Hindu Laws Lakshay

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SYLLABUS
HINDU LAWS
1. Sources of Hindu Law.
2. Schools and Sub-Schools of Hindu Law.
3. Marriage: Essentials of a Valid Marriage, Void and Voidable Marriage.
4. Matrimonial Relief: Concept and Grounds of Various Matrimonial Reliefs viz.
 Restitution of Conjugal Rights
 Judicial Separation
 Nullity of Marriage
 Divorce
5. Legitimacy - Legal Status of Children Born of Void and Voidable Marriage.
6. Adoption
7. Hindu Minority and Guardianship Act, 1956
8. Law of Maintenance – Hindu Adoption and Maintenance Act, 1956.
9. Law of Succession under The Hindu Succession Act, 1956 – Devolution of
interest of coparcenary property (Section 6), General rules of succession in the case
of male Hindus (Section 8), General rules of succession in the case of female
Hindus (Section 15), Testamentary succession (Section 30).
Disclaimer: The Hindu Law Notes provided in this module is the compiled version of the
Hindu Law Notes from various Institutions and Web Portals; that includes, but not limited to,
Delhi University, Reliable Institute, Kurukshetra University, and WebPortals like
Hanumant.com, The Legit Eye, Share Your Essays and Notes from Professors Mrs. Radhika
Seth and Mrs. Shweta Thakur.
This module is meant only for study purpose and, not for monetary purpose and any issue
regarding the same can be mailed to us as HumanHandsTogether@gmail.com
Designed and Compiled by Mr. Lakshay Jindal [President, Human Hands Together]
An NGO working in the field of Human Rights and Legal Education.
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UNIT 0
INTRODUCTION OF THE HINDU LAW
Concept of Dharma
Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to Hindu texts
embraces everything in life. According to the Hindus, ‘Dharma’ includes not only what is known
as law in the modern sense of the term but all rules of good and proper human conduct. Dharma
is used to mean justice what is right in a given circumstance, moral, religious, pious or righteous
conduct, being helpful to living beings and things, duty, law and usage or custom having in the
force of law and also a valid Rajashasana
Origin of Hindu law

The Hindu system as modified through centuries has been in existence for over five thousand
years and has continued to govern the social and moral patterns of Hindu life with harmonizing
the diverse elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of
any known system of Jurisprudence and even now it shows no signs of decrepitude“.
Nature and scope of Hindu Law

Hindu law, though believed to be of divine origin, is based essentially on immemorial custom
and many of the acts of the people which were purely of a secular nature. But the secular nature
of the acts have been modified to suit the religious preferences of a Brahmin community. With a
desire to promote the special objects of religion or policy, they have used their intellectual
superiority and religious influence to mold the customs of the people.
Who are Hindus?

The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from
Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC
1119], the Supreme Court accepted the working formula evolved by Tilak regarding Hindu
religion that ‘acceptance of vedas’ with reverence, recognition of the fact that the number of
Gods to be worshiped at large, that indeed is the distinguishing feature of Hindu religion.
In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the
same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus.
If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.
In Sapna v. State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to
be a Christian
To whom Hindu Law apply

1. Hindus by birth
2. Off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews

4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal Tribes
To whom Hindu law does not apply

 to converts from the Hindu to the Mohammedan faith
 to the Hindu converts to Christianity
 to the illegitimate children of a Hindu father by Christian mother and who are brought up
as Christians
Constitution of India and the Enactments under the Hindu Law

Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession
Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and
Maintenance Act, 1956
Constitutional enactments are:

 Hindu Women’s Rights to Property Act, 1937
 Hindu Succession Act, 1956
Impact of Hindu Law Enactments in Fundamental Rights

Several principles of Hindu Law have been held invalid on the ground that they infringe the
Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the
Constitution and as such would be void under Article 13(1).
UNIT 1
SOURCES OF HINDU LAW
A. Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law.
These sources can be divided into four categories:
1. Shruti (Vedas)
Shruti means “what is heard”. It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four
vedas – rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the
apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
2. Smritis
Smriti means “what is remembered”. With Smritis, a systematic study and teaching of Vedas
started. Many sages, from time to time, have written down the concepts given in Vedas. So it can
be said that Smritis are a written memoir of the knowledge of the sages. Immediately after the
Vedic period, a need for the regulation of the society arose.
 Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They were mostly
written in prose form but also contain verses. It is clear that they were meant to be
training manuals of sages for teaching students.
 Dharmashastras: Dharmashastras were mostly in metrical verses and were based of
Dharmasutras. However, they were a lot more systematic and clear.
 Manusmriti: This is the earliest and most important of all. It is not only defined the way
of life in India but is also well know in Java, Bali, and Sumatra. The name of the real
author is not known because the author has written it under the mythical name of Manu,
who is considered to the the first human.
 Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its
language is very direct and clear. It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below the law.
 Narada Smriti: Narada was from Nepal and this smriti is well preserved and its complete
text is available. This is the only smriti that does not deal with religion and morality at all
but concentrates only on civil law.
3. Commenatries and Digests

After 200 AD, most of the work was done only on the existing material given in Smrutis. The
work done to explain a particular smriti is called a commentary. Commentaries were composed
in the period immediately after 200 AD. Digests were mainly written after that and incorporated
and explained material from all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan’s
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘New
Word’ and is paramount source of law in all of India.
4. Customs
Most of the Hindu law is based on customs and practices followed by the people all across the
country. Even smrutis have given importance to customs. They have held customs as
transcendent law and have advised the Kings to give decisions based on customs after due
religious consideration. Customs are of four types:
 Local Custom: These are the customs that are followed in a given geographical area.
 Family Custom: These are the customs that are followed by a family from a long time.
These are applicable to families where ever they live.
 Class or Caste Custom: These are the customs that are followed by a particular cast or
community. It is binding on the members of that community or caste. By far, this is one
of the most important source of laws.
 Guild Custom: These are the customs that are followed by traders.
Requirements for a valid custom

 Ancient
 Continuous
 Certain
 Reasonable
 Not against morality
 Not against public policy
 Not against any law
Proof of Custom
The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a
custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to
notice of the court repeated, no further proof is required.
Usage and Custom

The term custom and usage is commonly used in commercial law, but “custom” and “usage” can
be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that
arises from such repetition. A usage may exist without a custom, but a custom cannot arise
without a usage accompanying it or preceding it. Usage derives its authority from the assent of
the parties to a transaction and is applicable only to consensual arrangements. Custom derives its
authority from its adoption into the law and is binding regardless of any acts of assent by the
parties. In modern law, however, the two principles are often merged into one by the courts.
B. Modern Sources
1. Judicial Decisions (Precedents)

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

In modern society, this is the only way to bring in new laws. The parliament, in accordance with
the needs society, constitutes new laws. For example, a new way of performing Hindu marriages
in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new
customs cannot be invented. However, TN later passed an act that recognized these marriages.
3. Justice, equity and good conscience

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True
justice can only be delivered through equity and good conscience. In a situation where no rule is
given, a sense of ‘reasonableness’ must prevail. According to Gautama, in such situation, the
decision should be given that is acceptable to at least ten people who are knowledgeable in
shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be
based on ‘Nyaya’.
UNIT 2
SCHOOLS OF HINDU LAW
The Hindu Succession Act is based on the vision provided by the two schools of thought.
Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of
thoughts arose. The commentary in one part of the country varied from the commentary in the
other parts of the country.
Because of these differences two main schools emerged:
1) MITAKSHARA SCHOOL and 2). DAYABHAGA SCHOOL of legal thoughts.
1. MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The
Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The
followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great
thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or
propinquity i.e. the nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood.
The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right
to the property.
The system of devolution of property is by survivorship. The share of co-parcener in the joint
family property is not definite or ascertainable, as their shares are fluctuating with births and
deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint
family property, as his share is not definite or ascertainable.
A women could never become a co-parcener. But, the amendment to Hindu Sucession Act of
2005, empowered the women to become a co-parcener like a male in ancestral property. A major
change enacted due to western influence.
The widow of a deceased co-parcener cannot enforce partition of her husband’s share against his
brothers.
There are four Sub-Schools under the Mitakshara School:
1.1. Dravidian School of thought : (Madras school)

It exists in South India. In the case of adoption by a widow it has a peculiar custom that the
consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation)
Collector of Madura v. Mootoo Ramalinga Sethupathy (1968) (12 MIA 397) (Ramnad case):
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have
escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son,
with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would
escheat to the State. The adopted son brought a suit for declaration of the validity of the
adoption. It was a question whether a widow can make a valid adoption without her husband’s
consent but his sapinda’s consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that
Hindu law should be administered from clear proof of usage which will outweigh the written text
of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that
in the Dravida School, in the absense of authority from the husband, a widow may adopt a son
with the assent of his kindred.
1.2. Maharashtra School: (Bombay School Of Thought)

It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are
Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of
religious and Civil laws.
1.3. Banaras School Of Thought:

It exists in Orissa and Bihar. This is a modified Mitakshara School.
1.4. Mithila School Of Thought:

It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are
four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and
Sindhu Schools.
2. DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by
Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara
School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana,

Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball
offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite
shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and so can
transfer his share.
The widow has a right to succeed to husband’s share and enforce partition if there are no male
descendants.
On the death of the husband the widow becomes a co-parcener with other brothers of the
husband. She can enforce partition of her share.
Differences between Mitakshara school & Dayabhaga school.

We know that the Mitakshara is anterior to dayabhaga and it is a running commentary or the
code of Yajnabalka written by Vijaneswara. The Dayabhga is the digest of all the codes while
giving performance to the Code of Manu.
The two schools mainly differ or the following points:-

1. Inheritance
2. Devolution of Property
3. Joint Family Property
4. Factum Valet
1. Inheritence:
 Inheritance under the Mitakshara school—
1.1. The right of inheritance arises from propinquity.
1.2. There are there classes of heirs—
i. Sapinddas,
ii. Samanadakas
iii. Bandhu
1.3. So long there are gotraja sapindas or samanadakas, no bandhu or bhinn-gotra sapindas
can generally inherit.
1.4. A large number of cognate (born of the same family) - heirs are recognized in
Mitakshara than Dayavhaga
 Inheritance under Dayabhaga school—

1.1. The right of inheritance depends on spiritual efficacy.
1.2. There are three classes of heirs—
i. Sapindas
ii. Sakulyas
iii. Samanodakas
1.3. Both agnates and cognates come in the list of sapindas and inherit before sakulyas or
samanodakas.
1.4. Sapindas are those who can confer spiritual benefit on the deceased by offering pindas
and include both agnates and cognates.
2. Devolution of Property:
 Under Mitakshara school property devolves in two ways—
i. Survivorship, and
ii. Succession.
 Under Dayabhaga no living Hindu has got any heir; succession opens after his
death. But survivorship is not recognized death.
3. Joint Family Property:

 Joint family property under Mitakshara school—
a. A son, born to one of the coparceners acquires an interest in the property from the moment
of this birth and he cannot be ousted from such interest which he is alive.
b. The karta or manager has got a restricted right of transfer.
c. Property devolves on the male survivors only.
 Joint family property under Dayabhaga school—

a. Succession opens to a son only after the death of the father. A Dayabhga father is competent
to make a tesatamentory disposition of the whole of property. A son has got no right to object to
it. A son cannot claim partition during the lifetime of his father.
b. Succession once opens, share of each heir becomes fixed, and every member can alienate his
share in any way he likes.
c. Property passes by inheritance only and may go to female heirs like widows, daughter etc.
4. Factum Valet:
It is recignised by Dayabhaga school to a greater extent than Mitakshara school. But factum valet
is no defense when the act is immoral or against public policy or prohibited by any Act of
Legislature or against express principles of Hindu law.
UNIT 3
MARRIAGE UNDER HINDU MARRIAGE ACT, 1955

The traditional view of family law is that it is essentially about marriage and its consequences. If
a couple is married they automatically have certain rights and duties.
Since the family law is essentially about marriage, we shall start with this subject how a marriage
is contracted and annulled, its legal effects and the consequences of its breakdown.
The Hindu Marriage Act 1955 provides for essential conditions for the validity of a Hindu
Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation,
Nullity of Marriage, Divorce etc. (Given in Sections 5- 13 under the topic Marriage)
Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all
others, satisfied by the solemnisation of the marriage. There are three types of marriages under
this Act,
1. Valid,
2. Void and
3. Voidable.
1. VALID MARRIAGE
Under the Hindu Marriage Act, 1955 certain conditions are necessary for a valid Hindu
Marriage. Those conditions have been laid down in Sec 5 and 7 of the Act. Section reads as
follows.
By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the
parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim,
the marriage will not be a valid Hindu marriage
“A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:-
1. neither party has a spouse living at the time of the marriage;

2. at the time of marriage, neither party:
a) is incapable of giving a valid consent to it in consequence of unsoundness of
mind; or
b) though capable of giving a valid consent, has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the procreation
of children; or
c) has been subject to recurrent attacks of insanity or epilepsy
3. the bridegroom has completed the age of 21 years and the bride the age of 18 years at the
time of marriage;
4. the parties are not within the degrees of prohibited relationship, unless the custom or
usage governing each of them permits of a marriage between the two.
5. the parties are not sapindas (one is a lineal ascendant of the other) of each other, unless
the custom or usage governing each of them permits of a marriage between the two.
The essential conditions of valid Marriage are given and discussed below.
1. Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the
spouse is alive at the time of marriage that could bar the remarriage of a person. However one
must note that the first marriage of a person should be a legally valid marriage. In spite of one’s
valid marriage if the person remarries in violation of Section 5(i), the second marriage will be
null and void and he will be subjected to penal consequences. The Scheduled Tribes are
exempted from the application of the Act. But there must be a proved custom to this effect.
Bigamy – Section 5 (i)
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the
parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the “second wife” has no status of wife.
2. Condition regarding mental health or capacity
Sub clause (a) of Sec 5(ii) requires that at the time of marriage neither party is incapable of
giving a valid consent to marriage due to unsoundness of mind.
Sub clause (b) of Sec 5(ii) – Mental disorder: According to sub-clause (b) at the time of marriage
neither party to marriage should be suffering from a mental disorder of such nature and to such a
degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan
Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from
schizophrenia within short period after marriage and the disease was not disclosed to the husband
before marriage.
Sub clause (c) of Sec 5(ii) – Recurrent attacks of insanity: If a person has been subject to
recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He
cannot marry even during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.
3. Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation of
the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978
has also raised the age of marriage of girl to eighteen.
4. Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(g) of the Act. According to Section 3(g) “degree of
prohibited relationship” means when two persons are related to each other in any of the
following manners:
1. By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the
Sapinda relationship which extends up to fifth degree in the line of father and third
degree in the line of the mother. The distinction of this category is that it extends even
beyond the Sapinda ascendants.
2. By affinity: If one is the husband or wife of the lineal ascendants or descendants of the
other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law,
step mother and step son or step-father and step daughter are thus within the degrees of
prohibited relationship.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

void. It is also punishable under section 18(b) of the Act.
1. ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees
of Prohibited relationship.
2. ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls
within the degree of Prohibited relationship.
3. ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-
mother by half-blood relationship.
5. Avoidance of sapinda relationship
According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those
who are related by body or blood or consanguinity are sapindas among themselves. The Hindu
Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda
relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent
through the mother.
According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common lineal
ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as
far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced upwards in each case
from the person concerned, who is to be counted as the first generation.
Rules for determining Sapinda relations:
1. The relationship extends as far as the third generation in the line of ascent through the
mother in case of both the parties.
2. The relationship extends as far as the fifth generation in the line of ascent through the
father in case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case
of both through the mother; or it may subsist in case of one of them through the father
and on case of the other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted
inclusive of the persons concerned and the common ancestor or ancestress.
5. Sapinda relationship includes relationship by half or uterine blood as well as by full blood
and by adoption. It also includes both, legitimate and illegitimate blood relationship.
2. VOID MARRIAGES [Section 11]
A Void Marriage contravenes some tenet which is envisaged as basic to the institution of the
marriage. Section 11 states that any marriage solemnized at the commencement of this Act shall
be null and void and may, on a petition presented by either party thereto against the other party
be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses
(1), (4) and (5) of Sections.
Thus a marriage will be void ab initio,

1. if any party to marriage has a spouse living at the time of the marriage [Section 5(i)]
2. if the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(iv)]
3. If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(v)].
Provision is prospective but decree of court has retrospective operation, Section 11 of this
Act is prospective in nature. It is only applicable to marriages solemnized after the
commencement of HINDU MARREAGE ACT, 1955. It is not applicable to marriages
solemnized before the commencement of the HINDU MARREAGE ACT, that is before 18th
May, 1955, though such marriages may be void. But the decree of nullity passed in the case of a
void marriage has retrospective operation. It annuls the marriage not from the date of its passing
but from the date of the solemnization of marriage.
Effect of a Void Marriage

The expression "Void Marriage" is simply a convenient phrase. A Void Marriage is no marriage.
It is void since its inception. A void marriage does not alter or affect the status of the parties nor
does it create any rights and obligations between the parties which normally arise from a valid
marriage. The relationship of husband and wife does not come into existence from a void
marriage. The position of the wife of a void marriage is not better than concubine. The issues
from a void marriage are illegitimate unless legitimized by law (as per, Section 16, HINDU
MARREAGE ACT) in some way.
In M.M. Malhotra v UOI 2005, the Apex Court observed that the marriages covered by Section
11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing
in law at all if and when such a question arises. Although the Section permits a formal
declaration to be made on the presentation of the petition, it is not essential to obtain in advance
such a formal declaration from a court in a proceeding commenced for the purpose. If one
withdraws from the society of the other, the other party has no right to the restitution of conjugal
rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later
marriage is not affected because of the first so called marriage.
"On a petition presented by either Party thereto", It is only the parties to marriage who can
move a petition for the declaration of nullity of marriage. The first wife, during the subsistence
of whose marriage the husband takes second wife, has no right to move for declaration of nullity
of the subsequent marriage under this Section. However, there is nothing in the Section or any
other provision of any law to debar a person affected by an illegal marriage from filing a
regular suit in a civil court for its declaration as void, if such party was affected by such
marriage. There can be a civil suit by a person for declaration that the marriage of A with B was
a nullity and for consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff has
any cause of action for such relief. In Uma Shanker Verses. Radha Devi, the Patna High Court
ruled that the first wife could obtain perpetual injunction to prevent second marriage of her
husband under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act.
3. VOIDABLE MARRIAGES [Section 12]
A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. A voidable marriage remains valid and binding and continues to subsist for
all purposes, unless a decree is passed by the court annulling the same on any of the grounds
mentioned in the Section. Section 12 is both retrospective and prospective unlike Section 11
which is only prospective.
Section 12 reads as follows,

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the following grounds, namely,
(a) that the marriage has not been consummated owing to the impotence of the
respondent, or
(b) that the marriage is in contravention of the condition specified in clause (2) of
section 5, or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of
the petitioner was required under section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of
such guardian was obtained by force or by fraud as to the nature of the ceremony or as to
any material fact or circumstance concerning the respondent, or
(d) that the respondent was at the time of the marriage pregnant by some person other
than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—
(i) the petition is presented more than one year after the force had ceased to
operate or, as the case may be, the fraud had been discovered, or
(ii) the petitioner has, with his or her full consent, lived with the other party to
the marriage as husband or wife after the force had ceased to operate or, as the
case may be, the fraud had been discovered,
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the
court is satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged,
(ii) that proceedings have been instituted in the case of a marriage solemnised
before the commencement of this Act within one year of such commencement
and in the case of marriages solemnized after such commencement within one
year from the date of the marriage, and
(iii) that marital intercourse with the consent of the petitioner has not taken pJace
since the discovery by the petitioner of the existence of the said ground."
Grounds for Voidability of a Marriage

A decree of nullity can be granted under Section 12 only on the grounds mentioned in the
Section and not merely because the parties to the marriage cannot live happily together for any
domestic reasons. The court must look only to the provisions of the Act and see whether the
requirements of Section 12 are satisfied and whether there are any grounds for refusing relief
under Section 23(1). This section lays down four grounds on which a Hindu marriage becomes
voidable. These are,
1. Inability of the respondent to consummate the marriage on account of his or her impotency.
2. Respondents incapacity to consent or suffering from a mental disorder [Section 5(2)]
3. Consent of the petitioner being obtained by fraud or force.
4. Concealment of Pre-marriage pregnancy by the respondent.
 DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGE.

A void marriage is void-ab- initio. It does not alter the status of the parties they do not become
husband and wife and it does not give rise to mutual rights and obligation of the parties. On the
other hand a voidable marriage remains valid and binding and continues to subsist for all purpose
unless a decree annuls it. The parties to a void marriage may perform another marriage without
getting a decree declaring their marriage as void and neither will be guilty of bigamy.
UNIT 4
MATRIMONIAL RELIEF: CONCEPT AND GROUNDS OF VARIOUS

MATRIMONIAL RELIEFS
The very purpose of marriage is to unite legally. It lays down that the legally wedded couple
must live together throughout the life sharing pleasures and pains. However, in some case,
matrimonial disputes takes place due to misunderstanding or indifferent attitudes between the
husband and the wife. In such case, to provide relief, to the aggrieved spouse, certain
matrimonial remedies are incorporated in the Hindu Marriage Act, 1955. Those matrimonial
remedies are:
1. Restitution of Conjugal Rights
2. Judicial Separation
3. Nullity of Marriage
4. Divorce
1. RESTITUTION OF CONJUGAL RIGHTS

The expression "restitution of conjugal rights" in the normal sense means restoration of conjugal
rights which were enjoyed by the parties previously. The text of Hindu law recognised the
principle "let mutual fidelity continue until death." Hindu law enjoined on the spouses to have
the society of each other. While the old Hindu law stressed on the wife's implicit obedience to
her husband, it did not lay down any procedure for compelling her to return to her husband
against her will. It became necessary to find some remedies and procedures so as to see the
marriage tie intact and would not be disturbed by some petty quarrels between the spouses. As a
measure of positive relief in the form of restitution of conjugal rights, Section 9 of the HINDU
MARREAGE ACT grants statutory recognition to the right of the couple to have consortium of
each other. Anyone spouse leaving the other without just cause and excuse would be proceeded
against by the other in a court of law praying for a decree of restitution of conjugal rights. The
concept of the existence of the court's power to give this relief was borrowed from English law.
It must be noted here that this is the only positive relief under the Hindu Marriage Act while
other remedies tend to weaken or disrupt marriage.
Section 9, HINDU MARREAGE ACT reads as under, "When either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply, by petition to the district court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no legal ground why
the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation- Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society."
Foundation of this Right, It is the well settled principled of law that the foundation of the right to
bring a suit for restitution of conjugal rights is the fundamental right of matrimonial law that one
spouse is entitled to the society and comfort of the other spouse and where either of the spouses
has abandoned or withdrawn from the society of the other without reasonable excuse or just
cause there should be a decree for restitution of conjugal rights.
Pre-requisites for grant of Restitution of Conjugal Rights

(1) The respondent has withdrawn from the society of the petitioner.
(2) The withdrawal by the respondent party is without a reasonable excuse.
(3) The court is satisfied that the statements made in the petition are true.
(4) There is no legal ground for refusing to grant application.
Withdrawal from the Society, The expression, "society" used in this Section should be
understood as marital cohabitation that is to say that the husband cherishing and supporting his
wife as a husband should do and a wife rendering duties as a housewife. Though they may not
live under the same roof yet there would be cohabitation in the wider sense of the term if they
fulfil the mutual duties to each other as husband and wife.
The expression "withdrawal from the society of the other" involves a mental process besides
physical separation. It means withdrawal from the totality of conjugal relationship, such as
refiisal to stay together, refusal to give comfort to other, refusal to have marital intercourse and
refusal to discharge matrimonial obligations. Where the husband throws out or leave a wife who
is guilty of matrimonial offence (adultery, cruelty or apostasy), it can not be said that she has
withdrawn from the society of the husband. The reason is that she has not left the husband on her
own. Withdrawal by the respondent takes place when the respondent does it voluntarily. In cases
where husband compelled his wife to leave the matrimonial home is not withdrawal by the wife
from the husband's society.
Desertion and Withdrawal from the Society, In the case of judicial separation under Section
10 read with Section 13 "desertion" has to be proved. The word "desertion" is not used in Section
9. The quality of permanence is one of the essential elements which differentiates "desertion"
from "withdrawal from the society". Failure to render conjugal duties, refusal to stay together or
of marital intercourse with the other spouse, would normally constitute withdrawal from the
society of the other spouse.
Petitioner must have bona fide Intention, The decree of divorce grantable under Section 13(1
A)(2) is a consequence of the decree of the restitution of conjugal rights. Where it finds that the
mind of the petitioner is stuffed more with the idea of divorce than regaining comfort consortium
then the court may refuse this relief. If the petitioner wants to use the decree as a stepping stone
for divorce in the long run, the court may refuse to grant this decree because the object of the
petitioner is not to restore living together. There must be a bona fide desire to resume
cohabitation. Restitution will be refused where the petition is not bona fide or filed with an
ulterior motive or where it will be unjust to pass a decree.
In Sushil Kumari Dang Verses. Prem Kumar, where a petition for restitution of conjugal right
is filed by the husband and the husband also accuses the wife of adulterous conduct, the court
held that these two claims cannot stand side by side. They are incompatible. The mere fact that
seven days after the decree of the restitution by lower court the husband moved another petition
for judicial separation, shows the extent of his sincerity and the interest in keeping the wife with
him. Observing thus, the Delhi High Court set aside the decree of restitution which was granted
by the lower court.
Effect of non compliance of Decree of Restitution, Order 21 Rules 32 and 33 of the CPC lay
down the procedure for the execution of the decree for the restitution of conjugal rights. If the
party against whom a decree is passed will-fully disobeys it, the decree may be enforced by the
attachment of his property. He or she cannot be detained in the civil prison for that. If the party
does not obey even after the attachment of property the decree can be used as a device to obtain
divorce.
 WITHDRAWAL WITHOUT REASONABLE EXCUSE
If the withdrawal by one spouse from the society of the other is founded on a reasonable excuse
no decree can be passed under this Section. The expression "reasonable excuse" is not defined in
the Act. The grounds on which judicial separation or nullity of marriage or divorce under Section
10,12 or 13 of this Act can be taken as reasonable excuses within the meaning of the Section but
the court may consider any other ground as a ground just or sufficient as reasonable excuse on
the part of respondent to live separately from the other spouse.
What would be a reasonable excuse cannot be reduced to a formula and would vary with time
and circumstances and will have to be determined by the Court in each individual case in the
light of the features peculiar to it. It cannot be said that a reasonable excuse cannot exist except
in the form of a ground recognised by the Act as valid for judicial separation or for divorce.
Something less than such a ground of a matrimonial offence may, therefore, amount to a
"reasonable excuse" within the meaning of Section 9 (1) of the Act.
Burden of Proof, By the explanation added to the Section, the burden of proving existence of
justification or reasonable excuse has been placed on the person against whom, the allegation of
withdrawal is made. The Section unequivocally indicates that once the factum of withdrawal
from society by one of the spouses is proved, the reasonableness of the withdrawal has to be
proved by the withdrawing spouse.
 Cases of reasonable excuse
In the following circumstances the courts held that there was a reasonable excuse for the
respondent to withdraw from the society of the petitioner and for the reason restitution
was refused,
(1) Marriage was not solemnized in accordance with the customary rites.
(2) The petitioner is guilty of physical and mental cruelty.
(3) The petitioner is guilty of persistent neglect of the respondent and continued to be
indifferent towards the respondent.
(4) The petitioner was impotent towards the respondent.
(5) The petitioner has another wife living.
(6) The husband was living with the widow of his brother.
(7) The petitioner is living with a concubine.
(8) Husband's false accusation of adultery or immorality.
(9) The petitioner is himself guilty of deserting the respondent.
(10) The petitioner has committed adultery.
 Cases of absence of reasonable excuse
(1) There is an agreement between the parties to live separately, such an agreement,
whether ante-nuptial or post nuptial is opposed to public policy.
(2) The husband did not come to fetch his wife.

(3) There is too much difference of age between the parties.
(4) The wife does not like the place of employment of the husband.
(5) The husband cannot provide the wife the comforts which she is being given by her
parents in their home.
(6) The husband refuses to live with her in her parental place.
(7) The husband is not maintaining a high standard of living.
(8) The husband doubted the chastity of the wife, although there was no piece of evidence
to prove it.
Resumption of cohabitation, Where the parties have resumed cohabitation the petition for
restitution of conjugal rights is not maintainable. Even if the parties are living separately and
their circumstances prove that the establishment of a new matrimonial home is not possible, still
there can be resumption of cohabitation by resumption of intercourse. But the resumption of
cohabitation depends upon the intention of the parties. Mere acts of sexual intercourse may not
be decisive of such an intention. Where a spouse has withdrawn and later made bona fide
attempts to resume cohabitation but the other spouse refused, it was held that the spouse who
initially withdrew from the society was entitled to a decree for restitution of conjugal rights as
the original wrong was sought to be rectified by a bona fide offer to resume cohabitation. If that
offer is not bona fide there can be no question of resumption of cohabitation.
2. JUDICIAL SEPARATION
Grounds for Judicial Separation [Section 10(1)]
Judicial separation is temporary suspension of marital rights between the spouses as a result of
decree passed by the Court on any one of the grounds mentioned in the Section. Section 10(1)
provides that either party to Marriage may present a petition praying for a decree of judicial
separation on any of the grounds specified in Section 13(1) and in case of wife besides the above
ground she can have additional grounds available as mentioned in Section 13(2) of the Act.
Thus, it is Manifest that the grounds for judicial separation and divorce are virtually the same.
Whatever the grounds of divorce under Section 13(1) and (2 have been laid down, they have
been similarly adopted in Section 10. Thus under Section 10 now the grounds of judicial
separation are,
(1) Adultery, Under the Marriage Laws (Amendment) Act, 1976, the expression "living in
adultery" has been dispensed with and it has been replace* by a simple requirement of adultery,
that is, where the other party has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse. And thus, even a single act of adultery
may be sufficient now for the relief under this head.
(2) Cruelty, Cruelty is a ground for matrimonial reliefs under all matrimonial laws. Where the
other party has treated the petitioner with cruelty, the petitioner can claim the relief of judicial
separation. The term cruelty is nowhere defined, nor is it capable of any definition. It has no
parameters, it is subjective and relative. It would differ from place to place, from person to
person and would also vary depending upon social and cultural backgrounds of the parties.
(3) Desertion, Judicial separation may be granted where the other party has deserted the
petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition. The expression "desertion" means the desertion of the petitioner by
the other party to the marriage without reasonable cause and without the consent or against the
wish of such party and includes the wilful neglect of the petitioner by the other party to the
marriage.
(4) Unsoundness of Mind, To get relief on this ground the petitioner has to .prove that, (1) the
respondent has been incurably of unsound mind or, has been suffering continuously or
intermittently from mental disorder of and (2) the nature and degree of the disease is such that
the petitioner cannot reasonably be expected to live with the respondent. Both the elements
must be established for the grant of the relief. The expression 'mental disorder' means mental
illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder
or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder
means a persistent disorder or disability of mind which results in abnormally aggressive or
seriously irresponsible conduct on the part of the other party, and whether or not it requires or is
susceptible to medical treatment.
(5) Conversion/Apostasy, If a party to Marriage has renounced the Hindu religion and embraced
some other religion, it is a ground for the other party to petition for judicial separation. If a
person leaves the Hindu religion to embrace some other religion that he goes out of the fold of
the definition of Hindu as given under Section 2 of the Act, then he is said to have converted
himself.
(6) Virulent and Incurable Leprosy, One of the grounds for Judicial separation is that the
respondent has been suffering from a virulent and incurable form of leprosy. The expression
'Virulent' has been interpreted as Malignant or Venomous.
(7) Venereal Disease, Judicial separation is obtainable if the respondent has been suffering from
venereal disease in a communicable form.
(8) Renunciation of World, Under Hindu law renouncing from the worldly affairs by entering
any religious order amounts to civil death and it may amount to desertion of the petitioner.
(9) Presumed death (Missing Spouse), A person may present a petition for judicial separation
on the ground that the other party to the marriage has not been heard of as being alive for a
period of seven years or more by those persons who would naturally have heard of him or her
had that other party been alive.
Additional grounds to wife to claim decree
The Section has further laid down additional grounds to wife to claim decree for the judicial
separation on the ground of,
(1) Bigamy, In the case of a marriage solemnized before the commencement of this Act, a wife is
entitled to present a petition for judicial separation on the ground (a) that the respondent husband
had married again before the commencement of the Act or (b) that any other wife of the
respondent husband to whom he was married before such commencement was alive at the time
of the solemnization of the marriage of the petitioner with the respondent. A petition by a wife
for judicial separation will lie on either of the these grounds provided that the other wife is alive
at the time of the presentation of the petition.
(2) Rape, Sodomy or Bestiality, A wife can seek judicial separation on the ground that since the
solemnization of the marriage the husband has been guilty of rape, sodomy or bestiality.
(3) Non-resumption of Cohabitation after decree or Order of Maintenance, A wife can seek
judicial separation where a suit under Section 18, HINDU ADOPTION AND MAINTENANCE
ACT or in a proceeding under Section 125 Cr.P.C., a decree or order, as the case may be, has
been passed against the husband awarding maintenance to the wife and that since the passing of
such decree or order, cohabitation between the parties has not been resumed for one year or
upwards.
(4) Option of Puberty (Repudiation of the Marriage), If a girl is married before she completes
the age of 15 years she is given an option to repudiate that marriage after completing the age of
15 years. This option must be exercised before attaining the age of 18 years. The Act provides no
particular form of repudiation. It may be by, filing a petition or by an overt act. If she has
exercised this option to repudiate her marriage she can petition for judicial separation or divorce
on this ground after completing 18 years of age.
3. NULLITY OF MARRIAGE
Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all
others, satisfied by the solemnisation of the marriage. There are three types of marriages under
this Act,
1. Valid,
2. Void and
3. Voidable.
This distinction relates to the pre-marriage impediments to marriage which are clearly enunciated
in Section 5 of the Act. If absolute impediments exist, a marriage is void ab initio. Section 11
deals with void marriages. If relative impediments exist, a marriage is voidable. Section 12 deals
with voidable marriages. All other marriages which are not covered by these two Sections are
valid.
VOID MARRIAGES [Section 11]
A Void Marriage contravenes some tenet which is envisaged as basic to the institution of the
marriage. Section 11 states that any marriage solemnized at the commencement of this Act shall
be null and void and may, on a petition presented by either party thereto against the other party
be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses
(1), (4) and (5) of Sections.
Thus a marriage will be void ab initio,
1. if any party to marriage has a spouse living at the time of the marriage [Section 5(1)]
2. if the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(4)]
3. If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(5)].
Provision is prospective but decree of court has retrospective operation, Section 11 of this
Act is prospective in nature. It is only applicable to marriages solemnized after the
commencement of HINDU MARREAGE ACT, 1955. It is not applicable to marriages
solemnized before the commencement of the HINDU MARREAGE ACT, that is before 18th
May, 1955, though such marriages may be void. But the decree of nullity passed in the case of a
void marriage has retrospective operation. It annuls the marriage not from the date of its passing
but from the date of the solemnization of marriage.
Effect of a Void Marriage, The expression "Void Marriage" is simply a convenient phrase. A
Void Marriage is no marriage. It is void since its inception. A void marriage does not alter or
affect the status of the parties nor does it create any rights and obligations between the parties
which normally arise from a valid marriage. The relationship of husband and wife does not come
into existence from a void marriage. The position of the wife of a void marriage is not better than
concubine. The issues from a void marriage are illegitimate unless legitimized by law (as per,
Section 16, HINDU MARREAGE ACT) in some way.
In M.M. Malhotra v.. UOI, the Apex Court observed that the marriages covered by Section 11
are void ipso jure, that is, void from the very inception and have to be ignored as not existing in
law at all if and when such a question arises. Although the Section permits a formal declaration
to be made on the presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If one withdraws
from the society of the other, the other party has no right to the restitution of conjugal rights. If
one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is
not affected because of the first so called marriage.
"On a petition presented by either Party thereto", It is only the parties to marriage who can
move a petition for the declaration of nullity of marriage. The first wife, during the subsistence
of whose marriage the husband takes second wife, has no right to move for declaration of nullity
of the subsequent marriage under this Section. However, there is nothing in the Section or any
other provision of any law to debar a person affected by an illegal marriage from filing a
regular suit in a civil court for its declaration as void, if such party was affected by such
marriage. There can be a civil suit by a person for declaration that the marriage of A with B was
a nullity and for consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff has
any cause of action for such relief. In Uma Shanker v. Radha Devi, the Patna High Court ruled
that the first wife could obtain perpetual injunction to prevent second marriage of her husband
under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act.
VOIDABLE MARRIAGES [Section 12]
A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. A voidable marriage remains valid and binding and continues to subsist for
all purposes, unless a decree is passed by the court annulling the same on any of the grounds
mentioned in the Section. Section 12 is both retrospective and prospective unlike Section 11
which is only prospective.
Grounds for Voidability of a Marriage, A decree of nullity can be granted under Section 12
only on the grounds mentioned in the Section and not merely because the parties to the marriage
cannot live happily together for any domestic reasons. The court must look only to the provisions
of the Act and see whether the requirements of Section 12 are satisfied and whether there are any
grounds for refusing relief under Section 23(1). This section lays down four grounds on which a
Hindu marriage becomes voidable. These are,
1. Inability of the respondent to consummate the marriage on account of his or her impotency.
2. Respondents incapacity to consent or suffering from a mental disorder [Section 5(2)]
3. Consent of the petitioner being obtained by fraud or force.
4. Concealment of Pre-marriage pregnancy by the respondent.
4. DIVORCE
Divorce means dissolution of marriage by a competent court. This paper discusses divorce under
Hindu Law. It analyses how the concept was non-existent under ancient law due to the
sacramental nature of marriage, but was introduced under the Hindu Marriage Act, 1955. It
studies the different theories of divorce- fault, mutual consent, breakdown; and also describes the
grounds for divorce under this Act, with focus on adultery and cruelty, and how these grounds
were modified through amendments. It briefly dwells on the grounds that are only available to a
wife. The paper addresses the pros and cons of addition of irretrievable breakdown as a ground
for divorce amidst growing debate about its merits.”
4.1 Concept of Divorce
Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.
According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares” let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife.”
However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.
4.2 Theories of Divorce
There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.
Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and only innocent party can seek the remedy of divorce. However
the most striking feature and drawback is that if both parties have been at fault, there is no
remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach will
promote immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.
The third theory relates to the irretrievable breakdown of marriage. The breakdown of marriage
is defined as “such failure in the matrimonial relationships or such circumstances adverse to that
relation that no reasonable probability remains for the spouses again living together as husband
& wife.” Such marriage should be dissolved with maximum fairness & minimum bitterness,
distress & humiliation.
Some of the grounds available under Hindu Marriage Act can be said to be under the theory of
frustration by reason of specified circumstances. These include civil death, renouncement of the
world etc.
4.3 Grounds for Divorce under Hindu Marriage Act
It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relation should be surrounded with every safeguard and its severance be
allowed only in the manner and for the cause specified by law. Divorce is not favored or
encouraged, and is permitted only for grave reasons.
In the modern Hindu law, all the three theories of divorce are recognized & divorce can be
obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based
divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the
husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife
alone could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were
amended in the form of Section 13(1A), thus recognizing two grounds of breakdown of
marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a
new section 13B for divorce by mutual consent.
The various grounds on which a decree of divorce can be obtained are as follows-
4.3.1 Adultery
While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery. In
adultery there must be voluntary or consensual sexual intercourse between a married person and
another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during
the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous
marriage is not adultery. But if the second marriage is void, then sexual intercourse with the
second wife will amount to adultery.
Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce.
Since adultery is an offence against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to
the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then
the husband would not be entitled to divorce.
In Swapna Ghose v. Sadanand Ghose AIR 1979 Cal 1, the wife found her husband and the
adulteress to be lying in the same bed at night and further evidence of the neighbors that the
husband was living with the adulteress as husband and wife is sufficient evidence of adultery.
The fact of the matter is that direct proof of adultery is very rare.
The offence of adultery may be proved by:
 Circumstantial evidence
 Contracting venereal disease
4.3.2 Cruelty
The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided
on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to
say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts pain of such a degree and duration that it adversely affects the health, mental or
bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta AIR 2002 SC
2528, the court has defined mental cruelty as ‘the state of mind.’
Some Instances of Cruelty are as follows –
 false accusations of adultery or unchastity
 demand of dowry
 refusal to have marital intercourse/children
 impotency
 birth of child
 drunkenness
 threat to commit suicide
 wife’s writing false complaints to employer of the husband
 incompatibility of temperament
 irretrievable breakdown of marriage
The following do not amount to cruelty-
 ordinary wear & tear of married life

 wife’s refusal to resign her job
 desertion per se
 outbursts of temper without rancor.
4.3.3 Desertion
Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.
The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:
 the factum of separation

 animus deserdendi (intention to desert)
 desertion without any reasonable cause
 desertion without consent of other party
 statutory period of two years must have run out before a petition is presented.
In Bipinchandra v. Prabhavati AIR 1957 SC 176, the Supreme Court held that where the
respondent leaves the matrimonial home with an intention to desert, he will not be guilty of
desertion if subsequently he shows an inclination to return & is prevented from doing so by the
petitioner.
4.3.4 Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.
4.3.5 Insanity
Insanity as a ground of divorce has the following two requirements-
1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner cannot reasonably be expected to
live with the respondent.
4.3.6 Leprosy
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a
psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it is provided as a ground for divorce. The onus of proving this is on the petitioner.
4.3.7 Venereal Disease
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for
which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).
4.3.8 Renunciation
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the
world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order. A person who
does this is considered as civilly dead. Such renunciation by entering into a religious order must
be unequivocal & absolute.
4.3.9 Presumption of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent are
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in fact alive at the
time when the decree was passed.
Wife’s Special Grounds For Divorce
Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
1. Pre-Act Polygamous Marriage
This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil AIR 1963 Mys. 118, where a man had
two wives, one of whom sued for divorce, and while the petition was pending, he divorced the
second wife. He then averred that since he was left only with one wife, and the petition should be
dismissed. The Court rejected the plea.
Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.
2. Rape, Sodomy or Bestiality
Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.
3. Non-Resumption of Cohabitation after a Decree/Order of Maintenance
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not
been resumed between parties after one year or upwards, then this is a valid ground for suing for
divorce.
4. Repudiation of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.
Irretrievable Breakdown of Marriage
Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.
Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.
Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is
granted:
(i) Guilt theory or Fault theory,

(ii) Consent theory,
(iii) Supervening circumstances theory.
The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in
legal jurisprudence, based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any reason and if the
matrimonial relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouse can live peacefully with each
other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exist only in name and not
in reality.
The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.
Recently the Supreme Court Naveen Kohli v. Neelu Kohli 2006(3) SCALE 252, has
recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite
irretrievable breakdown of marriage as a reason to seek divorce. Expressing the concern that
divorce could not be granted in number of cases where marriages were virtually dead due to the
absence of the provision of irretrievable breakdown, the court strongly advocated incorporating
this concept in the law in view of the change of circumstances.
The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, public interest requires the recognition of
the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled
to resume life with the consort and that situations causing misery should not be allowed to
continue indefinitely as law has a responsibility to adequately respond to the needs of the society.
The profound reasoning is that in situations when there is absolutely no chance to live again
jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive.
Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that
the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.
4.4 Merits
The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage.
4.5 Demerits
The Law Commission of India in Chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:
(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.
(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.
4.6 Conclusion
Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has
changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of
such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. But the manner in which the judiciary is dealing with the
subject of irretrievable break down of marriage, it is feared that it will completely pause the
system of marriages. Every theory has its negative and positive traits. There applicability differs
from situation to situation. Therefore it is very essential that the lawmakers of our country should
deal with the subject in a very cautious manner after considering in detail its future implications.
Unit 5
LEGITIMACY - LEGAL STATUS OF CHILDREN BORN OF VOID AND

VOIDABLE MARRIAGE.
Article 16 of the HMA, 1955
(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be legitimate, whether such
a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976
(68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a petition under this
Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any
child begotten or conceived before the decree is made, who would have been the legitimate child
of the parties to the marriage if at the date of the decree it had been dissolved instead of being
annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon
any child of a marriage which is null and void or which is annulled by a decree of nullity under
Section 12, any rights in or to the property of any person, other than the parents, in any case
where, but for the passing of this Act, such child would have been in capable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his parents.
Before the amendment when a marriage was void the illegitimate issue could claim a right of
inheritance under s. 16 only if a decree for nullity had been passed but not otherwise. That was
the interpretation given to that section in Thirumathi Ramayyammal v. Thirumathi Muthummal,
AIR 1974 Mad. 321. The anomaly of such a view was pointed out by Rama Krishna, J, earlier in
Gowri Ammal v. Thulnsi Animal, AIR 1962 Mad. 510 as follows : —
“It is obvious that the obtaining of a decree of nullity as a prerequisite to the grant of legitimacy
to children under section 16 of our Act is anomalous, and can work a great deal of hardship in
some cases. Void marriage under section 5 of the Act cover polygamous marriage, marriages
within prohibited degrees and sapinda marriages.
Many couples who have married in contravention of these provisions would not have cared to go
to the court in their life time to get the marriages annulled. The result is their children being
illegitimate will be deprived of succession to property. In a suit after the life time of their
parents, at the instance of a third party”
In Gowri Ammal v. Thulasi Ammal, AIR 1962 Mad. 510, the plaintiffs claimed partition with
the defendants of the suit property belonging to the deceased Periaswami. The defendants were
the first wife and son of Periaswami but the marriage being bigamous was void under s. 5. It was
held that, therefore, the 1st plaintiff could not succeed in the suit.
The 2nd plaintiff, her daughter, could have succeeded if the declaration of nullity of marriage
had been obtained during Periaswamy’s lifetime. As that was not done the 2nd plaintiff also was
non-suited. This anomaly has now been removed. On the facts of this case under the amended s.
16, the 2nd plaintiff can succeed for she is to be regarded as a legitimate child even though the
decree for nullity had not been obtained.
The result of s. 16 as amended in 1976 is to confer legitimacy on the child of a void marriage. In
Shantaram v. Dagubhai, AIR 1987 Bom. 182, A married С while his first wife В was alive. A
son D was born to С. В and her three daughters claimed 1/4th share each in the property left by
A on his death.
The Bombay High Court held that D also was entitled to a share since under s. 16 he should be
regarded as legitimate though the marriage of his mother was void. So the Plaintiffs (B and her
three daughters) were entitled only to l/5th share each. So far a С the wife whose marriage was,
void is concerned, she is entitled only to maintenance under s. 25 of the Act.
The son of the void marriage can claim only inheritance to the separate property of his father. He
cannot claim any right in the coparcenary property. Only a legitimate son can claim the joint-
family property because he has a right by birth.
The condition precedent for invoking s. 16 is that there must be either de jure or de facto
marriage. Ramkali v. Mahila Shyamwati, AIR 2000 MP 288.
It is to be noted that the children born of bigamous marriage and legally valid marriage will have
equal status. Rameshwari Devi v. State of Bihar, AIR 2000 SC 735.
UNIT 6
ADOPTION
6.0 EFFECTS OF ADOPTION BEFORE THE ACT OF 1956

6.0.1 Doctrine of Relation Back Paternal Affiliation:
Before the Act, the doctrine of relation Back was in operation.
The Doctrine of Relation Back (Paternal Affiliation) Adoption confers rights on the child w.e.f.
the date of adoption. This position was the same in the old law also. But under old law, when the
adoption was made by a widow, the adoption would come into force from the date of the death
of her (widow’s) husband. This doctrine gives retrospective effect to adoption by a widow under
the old Law. In other words, all the rights of the adoptee (person taking the son in adoption)
related back from the date of death of the adoptive father (widow’s husband).
The reason was the woman could not adopt on her own without the consent/authority of her
husband or his Sapindas. Therefore, the adoption is deemed to have taken place on the date of
the death of her husband. The Relevant leading case on this Point is Sawan Ram v. Kalawati
AIR 1967 S.C 1761.
The Supreme Court held that the son adopted by the widow was deemed to be the son of her
deceased husband and the adoption would be effective from the date of the death of her husband
(i.e. in 1948). Therefore, the adopted son was entitled to inherit the property of the deceased
husband. The above view laid down in sewan Ram’s case was followed by, the Supreme Court in
Sitabai v. Rama Chandran, AIR 1970 SC 345.The Doctrine of Relation Back, “has been
abolished by section 12 of the Hindu Adoptions and Maintenance Act 1956 and hence, it is no
more a law at present.
6.0.2 Doctrine of Factum Valet:

The maxim “Quod fiery non debris factum valet or the Doctrine of Factum valet” is a Latin
maxim, which means ‘what ought not to be done is valid, when done”.
After adoption the child becomes the aurasa (naturally burn son of the adoptive parents) and also
gets disqualified to perform ‘sradha karma, Pinda Karma or kanyadan of his natural parents. In
case, there is no other person competent to perform the ceremonies, shastras permit the adopted
son to perform the Sradha karma, panda Karma and Kanyadan. This is known as ‘Factum Valet’.
This doctrine was recognised both by the Mitakshara and Dauyabhaga Schools. When there is a
rule, which governs an act (not to be done) and the act is done, it cannot be rendered invalid.
This doctrine does not have universal application since every prohibit Act, when done cannot be
ratified.
Under the Hindu law, this doctrine gets recognition mainly in the law of Marriage and law of
Adoption.
Non-compliance of certain things relates to a moral precept, and then the violation does not
vitiate the proceedings e.g. Marriage over looking age limit, marriage of a minor without the
consent of the guardian. But where a violation relates to an imperative provision of law viz.
Incapacity, non-compliance of essential ceremories (Homa, saptapadi) renders the marriage void
and the doctrine does not apply in such cases. There may be other ceremonies, which are not
essential, If they are omitted, such doctrine. The doctrine, applies where there is no fraud or
force.
6.1.1 Meaning of adoption:
According to “Manu” A son equal in caste and affectionately disposed whom his mother or
father (or both) give with water at a time of calamity, is known as the Dattrima son. Thus it is the
transplantation of a son from the family in which he is born into another family by gift made by
his natural parents to the adopting parents. The adopted son is then taken as being born in the
new family, and he acquires rights, duties and status in new family, and his tie with the old
family become severed . Some writers have said that adoption is the civil death in the natural
family and legal birth in the adoptive family.
6.1.2 Objects of adoption under the old Hindu Law:

The object of adoption under the old Hindu law are two-fold; one spiritual and the other secular,
the existence of male issue being favoured mainly for the sake of the parent’s beautitude in the
further life and the other secular. On the other hand, the secular objects could be gained only by a
son real or subsidiary. The main object of adoption is to continue the family line for according to
Shastras, those who do not have a son will not find a place in heaven. So it was the pious duty of
every Hindu to have a son.
6.1.3 Objects of adoption under the Hindu Adoptions and Maintenance Act:
However, the Hindu Adoptions and Maintenance Act, 1956, has steered off clearly from all the
religious and sacramental aspects of adoption and has made adoption a secular institution and
secular act, so much so that even a religious ceremony is now not necessary for adoption. Under
the Hindu Adoptions and Maintenance Act, there cannot be two types of adoptions, one purely
secular, and the other sacramental. All adoptions after 1956 are secular and to be void must
conform to the requirements of the Act.
6.2 Requisites of a valid adoption:
Section 6 of the Hindu Adoptions and Maintenance Act, 1956 lays down the requisites of a valid
adoption.
It says that no adoption shall be valid unless-

i. The person adopting has the capacity, and also the right, to take in adoption;
ii. The person giving in adoption has the capacity to do so;
iii. The person adopted is capable of being taken in adoption;
iv. The adoption is made in compliance with the other conditions mentioned in Chapter II of
the Hindu Adoptions and Maintenance Act, 1956.
According the Sec. 11 of the Act in every adoption the following conditions must be
complied with-
i. If the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
ii. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made the adoption is made must not have a Hindu daughter or son’s daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;
iii. If the adoption is by a male and the person to be adopted is a female, the adoptive father
is at least twenty-one years older than the person to be adopted;
iv. If the adoption is by a female and the person to be adoption is a male, the adoptive
mother is at least twenty-one years older than the person to be adopted;
v. The same child may not be adopted simultaneously by two or more persons;
vi. The child to be adopted must be actually given and taken in adoption by the parents or
guardians or under their authority with intent to transfer the child from the family of its
birth to the family of its adoption:
6.3 Capacity of a male Hindu to take in adoption:

Section 7 of the Hindu Adoptions and Maintenance Act, 1956 lays down that any male Hindu
who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption.
But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the
consent of his wife.
But this consent of the wife of a male Hindu is not necessary in the following three conditions:-
i. The wife has completely and finally renounced the world, or
ii. The wife has ceased to be a Hindu, or
iii. The wife has been declared by a court of competent jurisdiction to be of unsound mind.
If a man has than one wife living at the time of adoption the consent of all the wives must be
obtained. But if any of them is suffering from any of the three disabilities (i.e. civil death,
apostacy or unsoundness) the consent of such wife who is under such disability may be
dispensed with and the consent of all other wives must be taken. Under the old Hindu Law, a
male Hindu could take a son in adoption without the consent or against the wish of his wife.
6.4 Capacity of a female Hindu to take in adoption:

According to Section 8 of the Act, any female Hindu
a. Who is of sound mind,
b. Who is not a minor, and
c. Who is not married, or if married,
If married then whose marriage has been dissolved or whose husband is dead or has completely
and finally renounced the world or has ceased to be a Hindu or has been declared by court of
competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in
adoption. During the continuance of marriage the wife has no right to adopt except where the
husband is suffering from any of the disabilities.
6.5 Adoption under the present Hindu Law:
The Hindu Adoption and Maintenance Act, 1956, differs from the pure Hindu law of adoption in
the following respect.
1. Now no minor who has attained the age of discretion has the capacity to take a son or
daughter in adoption as in the pure Hindu law of adoption.
2. Now a male Hindu shall not adopt except with the consent of his wife unless the wife has
completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind. In case of a Hindu male having
more than one wife the consent of all the wives is necessary unless the consent of any one
of them is dispensed with for any of the reasons specified above. But under the pure
Hindu Law no consent of the wife necessary.
3. Now a female who is not married, or if married whose marriage has been dissolved or
whose husband is dead or has completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound
mind, has the capacity to take a son or a daughter in adoption. This has been an important
change in the law giving wide powers to a female. Under the old Hindu Law an
unmarried female had no power to adopt as the adoption was intended to adopt to her
husband and not to herself. A widow as has been discussed above had no power to adopt
except under the authority given by her husband.
6.6 Persons capable of giving a child in adoption:
Under the prior law only father or mother could give in adoption. At present the only persons can
lawfully give a boy in adoption are his father or his mother or the guardian (whether
testamentary or appointed by the court). Thus one brother cannot give another in appointed by
the court. Thus one brother cannot give another in adoption. Similarly a step-mother cannot give
step-son in adoption. Nor can a grandfather give his grandson in adoption. Under the present law
following persons are capable of giving a child in adoption.
6.7.1 Right of father:
The primary right to give in adoption is that of the father. Sub-section (2) of Section 9 of the
Hindu Adoptions and Maintenance Act lays down that subject to the provisions of sub-section
(3) and sub-section (4) the father, if alive, shall alone exercised have the right to give in
adoption, but such right shall not be exercised save with the consent of the mother unless the
mother has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a Court of competent jurisdiction to be of unsound mind.
6.7.2 Right of mother:
The mother may give the child in adoption if the father is dead, or has renounced the world or
has ceased to be Hindu or has been declared by a Court of competent jurisdiction to be of
unsound mind.
6.7.3 Right of guardian:
When both the parents are dead or when both the parents have completely and finally renounced
the world or both have been declared to be of unsound mind or where the parentage of the child
is not known or when both the parents have abandoned the child the guardian of the child may,
with the permission of the court to which he may be subordinate, give the child in adoption.
6.8.1 Delegation of power:

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

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

The person giving in adoption, must have attained the age of discretion, and must be of sound
mind.
The Hindu Adoptions and Maintenance Act thus give wider powers to female:
i. The father, if alive shall alone have the right to give in adoption, but right such right shall
not be exercised save with the consent of the mother unless the mother has completely
and finally renounced the world or has ceased to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind. So the consent of the mother
under the ordinary conditions is essential, but no such consent was necessary under the
pure Hindu Law of adoption.
ii. Secondly, the mother’s right to give in adoption comes after the father and there is no
question of any express or implied prohibition from husband.
iii. Thirdly, the power given to a guardian of a child (whether a testamentary guardian or a
guardian appointed or declared by a court) to give a child in adoption with the previous
permission of the court is quite new. No such power was given under the pure Hindu law
to a guardian to adopt.
Sub-section (4) of Section 9 of the Hindu Adoptions and Maintenance Act lays down- “Where
both the father and mother are dead, or have completely and finally renounced the world or have
abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound
mind or where the parentage of the child is not known, the guardian of a child may give the child
in adoption with the previous permission of the Court to any person including the guardian
himself.”
6.9 Who may be adopted- (The Hindu Adoptions and Maintenance Act, 1956):
1. Section 10 provides that the persons who may be adopted, includes females also among
the persons who may be adopted. This is an important change and daughter and son are
on the equal footing.
2. A superfluous clause as a precautionary measure has been added by mentioning that he or
she has been not already adopted; this simply means that a boy or girl cannot be adopted
twice and reiterates the old law that two persons cannot adopt the same boy and such an
adoption is not valid.
3. The controversy that an adoption must be done before upanayana. Now the child to be
adopted should not be to married unless there is a custom or usage applicable to the
parties which permits persons who are married being taken in adoption; another condition
has also been prescribed that an adoption must be made before he or she has not
completed the age of fifteen years unless here is a custom or usage applicable to the
parties which permits persons who have completed the age of fifteen years being taken in
adoption.
6.10 Other Conditions for a Valid Adoption:

As per Hindu Adoptions and Maintenance Act, there are other conditions for a valid adoption.
i. If the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son or grandson or great-grandson (whether by legitimate blood
ii. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son’s daughter (whether by legitimate blood
iii. If the adoption is by a male and the person to be adopted is a female, the adoptive father
is at least 21 years older than the person to be adopted.
iv. If the adoption is by a female and the person to be adopted is a male, the adoptive mother
is at least 21 years older than the person to be adopted.
UNIT 7
HINDU MINORITY AND GUARDIANSHIP ACT, 1956
7.0.1 Introduction:
In Hindu Dharmashastras, not much has been said about guardianship. Due to the concept of
joint families, a child without parents was usually cared for by the head of the joint family.
Further, it was well accepted that the king is the guardian of all the orphans. Thus, no specific
laws were required regarding guardianship. During British period, guardianship was primarily
based on the extension of paternal authority. Thus, after parents, elder brothers, paternal uncles,
and then maternal relations used to look after the interests of the minor. The British also
introduced the concept of testamentary guardians in India.
The concept of guardianship has changed from paternal power to the idea of protection in
modern times and the HMG Act 1956 codifies the laws regarding minority and guardianship
with the welfare of the child at the core.
A person below the age of 18 yrs is considered to be a minor as per Section 4 of HMGA 1956.
Such a person is not capable of taking care of himself or of handling his affairs and thus requires
help, support, and most importantly, protection, which is usually provided by the parents.
However, in many unfortunate cases, parents are not available and in those cases other relatives
or persons come to the rescue. Thus, parents and other people who look after a minor are called
as guardians in general parlance.
The Hindu Minority and Guardianship Act in both a codifying and supplemental Enactment It
was passed in 1956 and come into force from 24th Aug 1956. The Act deals with the Law
relating to minority and Guardianship among Hindu. It contains 13 sections. The Indian Majority
Act 1875 and the Guardian and wards Act 1890 are the other statutes which deal with the
minority and guardianship.
7.0.2 Object and Reasons:

1. This is another installment of the Hindu Code and it deals with the law relating to minority
and Guardianship.
2. Under the Indian Majority Act 1875, a person attains majority on his. Completing the age
of 18 years.
3. Guardians May be divided into three claries namely.
a. Natural guardians
b. Testamentary guardian
c. Guardian appointed under the guardians and wards Act 1890 or
d. De facts guardians.
7.1.1 Minor or Minority

According to see-4 (a) Minor means a person who has not completed the age of 18 year. In case
any guardian is appointed by the court under the Guardian and wards Act 1890 to look after
minor’s person or property. The minority Extends till attaining the age of 21 years.
7.1.2 Guardians
According sec 4 (b) of H.M. Act guardian means a person having the care of the person of a
minor or of his property or of both his person and property and includes.
a. Natural guardian
b. A guardian appointed by the will of the minor father or mother
c. Guardian appointed or declared by a court
d. De facto Guardian and hoc guardian
This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor
without authority of law, can also be a guardian under the above definition and is called a de
facto guardian. De facto guardians include self appointed guardians and guardians by affinity,
such as guardians for a minor widow. However, a person does not have right to sell or deal with
minor's property if he is merely a de factor guardian as per section 11.
7.2 Natural Guardian

A Natural guardian is one who becomes so by reason of his natural relationship with minor
Section 6 of the H.M.G Act give a list of Nature guardian as hereunder:-
i. Boy or unmarried girl: In case of a boy or an unmarried girl. The father and after him
the mother provided that the custody of a minor who has not completed the age of five
years shall ordinarily be with the mother.
ii. Illegitimate Boy or Girl: In the case of an illegitimate boy and illegitimate unmarried
girl. The mother and after her, the father is Natural guardian.
iii. Married Girl:- The husband is the Natural guardian of his minor wife.
Restriction (Section 6)
A person cannot act as a Natural guardian:-
i. If he/she is ceased to be a Hindu.
ii. If he/she has completed and finally renounced the world by becoming a hermit.
Here, by father and mother, natural father and mother are meant. Step father or step mother do
not have any right to guardianship unless appointed by court.
As per section 7, natural guardianship of an adopted son passes on to his adoptive father and
after adoptive father, to adoptive mother.
7.2.1 Position of Father

Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a
guardian after his death even if the mother was alive. This is not the case now. Further, as held in
the case of Lalita v. Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the
welfare of the child. In the case of Githa Hariharan v. RBI AIR 1999 SC held the mother to be
the natural guardian in spite of the father being alive and further held that the word "after" means
"in the absence" rather than "after the life" of the father. Thus, if a father is incapable of
protecting the interests of a minor due to any reason, he can be removed from guardianship.
7.2.2 Position of Mother:

The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the
mother has right to custody of a minor less than 5 yrs of age. This does not mean that mother
does not have the right to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it
was held that a mother's right to guardianship is not lost upon conversion to another religion if
she is able to provide proper care to the minor. Further, in Kumar vs Chethana AIR 2004, SC
has held that the mother's right to guardianship is not lost automatically after her remarriage. In
all such cases, welfare of the child has to be considered above all including the convenience and
pleasure of the parents.
7.2.3 Position of Husband:

In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the
guardianship of a minor wife belongs to the husband. However, due to section 13, a court may
revert the guardianship to the father or mother depending on the best interests of the minor.
7.2.4 Power of Natural Guardian (Section 8):

Section 8 of the H.M.G Act deals with powers of a Natural guardian with respect to minor’s
person or property.
i. Necessary or reasonable and proper acts for the benefit of the minor The Natural
guardian of a Hindu minor has power subject to the provision of this section to do all acts
which are necessary or reasonable and proper for the benefit of the minor or for the
realization perfection or benefits of the minor estate.
ii. Benefit of the Estate A transaction to be binding on the minor must be one which not
only confers a benefit upon the estate but is necessary for its good management.
iii. Compromise It is competent of Natural guardian to enter into a compromise on behalf of
his wend.
iv. Family among The Natural guardian has the power to enter into family settlement on
behalf of a family.
7.2.5 Power of alienation:

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

immovable property of the minor.
b. Please any part of such property for a term exceeding five years or for a term extending
more than one year beyond the date on which the minor will obtain majority.
7.3 Testamentary Guardian:

A person who becomes a guardian due to the will of a natural guardian is called a testamentary
guardian. Section 9 defines a testamentary guardian and his powers.
 For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any
person to act as the guardian of the child after the death of the father. However, if the
mother is alive, she will automatically become the natural guardian and after her death, if
she has not named any guardian, the person appointed by the father will become the
guardian.
 A widow mother who is a natural guardian, or a mother who is a natural guardian
because the father is not eligible to be a natural guardian, is entitled to appoint a person to
act as a guardian after her death.
 For an illegitimate child, the power of appointing a testamentary guardian lies only with
the mother.
7.3.1 Powers
A testamentary guardian assumes all powers of a natural guardian subject to limitations
described in this act and to the limitations contained in the will. A testamentary guardian is not
liable personally for the expenses and he can ask the guardian of the property of the minor to
meet the expenses through the property.
The rights of the guardian appointed by will cease upon the marriage of the girl.
7.3.2 Guardianship by Affinity

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

Where the court is satisfied that it is for the welfare of a minor that an under should be made
appointing a guardian of his person or property or both the court may make an order under the
guardian and wards Act 1890, appointing a guardian. This ahs been laid down in section 13 of
the Hindu Minority and Guardianship Act 1956 ran as follows:-
S. 13(1) in the appointment or declaration of any person as guardian of a Hindu minor by a court
the welfare of the minor shall be the paramount consideration.
S. 13(2) no person shall be entitle to the guardianship by virtue of the provision of this Act or
any law relating to guardianship in marriage among Hindu if the court is of opinion that his or
her guardianship will not be for the welfare of the minor.
7.4.1 Who can apply for appointment as guardian:

i. The person desirous of being or claiming to be the guardian of the minor or
ii. Any relative or friend of the minor or
iii. The collector of the district or other local area in which:-
a. The minor ordinarily resides
b. The minor holds properly
iv. If the minor belongs to a class, the collector who has authority with respect to that class.
7.4.2 Power of guardian appointed by the court

Power of the guardian appointed by the court and the control imposed by the Act over such
powers are the same as that of a natural or testamentary guardian.
7.5 De facto Guardian – (Section 11):

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

“After the commencement of this Act, no person shall be entitled to dispose of or deal with the
property of Hindu minor merely on the ground of his or her being the de facto guardian of the
minor”.
Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the
minor merely on the ground of his being the de facto guardian. There is controversy regarding
the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void
while alienation by de jure guardian is voidable (Ashwini Kr vs Fulkumari, Cal HC 1983),
while some HC have held that both are voidable (Sriramulu' case 1949). It is now well settled
that de facto guardian does not have the right to assume debt, or to gift a minor's property, or to
make reference to arbitration.
7.6 Ad hoc Guardian:

When a person acts as guardian of the minor for temporary period or for a single transaction, he
is called ‘Guardian and hoc”. He is not recognized as a de jure (natural) guardian. He is to de
facto guardian An ad hoc guardian does not fixed any place in the Act and any alienation of
minors property by him would be void.
In the case of Manik Chandra v. Ram Chandra AIR 1981 SC has held that the meaning of
"necessity" and "advantage" of a minor are quite wide and the courts have the power to widen
their scope as per the case facts before giving the permission. As per section 12, no guardian can
be appointed for the undivided interest in the joint property of the minor. However, the court
may appoint a guardian for the complete joint family if required.
7.7 Custody of a minor:

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

In general, a guardian may do all acts that are in the interest of the minor. A third party may deal
safely with the guardian in this respect. However, this excludes fraudulent, speculative, and
unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate
the minor's property if it is necessary as determined by SC in Hanuman Prasad v. Babooee
Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts
permission before alienating the minor's interest in the minor's property. Also, a guardian does
not have any right over the joint family interest of a minor.
In the case of Vishambhar v. Laxminarayana, 2001, SC has held that a sale of minor's
immovable property without courts permission is voidable and not void ab-initio. It further held
that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction.
In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the
consideration.
7.9.1 Liabilities of a guardian
 Since the legal position of a guardian is fiduciary, he is personally liable for breach of
trust.
 he is not entitled to any compensation unless explicitly specified in a will.
 A guardian cannot take possession of minor's properties adversely.

 must manage the affairs prudently.
 liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a settlement of account,
the guardian's liability comes to an end.
7.9.2 Rights of a guardian

A guardian has a right to
 represent the minor in litigations.
 get compensation for legal expenses from minor's property.
 sue the minor after he attains majority to recover expenses.
 refer matters to arbitration if it is in the best interest of the minor.
 have exclusive possession of minor's property.
7.9.3 Removal of a guardian

Court has the power to remove any guardian in accordance to section 13.
 ceases to be a Hindu.
 becomes hermit or ascetic.
 court can remove if it finds that it is not in the best interest of the child.
7.10 Welfare of the minor is of paramount importance (Sec 13)
 While appointing or declaring a guardian for a minor, the count shall take into account
the welfare of the minor.
 No person shall have the right to guardianship by virtue of the provisions of this act or
any law relating to the guardianship in marriage if the court believes that it is not in the
interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the circumstances on per
case basis and the court may appoint a guardian as per the best interests of the minor.
UNIT 8
LAW OF MAINTENANCE
8.0 Introduction:
The whole concept of maintenance was introduced in order to see that if there is a spouse who is
not independent financially than the other spouse should help him/her in order to make the living
of the other person possible and independent. Providing maintenance means that the other person
who is getting the maintenance should be able to live the life as he or she lived before marriage
in case of divorce and in case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to live a life as when they lived
together. Maintenance is the amount which a husband is under an obligation to make to a wife
either during the subsistence of the marriage or upon separation or divorce, under certain
circumstances.
The most important aspect of maintenance is that the party which relies on maintenance has no
independent source of income to support himself/herself. The main point we have to focus on in
independent income. Should the spouse who is claiming maintenance have movable or
immovable property, the spouse can still claim maintenance if the property does not yield any
income.
The quantum of maintenance and the expenses of the proceedings have not been specified in any
of the Indian Matrimonial statutes except the Divorce Act. The court can fix the maintenance at
any amount, depending on its discretion. When deciding the quantum of maintenance to be
awarded, the court takes into account the income of both the parties, their status and other
circumstances. When the wife applies for maintenance, the onus is on the husband to declare his
income.
The persons who are entitled to maintenance under the Hindu Adoptions and Maintenance Act
(HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents and dependants as
enumerated in Section 21 of the Act. Whereas, under the Muslim law, the persons entitled to
maintenance are wife, young children, the necessitous parents, and other necessitous relations
within the prohibited degrees. The Muslim Law of maintenance is based on the Muslim personal
laws and the law enactments such as the Indian Majority Act, 1875, the Criminal Procedure code
1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.
8.1 Types of Maintenance:

There are two types of maintenances:-
(1) Interim maintenance and maintenance pendente lite
(2) Permanent maintenance
The interim maintenance is payable from the date of presentation of the petition till the date of
dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the
immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation
expenses to the claimant. Interim maintenance is the amount that is paid by the financially
independent spouse to their counterpart during the pendency of the proceedings in the
matrimonial cause and which covers the expenses of the proceedings as well as the other
expenses of the spouse during the course of the proceedings. The basis of the claim for interim
maintenance is that the claimant has no independent income of his/her own to support
himself/herself. The provision is silent on the quantum of maintenance and it is upon the
discretion of the court to determine the quantum.
Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for maintenance. It talks
about how either the wife or the husband can claim for interim maintenance. The interim
maintenance is payable from the date of presentation of the petition till the date of dismissal of
the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs
of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the
claimant.
Interim maintenance can be claimed either by the husband or the wife, under the Hindu Marriage
Act and the Parsi Marriage and Divorce Act and is called “Alimony Pedente Lite." Under all
other statutes, the wife is the only spouse who can claim it. Section 36 of the Divorce Act of
1869 says that the wife may file a petition for interim maintenance, regardless of who instituted
the suit and whether the wife obtained an order for protection. It also says that the petition for the
expenses of the proceedings and alimony pending the suit should be disposed of within sixty
days of the service of the petition on the husband.
Permanent maintenance, on the other hand, is the maintenance that is paid by one spouse to the
other after the judicial proceedings have resulted in either the dissolution of the marriage or a
judicial separation. Section 25 of the act talks about permanent maintenance. It states that how
the court can order the respondent to pay the applicant for her or his maintenance a gross sum or
a monthly or periodical sum for a term not exceeding the life of the applicant unless there are
changes in circumstances under which the court can change its order.
8.2 Maintenance under Hindu Law:

The right of maintenance under Hindu law is very old and it was one of the basic necessities of
the joint family system. The maintenance of the women in the joint family system was an
important system and this was followed as a tradition which governed the families. It was the
obligation of the head of the family (karta) to look after the women of the family i.e. their wives
and their daughters until they were married. Latter when the women grew older it was the duty of
their children to mother and other old women of the family. The unchastity on part of the women
disentitled them to maintenance. Their remarriage ended the claim and the amount of
maintenance depended upon various factors like the status of the family, necessary requirements,
wants, age, etc. Section 24 provides of Hindu Marriage Act, (HMA) 1955 provides for
maintenance.
Under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal
obligation to maintain his wife during his lifetime. However, if a wife ceases to be Hindu or lives
separately under no legal grounds she loses the right to claim maintenance too. Also, a Hindu
wife under this act shall not be entitled to separate residence and maintenance from her husband
if she is unchaste or converts to another religion. Wife can claim separate residence only if
husband remarries and the other wife stays in the same house.
Under this act (Section 19), a (Hindu) wife after the death of her husband is entitled to be
maintained by her Father in-law, provided she has no means of her own earnings. However, the
right cannot be enforced if her Father in-law does not have means to do so and if the wife
remarries.
The liabilities of a Hindu to maintain others are personal liability and liability dependant on
possession of property where the former arises from mere relationship between the parties and
the latter arises due to possession of property.
8.2.1 Maintenance of Wife under Section 18, The Hindu Adoptions And Maintenance Act,
1956:
Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for
lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of
this Act a Hindu wife is entitled to live separately from her husband without canceling her right
to claim maintenance. The grounds under which she can live separately are:-
(1) Husband is guilty of desertion
(2) The Husband has treated her with cruelty
(3) The husband is suffering from a virulent form of leprosy
(4)The husband has any other wife living.
(5) The husband keeps a concubine elsewhere
(6) The Husband has ceased to be a hindu by conversion to another religion and
(7) if there is any other cause justifying living separately
But there are two bars which will prevent a wife from claiming maintenance from her husband
i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.
The wife is entitled to live separately without forfeiting her right to maintenance, if her husband
is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he
has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased
to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2)
of the HAMA. The exception given in this section according to which a wife cannot claim
maintenance if she is converted from some other religion into a Hindu is not right. Now as the
wife is related to a Hindu family and if she has married according to the Hindu religion and she
is governed by Hindu law than she should not be separated from the rights which other women
get as a Hindu lady.
8.2.2 Maintenance of Wife Under The Section 125 Of CrPC:

Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her
husband & hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her
husband due to legal grounds such as (bigamy, cruelty & adultery) has the right to special
allowance under this act. But a wife does not possess right to claim maintenance if she’s living in
adultery or she’s living separately by mutual consent. The various sections of CrPC are criminal
in nature and are used for the criminal charges. The Section 125 of the CrPC states the provisions
as follows:
“125 Order for maintenance of wives, children and parents.
(1) If any person leaving sufficient means neglects or refuses to maintain-
a. His wife, unable to maintain herself, or
b. His legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
c. His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or,
d. His father or mother, unable to maintain himself or herself"
8.2.3 Award of Maintenance to Wife Under Section 23(2):

Section 23 of the HAMA, 1956 clarifies or defines the people who get maintenance and how
much of maintenance i.e. the amount they can get keeping in mind the various things. The court
in the case of awarding maintenance has the authority to give the maintenance after analyzing
various factors. The factors which are considered by the court according to section 23(2) and
section 23(3) are:
“23 (2) In determining the amount of maintenance, if any, to be awarded to a wife, children or
aged or infirm parents under this Act, regard shall be had to
a. the position and status of the parties.
b. the reasonable wants of the claimant
c. if the claimant is living separately, whether the claimant is justified in doing so,
d. the value of the claimant’s property and any income derived from such property, or from
the claimants.
e. the number of persons entitled to maintenance, if any, to be awarded to a dependant
under this Act, regard shall be had to -
23 (3) In determining the amount of maintenance, if any, to be awarded to a dependant under this
Act, regard shall be had to -
a. the net value of the estate of the deceased after providing for the payment of his debts.
b. the provisions, if any, made under a will of the deceased in respect of the dependant.
c. the degree of relationship between the two.
d. the reasonable wants of the dependants.
e. the past relations between the dependant and the deceased.
f. the value of the property of the dependant and any income derived from such property, or
from his or her earnings or from any other source.
g. the number of dependants entitled to maintenance under this Act."
The court awards maintenance to the wife considering various factors into consideration like
status and position of the parties, wife’s wants, the value of wife’s property and income if any,
derived from that property and the number of persons entitled to maintenance. The section says
that the maintenance is given on the basis of the decree of relation between the two partners.
8.3 Case Laws:
Udayanath v. Siridei 1973 Ori 196
The obligation of the husband to maintain his wife doesn’t arise out of any contract, express or
implied, but out of the status of marriage, out of jural relationship of husband and wife created
by the performance of the marriage.
Parami v. Mahadevi (1909) 34 Bom 278

Obligation of the husband to maintain his wife begins with the marriage. It is irrespective of the
fact whether he has or has no property.
Lisram v. Sakhidevi AIR 1965 Manipur 49

Means and capacity of a person against whom the award has to be made is very important. In
fact, in case of Husband it is not only the actual earning capacity which must be considered.
There is a presumption that every able bodied person has a capacity to earn and maintain his
wife.
Atar Singh v. Jasoda (2000) All HC 4465

Court held that even if the husband has no income when he is given in marriage it is presumed
that the family has sufficient income to support him and his wife. In this case, the son who was a
student belonged to mitakshara family. Where a son becomes a coparcener and gets right in
coparcenary property as coparcener, so this share is considered to calculate the sufficiency of the
husband to maintenance the wife.
8.3.1 No maintenance to the wife when marriage is void:

Suresh Khullar v. Vijay Khullar AIR 20023 Del 373
Husband married wife M in 1980. On his application marriage was dissolved by an ex-parte
decree in 1984. Thereafter he married petitioner in 1988. M filed an application for maintenance
under section 18 of HAMA. She alleged that husband has played a fraud on her by
misrepresenting the facts and also she is treated with mental and physical cruelty. The court
declared that marriage of the petitioner second wife was void as the husband’s first marriage is
still subsisting and therefore she is having no right to claim maintenance.
8.3.2 Can an arrangement to live separately be treated as divorce deed?

Bouramma v. Siddappa Jeevappa Patarad AIR 2003 Kant 342
A wife filed an application for maintenance under section 18 of Hindu Adoption and
Maintenance act. Parties were married in 1966 and the claim was made by the wife in 1995. She
claimed the past maintenance also.
She pleaded desertion and alleged that the husband had another wife and they both ill treat her
and threw her out. Husband resisted the application on ground that “they have arrangement to
live separately” and claim of maintenance is sustainable if the marriage is still subsisting.
Kant High Court held that:- Second wife itself is desertion of the first wife. No further proof of
desertion is required. Beside an arrangement to live separately even assuming that it is proved,
could not have the effect of bringing marriage to end. In this situation she is held entitled to have
maintenance.
8.3.3 Desertion:
Section 18(2)(a) provides desertion as a ground in which wife can claim separate residence as
well as maintenance.
Purushottam Kewalia v. Smt. Devki AIR 1973 Raj 3

It was laid down that the offence of desertion commences when the fact of separation and animus
deserendi co exist but it is not necessary that they should commence at the same time.
Rai v. Ramniga Naik AIR 1954 Mad 54

Where a husband brings a prostitute in the house in which his wife is living and as a consequence
the wife has to leave the house, the husband is guilty of desertion.
8.3.4 Cruelty:
For succeeding the claim of cruelty, the wife must prove two distinct elements:-
 First, ill treatment complained of

 Second, the result and danger of apprehension thereof;
Swajyam Prabha v. A.S. Chandar Sekhar AIR 1982 Kant 295

It was held that baseless allegations about adultery would constitute mental cruelty to the wife,
so that cruelty is a solid ground for claiming maintenance and separate residence. It is well
settled principle of law that leveling allegations of adultery without proper foundation and basis
would tantamount to perpetrating mental cruelty on the other spouse.
Ram Devi v. Raja Ram AIR 1963 All 564

Husband by his conduct made it evidently clear that she was not wanted in the house and her
presence was resented by him, it was held that this amounted to cruelty and justified wife’s
living separately.
8.3.5 Leprosy:
No time period is prescribed, but existing at the time when the claim for maintenance is made.
Sivaraya v. C.C. Padma Rao (1974)1SCJ 79:

A mild type of leprosy which is capable of treatment cannot be called virulent leprosy which is
malignant and contiguous and in which prognosis is usually grave.
8.3.6 Having another Wife:

C. Obula Konda Reddy v. C. Pedda Venkata AIR 1976 AP 47
Initial view was second wife is entitled to claim maintenance under this provision.
But this verdict was overruled in
Laxmi Bai v. Ayodhya Prasad

Earlier decision was overruled and held that second wife is not entitled to maintenance under this
section. Since after the coming into effect of Hindu Marriage Act, the Bigamous marriage is
prohibited. Second marriage being void and wife cannot claim maintenance.
Avtar Singh v. Jasbir Singh Laws (P & H) 2014-2-246

Smt. Harbans Kaur W/O Jharmal Singh having two minor sons Jasbir Singh and Kulbir Singh
claimed 1/4th share in the land belonging to the family, as she was the wife of an unsound person.
The Punjab and Haryana high Court held that:- No provisions has been mentioned for the
maintenance to the wife if the husband is of the unsound mind, the daughter-in-law who is not
having any source of maintenance can claim maintenance for herself.
The court held that despite of no availability of any provision regarding the maintenance to such
wife the share must be given to her in order to make her capable to maintain herself, her husband
and two sons.
On the basis of this judgment the Law Commission of India revisited the Section 18 . Law
Commission of India Report no. 252 “ Right of Hindu Wife to maintenance” is made in Jan
2015.
They have proposed section 18(4) :- Where the husband is unable to provide for his wife, on
account of physical disability, mental disorder, disappearance renunciation of the world by
entering any religious order or other similar reasons, the Hindu wife is entitled to claim
maintenance during her lifetime from members of joint Hindu family of the husband except
where the husband has received his share in joint family property.
8.4 Maintenance of Children:
Section 20 of HAM ACT imposes an obligation upon the parents –mother and father, both
equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the
Hindu law where both the parents are equally responsible to maintain the children. S.20 (2) of
HAMA lays down that the children are entitled to maintenance during their minority. This right
of maintenance for the daughter is extended till she gets married. The parents are obliged to bear
her marriage expenses. However even after marriage a minor married daughter, if she is unable
to maintain herself then she can claim for maintenance under S.125 CrPC. When an application
has been filed under section s24 and 25 of HMA, the children are also entitled to get
maintenance if the claimant has the responsibility of maintaining them i.e. the claimant‘s right to
maintenance also includes the right of maintenance of the children. Section 26 of HMA also
provides that in any proceeding under the Act the court can from time to time pass interim orders
and make provisions in respect of the custody, maintenance and education of the minor children.
8.5 Maintenance of Parents:
S. 20 of HAMA also lays down an obligation of maintenance o f old and infirm parents who are
not able to maintain themselves out of their own personal earnings and property. The HAMA is
the first statue in India, which imposes an obligation on the children to maintain their parents.
The obligation to maintain is not only limited to the sons but it also extends to the daughters.
Under HAMA, both the mother and the father have an equal right to claim maintenance. The
explanation to this section also includes stepmother in the term parent. However it is important to
note that the section imposes an obligation to maintain only those parents, who are unable to
maintain themselves and therefore the obligation to maintain the parents other than those infirm
and unable, is only moral.
UNIT 9
LAW OF SUCCESSION UNDER THE HINDU SUCCESSION ACT, 1956
9.0 Introduction:
Succession, specifically intestate succession in India is governed in one of two ways: a codified
Personal law, or the general law under the Indian Succession act. The key focus in this paper will
be to compare and contrast the Hindu Succession Act, 1956 with the Indian Succession Act,
1925.
To understand succession and the applicability of the laws surrounding intestate succession, it is
important to note that the laws only come into play mainly upon the death of a person in the
specific event that they die without leaving a will dictating the terms and conditions of the
distribution of their property.
9.1 DEVOLUTION OF INTEREST IN THE COPARCENARY PROPERTY:

The devolution of interest in the coparcenary property is regulated by the Section 6 of Hindu
Succession Act 1956. The Section 6 is amended by the 174th Report entitled “Property Rights to
Women: Proposed reforms under Hindu Law”.
There are two grounds for the recommendation:
i) Exclusion of daughters from the ancestral property is a discrimination based on
gender which is violative of right to equality.
ii) Already the states of Tamil Nadu, Andra Pradesh, Karnataka, Kerala, Maharashtra
provides for the daughters share in the ancestral property.
Bill was introduced and passed known as Act no 39 of 2005 entitled Hindu Succession
Amendment Act 2005 , which got the assent of President on 5th Sept 2005 and put into force
9/9/2005.
With effect from 9/9/2005 in a joint Hindu family governed by the Mitakshara law, the daughter
of a coparcener shall:-
 By birth become a coparcener in her own right in the same manner as the son
 Have the same rights in the coparcenary property as she would have had if she had
been a son.
 Be subjected to same liabilities in respect of the said coparcenary property as that of a
son.
Whenever is the reference of Hindu Mitakshara coparcener, shall be deemed to include a

reference to a daughter of a coparcener. {Section 6 (1)}
Nothing in this section shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which has taken place before 20th December,
2004.
Any property for which the female become entitled by virtue of section 6 (1) shall be held by her
with all the incidents of the coparcenary ownership and shall dispose of it by her testamentary
disposition i.e. it will become its separate property.{Section 6(2)}
Where a Hindu dies after the passing of Hindu Succession Amendment Act 2005, his interest in
the property of a joint Hindu Family governed by the Mitakshara law, shall devolve by the
testamentary succession or intestate succession not by survivorship.
Whenever the partition of such property take place:
 Daughter will be allotted the same share as is allotted to a son

 The share of the pre-deceased son or a predeceased daughter shall be allotted to the
surviving child of such predeceased son or predeceased daughter.
 The share of the predeceased child of a predeceased son or of a predeceased daughter, as
such child would got had if he or she been alive at the time of the partition, shall be
allotted to the child of such predeceased child of the predeceased son or a predeceased
daughter , as the case may be .{Section 6(3)}
After 2005 amendment no court shall recognize any right to proceed against a son, grandson or
great- grandson for the recovery of any debt due from his father, grandfather or great-grandfather
solely on the ground of the pious obligations under the Hindu law, of such son, grandson or great
grandson to discharge such debt.
But if the debt is contracted before the commencement of the Hindu Succession Amendment Act
2005 this subsection shall not affect:-
 The right of any creditor to proceed against the Son, grandson or great grandson as the
case may be;
 Any alienation made in respect of or in satisfaction of, any debt, and such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and
to the same extent as it would have been enforceable as if the Hindu Succession Act is
not enforceable.{Section 6(4)}
Nothing in the section shall apply to a partition, which has been effected before 20th December
2004.
Effects of amendment on the Section 6

The following are the effect of the amendment on the devolution of interest in the coparcenary
property:-
 Concept of the Mitakshara coparcenary had been changed as daughter has been treated
at par with Son.
 Daughter shall be entitled to a share equal to son by birth.

 Daughter become a coparcener in her own right
 Daughter is liable to pay liabilities in respect of coparcenary property.
 Daughter become entitled to seek partition of joint Hindu family property
 Her share in joint family property cannot be willed away
 This amendment is equally applicable to the married daughters also
9.2 SUCCESSION OF HINDU MALE PROPERTY UNDER HINDU SUCCESSION ACT

1956
When a Hindu person dies without a will, his property will be distributed as per law under Hindu
Succession Act 1956.
If the deceased is a male then the succession is regulated by the section 8 of the act. The
property firstly devolve to Class I heirs.
Relations in Class I heirs:-
i. Widow
ii. Mother
iii. Son
iv. Daughter
v. Widow of predeceased Son
vi. Son of predeceased Son
vii. Daughter of Predeceased Son
viii. Daughter of predeceased Daughter
ix. Son of predeceased daughter
x. Widow of predeceased son of predeceased son
xi. Son of predeceased son of predeceased son
xii. Daughter of predeceased son of predeceased son
xiii. Daughter of predeceased daughter of predeceased daughter
xiv. Son of predeceased daughter of predeceased daughter
xv. Daughter of predeceased son of predeceased daughter
xvi. Daughter of predeceased daughter of predeceased son
There are 16 heirs in class I and all are simultaneous heirs i.e. all the relatives will take
simultaneous the share in the property and to the exclusion of all other heirs.
Distribution of property among Class I heirs:-

The property among class I heirs will distribute in accordance to the following rules of
distribution elaborated among Section 9.
Rule 1: The intestate widow, or if there are more widows than one, all the widows shall take one
share. More than one widows will be for the situation when the marriage is solemnised before
the passing of Hindu Marriage Act 1955.
Rule 2: Surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3: Heirs in the branch of each pre-deceased son or predeceased daughter of the intestate
shall take between them one share.
Rule 4: Distribution of the share among the heirs in the branch of predeceased son shall be so
made that his widow or widows’ together and surviving sons and daughters get equal portion and
the branch of his pre-deceased sons get same portion.
Among the heirs in the branch of the predeceased daughter shall be so made that surviving sons
and daughters get equal share.
V.V. Subha Rao v Chattapati Seetharamaratna Ranganayakamma AIR 1997 SC 3082

Issue: - Does a right which pre-existed at the time of coming of the HAS get defeated simply on
the basis of widow’s acknowledgement that her right was limited?
Facts: - Widow got properties from her husband prior to 1956 in lieu of her pre-existing right to
maintenance. In a compromise decree in 1956 she acknowledged that she had only a limited right
for her lifetime and after her, the property would revert to her son.
In 1959, she again acknowledged this fact. Bequest of these properties in favour of her daughter
was challenged, and set aside, hence the appeal was filed.
Order- It was argued on behalf of the appellants that the compromise decree was made in 1955,
before the Hindu Succession Act came and it was based on a pre-existing right to maintenance
but the court does not accept the plea and held that section14 (2) and not section 14(1) of HAS
would apply and widow’s right could not get enlarged into absolute ownership.
If no Class I heir is there

In case, there is no relative as per class I heir, then the property will distributed among Class II
(Section 8)
Class II:-
Class II heirs are divide into nine entries.
Entry I – Father
Entry II- Son’s daughter’s son
Son’s daughter’s daughter
Brother
Sister
Entry III- Daughter’s son’s son
Daughter’s son’s daughter
Daughter’s daughter’s son
Daughter’s daughter’s daughter
Entry IV- Brother’s Son

Brother’s daughter
Sister’s son
Sister’s daughter
Entry V- Father’s Father
Father’s mother
Entry VI- Father’s widow
Brother’s widow
Entry VII- Father’s Brother
Father’s sister
Entry VIII- Mother’s Father
Mother’s mother
Entry IX- Mother’s brother
Mother’s sister
Distribution of property among Class I heirs:

Among the heirs in class II those who are mentioned first get the property simultaneously with
other relations in the same entry in exclusion to those in subsequent entries.( Section 11 )
Narayanan v. Pushpa Rajani AIR 1991 Ker 10

Where a person dying intestate does not have wife or children and leaves behind him brother by
half blood and a sister by full blood. In such a case the sister by full blood. In such a case the
sister by full blood would be excluded by the brother by half blood. Thus the sister by full blood
alone would inherit the property excluding the brother by half blood.
The term “brother and sister” include brother and sister by full blood as well as the brother and
sister by half blood. But when brother and sister by full blood are available, brother and sister by
half blood would be excluded.
Purushottam v. Sripal AIR 1976 Bom 379

Bombay H.C. held that a full brother excludes Half brother and full sister excludes half sister.
But when there is a brother of half blood and sister of full blood, the former would not be
excluded
If no Class II heir is there

In case there is no class II heir then the property will devolve upon agnates of the deceased
Distribution of property among agnates-
 Of two heirs, the one who has few or no degree of ascent is preferred.
 Where number of degree of ascent is fewer or no degree of ascent.

 Where neither heir is entitled to be preferred to the other under above rules, they will
take simultaneously.
Methods of computing degrees are elaborated under section 13.
 For determining order of succession among agnates, relationship shall be reckoned from
the intestate to the heirs in terms of degree of ascent or both; as case may be
 Degree of ascent and degree of descent shall be computed inclusive of the intestate
 Every generation constitutes a degree either ascending or descending.
If no agnates are there

The property will devolve on cognates. The rules for the distribution of the property will be same
as that of agnates given under section 13.
In absence of heirs in above elaborated classes, then there will be Escheat i.e. the property shall
devolve on the Government under section 29.
The Government shall take the property subject to all the obligations and liabilities to which a
legal heir is subjected.
9.3 SUCCESSION IN CASE OF FEMALES:
The right of a woman to own and control property statutorily came into being with the extensive
amendment of HSA, specifically section 14. Prior to the amendment, the women of the
household had a right to demand maintenance and a right of dwelling, but could not retain a
share in the family property or command any property of their own. It was in alignment with
societal views of not granting women an absolute power of alienation of property. The law as it
stood before 2005 systematically placed restrictions on a woman’s right in property share
contingent to their status as a maiden, a wife and finally a widow.
Amendments to section 14 granted female Hindus full ownership of property possessed by her
before or after the commencement of the Act. It did not extend to property given on the condition
of it being a restricted estate. Sections 15 and 16 gave the full procedure of succession in case of
female Hindu intestates.
9.3.1 General Rules of succession:
Section 15 lays down the list of heirs who stand to inherit in case of the death of a female
intestate. The property shall devolve:
1. Firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
2. Secondly, upon the heirs of the husband;
3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother.
The general rule of thumb in this case is that for entries (a) to (e) in this sub-section (1) applies to
all the property of a female intestate acquired by any means, except in case of property inherited
from her father, mother, husband, or father-in-law.
If a female intestate dies leaving a son or daughter (both legitimate and illegitimate), or a child of
a predeceased son or of a predeceased daughter (i.e. issue), all of her property will be devolved
on such issue, irrespective of the source of acquisition of property. This will take place
simultaneously. If the husband of the intestate is alive, he will be part of this simultaneous
process.
If she dies leaving no issue, but her husband, her husband will get all her property except that
acquired from her father or mother. The property in that case will revert to the heirs of her father
alive at the time of her death.
Under clause (b) of sub-section (2) of section 15, the property inherited by a female Hindu from
her husband or father-in-law shall devolve upon the heirs of the husband.
9.3.2 Order of succession among heirs of female Hindu:
Section 16 is divided into three rules detailing the order of succession and manner of distribution
of property among the heirs of a female Hindu.
Rule 1 clearly states that among the heirs given in sub-clauses (a) to (e) in sub-section (1) of
section 15, the heirs referred to in the prior entry and to be given preference over the heirs in the
subsequent entries. Those included in the same entry are to succeed simultaneously.
Further, rule 2 states that the don or daughter or the intestate predeceased her, their children shall
succeed to the property as if the predeceased son or daughter was alive at the time of succession.
Finally, rule 3, which becomes applicable only when the succession is in terms of sub-clauses
(b), (d) or (e) of section 15(1), is to be invoked when under rule 1, the heirs of the husband,
father or mother are to be ascertained for the purpose of distribution of property.
The Amending Act of 2005 was seen as a way to undo the discrimination contained in section 6
of HSA by giving daughters equal right in the Hindu Mitakshara property as sons have.
9.4 TESTAMENTARY SUCCESSION:
The right of a Hindu to dispose of by will (or other testamentary disposition) any property which
is capable of so being disposed of by him or her, in accordance with the provisions of the Indian
Succession Act is expressly recognised by Section 30 of the Act. Thus, S. 30 is merely an
assertion of the general rule that a Hindu is capable of disposing of by will any properly, which
is within his or her power to bequeath.
The Explanation to this Section provides that the interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru
in the property of tarwad, tavazhi, illom, kutumba or kavaru is deemed to be property which he
can dispose of by will notwithstanding any other rule of law to the contrary.
According to the ancient Mitakshara Law, no coparcener could dispose of by will, his undivided
coparcenary interest, even if the other coparceners agreed to such a disposition. This rule of
Mitakshara Law is now abrogated by this Section, because the Explanation to the Section makes
it abundantly clear that the interest of a male Hindu in the coparcenary property of a Mitakshara
coparcenary is now property which he is capable of disposing of by will notwithstanding any
other rule of law to the contrary.
As seen earlier, according to the Dayabhaga law, a father can, by will, dispose of his entire
property, whether ancestral or self- acquired. Likewise, a coparcener of a Dayabhaga
coparcenary can, by will, dispose of a whole of his interest in joint family property. Now, after
the passing of the Act in 1956, the same rules apply to Mitakshara Joint Family properties also.
The Madras High Court has clarified that what a coparcener can do is dispose of his interest in
joint family property by will. There is still no power to do so by a gift. (M.S. B.Y. Board v.
Subramania, A.I.R. 1973 Mad. 277)

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HumanHandsTogether.

Origin of Hindu law

Nature and scope of Hindu Law

Who are Hindus?

To whom Hindu Law apply

3. Persons who are not Muslims, Christians, Parsis or Jews

To whom Hindu law does not apply

Constitution of India and the Enactments under the Hindu Law

Constitutional enactments are:

Impact of Hindu Law Enactments in Fundamental Rights

3. Commenatries and Digests

Requirements for a valid custom

Usage and Custom

1. Judicial Decisions (Precedents)

2. Legislatures / Statutes (Codification of Hindu Law)

3. Justice, equity and good conscience

1.1. Dravidian School of thought : (Madras school)

1.2. Maharashtra School: (Bombay School Of Thought)

1.3. Banaras School Of Thought:

1.4. Mithila School Of Thought:

2. DAYABHAGA SCHOOL OF THOUGHT

Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana,

Differences between Mitakshara school & Dayabhaga school.

The two schools mainly differ or the following points:-

 Inheritance under Dayabhaga school—

3. Joint Family Property:

 Joint family property under Dayabhaga school—

MARRIAGE UNDER HINDU MARRIAGE ACT, 1955

1. neither party has a spouse living at the time of the marriage;

Bigamy – Section 5 (i)

2. Condition regarding mental health or capacity

3. Condition of marriageable age

4. Avoidance of degrees of prohibited relationship

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

5. Avoidance of sapinda relationship

Rules for determining Sapinda relations:

2. VOID MARRIAGES [Section 11]

Thus a marriage will be void ab initio,

Effect of a Void Marriage

3. VOIDABLE MARRIAGES [Section 12]

Section 12 reads as follows,

Grounds for Voidability of a Marriage

 DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGE.

MATRIMONIAL RELIEF: CONCEPT AND GROUNDS OF VARIOUS

1. RESTITUTION OF CONJUGAL RIGHTS

Pre-requisites for grant of Restitution of Conjugal Rights

 WITHDRAWAL WITHOUT REASONABLE EXCUSE

 Cases of reasonable excuse

 Cases of absence of reasonable excuse

(2) The husband did not come to fetch his wife.

Additional grounds to wife to claim decree

VOID MARRIAGES [Section 11]

Thus a marriage will be void ab initio,

VOIDABLE MARRIAGES [Section 12]

4.1 Concept of Divorce

4.2 Theories of Divorce

4.3 Grounds for Divorce under Hindu Marriage Act

The offence of adultery may be proved by:

Some Instances of Cruelty are as follows –

 false accusations of adultery or unchastity

The following do not amount to cruelty-

 ordinary wear & tear of married life

 the factum of separation

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