family law 2

Introduction
 Evolution of the Institution of Marriage & Family

The institution of marriage, a pillar of human civilization, encompasses tremendous
emotional and cultural importance that goes beyond simple legal and social
commitments. Marriage, which is defined as a legal, formal union between two
individuals in which they become life partners, has been a crucial aspect of human
culture for millennia. Beyond the confines of the law, marriage is a fundamental social
institution that forms the foundation of families, communities, and countries.
Fundamentally, marriage represents a deep commitment between people who promise
their love and dedication to one another. It is an agreement to encourage one another’s
development and well-being, stick by each other through good times and bad, and share
in life’s pleasures and tragedies. For many people, marriage is a sacred and spiritual
journey that has great religious importance in a variety of different religions and
cultures. The institution of marriage is essential in forming the social fabric. Marriage is
a crucial social institution that promotes the lawful transfer of inheritance, property,
and wealth. It has traditionally been a method of securing allegiances between families,
clans, or even entire countries. Marriages have historically been used to uphold social
hierarchies, form political alliances, and consolidate power. Although these facets of
marriage have changed over time, the institution’s function in governing and structuring
society has not changed. Beyond its legal and social implications, the institution of
marriage is a complex idea. It stands for a strong bond between people, a profoundly
religiously significant spiritual journey, and a pillar of society. While adjusting to the
changing values and social mores of our ever-changing society, it provides the
framework for stable families and the upbringing of future generations. In essence,
marriage is a timeless institution that has played a crucial part in shaping our lives, our
cultures, and our civilizations.
OBJECTIVES
The objective of this article is to explore the concept and evolution of marriage, tracing
its historical roots, examining its various forms and functions across different cultures
and time periods, and analyzing the contemporary shifts in marriage patterns and
perceptions. By delving into the multifaceted nature of marriage, this article aims to
provide readers with a comprehensive understanding of how this institution has evolved
over centuries and continues to shape our societies and relationships today.
HISTORICAL EVOLUTION OF MARRIAGE
The evolution of marriage is a fascinating journey that spans thousands of years,

involving numerous cultures, religions, and traditions. India, frequently described as a
land of many faiths and customs, has seen the evolution of marriage from ancient Vedic
ceremonies to modern love marriages, reflecting the dynamic spirit of Indian society.
Indian marriage has its origins in the Vedic period, circa 1500-500 BCE, when sacred
hymns and ceremonies defined the institution. Marriage was not merely a union of two
people during this time period; it was also an alliance between two families, symbolising
the merger of their values, customs, and money. Arranged weddings were the norm,
with parents playing an important role in matching their children with suitable spouses,
frequently based on caste, status, and astrological compatibility. Centuries later, during
the Gupta Empire (4th to 6th century CE), the concept of “Swayamvara” (competition
ceremony) evolved, allowing brides to choose their bridegroom. Marriage rules were
also codified during this time period in works such as the Manusmriti, which detailed
the duties and responsibilities of husbands and wives. These writings, however, were
frequently chastised for maintaining gender disparities. The mediaeval period saw the
blending of local practises with Islamic traditions introduced by invaders. Polygamy, as
practised by Muslim rulers, coexisted with monogamy, as practised primarily in Hindu
society. During the Mughal era, elaborate marriage customs such as the “Nikah” in Islam
and the “Saptapadi” in Hinduism were developed, both of which symbolised the
sacredness of the marital connection. During the nineteenth century, British
colonisation of India resulted in important legal innovations. The British established
marriage-related legislation, most notably the Hindu Marriage Act of 1955 and the
Special Marriage Act of 1954, which permitted interfaith and civil weddings. These
legislative amendments signified a shift from conventional practises, giving individuals
more freedom in selecting their spouses. Further changes in Indian marriage norms
occurred in the twentieth century, with a rising emphasis on love weddings and the
abolition of stringent caste-based limitations. Economic and intellectual progress, as
well as exposure to Western ideals, were critical factors in this shift. The Bollywood film
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industry, India’s cultural juggernaut, also contributed to the popularisation of romantic
love as a prominent motif in marriages. Marriage in modern India is still evolving. While
arranged weddings continue to exist, they are increasingly involving the agreement and
choice of the parties involved. The rise of online dating and social media has broadened
the boundaries of romantic partnerships, allowing people to meet and build
relationships outside of their immediate social networks. Finally, the historical evolution
of marriage in the Indian setting demonstrates the dynamic interplay between tradition
and modernity. From ancient Vedic ceremonies to the modern blend of love marriages
and traditional practises, India’s marital scene reflects the country’s rich and ever-
changing culture. This evolution demonstrates the institution of marriage’s tenacity in
adjusting to the changing ideals and aspirations of individuals in the Indian
subcontinent.
The British established marriage-related legislation, most notably the Hindu Marriage
Act of 1955 and the Special Marriage Act of 1954, which permitted interfaith and civil
weddings. These legislative amendments signified a shift from conventional practises,
giving individuals more freedom in selecting their spouses. Further changes in Indian
marriage norms occurred in the twentieth century, with a rising emphasis on love
weddings and the abolition of stringent caste-based limitations. Economic and
intellectual progress, as well as exposure to Western ideals, were critical factors in this
shift
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MODERNIZATION OF MARRIAGE
Marriage modernisation is a significant and continuing development, characterised by

altering ideals, societal changes, and evolving individual ambitions. As India navigates
the intricacies of tradition and modernity, the institution of marriage is at the crossroads
of both forces, undergoing a dramatic metamorphosis that redefines the roles,
expectations, and dynamics of relationships in modern Indian culture. Marriages in India
were traditionally arranged affairs, with parents playing an important role in picking life
partners for their offspring. These partnerships were frequently affected by caste,
community, and social status factors, with the primary goal being the consolidation of
familial relationships and the preservation of cultural and religious traditions. However,
as India embarked on a modernisation journey, the winds of change began to blow. As
the twentieth century progressed, a new paradigm emerged: the concept of “love
marriage.” Young adults in India were increasingly exposed to Western ideas of
individualism and passionate love as the country experienced urbanisation and
globalisation. While planned marriages remained popular, they continued to coexist
with a rising acceptance of love-based marriages. The notion that a woman’s primary
function was to be a housewife and carer began to crumble. Many Indian women are
now looking for a relationship that prioritises equality, shared responsibility, and mutual
respect. The growth of feminist movements and gender rights activism has contributed
to this shifting landscape. Economic concerns have also played a significant influence in
modernising Indian weddings. As the country’s economy has risen, urbanisation and
consumerism have intensified. Furthermore, the legal framework in India around
marriage has evolved to meet modern sensibilities. The Special Marriage Act of 1954
legalised interfaith and civil weddings, giving people more say over who they marry and
promoting religious and cultural diversity. Arranged marriage is still practised, it
currently coexists with love-based unions, more gender equality, economic reasons, and
the influence of technology.
In contemporary India, the institution of marriage is undergoing a transformative

evolution, marked notably by the recognition of same-sex unions and the increasing
acceptance of live-in relationships. These significant shifts reflect the nation’s
commitment to inclusivity and individual autonomy. The decriminalization of
homosexuality in 2018[1], a watershed moment, paved the way for legal recognition of
same-sex marriages, granting LGBTQ+ individuals the fundamental right to love and
marry freely. Simultaneously, live-in relationships, once considered taboo, are gaining
societal acceptance as a valid lifestyle choice, providing couples with an alternative to
traditional matrimony while ensuring legal safeguards. This modernization of marriage
in India reflects a broader societal embrace of diversity, challenging age-old norms and
fostering a more inclusive and egalitarian vision of partnerships and visoon.
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CONCLUSION
In conclusion, the evolution and concept of marriage reflect an enthralling trip through
time, society, and legal alteration. Marriage has consistently played a major role in
moulding society, from its ancient origins in Vedic ceremonies to the present legal
systems governing numerous communities in India. The evolution of marriage practises
across time demonstrates the dynamic nature of human relationships as well as the
significant effect of religion, custom, and colonisation. Marriage changed to changing
social norms and values as India migrated from ancient practises to modern legal
systems. The passage of laws such as the Hindu Marriage Act and the Special Marriage
Act demonstrates India’s commitment to protecting individual rights and gender
equality in marriage engagements. As we reflect on the concept of marriage in India, it
becomes evident that it is not a static institution but one that continually evolves. It
serves as a microcosm of broader societal shifts, encompassing the values and
aspirations of a diverse and dynamic nation. While challenges persist, the institution of
marriage remains a cornerstone of Indian society, encapsulating the complexities of
tradition, modernity, and the pursuit of a more equitable and inclusive future.
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2:Karta of the Joint Family – his position , power, privileges & obligations .
What is Karta?
The better question is: who is Karta? Karta is a term used in Hindu law to refer to the leader of a
HUF. In a HUF, the Karta has the overall authority and control over the property and makes
decisions for the benefit of the entire family. The Karta represents the family in legal and
business matters and is responsible for managing the property and distributing the income
amongst members.
So why is it important to understand Karta in property alienation? Well, understanding Karta’s

meaning ensures compliance with legal norms and customs. It helps prevent any arising
disputes due to Karta’s actions in the said matter.
Hindu Joint Family and Karta

The concept of a joint family system has been the hallmark of Indian culture for years. In a joint
family system, several generations live together and share a common kitchen, property, and
resources. While such a system has become less common in modern India, it still exists in many
parts of the country.
The joint family system dates back to ancient times and has been written about in Vedas. It is a
system that values love, respect, and unity among family members. The head of a Hindu Joint
Family is called Karta.
In HUF, Karta is the eldest family member. His role is to manage and oversee the affairs of the
family. The Karta is responsible for maintaining and distributing property and assets among the
family members. The Karta’s role remains the same irrespective of gender. Every HUF must
have a HUF deed or a HUF stamp this is a written document stating the names of the Karta and
members of the HUF.
The Karta plays a significant role in managing, upkeep, and distributing property in a Hindu
Undivided Family (HUF). In this article, we will discuss everything you need to know about Karta
and its role in the alienation of joint family property.
Who can be an HUF Karta?
Generally, the eldest male member of the family is the Karta, but it can also be a female in
some cases. Any member of the HUF can become Karta, provided that they are of sound mind,
have attained the age of 18 years, and are qualified legally.
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Powers and Duties of Karta
What are the powers of Karta? The Karta is the decision-maker in the family. The decisions
involved include matters pertaining to property management, distribution of assets, business
investments,
And other family matters. The Karta also manages the family finances, which include banking,
taxes, and investments.
A common question is: can Karta sell HUF property without consent? The answer is No. While
the Karta has extensive powers and responsibilities, there is a limit to their power. The decision-
making power of the Karta is not absolute and must be in the best interest of the entire family.
The other family members have a right to question the decisions made by the Karta. They can
also challenge those decisions if they do not represent the best interests of a family.
Also, according to the Hindus Succession Act, any alienation of property is prohibited unless all
the adult members of the family agree to it. As such, the HUF Karta cannot sell or mortgage any
family property without the consent of all adult members.
Management of the Family

The Karta is responsible for the management of the family and has the power to take decisions
that benefit the family as a whole. This includes maintaining order and discipline within the
family and resolving any disputes.
Power to Enter into a Contract

The Karta has the power to enter into contracts on behalf of the family. However, it is
important to note that any contracts entered into by the Karta must be for the benefit of the
family and not for personal gain.

Power to Alienate
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The Karta has the power to alienate the family property. However, this power must be
exercised only in cases of legal necessity or for the benefit of the family. Any alienation without
legal necessity is not valid under Hindu law.
In V.V.V. Ramaraju and Others vs. Korada Malleswara Rao , it was established that alienation
under certain circumstances would be binding on all members of a Hindu joint family, including
minors. This was determined in CIT v. Gangadhar Sikaria Family Trust, where the court held that
the transfer is not void ab initio if not for legal necessity or estate benefit (Mukhtiar Singh v.
Amarjit Singh).
In Hindu law, the concepts of legal necessity and benefit of the estate are crucial in determining
the validity of an alienation of joint family property. The interpretation of the word “necessity”
varies from case to case and depends on the circumstances. However, it can be generally said
that the term refers to things that are considered essential for the welfare of family members.
In the case of Dev Kishan v. Ram Kishan, the Karta of a Hindu joint family mortgaged and sold
the family property to finance the marriage of his two minor daughters. The court held that
such action was unlawful alienation as it violated the Child Marriage Restraint Act, 1929. This
decision shows that even if the Karta believes that a particular action is necessary for the
family’s well-being, it must still comply with relevant laws.
On the other hand, anything done in furtherance of the benefit of the joint family is considered
to be for the benefit of the estate. In the landmark case of Balmukund v. Kamlavati, the
Supreme Court held that anything done for the positive benefit of the estate falls under the
benefit of the estate. This broad definition includes not only actions that directly enhance the
family’s property but also those that improve the general welfare of the members.
While legal necessity refers to actions that are essential for the family’s welfare, benefit of the
estate refers to actions that enhance the family’s property or improve the general welfare of
the members. The scope of these concepts depends on the circumstances of each case, and the
Karta has a fiduciary duty to act in the best interests of the family.
The Obligations of Karta
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Duty to Maintain the Family
The Karta has the duty to maintain all family members, including providing for their food,
clothing, and shelter. The Karta is also responsible for providing education and medical care for
the family members.
Duty to Protect the Family Property

The Karta has the duty to protect the family property and ensure that it is not misused or
alienated without legal necessity. The Karta is also responsible for ensuring that the property is
not sold or transferred to individuals who are not members of the joint family.
Duty to Pay Debts

The Karta has the duty to pay off any family debts and ensure that the family does not incur
debts beyond its means. This includes ensuring that the family’s financial affairs are managed
responsibly and that any debts are paid off in a timely manner.
Duty to Preserve Family Traditions

The Karta has the duty to preserve family traditions and culture. This includes ensuring that
family customs and practises are followed and passed on to the next generation.
Case Laws related to Karta

The Karta is the senior-most male member of a Hindu joint family who manages the family and
its property. They have a fiduciary relationship with the other family members and unlimited
liability, except in cases of fraud or misappropriation. However, a junior member can become
the Karta if all coparceners agree, as seen in Nopany Investments (Pvt) Ltd. V. Santokh Singh,
where the Karta’s younger brother was appointed with consent from all members.
Prior to the Hindu Succession Amendment Act of 2005, Hindu females were not allowed to be
coparceners in a joint Hindu family. However, after the amendment, daughters are also
permitted to be co-owners of joint family property. In the older view, as seen in Gangoli Rao vs.
Chinnappa, the Supreme Court ruled that women cannot be coparceners or Karta, a decision
later upheld in Income Tax vs. Seth Govind Ram. However, in the modern view, as seen in Mrs.
Sujata Sharma vs. Shri Manu Gupta, the Delhi High Court expanded the scope of Section 6 of
the Hindu Succession Act, 1956, allowing females to become the Karta of the family.
Conclusion
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In conclusion, the Karta plays a crucial role in the administration of a Hindu joint family. The
Karta has various powers and obligations that are associated with the management of the
family and its property. It is important for the Karta to exercise these powers and fulfil these
obligations responsibly and in accordance with the principles of Hindu law.
It is important for the Karta to seek legal advice and guidance when making decisions that
impact the family and its property. This will ensure that the decisions taken by the Karta are
legally valid and in the best interests of the family.
In conclusion, the role of the karta is an important one in Hindu joint families. The Karta must
exercise their powers and fulfil their obligations responsibly and in accordance with the
principles of Hindu law. By doing so, the Karta can ensure the well-being of the family and its
property for generations to come.
The Karta is the head or leader of the HUF. He is the eldest member of the family. His roles
include
Managing property
Distributing income
Managing debts and liabilities
Representing the family in legal matters
Making decisions on behalf of the family
Understanding Karta’s power and limitations is essential to understand your rights as a HUF
member and preventing unnecessary conflict and injustices in matters pertaining to the
alienation of property.
3.Establishment of Family Courts. Its Powers & Functions
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According to Section 10 of the Family Courts Act,1984, the Family Courts are allowed to evolve
their rules of procedure. The Code of Civil Procedure was amended to fulfil the reason behind
setting up the Family Courts.
Section 9 of the Act puts special emphasison settling disputes by mediation and conciliation. It
guarantees that the matter is addressed by understanding the two parties and reduces the
chances of any further conflict. The point is to give priority to a mutual understanding of the
usual process of arbitration.
So, these courts mean to frame a pleasant environment where family disputes are settled
amicably. The cases have avoided the features of a formal legal system. During any stage of the
proceedings, if the court believes that there is a possibility of an amicable resolution, the court
can direct the parties to mediation.
The shackles of a formal overall set of laws and the normal process of adjudication cause
unnecessary prolonging of the matter, and the dispute can deteriorate over the long haul. It
tends to be an exceptionally horrendous experience for the families and lead to personal and
financial losses that can devastatingly affect human relations. It again focuses on the
significance of having guidance counsellors and psychological experts in managing such
matters.
Section 13 of the Act specifies that a party isn’t qualified to be addressed by a lawyer without
the court’s express authorization. In any case, constantly, the court concedes this authorization,
and as a rule, it is a legal counsellor who addresses the gatherings.
The interesting angle regarding the procedures under the Family Court’s watchful eye is that
they are first referred to conciliation. When the conciliation procedures fail to effectively
determine the issue, the mattertaken up for the court is preliminary. The Conciliators are
experts who the court designates.
When the last request is passed, the wronged party has the alternative of filing an appeal under
the watchful eye of the High Court. Such appeal is to be heard by a bench comprising of two
judges (Section 19 of the Act).
The primary object of the Family Courts Act 1984 was to give the chance of conciliation to the
litigants and to prepare for rapid dismissal.
Stage 1 � Court Counseling and Mediation
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When the respondent gets a summons from court, he/she will need to show up under the
watchful eye of the Judge of the Family Court. As previously stated, under Section 9 of the Act,
the courts are mandated to make efforts for the settlement of disputes. Thus, at the first stage,
the Judge would allude the parties to the counsellor for going through the way toward
counselling. It is to keep away from any worsening of conditions and to empower possible
conciliation between the couple.
The counsellors will undoubtedly unveil the minutes of the discussion between the spouses
before them for counselling. The counsellor will send a report demonstrating if the settlement
could be shown up.
Stage 2 � Counter-Statement
If the case isn’t settled through alternative dispute resolution methods, the case alludes back to
the court. The Family Court Judge has abundant powers under Section 10(3) of the Act to assist
the parties.
Stage 3 � Evidence
After the pleadings on either side are finished, the enquiry is initiated with the petitioner. The
chief examination of the petitioner is finished via testimony. The petitioner and the respondent
will record the proof under the Judge’s steady gaze regarding his/her appeal. The provision of
section 15 and 16 of the Act sets out the method for recording evidence.
Section15:
A record of the oral evidence isn’t required for a family court to record a witnesses’ evidence.
Finally, just that part is adequate, identified with the suit or continuing, and the Judge and the
witness should sign it.
Section16:
Evidence of formal character on affidavit. The evidence of any individual where such evidence is
true might be given by testimony and may, subject to all just exceptions, be read in evidence in
any suit or proceeding under the watchful eye of a Family Court.
Stage 4 � Cross-Examination
The petitioner and the respondent will be allowed to cross the other party to counter-argue
their submission and nullify the cases and evidence produced in the court. The parties can help
their pleader prepare to record the confirmation of evidence and questioning of the other
party.
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Stage 5 � Decree and Order Passed by the Court
After hearing the rival contentions, the court may defer the case to pass the decree and order
to permit or excuse the appeal under the court’s watchful eye.
The procedures of the family court can be held within the presence of cameras. As per Section
11 of the Act, the family court procedures might be held in camera if the court feels so or any
party to the suit needs to do such.
As the family courts work with fewer formalities, they don’t record the long evidence of
witnesses. Just that evidence of the witness is recorded identified with the topic. As indicated
by Section 14 of the Act, any report, statement or document, identified with the topic is
admissible under the Indian Evidence Act, 1872.
Family Courts:
The purpose and aim of establishing the Family Courts is to protect and preserve the institution
of marriage and to promote the welfare of children and provide for settlement of disputes by
conciliation. The Family Courts Act extends to the whole of India except Jammu and Kashmir.
Every State Government after consultation with the High Court establishes in every area in the
state, a Family Court. One or more judges head it and preference is given to women judges.
Suits or proceedings filed in family court
The Family Courts are empowered to deal with the following matters:
A suit or proceeding between the parties to a marriage for nullity of marriage or restitution of
conjugal rights or dissolution of marriage.
A suit or declaration as to the validity of a marriage or as to the matrimonial status of any
person
A suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them.
A suit or proceeding for an order or injunction in circumstances arising out of a marital
relationship.
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A suit or proceeding for a declaration as to the legitimacy of any person
A suit or proceeding for maintenance.
A suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.
Family Courts also have jurisdiction exercisable by a Magistrate of the 1st class relating to an
order for maintenance of wife, children and parents under the Code of Criminal Procedure .
Family Court Act, 1984

Family Courts Act, 1984 was enacted on 14 September 1984 to establish family
Courts in India to promote conciliation and secure speedy settlement of disputes
relating to marriage and family affairs.
What are the Objectives of Family Courts?

The Objectives of the family court are:
To provide speedy justice and disposal of family cases at the earliest.

To promote conciliation and mediation in disputes relating to marriage.
Preserve family ties.
To solve the matter of family within a short period.
How is a Family Court establish?
Section 3 of the family court act 1984 provides that these courts are to be
established in the town on the city where is the population exceeds 1 million or in
any area where the state government considers establishing it.
The only law which gives a special preceding is called camera proceeding. This
means in the case if the party does not want to speak in front of the court. He can
shoot a video. And the video can present in the court as the primary evidence.
When we speak about the total number of family Courts in India 438 family courts
which give differing year to year.
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What matters is to deal with in Family Court?
Matters dealt in Family Court are:
Degree for nullity of marriage.

Restitution of conjugal rights
Judicial separation. Dissolution of marriage. Declaration of matrimonial status of
any person.
Matrimonial property matter.
The claim of maintenance.
Guardianship.
Custody of children.
Access to children.
Application for an injunction in matrimonial matters.
Custody of children guardianship legitimacy of a child under the Hindu minority
and guardianship act 1956.
What are the Services available at a Family Court?
The services available at Family Court are:
Court Clerks: They are useful to learn more about the court records and how they
are maintaining. They can further guide on the daily court calendars and
schedules.
Self-help Centers: They provide resources to the self-representing individuals and
assist with education materials, training on court procedure, and completing legal
forms but they do not provide any legal advice.
Mediation Services: They help the parents and children in resolving the custody
visitation issues. They are provided with non-biased mediators to make an
agreement that is both private and confidential.
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Court Interpreters: Family courts ease the process and arrange an interpreter for
the non-English speaker as language can be a barrier in the court. Each state has
guidelines on the timeline to apply and receive this assistance.
What are the Duties of Family Court?
The Family Court endeavor to assist and persuade the parties in arriving for
settlement.
If the Court feels that there is a reasonable possibility of a settlement; then the
Court may adjourn the proceedings for such period as it thinks will fit to enable
attempts to be made to arrive at a settlement.
Appeal
An appeal lies to the High Court from every judgment or order passed by the
Family Court. However, no appeal lies against a decree or order passed by the
Family Court with the consent of the parties under proceedings relating to the
maintenance of wives, children, and parents under the Code of Criminal
Procedure.
Personal Appear is Mandatory

Personal appearance is mandatory in a Family Court. Parties must not entitle to
represent by a lawyer. They must appear themselves and put their case forward.
Records of Oral Evidence and Affidavit

The Court shall record what the witness deposes, and the memorandum shall be
signed and form a part of a record. The Court may on the application of any of the
parties summon and examine any such person as to the facts contained in the
affidavit.
Act to have Overriding Effects.

The provisions of this Act shall affect anything incompatible with those contained
in any other law for the time being in force or any method affecting by any law
other than this Act.
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Judgment
The judgment of a Family Court shall contain a concise statement of the case, the
point for determination, the decision thereon, and the reasons for such decision.
Limitations
An appeal to the High Court from every judgment or order is not an interlocutory
order pass by the Family Court must be filed within 30 days.
4 Mitakshara coparcenery – Formation & Incidents property under Mitakshara

law- separate Property & Coparcenery property
Mitakshara
Mitakshara: a very modest title which means a short compendium�is a running commentary
on the Code of Yajnavalkya,187, and a veritable digest of Smriti law. It was written in the latter
part of the eleventh century by Vijananeshwara, an ascetic additionally mentioned as bearing
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the name Vijnana Yogin. In Mitakshara which is more of a digest than a mere commentary on a
specific Smriti, we discover the quintessence of the Smriti law and its precepts and injunctions.
The chief merit of the work consists in its comprehensive treatment of almost all vital topics of
the law and also the synthesising of assorted Smriti texts. It’s of supreme authority throughout
the Republic of India except in Bengal where the Dayabhaga of Jimutavahana is given dominant
importance. In Bengal, the Mitakshara is more revered than followed however its authority isn’t
questioned on points on that there’s no conflict between it and also the works prevalent there.
The Mitakshara is given general predominance in all the four minor schools which aren't any
over sub-divisions of the Mitakshara school but in Gujarat, the island of Bombay, and North
Konkan, the Mayukha, a trendier written material is allowed to contend with it and even
considered an overruling authority on certain points; and within the Mithila, there are some
deflections from the parental authority.
Vijananeshwara analyses and discusses the tests of Yajnavalkya sometimes at considerable

length. As the council has observed, he “explains the meaning of recondite passages, supplies
omissions and reconciles discrepancies by frequent regard to alternative old expounders of
law”.188 He has the great merit of being pontifical and being simply readable. Mitakshara is
one of the maximum vital schools of Hindu law. The Mitakshara has a very wide jurisdiction.
However different parts of the country practice law differently because of the different
customary rules followed by them.
Sub-Division Of Mitakshara School

The Mitakshara school is sub-divided into four minor schools; these differ between themselves
in some matters of detail, relating particularly to adoption and inheritance. All these schools
acknowledge the supreme authority of Mitakshara, but they give preference to certain treatises
and to commentaries which control certain passages of Mitakshara. This accounts for the
differences between those schools.
They are namely:

Banaras Hindu law school
Mithila law school
Maharashtra law school
Dravida or madras law school
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Banaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern
India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.
The Benares School is sometimes called the most orthodox of the different schools of Hindu
law.
Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The
principles of the law school prevail in the north. The major commentaries of this school are
Vivadaratnakar, Vivadachintamani, smritsara. The Kalpataru by Lakshmidhara is a work that is
freely cited by the exponents of the Mithila School.
Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial
parts including Gujarat Karana and the parts where there is the Marathi language is proficiently
spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authority
under Mitakshara law school. The Smriti Chandrika of Devanna Bhatta,233 who flourished at
the close of the twelfth century has all along had a commanding influence in South India. It is an
exposition on the law of inheritance and was considered by Colebrooke to be a work of
uncommon excellence, equal, if not superior, to Parashara Madhaviya which also is a leading
authority in the South. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.
Mitakshara Joint Hindu Family

According to the Mitakshara law school, a joint family refers only to the male member of a
family and extends to include his son, grandson, and great-grandson. They collectively have co-
ownership/Coparcenary in the Joint Family. Thus a son by birth acquires an interest in the
ancestral property of the joint family.
Under the Dayabhaga law school, the son has no automatic ownership right by birth but
acquires it on the demise of his father. The Hindu joint family is a normal condition of Hindu
society. Its origin can be traced to the ancient patriarchal system where the patriarch or the
head of the family was the unquestioned ruler, laying down norms for the members of his
19
family to follow, obeyed by everyone in his family, and having an unparallel control over their
lives and properties.
At the root was the general family welfare or promotion of the family as a unit for which the
personal interests of the family members could be sacrificed. Under Hindu law therefore the
joint family system came first in historical order and the individual recognition of a person
distinct from the family came later. The ancient system generally treated the property acquired
by the members of the family as family property or the joint property of the family with family
members having one or the other right over it.
With the gradual transformation of the society and recognition of the members of the family as
independent in their own right, the concept of separate property and rules for its inheritance
were developed. This dual property system, though considerably diluted1, has survived the
lashes of time, the judicial and legislative onslaught, and the Hindu society still recognises the
joint family and joint family property as unique entities having no similar concept alive
anywhere else in the world.
Composition Of Hindu Joint Family: Classical Concept

A �Hindu Joint Family� consists of all male members descended lineally from a common male
ancestor together with their mothers, wives or widows, and unmarried daughters. An
unmarried daughter on marriage ceases to be a part of her father�s joint family and joins her
husband�s joint family as his wife. If a daughter becomes a widow or is deserted by her
husband and returns to her father�s house permanently, she again becomes a member of her
father�s joint family.
Her children however don�t become members of her father�s joint family and continue
being members of their father�s joint family. Even an illegitimate son of a male descendant
would be a member of his father�s joint family. A child in the womb till it is born is not a
member of the joint family for taxation purposes but is treated as in existence for certain
purposes under Hindu law.
Mitakshara coparcenary
The primary purpose of understanding the concept of Mitakshara coparcenary was spiritual in
nature. A coparcener in relation to the father is a person who can offer a funeral cake to him.
This capability to offer spiritual salvation by the performance of funeral rites was with the son,
son of a son (grandson), and son of a son of a son (great-grand-son)1 and as a consequence of
it, they were conferred a right by birth in the property of the father.
20
This religious aspect that associated primarily with relationships and spiritual benefits and not
merely from the property perspective was totally sidelined later by the legal aspect. The
revenue authorities view coparcenary purely from the property angle. Presently it is
understood to ascertain the rights and obligations of the members in the joint family property
that is also called the ancestral property or the coparcenary property.
A person is the exclusive owner of his self-acquisitions and no one else, including his family
members, has the legal power to restrict his rights over the separate property, save in
accordance with the provisions of law. However, under Hindu law, where a person possesses an
interest in ancestral or coparcenary property, he is not the sole owner of it, and his son, son of
his son (grandson), and son of his son (great-grandson) acquire a right by birth in this
property.2
All such sons, grandsons, and great-grandsons irrespective of their numbers will be
coparceners with him having joint ownership in this property. Presently the concept of
coparcenary is linked with the ownership of this property.
Formation Of Mitakshara Coparcenary

A single person cannot form a coparcenary. There should be at least two male members to
constitute it. Like a Hindu joint family, the presence of a seniormost male member is a must to
start a coparcenary. As aforesaid, a minimum of two members is required to start and even
continue a coparcenary. Moreover, the relationship between father and son is essential for
starting a coparcenary.
Women As Coparceners
Under Mitakshara’s coparcenary, women cannot be coparceners. A wife under Hindu law has a
right of maintenance out of her husband�s property yet she is not a coparcener with him. A
widow of a deceased coparcener is not a coparcener and therefore cannot be treated as the
Karta of the family. Consequently, an alienation made by her will not be binding on the family
members and will bind her own share in the property.
Even a widow succeeding to her deceased husband�s share in the joint family under the Hindu
Women�s Right to Property Act, 1937 is not a coparcener. However, even though she cannot
be a manager or Karta, yet she can be assessed as the head of the joint family for the purposes
of income tax. A mother is neither a coparcener with her sons nor with her daughter even if
they happen to be devadasis. Similarly, a mother-in-law cannot be a coparcener with her
daughter-in-law.
21
Conclusion
It can be concluded that the Mitakshara system is Conservative. It provides good security in
difficult times as a member can rely on the joint family. However, sometimes a member can
become a parasite.
Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy
every need and welfare of the people. The assets of the idea for Hindu Law are Shruti (phrases
of God), Smriti(text), customs (vintage practices), commentaries, and digest.
The codified law and uncodified law are two types of Modern Hindu Law. Codified law
administers each Hindu. The concepts of schools of Hindu Law do now no longer exist in
codified law, however, it exists in uncodified Hindu Law. Vedas and Smritis had been the forms
of sources in which, many pupils all-round India, wrote the commentaries which shaped the
idea for schools of Hindu Law.
With the improvement of the Smriti got here the disparity in opinion among commentators and
interpreters. There turned into no authoritative role of regulation, despite the fact that diverse
codes had been developed. An authority will be regular in a single a part of India and absolutely
rejected in different elements of India. Persons who regular one authority had been probably
now no longer to simply accept different authorities. Thus, different schools of thought
emerged.
Schools of thought refer to the divided opinions on a subject matter. Thus, schools of thought
on Hindu law refers back to the various and divided opinions on the policies and principles of
Hindu Law. Unlike statutes, they may be now no longer codified. They do now no longer have
the force of law. However, they affect the minds of the legislature or lawmakers.
5 Succession to property of a Hindu male dying intestate under the provisions of

Hindu Succession Act , 1956.
Introduction
22
Succession in India can be categorized into testamentary and intestate succession.
Testamentary succession denotes succession via will while intestate succession refers to
succession when someone dies without a will.
The Hindu Succession Act, of 1956 governs the intestate succession to a Hindu male’s property
under Hindu law. A will is an instrument that denotes the wishes of the deceased with regards
to the devolution of their property. When a Hindu male dies without making a will, his property
is distributed among his legal heirs according to the provisions of the Act.
The Hindu Succession Act, 1956, divides the heirs into four classes. The distribution of property
depends on the class of heirs and their proximity to the deceased.
Class I Heirs of Hindu Male

Class I heirs are the closest relatives of the deceased and are entitled to inherit the property in
the first instance.
The Class I heirs include the following:
Widow of the deceased

The son(s) and daughter(s) of the deceased
The mother of the deceased
The heirs of the predeceased son or daughter of the deceased and,
The widow of the predeceased son of the deceased
In the event that there is more than one Class I heir, they share the property equally.
Case I
When a Hindu male dies intestate, leaving behind a widow, children, and mother
When a Hindu male dies intestate, leaving behind a widow, children, and mother, the property
is distributed equally among them. Each of them is entitled to an equal share of the property.
Case II
When a Hindu male dies intestate, leaving behind a widow, children, and no mother
23
When a Hindu male dies intestate, leaving behind a widow, children, and no mother, the widow
and children are entitled to equal shares in the property. The widow is entitled to one share,
and the remaining shares are divided equally among the children.
Class II Heirs of Hindu Male

If there are no Class I heirs, the Class II heirs take ownership of the property.
The Class II heirs include the following:
Father of the deceased

The son(s) and daughter(s) of the predeceased son or daughter of the deceased
The brother(s) and sister(s) of the deceased
The nephew(s) and niece(s) of the deceased
The property is distributed among the Class II heirs in the order mentioned above. If there is
more than one heir in a class, they share the property equally.
Case III
When a Hindu male dies intestate, leaving behind no Class I heirs but a Class II heir
When a Hindu male dies intestate, leaving behind no Class I heirs but a Class II heir, the Class II
heir is entitled to inherit the entire property.
Agnates or Class III Heirs of Hindu Male

If there are no Class I or Class II heirs, the property passes on to Agnates. Agnates are the
relatives of the deceased through male lineage.
The order of succession among agnates is as follows:
Son’s son’s son

Son’s son’s daughter
Son’s daughter’s son
Son’s daughter’s daughter
Brother
24
Brother’s son
Brother’s daughter
Father’s brother
Father’s brother’s son
Father’s brother’s daughter
Father’s sister
Father’s sister’s son
Father’s sister’s daughter
Cognates or Class IV Heirs of Hindu Males
If there are no agnates, the property passes on to cognates. Cognates are the relatives of the
deceased through female lineage.
The order of succession among cognates is as follows:
Mother’s mother
Mother’s father
Mother’s brother
Mother’s sister
Father’s mother
Father’s father’s mother
Father’s father’s father’s mother
Father’s father’s sister
Father
Case in absence of any of the above-mentioned Heirs
It is important to note that in the absence of any of the above-mentioned heirs, the property
will escheat to the government. Therefore, it is advisable to make a will, which will help in the
smooth transfer of property to the desired person and avoid any conflicts that may arise
between the legal heirs.
The 2005 amendment to the Hindu Succession Act, 1956
25
In addition, the Hindu Succession Act, 1956, was amended in 2005 to give equal rights to
daughters in ancestral property. Before the amendment, daughters did not have any right to
the ancestral property and could only claim a share in the self-acquired property of the father.
After the amendment, daughters are now considered coparceners and have the same rights
and liabilities as the sons in the ancestral property. The amendment is applicable
retrospectively from 1956, the year when the Hindu Succession Act came into force.
The amendment has given a boost to women’s rights and made them equal partners in
ancestral property. It has also addressed the issue of gender discrimination and brought the
Hindu Succession Act in line with the Constitution of India, which guarantees equality before
the law to all citizens.
Conclusion
In conclusion, the Hindu Succession Act, 1956 governs the succession to a Hindu male’s
property upon his death intestate. The Act divides the heirs into four classes, and the property
is distributed among the legal heirs based on their proximity to the deceased. It is advisable to
make a will to ensure a smooth transfer of property to the desired person and to avoid any
conflicts that may arise between the legal heirs.
6. Explain in detail Adoption by an unmarried female under the Hindu Adoption

and
26
Maintenance Act.
The Hindu Adoptions and Maintenance Act (HAMA) was enacted in India in 1956 as part of the
Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act
(1955), the Hindu Succession Act (1956), and the Hindu Minority and Guardianship Act (1956).
All of these acts were put forth under the leadership of Jawaharlal Nehru, and were meant to
codify and standardise the current Hindu legal tradition. The Adoptions and Maintenance Act of
1956 dealt specifically with the legal process of adopting children by a Hindu adult, and with the
legal obligations of a Hindu to provide “maintenance” to various family members including their
wife or parents, and in-laws
This act applies to Hindus and all those considered under the umbrella term
of Hindus, which includes:
 a Hindu by religion in any of its forms or development;

 a Buddhist, Jain or Sikh;
 a child legitimate or illegitimate whose parents are
Hindus, Buddhists, Jains or Sikhs;
 a child legitimate or illegitimate one of whose parents
are Hindus, Buddhists, Jains or Sikhs and has been so
brought up;
 an abandoned child, legitimate or illegitimate of
unknown parentage brought up as a Hindu, Buddhist,
etc.; and
 a convert to the Hindu, Buddhist, Jain or Sikh religion.
Persons who are Muslims, Christians, Parsis or Jews are excluded from this
definition.
The act does not also apply to adoptions that took place prior to the date of
enactment. However, it does apply to any marriage that has taken place
before or after the Act had come into force and Moreover, if the wife is not a
Hindu then the husband is not bound to provide maintenance for her under
this Act under modern Hindu Law.[1]
Who can Adopt?

Under this act only Hindus may adopt subject to their fulfilment of certain
criteria. The first of these asserts that the adopter has the legal right to
(under this Act that would mean they are a Hindu). Next, they have to have
the capacity to be able to provide for the adopted child. Thirdly the child
27
must be capable of being adopted. Lastly, compliance with all other
specifications (as outlined below) must be met to make the adoption valid. [2]
Men can adopt if they have the consent of their wife or of all of their wives.
The only way of getting around obtaining the permission of the wife or of the
wives is if she or if they are unsound, if they have died, if they have
completely and finally renounced the world, and if they have ceased to be a
Hindu. Men who are unmarried can adopt as well as long as they are not a
minor. However, if a man were to adopt a daughter, the man must be twenty
one years of age or older.[3]
Only unmarried Hindu women can legally adopt a child. A married woman
can only give her consent to adoption by her husband. A married woman
whose husband adopts a child is to be considered the mother. [3] If the child
is adopted and there are more than one wife living in the household, then
the senior wife is classified as the legal mother of the adopted child. [4]
Who can be adopted?

The adopted child can be either male or female. The adopted child must fall
under the Hindu category. The adoptee also needs to be unmarried;
however, if the particular custom or usage is applicable to the involved
parties then the adoptee can be married. The child cannot be the age of
fifteen or older, unless again it is custom or the usage is applicable to the
involved parties. An adoption can only occur if there is not a child of the
same sex of the adopted child still residing in the home. In particular, if a son
were to be adopted then the adoptive father or mother must not have a
legitimate or adopted son still living in the house. [3]
Legal implications for an adopted childedit
From the date of the adoption, the child is under the legal guardianship of
the new adopted parent(s) and thus should enjoy all the benefits from those
family ties. This also means that this child, therefore, is cut off from all legal
benefits.
Maintenance of a wife
A Hindu wife is entitled to be provided for by her husband throughout the duration of her
lifetime per Section 18 of HAMA ’56.[citation needed] Regardless of whether the marriage was
formed before this Act was instated or after, the Act is still applicable. The only way the wife
can null her maintenance is if she renounces being a Hindu and converts to a different religion,
or if she commits adultery.[1]
The wife is allowed to live separately from her husband and still be provided for by him. This
separation can be justified through a number of different reasons, including if he has another
wife living, if he has converted to a different religion other than Hinduism, if he has treated her
cruelly, or even has a violent case of leprosy.[1]
28
If the wife is widowed by her late husband, then it is the duty of the father-in-law to provide for
her. This legal obligation only comes into effect if the widowed wife has no other means of
providing for herself. If she has land of her own, or means of an income and can maintain
herself then the father-in-law is free from obligation to her. Additionally, if the widow remarries
then her late husband’s father-in-law is not legally bound by this Act anymore as well.[1]
Maintenance of a child or of aged parents

Under this Act, a child is guaranteed maintenance from his or her parents until the child ceases
to be a minor. This is in effect for both legitimate and illegitimate children who are claimed by
the parent or parents. Parents or infirmed daughters, on the other hand, must be maintained
so long as they are unable to maintain for themselves.[1] Sections 20-22 of the Act cover the
same, and provide for the maintenance of any dependents of an individual.
Amount of maintenance provided

The amount of maintenance awarded, if any, is dependent on the discretion of the courts.
Particular factors included in the decision process include the position or status of the parties,
the number of persons entitled to maintenance, the reasonable wants of the claimants, if the
claimant is living separately and if the claimant is justified in doing so, and the value of the
claimant’s estate and income. If any debts are owed by the deceased, then those are to be paid
before the amount of maintenance is awarded or even considered.[1]
The capacIty of a Hindu female to adopt.
Section 8 of the act states that a Hindu Female willing to adopt a child must:
Have attained the age of minority;

Be of sound mind;
Be either a widow;
Divorced, or
Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.
Who can give a child for adoption?

No one but the parents and guardian of the child can give them up for adoption as per Section 9
of the Hindu Adoption and Maintenance Act.
29
As per the act:
Only the biological father of a child has the authority to give him up for adoption;
The consent of the child’s biological mother is necessary.
A mother will have the capacity to give the child up for adoption if:
The father is either dead;

Of unsound mind;
Has renounced the world; or
Converted to some other religion.
The section clearly mentions that the father and mother mean biological parents and not
adoptive parents. Adoptive father or mother can not give the child up further for adoption.
When is adoption valid?

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the
essentials prescribed in Section 6 of the act:
The adoptive parent/s have the capacity and rights to adopt;

The person/s giving up the child for adoption has the capacity to do so;
The person being adopted has the capacity to be taken in adoption;
The adoption is made in compliance with the act.
Only upon meeting these requirements shall adoption be valid.
30
7 Who is Karta? Explain his position and Powers in a Hindu Joint Family.
What is Karta?
The better question is: who is Karta? Karta is a term used in Hindu law to refer to the leader of a
HUF. In a HUF, the Karta has the overall authority and control over the property and makes
decisions for the benefit of the entire family. The Karta represents the family in legal and
business matters and is responsible for managing the property and distributing the income
amongst members.
So why is it important to understand Karta in property alienation? Well, understanding Karta’s

meaning ensures compliance with legal norms and customs. It helps prevent any arising
disputes due to Karta’s actions in the said matter.
Hindu Joint Family and Karta

The concept of a joint family system has been the hallmark of Indian culture for years. In a joint
family system, several generations live together and share a common kitchen, property, and
resources. While such a system has become less common in modern India, it still exists in many
parts of the country.
The joint family system dates back to ancient times and has been written about in Vedas. It is a
system that values love, respect, and unity among family members. The head of a Hindu Joint
Family is called Karta.
In HUF, Karta is the eldest family member. His role is to manage and oversee the affairs of the
family. The Karta is responsible for maintaining and distributing property and assets among the
family members. The Karta’s role remains the same irrespective of gender. Every HUF must
have a HUF deed or a HUF stamp this is a written document stating the names of the Karta and
members of the HUF.
The Karta plays a significant role in managing, upkeep, and distributing property in a Hindu
Undivided Family (HUF). In this article, we will discuss everything you need to know about Karta
and its role in the alienation of joint family property.
Who can be an HUF Karta?
31
Generally, the eldest male member of the family is the Karta, but it can also be a female in
some cases. Any member of the HUF can become Karta, provided that they are of sound mind,
have attained the age of 18 years, and are qualified legally.
Powers and Duties of Karta

What are the powers of Karta? The Karta is the decision-maker in the family. The decisions
involved include matters pertaining to property management, distribution of assets, business
investments,
And other family matters. The Karta also manages the family finances, which include banking,
taxes, and investments.
A common question is: can Karta sell HUF property without consent? The answer is No. While
the Karta has extensive powers and responsibilities, there is a limit to their power. The decision-
making power of the Karta is not absolute and must be in the best interest of the entire family.
The other family members have a right to question the decisions made by the Karta. They can
also challenge those decisions if they do not represent the best interests of a family.
Also, according to the Hindus Succession Act, any alienation of property is prohibited unless all
the adult members of the family agree to it. As such, the HUF Karta cannot sell or mortgage any
family property without the consent of all adult members.
Management of the Family

The Karta is responsible for the management of the family and has the power to take decisions
that benefit the family as a whole. This includes maintaining order and discipline within the
family and resolving any disputes.

32
Power to Alienate
The Karta has the power to alienate the family property. However, this power must be
exercised only in cases of legal necessity or for the benefit of the family. Any alienation without
legal necessity is not valid under Hindu law.
In V.V.V. Ramaraju and Others vs. Korada Malleswara Rao , it was established that alienation
under certain circumstances would be binding on all members of a Hindu joint family, including
minors. This was determined in CIT v. Gangadhar Sikaria Family Trust, where the court held that
the transfer is not void ab initio if not for legal necessity or estate benefit (Mukhtiar Singh v.
Amarjit Singh).
In Hindu law, the concepts of legal necessity and benefit of the estate are crucial in determining
the validity of an alienation of joint family property. The interpretation of the word “necessity”
varies from case to case and depends on the circumstances. However, it can be generally said
that the term refers to things that are considered essential for the welfare of family members.
In the case of Dev Kishan v. Ram Kishan, the Karta of a Hindu joint family mortgaged and sold
the family property to finance the marriage of his two minor daughters. The court held that
such action was unlawful alienation as it violated the Child Marriage Restraint Act, 1929. This
decision shows that even if the Karta believes that a particular action is necessary for the
family’s well-being, it must still comply with relevant laws.
On the other hand, anything done in furtherance of the benefit of the joint family is considered
to be for the benefit of the estate. In the landmark case of Balmukund v. Kamlavati, the
Supreme Court held that anything done for the positive benefit of the estate falls under the
benefit of the estate. This broad definition includes not only actions that directly enhance the
family’s property but also those that improve the general welfare of the members.
While legal necessity refers to actions that are essential for the family’s welfare, benefit of the
estate refers to actions that enhance the family’s property or improve the general welfare of
33
the members. The scope of these concepts depends on the circumstances of each case, and the
Karta has a fiduciary duty to act in the best interests of the family.
The Obligations of Karta
Duty to Maintain the Family

The Karta has the duty to maintain all family members, including providing for their food,
clothing, and shelter. The Karta is also responsible for providing education and medical care for
the family members.
Duty to Protect the Family Property

The Karta has the duty to protect the family property and ensure that it is not misused or
alienated without legal necessity. The Karta is also responsible for ensuring that the property is
not sold or transferred to individuals who are not members of the joint family.
Duty to Pay Debts

The Karta has the duty to pay off any family debts and ensure that the family does not incur
debts beyond its means. This includes ensuring that the family’s financial affairs are managed
responsibly and that any debts are paid off in a timely manner.
Duty to Preserve Family Traditions

The Karta has the duty to preserve family traditions and culture. This includes ensuring that
family customs and practises are followed and passed on to the next generation.
Case Laws related to Karta

The Karta is the senior-most male member of a Hindu joint family who manages the family and
its property. They have a fiduciary relationship with the other family members and unlimited
liability, except in cases of fraud or misappropriation. However, a junior member can become
the Karta if all coparceners agree, as seen in Nopany Investments (Pvt) Ltd. V. Santokh Singh,
where the Karta’s younger brother was appointed with consent from all members.
34
Prior to the Hindu Succession Amendment Act of 2005, Hindu females were not allowed to be
coparceners in a joint Hindu family. However, after the amendment, daughters are also
permitted to be co-owners of joint family property. In the older view, as seen in Gangoli Rao vs.
Chinnappa, the Supreme Court ruled that women cannot be coparceners or Karta, a decision
later upheld in Income Tax vs. Seth Govind Ram. However, in the modern view, as seen in Mrs.
Sujata Sharma vs. Shri Manu Gupta, the Delhi High Court expanded the scope of Section 6 of
the Hindu Succession Act, 1956, allowing females to become the Karta of the family.
Conclusion
In conclusion, the Karta plays a crucial role in the administration of a Hindu joint family. The
Karta has various powers and obligations that are associated with the management of the
family and its property. It is important for the Karta to exercise these powers and fulfil these
obligations responsibly and in accordance with the principles of Hindu law.
It is important for the Karta to seek legal advice and guidance when making decisions that
impact the family and its property. This will ensure that the decisions taken by the Karta are
legally valid and in the best interests of the family.
In conclusion, the role of the karta is an important one in Hindu joint families. The Karta must
exercise their powers and fulfil their obligations responsibly and in accordance with the
principles of Hindu law. By doing so, the Karta can ensure the well-being of the family and its
property for generations to come.
The Karta is the head or leader of the HUF. He is the eldest member of the family. His roles
include
Managing property
Distributing income
Managing debts and liabilities
Representing the family in legal matters
Making decisions on behalf of the family
Understanding Karta’s power and limitations is essential to understand your rights as a HUF
member and preventing unnecessary conflict and injustices in matters pertaining to the
alienation of property.
35
8. Explain Dowry as a customary practice in India and what are the state
Regulations along with relevant case laws.
“Dowry” is a word that is very prevalent and common in Indian households. It is a practice that
has become a parasite for the Indian society and which has eroded the beautiful institution of
marriage. It is not a new practice but has been followed from ages, and its impact is such in
Indian society that one can make efforts to reduce it, but it cannot be totally eradicated.
Several laws have been enacted to prohibit the practice of dowry, but the legal clutches are
weaker than the ambit of the practice of dowry. Further, the article shall enumerate the social
and legal consequences of practicing dowry along with its other various aspects.
What is dowry?
According to section 2 of Dowry Prohibition Act, 1961, the term “dowry” means any property or
valuable security given or agreed to be given either directly or indirectly.
In Arjun Dhondiba Kamble v. State of Maharashtra[1], the court held that, “Dowry” in the sense
of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable
security having an inextricable nexus with the marriage, i.e., it is a consideration from the side
of the bride’s parents or relatives to the groom or his parents and/or guardian for the
agreement to wed the bride-to-be. But where the demand for property or valuable security has
no connection with the consideration for the marriage, it will not amount to a demand for
dowry.
In Rajeev v. Ram Kishan Jaiswal[2], the court held that any property given by parents of the
bride need not be in consideration of the marriage, it can even be in connection with the
marriage and would constitute dowry.
Who would be an offender under the law?

According to section 3 of the Dowry Prohibition Act, 1961, it is an offence to both take dowry
and give dowry. So the family of bridegroom would be liable for taking dowry so would the
family of bride be to consent to give dowry.
Legal framework in India for prohibiting dowry

Dowry Prohibition Act, 1961
36
Penalty for giving and taking dowry (Section 3) – According to section 3, if any person after the
commencement of the Act gives or takes, abets the giving or taking of dowry shall be punished
with an imprisonment for a term not less than five years and with fine which shall not be less
than fifteen thousand rupees or the amount of the value of dowry, whichever is more.
Penalty for demanding dowry (section 4) – According to section 4, if any person directly or
indirectly demands dowry from the parents, relatives or guardians of the bride or the
bridegroom shall be punished with an imprisonment of not less than six months and which shall
extend to two years and with fine which may extend to ten thousand rupees.
The Supreme Court has held in Pandurang Shivram Kawathkar v. State of Maharashtra[3] that
the mere demand of dowry before marriage is an offence.
In Bhoora Singh v. State of Uttar Pradesh, [4]the court held that the deceased had before being
set on fire by her in-laws written a letter to her father that she was being ill-treated, harassed
and threatened with dire consequences for non-satisfaction of demand of dowry. Thus an
offence of demanding dowry under section 4 had been committed.
Ban on advertisement (section 4-A) – According to section 4-A, the advertisement in any
newspaper, journal or through any other medium or a share in the property, business, money,
etc by any person in consideration for marriage shall be punished with an imprisonment which
shall not be less than six months and which may extend to five years or with fine which may
extend to fifteen thousand rupees.
Cognizance of offence– According to section 7, a judge not below the rank of a Metropolitan
Magistrate or Judicial Magistrate of First Class shall try an offence under this Act. The court shall
take cognizance of the offence only on the report by the victim, the parents or relative of the
victim, police report or on its own knowledge of the facts of the offence.
According to section 8 certain offences under this Act shall be cognizable, non-bailable and non-
compoundable.
Indian Penal Code, 1860
Dowry Death (section 304 B)- Section 304(B) reads as follows-

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall be called
“dowry death” and such husband or relatives shall be deemed to have caused her death.
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Explanation – For the purposes of this sub section, “dowry” shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961.
Whoever commits dowry death shall be punished with imprisonment for a term which shall not
be less than seven years but which may extend to imprisonment for life.
In Vemuri Venkateshwara Rao v. State of Andhra Pradesh[5], the court has laid down the
following guideline for establishing an offence under section 304(B) and they are-
That there is a demand of dowry and harassment by the accused,

That the deceased had died,
That the death is under unnatural circumstances. Since there was demand for dowry and
harassment and death within 7 years of marriage, the other things automatically follow and
offence under section 304-B is proved.
Husband or relative of husband subjecting women to cruelty (section 498-A) – Section 498- A
reads as follows-
Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the
husband or the relatives of the husband of a woman, subject such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be liable
to fine.
Explanation – For the purpose of this section “cruelty” means –
Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health (whether mental or physical) of the
woman, or
Harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand
In Bhoora Singh v. State[6], it was held that the husband and in-laws subjected the wife the
cruelty for bringing insufficient dowry and finally burnt her down, thereby inviting a sentence of
three years rigorous imprisonment and a fine of Rs.500/- for an offence committed under
section 498-A of Indian Penal Code.
Indian Evidence Act, 1872
Presumption as to dowry death (Section 113 B) – Section 113 B reads as follows-
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When the question is whether a person has committed dowry death of a woman and it is
shown that soon before her death such woman had been subjected by such person to cruelty
or harassment for, or in connection with, any demand for dowry, the court shall presume that
such person had caused the dowry death.
Explanation – For the purpose of this section “dowry death” shall have the same meaning as in
section, 304B of the Indian Penal Code (45 of 1860).
Social evils of dowry

The practice of dowry has many ill effects on society and has eroded the beautiful institution of
marriage to a mere contract of giving and taking of money and valuable assets in exchange for
marriage. A few social evils which the practice of dowry bring along itself are-
Female foeticide– Even today, when there are so many for prohibiting female foeticide laws yet
the statistics of the same are much more to one’s expectations. One of the biggest reasons
behind this practice is the thought that if a female child is born then she would turn out to be a
burden on the exchequer of her parents as a lot would have to be spent in her marriage.
Therefore, people find it better to eradicate the root of the problem- “Female Child”.
Suicide by Young Girls– Many times when the parents are not able to marry off their daughters
because of dowry, this brings in harassment to the family which leads the young girls to commit
suicide to bring an end to the mental harassment to their families.
Uneducation to girls– Many families do not give good education to their daughters with a
thought of saving the money being used for education to be used for the purpose of dowry.
Often the girls are subjected to mental harassment because of them being of dark colour, fat or
any other lack in physical appearance because the parents or the relatives think that to marry
them off a lot of dowry would have to be given and their constant taunts and statements not
only mentally harass the girls but also bring in them an inferiority complex.
Misuse of dowry laws by women
There are always two sides of a coin; similarly, every law has its use as well as misuse. The anti-
dowry laws have proved to be a panacea for women at the same time they have also proved to
be a nuisance for men. Not all dowry cases filed by women are true and in more than 40% cases
filed; the allegations made by women are false.
The two-judge bench of the Supreme Court headed by Justice Chandramauli Kumar Prasad
recently in a 21-page order said that the simplest way to harass the husband is to get him and
his relatives arrested.[7]
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The Judges stated a notable point that in many cases the bedridden grandfathers and grand-
mothers of the husbands, their sisters living abroad for decades are arrested.[8]
The judges also reminded the authorities that they must follow a so-called nine-point checklist
that has been part of the anti-dowry law before noting down a dowry-related complaint.[9]
The court also said that in case the police makes an arrest, a magistrate must approve further
detention of the accused.[10]
According to the National Crime Records Bureau statistics, nearly 200,000 people, including
47,951 women, were arrested in regard to dowry offences in 2012, but only 15% of the accused
were convicted.[11]
Conclusion
“DOWRY” as a practice is deeply rooted in Indian society, and it cannot be totally eradicated.
The major reason that this practice cannot be eradicated is the mentality, thought and mindset
of Indians. In India, a boy is made highly educated so that parents can demand a huge dowry for
him in the marriage. The more educated the man is, and the more stable his financial situation
is, the more he gets dowry. Similarly, the parents of girls will educate them a lot so that they
can marry her to a rich family. They are not hesitant in giving dowry because this practice has
now become a custom and despite many laws, a very few percentage of offenders are
convicted. This social evil can only be eradicated when there would be a change in the
mentality of the people. When people might understand that giving and taking dowry is like
selling your daughters and sons may be from then the roots of the practice would start eroding,
and the practice shall get totally eradicated but that period seems to be very far off.
9. Enumerate in detail on the grounds available only to a Wife for Divorce under
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the Hindu Marriage Act.
Introduction
In Ancient times, the concept of divorce was not known to anyone. They considered marriage
as a sacred concept. According to Manu, the husband and wife cannot be separated from each
other, their marital tie cannot be broken. Later the concept of divorce came into the picture
and was established as a custom to put the marriage to an end.
According to the Arthashastra, marriage can end if dissolved by mutual consent and should be
unapproved marriage. But Manu does not believe in the concept of dissolution. According to
Manu the only way to end the marriage is the death of one of the spouses.
The provision related to the concept of divorce was introduced by the Hindu Marriage Act,
1955. The Hindu Marriage Act defines divorce as the dissolution of the marriage. For the
interest of society, the marriage or the marital relationship needs to be surrounded by every
safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise
given other alternatives.
“I want a divorce.” “We want a divorce from each other.”
You might have heard this from a lot of couples around you, but have you ever wondered on
what grounds a person can actually seek divorce?
Well, today we are going to discuss the grounds for divorce under the Hindu Marriage Act,1955.
Marriage is considered one of the oldest institutions and has a religious sacrament attached to
it. Marriage, according to Hindu law, is one of the most important sanskaras (duties). It is
considered a ‘dharma’ (religious duty under Hindu law) by which men and women are united in
wedlock to achieve the ends of life, namely, dharma, progeny, kama, and moksha.
In Hinduism, a marriage is seen as an inseparable bond between husband and wife, but with
the changing times, there has been the introduction of the concept of divorce, which means
that on certain grounds, the parties to a marriage can seek permanent separation. The present
article explains the concept of divorce and the various grounds on which parties to a marriage
can seek divorce under the Hindu Marriage Act of 1955. It also provides different grounds that
are specifically available to a woman seeking a divorce. It tries to analyse the changes in
practices that led to the enactment of modern Hindu law on marriage. The article discusses the
irretrievable breakdown of marriage as a ground of divorce and also provides the jurisdiction of
the courts dealing with divorce cases. Further, it also provides case laws to better understand
the grounds for divorce.
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Changing trends in the Hindu marriages
Divorce was earlier unknown to people because marriage was considered as an indissoluble
union between a husband and a wife. Manu, the great commentator of ancient India, never
approved of divorce and said that only death can separate and break the relationship between
a husband and a wife.
However, some texts like Narada and Parashar have different views on this. For some, marriage
is a contract and divorce means to revoke the marriage or contract but for others it is sacred
and the bond must not be broken. In Hinduism, it is not a contract but a sanskara and religious
sacrament is attached with it. According to Naradasmriti, a woman is allowed to leave her
husband under the following conditions:
 If the husband is lost and unheard for seven years, i.e., civil death in the modern
period.
 The husband has renounced the world.
 If he became impotent.
 If he is expelled from community or caste.
On the other hand, many jurists like Kautilya in Arthashastra opined that if a marriage falls
within unapproved forms of marriage such as asura, gandharva, rakshasa, and paisacha, it can
be dissolved.
During the 1950s, the Hindu law was codified, and the Hindu Marriage Act, 1955, was enacted
to govern marriages.
Applicability of Hindu Marriage Act, 1955
According to Section 2(1) of the Hindu Marriage Act, 1955, individuals professing the following
religions are covered under the ambit of Hindus:
 A person who is a Hindus by religion which includes Virashaiva or Lingayat or a

person who is a follower of the Brahmo, Prarthana or Arya Samaj.
 A person who is Buddhist, Sikh or Jain.
 A person who is domiciled in the territories where the Act is applicable. However,
the Act expressly provides that it is not applicable to any person belonging to
Muslim, Christian, Parsi or Jew religion.
 Any child irrespective of whether he/she is legitimate or illegitimate, born to parents
who are Hindu, Buddhist, Jain or Sikh by religion.
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 Any child, whether legitimate or illegitimate, whose one of the parents is Hindu,
Buddhist, Jain or Sikh by religion and who is brought up as a member of such
religion.
 Any other person who converted or reconverted to Hindu, Buddhist, Jain or Sikh.
Concept of divorce in modern times
The modern law on divorce, on the other hand, brought many changes to the way marriage was
perceived. Section 13 of the Hindu Marriage Act, 1955 deals with divorce and its grounds.
Divorce is no longer unknown to people, and couples can seek divorce on any of the grounds
enumerated in the Act. However, the objective of the court and legislature has always been to
preserve the institution of marriage, so Section 14 of the Act provides that no petition for
divorce can be filed by either of the parties to a marriage within one year of their marriage. The
relationship or bond between a husband and a wife, which was once considered unbreakable,
has changed with time, they can now be separated by way of divorce. Moreover, the
introduction of remarriage has also led to a lot of changes.
Apart from this, the Marriage Laws (Amendment) Act, 1976, recognised divorce by mutual
consent under Section 13B of the Act. This form of divorce is based on consent theory and takes
a progressive approach to marriage and separation of husband and wife. It is clearly visible that
there is a difference in the perspective and thought process regarding marriage in the old Hindu
law and the modern law. The uncodified Hindu law did not recognise divorce at all, but modern
law, on the other hand, is based on the principle that if two people are unhappy with each
other and it is impossible for them to spend life together, they can be separated.
Changes brought by the Amendment of 1976
The Amendment Act of 1976 brought the following major changes in the Act:
 It introduced a new provision of seeking divorce on mutual consent under Section

13B of the Act.
 Under Section 9 of the Act, the burden to prove that there exists a reasonable cause
for withdrawal from the society of another spouse is on the one who withdrew.
 Further, under Section 10 parties can seek judicial separation on the grounds
mentioned under Section 13 of the Act which means that the grounds of divorce and
judicial separation are the same.
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 It also added impotence as a ground for declaring a marriage voidable and annulled
under Section 12 of the Act.
 After the amendment of 1976, a single voluntary act of sexual intercourse with a
person other than the spouse is a valid ground for divorce under Section 13 of the
Act.
 It has reduced the time period for the compliance of decree of restitution of conjugal
rights to one year and if the decree is not complied with, the parties can seek
divorce.
 It introduced bestiality as a ground of divorce specifically available to women under
Section 13(2) of the Act.
 Further, it also gave the option of repudiating the marriage to women if solemnised
before attaining the age of 15 years.
Different Theories of Divorce
Fault Theory
Under this theory, marriage can be ended when one party to the marriage is responsible or
liable for the offence under matrimonial offences done against another spouse. Only the
innocent spouse can seek this remedy. The only drawback of this theory is when both the
spouse are at fault, then no one can seek these remedy of divorce.
Mutual Consent
Under this theory, the marriage can be dissolved by mutual consent. If both the spouse
mutually gives their consents to end the marriage, they can take the divorce. But many
philosophers criticise this theory as this concept is immoral and leads to hasty divorce.
Irretrievable Breakdown
According to this theory, the dissolution of marriage happens due to failure of the matrimonial
relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are
not able to live together again.
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Divorce under Hindu Marriage Act, 1955
In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when
the spouse can get a divorce or appeal for dissolution of marriage in a court of law. For the
interest of society, the marriage or the marital relationship needs to be surrounded by every
safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise
given other alternatives.
The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses
(Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2)
provides the grounds on which only the wife can approach the court of law and
seek the remedy of divorce.
Grounds of Divorce as per The Hindu Marriage Act
Section 13(1) provides grounds on which divorce can be sought by either of the partners in a
marriage. After the amendment of 1976, grounds for divorce specified under Section 13 of the
Act and judicial separation under Section 10 are similar. The parties also have the option of
judicial separation instead of divorce, where they can rethink their decision. The objective is to
save the sacred institution of marriage and make efforts for reconciliation. In the case of Ishwar
Singh v. Smt. Hukam Kaur (1965), the Allahabad High Court held that if the husband permitted
his wife to marry someone else of her choice because of his ill health, it does not amount to
divorce because no such petition or application had been filed in the court and so the second
marriage solemnised is illegal as the first marriage still subsists. It was also observed that a
marriage subsists until a decree of divorce has been passed by the court.
Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014), the Gauhati High Court
observed that if a marriage is broken to the extent that it is irretrievable and there are no
possibilities that the bond can be recovered and the marriage can be saved in near future,
decree of divorce can be passed by the court.
Adultery
The concept of Adultery may not be considered as an offence in many countries. But as per the
Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most
important ground for seeking divorce. Adultery means the consensual and voluntary
intercourse between a married person with another person, married or unmarried, of the
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opposite sex. Even the intercourse between the husband and his second wife i.e. if their
marriage is considered under bigamy, the person is liable for the Adultery.
The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.
In Swapna Ghose v. Sadanand Ghose
In this case, the wife found her husband with other girl lying on the same bed and the
neighbour also confirmed that the husband has committed an offence. Here the wife gets the
divorce.
In Sachindranath Chatterjee vs Sm. Nilima Chatterjee
In this case, the petitioner and the defendant were married. After marriage, the husband leaves
the wife in his home town so that she can complete her studies and go to another city for work.
He visited twice or thrice a month to meet her. Later he found that his wife commits the
adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff
approaches the court to demand divorce on the ground of adultery and his petition was
accepted and the marriage gets dissolved.
Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a person had
to prove that, on the date of the petition, his/her spouse was living in an adulterous
relationship. However, after the amendment, even a single voluntary sexual intercourse with a
person other than the spouse is a valid ground for divorce. It is given under Section 13(1)(i) of
the Act. The burden to prove that the spouse committed the offence of adultery is on the
person who made such allegations, and the standard of proof is by preponderance of
probabilities and not proof beyond reasonable doubt.
It is correct that there can be no direct evidence to prove the act of adultery, so circumstantial
evidence plays an important role. The Madhya Pradesh High Court in the case of Samuel
Bahadur Singh v. Smt. Roshini Singh (1960), rightly pointed out that in India, if a male and
female are living together under the same roof without any connections or relations, it is not
considered normal, and so adultery can be inferred from the following circumstances:
 A male and female lived together in the same house for a long time.
 They are not related to each other by way of marriage or any other relationship.
 They refused to return to their spouse.
 Both the parties cannot deny adultery because of circumstantial evidence.
 They had the opportunity to commit adultery.
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In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent were married to
each other according to Hindu ceremonies. After marriage, the appellant had an extramarital
affair with one of the nurses in the hospital where he was working, and so his wife left him. He
appealed, claiming that the allegations made by the respondent and her act of deserting him
without any reasonable cause amount to mental torture. The Hon’ble Supreme Court observed
that a man cannot take advantage of his own wrong. However, the decree for divorce was not
passed because the wife, or respondent in this case, was ready to continue her marriage and
live with him only on the condition that he must leave the other woman and end his adulterous
relationship.
It must be noted that adultery as an offence has been decriminalised by the Hon’ble Supreme
Court in the case of Joseph Shine v. Union of India (2018). However, it is still a ground of divorce
under the Hindu Marriage Act, 1955, which means that if a person commits adultery, he/she
would not be punished but the spouse can seek divorce.
Essentials of Adultery
1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another
spouse.
Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means
when one spouse beats or causes any bodily injury to the other spouse. But the concept of
mental cruelty was added as the spouse can also be mentally tortured by the other spouse.
Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is
easy to determine the nature of physical cruelty but difficult to say about mental cruelty
1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
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7. Wife living an immoral life.
8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10. Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai
In this case, the petitioner filed the divorce petition against his wife on the ground of mental
cruelty. He proved that his wife that behaviour with him and his parents was Aggressive and
uncontrollable and many times she filed the false complaint against her husband. The court
accepts the petition and grants the divorce on the ground of cruelty.
What considered as Mental Cruelty against wife by Husband
 False accusation of adultery.

 The demand for dowry.
 Impotency of Husband.
 Force to abort the child.
 The problem of drunkenness of husband.
 Husband having affairs.
 The husband lives an immoral life.
 Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends
Desertion
Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations of
marriage by one party.
Before the 1976 Amendment, desertion was only a ground for judicial separation and not
divorce. But now, desertion of any of the spouses by the other for a continuous period of two
years immediately before filing the petition is a valid ground to seek divorce as well as judicial
separation. Desertion as the ground of divorce is mentioned under Section 13(1)(i)(ib) of the
Act. In the case of Malathi Ravi v. B.V. Ravi (2014), the Supreme Court held that if there is no
48
evidence to prove that the wife had an intention to end the marriage or whether she deserted
her husband, then the court will not pass a decree of divorce. This means that the intention to
end marriage is one of the essentials of desertion, i.e., animus deserendi must exist. Also, if
there was no desertion for a continuous period of two years immediately before the
presentation of the petition or if the party assumed it, no divorce can be granted.
In the case of Ranjeet Kaur v. Surendra Singh Gill (2012), the Madhya Pradesh High Court gave
the meaning of desertion as the intention of parties to permanently abandon the spouse
without their consent and reasonable cause, which means that for the ground of desertion, the
fact of separation and animus deserendi must co-exist. In the present case, the wife denied the
allegations of cruelty and desertion made by her husband and requested that the court dismiss
his petition. In the case of Om Wati v. Kishan Chand (1983), the Delhi High Court opined that
desertion does not mean withdrawal but is a state of things. It is a question of fact. In the case
of J. Shyamala v. P. Sundar Kumar (1990), the Madras High Court held that if a wife starts living
with her parents rather than her husband because he made false allegations against her
regarding her character and unchastity, it would not amount to desertion. It must be noted that
the desertion of a spouse must be without reasonable cause. The burden of proof, in this case,
lies on the petitioner, and it must be proved that the said desertion occurred without any
sufficient and probable cause and did last for two years.
Essentials
1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati
In this case, the respondent leaves the house with the intention to abandon his wife. Later the
wife approaches the court, but the defendant proved that even though he left the house with
the intention to desert, but he tried to come back and he was prevented from doing so by the
petitioner. Here, the defendant cannot be held liable for desertion.
Conversion
If one of the spouses converts his religion to any other religion without the consent of the other
spouse, then the other spouse can approach the court and seek the remedy of divorce.
Illustration
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A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce on
the ground of conversion.
In Suresh Babu vs Leela
In this case, the husband converts himself into Muslim and marries another woman. Here the
wife Leela filed a case and demanded the divorce on the ground of conversion without her
consent and cruelty.
Unsoundness of mind
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-
1. The respondent has been incurably of unsound mind.

2. The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably
be expected to live with the respondent.
In Vinita Saxena vs Pankaj Pandit
In this case, the petitioner filed a case to get the divorce from the respondent on the ground
that the respondent was suffering from Paranoid Schizophrenia which means mental disorder.
She came to know these after her marriage. Here, the court grants the divorce on the ground of
insanity of husband.
If one of the parties, i.e., either husband or wife, is of unsound mind, then it is a valid ground
for divorce. It is given under Section 13(1)(iii) of the Act. The unsoundness may be continuous
or intermittent and incurable to the extent that it is not possible for the petitioner to continue
married life with the respondent. This was also mentioned in the Amendment Act of 1976. In
the case of Smt. Alka v. Abhinesh Chandra Sharma (1991), the Madhya Pradesh High Court
found that the wife was suffering from schizophrenia because she was cold and frigid on the
first night of marriage and could not cooperate with the husband. Also, she was not able to
handle domestic appliances, so the husband was entitled to nullity of marriage in this case. It
was also observed that the facts pertaining to the mental illness of the wife and her medical
treatment were not disclosed to either the husband or his mother and grandmother, who
negotiated the marriage on his behalf. The counsel representing the wife also argued that
breaking the marriage just after 19 days of marriage would bring upon her great tragedy.
However, the appeal made by the wife was dismissed.
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In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr. (2010), husband filed for
divorce on the ground that his wife was suffering from schizophrenia, but the Supreme Court
did not accept and agree with the allegations made by the husband that his wife was suffering
from mental disorder and desisted itself from giving any observations in this regard because of
the effect that it would have on the minor child. Further, the Calcutta High Court in the case
of Pramatha Kumar Maity v. Ashima Maity (1991) held that in order to obtain a decree for
divorce on the ground of unsoundness of mind, it must be proved that unsoundness exists to
the extent that it is impossible for the petitioner to cohabit and live with the respondent.
Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this
disease is transmitted from one person to another. Thus it is considered as the valid ground for
divorce.
In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the divorce on
the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the
expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.
In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998), a marriage was called off as the appellant was found
out to be HIV+ which is a venereal disease. Further, in the case of P. Ravi Kumar v. Malarvizhi
@ S. Kokila (2013), husband filed for divorce on the ground that the wife is suffering from HIV,
which is a communicable sexually transmitted disease. The wife, on the other hand, argued that
she is afflicted by the disease only through her husband. The medical reports proved that the
husband was not suffering from HIV. On the basis of facts and circumstances, the husband was
entitled to the decree of divorce.
Venereal Disease
Under this concept, if the disease is in communicable form and it can be transmitted to the
other spouse, then this can be considered as the valid ground for divorce.
Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and it is
incurable. There’s also a chance that B can also get infected by that disease if she lives with A.
Here, B can approach the court for the dissolution of the marriage
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Renunciation
It means when one of the spouses decides to renunciate the world and walk on the path of the
God, then the other spouse can approach the court and demand the divorce. In this concept
the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice
and is considered as a valid ground for divorce.
Illustration
A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B
has a right to approach the court and seek the remedy of divorce.
Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of that person
does not hear any news about the person alive or dead for seven years. It is considered as the
valid ground for divorce, but the burden of proof is on the person who demands the divorce.
In the case of LIC of India v. Anuradha (2004), the Supreme Court held that the death of a
person can be presumed only after the lapse of seven years. However, it does not include the
time of death. In the case of Prakash Chander v. Parmeshwari (1987), a woman was asked to
enter into a karewa marriage with her brother-in-law for the procreation of children because
her husband became a lunatic and was discharged from the Army. He was not heard of after his
discharge and was presumed to be dead. The customs of karewa marriage allowed a second
marriage if the spouse was not heard of for 2-3 years, which means that they presumed the
death of the spouse within this period. However, when she was ill-treated by her brother-in-law
and thrown out of the house, she filed for divorce, but all the allegations were denied by the
opposite party. The court in this case observed that such a custom is not judicially recognised
and that the karewa marriage between the woman and her brother-in-law does not itself
dissolve the first marriage between her and her husband.
Illustration
A was missing from the last seven years and his wife B does not get any news about him of
being alive or dead. Here B can approach the court and ask for the divorce.
52
Concept of Divorce with Mutual Consent
As per Section 13B, the person can file the petition for divorce by mutual consent of both the
parties. If the parties want to dissolve their marriage as a mutual consent are required to wait
for one year from date of marriage. They have to show that they are living separately for one or
more year and not able to live with one another.
There was no provision related to divorce by mutual consent till 1976. It was in the 1976
Amendment that the provisions for divorce by mutual consent was added. It is given
under Section 13B of the Act and is retrospective in nature, which means that it is applicable to
marriages solemnised before the commencement of the 1976 Amendment Act. According to
the Section, both the parties can jointly file a petition for divorce by mutual consent on the
grounds that they have been living separately for a year or more and cannot live together and
resume their married life. They must also provide that they both have mutually decided to end
their married life.
The Section also provides that when the petition has been filed, parties would have to wait for
six months, after which they can bring the motion again in the court for dissolution of marriage.
If the parties do not come to court after six months and within eighteen months from the date
the petition was filed, it would be presumed that they have withdrawn the petition. If the
petition is not withdrawn, the court would hear the parties and after necessary inquiry presume
that the averments made are true and pass a decree of divorce.
Landmark cases
Lily Thomas v. Union of India (2000)
Facts of the case
In this case, Smt. Sushmita Ghosh was married to Shri G.C. Ghosh, who then, after some years
of marriage, converted to Islam to take advantage of marrying twice. An NGO named Kalyani
observed the increase in the number of such cases and decided to help women who suffered
because of the conversion of their husbands to other religions only because they wanted to
exploit the advantage of a second marriage and had no faith in the religion. She, along with
other such women, filed a petition in the Supreme Court and asked the court to declare
polygamy by Hindus and non-Hindus after converting to Islam as void and illegal. She also asked
the court to restrain her husband from marrying another woman, as her marriage still subsists.
53
Issues involved in the case
 Whether the respondent must be held liable for the offence of bigamy?
 Whether the marriage solemnised by Hindus after converting to Islam be declared as
void or illegal?
Judgement of the court
The Apex Court in this case observed that mere conversion of the husband to any other religion
would not dissolve the first marriage. The Act of converting to Islam just to take the advantage
of more than one marriage amounts to religious bigotry, as the respondent had no faith in the
religion. In the present case, the respondent was held liable for the offence of bigamy because
the solemnization of a second marriage after conversion to another religion does not ipso
facto dissolve the first marriage, which was solemnised according to Hindu rituals.
Amardeep Singh v. Harveen Kaur (2017)
Facts of the case
In this case, the petitioner and respondent were married to each other and had children but
decided to live separately owing to certain issues. After some time, they filed an application for
divorce by mutual consent. They also decided to waive the cooling period or the waiting period
of six months given in Section 13B because they had been living separately for the past eight
years and were firm on their decision to seek divorce. For this, they filed a petition in the
Supreme Court to allow them to waive the period.
Issues involved in the case
Whether the period of six months for the second motion mentioned under Section 13B of the
Act can be relaxed in certain situations?
Judgement of the court
It was observed that the period of six months is there to help the parties resolve their dispute if
there is a possibility of doing so and saving the marriage. The court also observed that the
object of the legislature to introduce divorce by mutual consent was to give parties the option
to dissolve the marriage by mutual consent where there is no possibility of reconciliation and
the bond is irretrievably broken. It did not aim at prolonging the agony of the parties. The court
54
thus held that the period of six months is not mandatory but a directory, and after the following
conditions are fulfilled, it is at the discretion of the court to waive off the period:
 The statutory period of six months is already completed which means that the
parties were living separately from a long time.
 All the efforts and methods of reconciliation to save the marriage have failed.
 Other matters related to dissolution of marriage like maintenance, custody etc have
been resolved.
 The waiting period made mandatory to follow would cause frustration to the parties
and prolong their agony.
 The parties have the option to waive the waiting period of one week after the first
motion, but this can be done only after the parties have given valid reasons.
Conclusion
The purpose of marriage and its importance is different for different religions. In Hinduism, it is
a dharma for a person to get married in order to fulfil religious obligations, so there was no
concept of divorce or judicial separation. The marital bond, once created, was considered to
exist till eternity. But with the introduction of the concept of divorce, the unbreakable bond
could be broken, and husband and wife could be separated. Generally, the entire structure of
divorce is based on the faulty theory.
However, there has been inclusion of grounds like non-compliance with the decree of
restitution of conjugal rights and non-resumption of cohabitation within one year after the
decree of judicial separation has been passed for divorce. This is based on the concept of
frustration of marriage, or breakdown theory. After the 1976 Amendment, a liberal provision or
ground has been added for divorce, which is divorce by mutual consent. This is based on the
consent theory. Thus, it can be said that the marital life in a Hindu marriage has undergone
drastic changes, but the notion of marriage still remains the same. It still has religious sanctity
attached to it and the courts try to preserve the institution of marriage in every case that comes
before it.
55
10.Discuss Uniform Civil Code with relevant case laws.
The Uniform Civil Code (Hindi: समान नागरिक संहिता, romanized: Samāna Nāgarika Saṃhitā)
is a proposal in India to formulate and implement personal laws of citizens which apply on all
citizens equally regardless of their religion, gender and sexual orientation. Currently, personal
laws of various communities are governed by their religious scriptures.[1] Implementation of a
uniform civil code across the nation is one of the contentious promises pursued by India’s ruling
Bharatiya Janata Party. Personal laws are distinguished from public law and cover marriage,
divorce, inheritance, adoption and maintenance. While Article 25-28 of the Indian Constitution
guarantees religious freedom to Indian citizens and allows religious groups to maintain their
own affairs, article 44 of the constitution expects the Indian state to apply directive principles
and common law for all Indian citizens while formulating national policies.[2][3]
Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
The British feared opposition from community leaders and refrained from further interfering
within this domestic sphere. The Indian state of Goa was separated from India due to colonial
rule in the erstwhile Portuguese Goa and Daman, retained a common family law known as the
Goa civil code and thus is the only state in India with a uniform civil code till date. However, the
Goa civil code is not uniform as it has special provisions for different communities, for example,
it allows bigamy to Hindu men if the wife does not deliver a child before the age of 25 or a male
child before the age of 30. Following India’s independence, Hindu code bills were introduced
which largely codified and reformed personal laws in various sects among Indian religions like
Buddhists, Hindus, Jains and Sikhs but it exempted Christians, Jews, Muslims and Parsis, being
identified as distinct communities from Hindus.[4][5]
UCC[6] emerged as a crucial topic of interest in Indian politics following the Shah Bano case in
1985. The debate arose when the question of making certain laws applicable to all citizens
without abridging the fundamental right of right to practice religious functions. The debate
then focused on the Muslim Personal Law, which is partially based on the Sharia law, permitting
unilateral divorce, polygamy and putting it among the legally applying the Sharia law. UCC was
proposed twice, in November 2019 and March 2020 but was withdrawn soon both of the times
without introduction in parliament. The bill is reported to be being contemplated due to
differences between BJP and RSS.[7] Many opposition parties and BJP’s allies from the NDA
have opposed the Uniform Civil Code, especially from Northeast India, claiming it will go against
the “idea of India” and will end special privileges of tribal communities after renewed calls by
Prime Minister Narendra Modi in June 2023 about implementing a UCC.[8][9][10]
56
Meaning of uniform civil code
Uniform Civil Code is the ongoing point of debate within Indian mandate to replace personal
laws based on the scriptures and customs of each major religious community in India with a
common set of rules governing every citizen. In India the purpose of Uniform Civil code is to
replace the personal laws based on the scriptures and customs of each major religious
community in the country with a common set governing every citizen.
A uniform civil code will mean a set of common personal laws for all citizens. Currently, for
example, there are different personal laws for Hindus and Muslims. Personal law covers
property, marriage and divorce, inheritance and succession.
Beginning of uniform civil code
The uniform civil code became a flashpoint in Indian politics in 1985 during the Shah Bano case.
The Supreme Court had held that Bano, a Muslim woman, should get alimony from her ex-
spouse. In the context of that judgment the court had said an uniform.Personal laws were first
framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared
opposition from community leaders and refrained from further interfering within this
domestic .
The demand for a uniform civil code was first put forward by women activists in the beginning
of the twentieth century, with the objective of women’s rights, equality and secularism. Till
Independence in 1947, a few law reforms were passed to improve the condition of women,
especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst
significant opposition. Though a demand for a uniform civil code was made by Prime Minister
Jawaharlal Nehru, his supporters and women activists, they had to finally accept the
compromise of it being added to the Directive Principles because of heavy opposition.
Indian constitution on uniform civil code
57
The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of
State Policy which states that The State shall endeavor to secure for the citizens a uniform civil
code throughout the territory of India.
There are a number of cases where the Supreme Court has referred to Article 44 and the
concept of uniform civil code, mainly to highlight the lacklustre attitude of the executive and
the legislature in the implementation of the directive.
Article 44 of the Constitution calls upon the State to endeavour towards securing a uniform civil
code throughout the territory of India. It falls within Part IV of the Constitution titled as
Directive Principles of State Policy (DPSP) and understood as exhortations to the State to be
kept in mind while governing the country.
Need of uniform civil code
It Promotes Real Secularism
What we have right now in India is selective secularism which means that in some areas we are
secular and in others we aren’t. A uniform civil code means that all citizens of India have to
follow the same laws whether they are Hindus or Muslims or Christians or Sikhs. This sounds
fair and secular to me. A uniform civil code doesn’t mean it will limit the freedom of people to
follow their religion, it just means that every person will be treated the same. That’s real
secularism.
1. All Indians should be Treated Same
Right now we have personal laws based on particular religions, which means that while
Muslims can marry multiple times in India, a Hindu or a Christian will be prosecuted for doing
the same. This doesn’t seem like equality to me. All the laws related to marriage, inheritance,
family, land etc. should be equal for all Indians. This is the only way to ensure that all Indians
are treated same.
58
2. It will provide More Rights to the Women
A uniform civil code will also help in improving the condition of women in India. Our society is
extremely patriarchal and misogynistic and by allowing old religious rules to continue to govern
the family life we are condemning all Indian women to subjugation and mistreatment. A
uniform civil code will help in changing these age old traditions that have no place in today’s
society where we do understand that women should be treated fairly and given equal rights.
3. Every Modern Nation has it
A uniform civil code is the sign of modern progressive nation. It is a sign that the nation has
moved away from caste and religious politics.In fact it might be right to say that socially and
culturally we have degraded to a point where we are neither modern nor traditional. A uniform
civil code will help the society move forward and take India towards its goal of becoming a
developed nation.
A uniform civil code is of an absolute necessity for individuals belonging to different religions
and denominations and it is imperative for the promotion of national unity and solidarity. Thus,
divergent religious ideologies must merge and culminate in to common and unified principles
and objectives, adhering to the true spirit of secularism. However, after more than 60 years of
independence the aspiration of a Uniform Civil Code remains unrealized.
The idea and principle of having a uniform civil code, governing personal laws is to treat every
person equally and also so that just, fair and predictable laws protect everyone. Moreover, a
uniform civil code would put in place a set of laws that would govern personal matters of all
citizens irrespective of religion, which is the cornerstone of secularism. It would enable to put
an end to gender discrimination on religious grounds, strengthen the secular fabric and also
promote unity.
India has set before itself the ideal of a secular society and in that context achievement of a
uniform civil code becomes all the more desirable such a code will do away with diversity in
matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous.
It will create a national identity and will help in containing fissiparous tendencies in the
59
country .The uniform civil code will contain uniform provisions applicable to every one and
based on social justice and gender equality in family matters.
Merits of uniform civil code
# If a Common Civil Code is enacted and enforced:
# It world help and accelerate national integration;
# Overlapping provisions of law could be avoided;
# Litigation due to personal law world decrease;
# Sense of oneness and the national spirit would be roused, and
# The country would emerge with new force and power to face any odds finally defeating the
communal and the divisionist forces
International scenario on uniform civil code
Israel, Japan, France and Russia are strong today because of their sense of oneness which we
have yet to develop and propagate. Virtually all countries have uniform civil code or for that
matter uniform law- civil or criminal. The European nations and US have a secular law that
applies equally and uniformly to all citizens irrespective of their religion. The Islamic countries
have a uniform law based on shariah which applies to all individuals irrespective of their
religion.
Conclusion
While proponents of the UCC argue that it would be a progressive step towards safeguarding
citizens’ rights and promoting equality, critics raise concerns about potential infringements on
religious freedom and the imposition of a specific religious ideology.
The successful implementation of a Uniform Civil Code in a culturally and religiously diverse
country like India without severe repercussions remains uncertain
60
Bibliography and Webliography
https://www.nextias.com/blog/uniform-civil-code-ucc/?amp=1
https://en.m.wikipedia.org/wiki/Uniform_Civil_Code
https://www.livemint.com/news/india/uniform-civil-code-explainer-ucc-indian-constitution-
directive-principles-hindu-marriage-act-muslim-personal-law/amp-11687924522068.html
https://blog.ipleaders.in/laws-prohibiting-dowry-india/
https://www.drishtiias.com/daily-news-editorials/dowry-system-in-india
https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-
35652/
61

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Introduction

 Evolution of the Institution of Marriage & Family

HISTORICAL EVOLUTION OF MARRIAGE

The evolution of marriage is a fascinating journey that spans thousands of years,

Marriage modernisation is a significant and continuing development, characterised by

In contemporary India, the institution of marriage is undergoing a transformative

So why is it important to understand Karta in property alienation? Well, understanding Karta’s

Hindu Joint Family and Karta

Management of the Family

Power to Enter into a Contract

Power to Enter into a Contract

The Obligations of Karta

Duty to Protect the Family Property

Duty to Pay Debts

Duty to Preserve Family Traditions

Case Laws related to Karta

3.Establishment of Family Courts. Its Powers & Functions

Stage 1 � Court Counseling and Mediation

Suits or proceedings filed in family court

Family Court Act, 1984

What are the Objectives of Family Courts?

To provide speedy justice and disposal of family cases at the earliest.

Degree for nullity of marriage.

Personal Appear is Mandatory

Records of Oral Evidence and Affidavit

Act to have Overriding Effects.

4 Mitakshara coparcenery – Formation & Incidents property under Mitakshara

Vijananeshwara analyses and discusses the tests of Yajnavalkya sometimes at considerable

Sub-Division Of Mitakshara School

They are namely:

Mithila law school

Maharashtra or Bombay law school

Madras law school

Mitakshara Joint Hindu Family

Composition Of Hindu Joint Family: Classical Concept

Formation Of Mitakshara Coparcenary

5 Succession to property of a Hindu male dying intestate under the provisions of

Class I Heirs of Hindu Male

The Class I heirs include the following:

Widow of the deceased

Class II Heirs of Hindu Male

The Class II heirs include the following:

Father of the deceased

Agnates or Class III Heirs of Hindu Male

The order of succession among agnates is as follows:

Son’s son’s son

The order of succession among cognates is as follows:

The 2005 amendment to the Hindu Succession Act, 1956

6. Explain in detail Adoption by an unmarried female under the Hindu Adoption

 a Hindu by religion in any of its forms or development;

Who can Adopt?

Who can be adopted?

Maintenance of a child or of aged parents

Amount of maintenance provided

Have attained the age of minority;

Who can give a child for adoption?

The father is either dead;

When is adoption valid?

The adoptive parent/s have the capacity and rights to adopt;

So why is it important to understand Karta in property alienation? Well, understanding Karta’s