I. Ancient sources (The Traditional Sources):

1. Sruti (Vedas),
2. Smritis : Gautama, Boudhayana, Vyasa, Apastamba, Vasishtha, Vishnu, Harita,
Manu, Yajnavalkya, Narada, Brihaspati, Katyayana,
3. Commentaries and Digests (Nibandhas):

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-The Mitakshara
-The Dayabhaga
4. Puranas,
5. Arthasatra of Kautilya (About 300 BC),
6. Customs and Usages:
-Definition of custom
-According to Manu, “Immemorial custom is transcendent law”.
-According to Narada “Custom is powerful and overrides sacred law”.
-Kinds of Customs:
1. Local Customs,
2. Class customs or Caaste customs,
3. Family custom
-Essentials of a valid custom
1. Antiquity or Ancient,
2. Certain / Clear and Unambigrous,
3. Reasonable,
4. Invariability or Continuity,
5. Uniform,
6. Not Immoral,
7. Not opposed to public policy,
8. Not opposed to law,
9. Observance as of right,
10. Consistency,
-Custom outweights written text of the law

MODERN SOURCES OF HINDU LAW

1. Judicial Decisions (Precedents)

2. Legislature/Statutes (Codification of Hindu Law)
3. Justice, Equity and Good Conscience

15 Marks

Conditions of the valid Hindu marriage:-

The conditions of the marriage may be explained with reference to

A) Conditions of the marriage under Ancient texts
B) Conditions under the Hindu Marriage Act

Conditions of the valid marriage under Ancient texts:-

1. Identity of castes
2. Monogamy
3. Sapinda Relationship
4. Prohibited degree of relationship

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5. Prohibited Sagotra and Sapravara

6. Marriage ceremonies
7. Bridegroom age should be more
8. Opposite sex
-
Conditions of a valid marriage under Hindu Marriage Act:-
1. Monogamy
- It is the first essential condition of Hindu Marriage.
- ‘Neither Party has spouse living’ at the time of marriage.
- ‘Neither Party has spouse living’ means spouse must not be alive at the time
of marriage.
2. Mental Capacity
3. Age of parties
4. Degrees of Prohibited relationship
5. Sapinda Relationship
6. Ceremonies
7. Registration of marriage
8. Free Consent of both the parties
9. Opposite sex

MATRIMONIAL REMEDIES (SECTIONS 9 – 13B)

I. Restitution of Conjugal Rights (Sec 9)
-Marriage
-One spouse living separately, (T.Sareetha v. T.Venkata Subbaiah)
-Conditions for relief :
1. Valid Marriage,
2. Withdrawal from society,
3. Without reasonable cause,
4. No legal ground to deny the relief.
-An agreement to live separately is not valid.
-Cruelty on the part of one spouse is reasonable cause.
-Wife entitled to maintenance.

II. Judicial Separation (Sec 10)

-Meaning
-Either party can apply
-No need to cohabit
-Either party may claim maintenance
-They can’t marry afresh
-Conditions:
1. Valid marriage among two hindus,
2. The petitioner should be a Hindu
Grounds available for both husband and wife:
1. Adultery,

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2. Cruelty: Dr M.L Dastane v. S.Dastane(1975)

1. Physical cruelty,
2. Mental cruelty
3. Desertion – Not less than two years,
4. Conversion,
5. Unsoundness of mind,
6. Leprosy Lapromatous,
7. Venereal disease,
8. Renunciation of world(sanyas) (civil death),
9. Presumed death: Unheard of seven years or more.

Grounds available to wife alone:

1. Bigamy(second marriage of husband),
2. Rape, Sodomy or Bestiality,
3. Non-resumption of cohabitation after decree or order of maintenance, under
Sec 18 of HA & MA, 1956 or under Sec 125 of Cr P C, 1973.
4. Repudiation of marriage by wife:
1. Woman’s marriage before 15 years,
2. Repudiation of marriage between 15 and 18 age,
3. No matter of consummation of marriage.

Effects of judicial separation:

1. To live separately,
2. It does not dissolve the marriage,
3. The husband and wife continue to have the same status,
4. Existing rights and duties suspended and new rights and duties are imposed
by the court,
5. They need not cohabitate,
6. Subsequently they can resume cohabitation,
7. The object is for a hope of adjustment and reconciliation,
8. The petitioner can claim alimony,
9. Either spouse cannot remarry during this period,
10. The wife shall considered as independent woman.

III.Void (Sec 11) and Voidable (Sec 12)

Nullity of Marriage (Sec 11) / Void Marriages

1. Any party to marriage has a spouse living at the time of marriage Sec 5(i)
2. Prohibited relationship Sec 5(iv)
3. Sapinda Relationship Sec 5(v)

Voidable Marriage Sec 12

1. Impotency
2. Unsoundness of Mind

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3. Consent by force or by fraud

4. Pregnant at the time of marriage

IV.Divorce Section 13.

Grounds available for both husband and wife:

1. Adultery,
2. Cruelty: Dr M.L Dastane v. S.Dastane(1975)
1. Physical cruelty,
2. Mental cruelty
3. Desertion – Not less than two years,
4. Conversion (Sarala Mudgal v. Union of India, 1995),
5. Unsoundness of mind,
6. Leprosy,
7. Venereal disease,
8. Renunciation of world(sanyas) (civil death),
9. Presumed death: Unheard of seven years or more,
10. Non-resumption of cohabitation after the decree of judicial separation,
11. Non-compliance with the decree of restitution of conjugal rights
Grounds available to wife alone :
1. Bigamy(second marriage of husband),
2. Rape, Sodomy or Bestiality,
3. Non-resumption of cohabitation after decree or order of maintenance, under Sec
18 of HA & MA, 1956 or under Sec 125 of Cr P C, 1973.
4. Repudiation of marriage by wife:
1. Woman’s marriage before 15 years,
2. Repudiation of marriage between 15 and 18 age,
3. No matter of consummation of marriage.

V. Divorce by Mutual Consent (Sec 13-B) : Inserted under the Amendment Act
1976.
Requisites:
1. Both the parties should file the petition for divorce jointly,
2. They have been living separately for more than one year,
3. They have not been able to live together, and
4. They mutually agree to dissolve the marriage.
-Whether one spouse can withdraw
VI. Maintenance pendent lite and expenses for proceedings(Sec 24),
VII. Permanent alimony and maintenance
VIII. Maintenance under Sec 125 of Cr. P.C.

KARTA

-Position of karta
-POWERS AND RIGHTS OF KARTA OR MANAGER:
1. Power over income and expenditure,

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2. Power to contract debts,

3. Power to enter into contracts,
4. Power to manage a family business or to start a new business,
5. Power to give a valid discharge,
6. Power of Right to representation,
7. Power to refer a dispute to arbitration,
8. Power to alienation.

KARTA DUTIES AND LIABILITIES

1. Liability to render accounts,

2. Duty to realise debts due to family,
3. Duty to spend reasonably,
4. Duty not to start new business without the consent of other coparceners,
5. Duty not to alienate coparcenary property,
6. Liability to compensate,
7. Liability to maintain member

Q. Maintenance Features and persons entitled:

As per Manu, cited in Mitakshara :
“The aged parents, a virtuous wife, and an infant child must be maintained even by doing a
hundred misdeeds”.

-Doctrine of Maintenance has been favoured by Hindu Jurisprudents.

-Persons entitled to maintenance can be divided broadly into two categories:
1. Binding duty
2. General duty

-The Hindu Adoption and Maintenance Act, 1956

-Definition under Sec 3(b)
The liability of a Hindu to maintain others is of two kinds:
1. Personal liability which arises from relationship,
A.The husband who is bound to maintain his wife,
B.The father who is bound to maintain his minor sons and unmarried daughters,
C.The son who is bound to maintain his aged parents.
2. Liability which depends on possession of property:
A.Adult son,
B.Grand children,
C.Sister,
D.Step-mother,
E.Sister-in-law.
Limited liability:
1. Liability of karta,
2. Heir’s liability,
3. Government liability
Maintenance of widowed daughter-in-law (sec 19)

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ADOPTIONS
-Definition of Adoption
-Adoption is not recognised in any other laws e.g. Mohammedan Law, Parsi Law,
English Law etc.
-Objects of Adoption.
Salient features of The Hindu Adoptions and Maintenance Act, 1956:
1. This act is called The Hindu Adoptions and Maintenance Act, 1956,
2. This Act applies to Hindus only (including Jains, Sikhs and Buddhists) Sec 2,
3. This Act deals with two subjects
-Sec 1 to 4 are common
-Sec 1 to 17 and 30 are related to Adoptions
-Remaining sections are related to Maintenance under the Act
4. The Act provides for the adoption not only of boys but also of girls,
5. Under the Act ceremony of “Datta Homam” is not required, but the
Transfer of boy/girl physically and acceptance of the child in adoption
by adopter.
ESSENTIALS OR REQUISITES OF VALID ADOPTION (SEC 6 & 11):
1. Capacity for Adoption(Sec 6),
2. Capacity to give Adoption(Sec 6),
3. The person adopted is capable of being taken in adoption(Sec 6),
4. The Adoption is made in compliance with the other conditions mentioned in this
chapter II of the act (Sec 6),
5. Son’s adoption: adoption father or mother must not have a Hindu son, son’s son or
son’s son’s son (Sec 11),
6. Daughter’s adoption: adoptive father or mother must not have a Hindu dauther or
son’s daughter(Sec 11),
7. In case of male adopting a female, the age difference should be at least 21 years(Sec
11),
8. In case of female adopging a male, the age difference shoud be at least 21 years(Sec
11),
9. The same child may not be adopted simultaneously by two or more persons(Sec 11),
10. Physical giving and taking of child is compulsory(Sec 11),
11. The age of the adoptive child should be less than 15 years, unless there is a custom
or usage applicable to the both the parties(Sec 10(iv).

INVALID ADOPTIONS:
1. Adoptions by the two or more persons, even if the persons adopting are brothers,
2. Simultaneously adoption of two or more persons,
3. Absence of valid physical act of giving and taking,
4. Adoption where any of the following three capacities is wanting
a. Capacity to take,
b. Capacity to give,
c. Capacity to be given.
5. Adoption voidable on account of fraud, misrepresentation, coercion, undue
influence, etc. when avoided by the party prejudiced.

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-In-valid adoption has the same effect of no adoption and the boy/girl will revert to his
natural family, and have all the rights there and not have any right in the adoptive family.
WHO CAN ADOPT:
A. Capacity of a male Hindu to take in adoption(Sec 7)
a. He must be a major,
b. He must be of sound mind,
c. He must attain the consent of wife(or wives)
Exceptions:
1. Wife renounced the world,
2. Wife converted to other religion,
3. She has been declared by a court of competent jurisdiction to be of unsound
mind,
d. If he is a bachelor or widower can take adoption,
e. If the adoption is of a son, the adoptive father or mother must not have a Hindu
son, son’s son or son’s son’s son.
f. If the adoption is of a daughter, the adoptive father or mother must not have a
Hindu daughter or Son’s daughter.
B. Capacity of a female Hindu to take in adoption (Sec 8)
a. She is of sound mind,
b. She is not minor (18 years),
c. She is not married or
She is married:
1. Her marriage is dissolved,
2. Her husband is dead or
3. Her husband has renounced the world, or
4. Her husband is ceased to be a Hindu, or
5. Her husband has been declared to be of unsound mind by a court of
competent jurisdiction.
C. Persons capable of giving adoption (Sec 9)
1. Only father, mother or guarding can give adoption,
2. The father with the consent of his wife can give adoption
Exceptions:
a. Wife renounced the world,
b. Wife converted to other religion,
c. She has been declared by a court of competent jurisdiction to be of unsound
mind,
3. The mother can give the child in adoption
a. if the father is dead
b. Father renounced the world,
c. Father converted to other religion,
d. He has been declared by a court of competent jurisdiction to be of unsound
mind,
4. Where both the parents are died or renounced the world or have abandoned the
child or declared as incompetent, or where the parentage of the child is not known, the
guardian of the child with previous permission of the court can give adoption or he himself
can adopt the child.

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5. The court must be satisfied.

-The father and mother do not include an adoptive father and an adoptive mother, and not
step father and step mother.
-Guardian means
1. A guardian appointed by the will of the child’s father or mother,
2. Court appointed guardian.

PERSONS WHO MAY BE ADOPTED (SEC 10) CAPACITY TO BE ADOPTED :

1. He or she is a Hindu,
2. He or she has not already been adopted,
3. He or she has not been married unless there is a custom or usage,
4. He or she has not completed the age of 15 years unless there is a custom or usage.
5. The only son can be given in adoption,
6. An orphan could be adopted,
CONSEQUENCES OR EFFECTS OF ADOPTION (SEC 12):
1. The adoptive child becomes the child of his or her adoptive family for all purposes,
2. The ties of the child with the natural parents are severed,
3. The child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth,
4. Any property which vested in the adopted child before the adoption shall continue
to vest in such person subject to the obligations if any attached to the ownership of
such property.
5. The adopted child shall not divest any person of any estate which vested in him or
her before the adoption.
6. Theory of relation back is removed.

HINDU MINORITY AND GUARDIANSHIP ACT, 1956.

-Preamble
Objects and Reasons
1. This another instalment of the Hindu Code,
2. Under the Indian Majority Act, 1875, a person attains majority on his completing the
age of 18 years but If before the completion of that age he has a guardian appointed
by the Court, he attains majority on completing the age of 21 years. That act applies
to all including Hindus.
KINDS OF GUARDIANS :
1. Natural Guardians,
2. Testamentary Guardians,
3. Guardians appointed by Courts,
4. Guardian by affinity,
5. De facto guardian,
6. Ad hoc guardian,
7. A Guardian ad litem.
1 Natural Guardian: Father, mother and husband
I Rights of natural guardians over the person of the minor : Necessary Acts for the benefit
of the person of the minor.

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1. Right to custody
2. Right to determine the religion of children,
3. Right to education,
4. Right to control movement,
5. Right to reasonable chastisement,
6. Right to give in marriage
II Necessary or reasonable and proper acts for the benefit of the minor.
III Realisation, protection and benefit of the minor’s estate:
1. To enter into contract,
2. To compromise,
3. To make a reference to arbitration,
4. To acknowledge debt,
5. Family arrangement,
6. Power of alienation,
7. To sue on behalf of minor,

Restriction of power of natural guardian:

1. To do all necessary or reasonable and proper acts for the benefit of minor or for
the realisation, protection or benefit of the minor’s estate.
2. Not to mortgage or charge, or transfer by sale, gift, exchange any immovable
property of minor, without court’s permission.
3. Not to lease any property for a term not exceeding five years or for a term
extending more than one year beyond the date on which the minor will attain
majority.
4. He ceases his Guardianship in case of renouncing the world, converting to other
religion, has declared unsound mind by a court.

SUCCESSION

Male intestate succession

Types:
1. Testamentary succession,
2. Intestate succession.
Application of Sec 8 of the Act:
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 died after the coming into operation of Hindu Succession Act, 1956.
The property that is governed by the provisions of Sec 8 includes:
1. Self-acquired and separate property of the deceased Hindu male,
2. The shares of a Hindu male in the joint Hindu family property dying intestate,
Classes of Heirs
Class I Heirs: As per the schedule of the Act, the following are class I heirs:
1. Mother,
2. Widow,

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3. Daughter,
4. Son,
5. Widow of a predeceased son,
6. Son of a predeceased son,
7. Daughter of predeceased son,
8. Widow of a predeceased son of a predeceased son,
9. Daughter of a predeceased son of a predeceased son,
10. Son of a predeceased son of a predeceased son,
11. Daughter of a predeceased daughter,
12. Son of a predeceased daughter,
13. Son of a predeceased daughter of a predeceased daughter ,
14. Daughter of a predeceased daughter of a predeceased daughter,
15. Daughter of a predeceased son of a predeceased daughter,
16. Daughter of a predeceased daughter of a predeceased son.
From 13 to 15 added by the Hindu Succession (Amendment) Act, 2005.

Class-II heirs,
III – Agnates,
IV – Cognates,
V – Government.

FEMALAE INTESTATE SUCCESSION

According to Sec 15 the property of a Hindu female is categorised under the
following heads:
1. The property inherited by a female from her father or mother,
2. The property inherited by a female from her husband or father-in-law,
3. The property obtained from any other source, by inheritance of
otherwise.
According to Sec 15(1) the property of a Hindu female dying intestate shall
devolve as per the rules set out in Sec 16 of the Act. They are:
1. Firstly, upon the sons and daughters, children of predeceased son or
predeceased daughter and husband,
2. Secondly, upon the heirs of the husband,
3. Thirdly, upon the mother and father,
4. Fourthly, upon the heirs of the father,
5. Lastly, upon the heirs of the mother.

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UNDER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005.

I. Mitakshara Joint family property (Sec 6):
1. Before amending the Hindu Succession Act 1956, Sec 6 of the Act, son has independent
birth right in joint family property as a coparcener and daughter cannot be coparcener.
2. From the commencement of the Hindu Succession (Amendment) Act, 2005 with
reference to joint family governed by Mitakshara Law, the daughter becomes coparcener by
birth and has all rights in the same manner as the son.
3. She has the same rights and liabilities in the said coparcener’s property as that of a son.
Now, any reference to Hindu Mitakshara Coparcener will be deemed to include reference to
a daughter of a coparceener.
4. This section will not affect any disposition or alienation including any partition or
testamentary disposition of property that took before 20th December 2004.
5. In Notional partition the daughter is allotted the share as like son.
II. Changes under Class I heirs (Sec 8): Before this amendment this included two generations
for predeceased sons and only one generation for predeceased daughters. After this
amendment in 2005, the schedule modified to include two gen*erations for both
predeceased sons and daughters.
III. Family Dwelling House (Sec 23): Before this amendment the female heir was having
limited right, but after the amendment 2005, Sec 23 of the act was omitted. Now daughters
whether married or unmarried, have the same rights as sons to reside in and to claim
partition of the parental dwelling house.
IV. Certain categories of Widows (sec 24): Before amendment of this Act under Sec 24 in
case of intestate death certain widows were not allotted their share if they remarry, but in
this 2005 amendment the Sec 24 is omitted and mentioned categories of widows can inherit
even if they have remarried.

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