KAMKUS COLLEGE OF LAW

B.A. LL.B. Vth SEM.
Hindu Law
CODE BL-(5004)
UNIT- Ist

Detailed Questions Answers

Q. 1. Can Hindu Codified law be applied to a person who not traditionally a

Hindu by religion? If so under which provisions of law?
Ans.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 Rajas asana.
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 vs 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
ƒ to converts from the Hindu to the Mohammedan faith
ƒ to the Hindu converts to Christianity
ƒ 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:
ƒ Hindu Women’s Rights to Property Act, 1937
ƒ 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).

Sources of Hindu Law

Ancient Sources Modern Sources

Legislatures

Judicial Decisions (Precedents) Justice, Equity and Good Conscience

Shruti (Vedas)Smritis Commentaries and Digests

Custom

DharmashastrasYajnavalkya Smriti
Narada Smriti

Dharmasutra Manusmriti

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: 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. Some people believe
that Vedas contain no specific laws, while some believe that the laws have to be inferred from
the complete text of the Vedas.
The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term
Veda is based on the tradition that they are the repository of all knowledge. Since vedas had a
divine origin, the society was governed as per the theories given in vedas and they are considered
to be the fundamental source of Hindu law.
Shrutis basically describe the life of the Vedic people.
There are four Vedas namely-
1. Rig Veda -containing hymns in Sanskrit to be recited by the chief priest,
2. Yajurva Veda - containing formulas to be recited by the officiating priest,
3. Sama Veda - containing verses to be chanted by seers and
4. Atharva Veda - containing collections of spells and incantations, stories, predictions,
apotropaic charms and some speculative hymns.
Each Veda has three parts viz.
1. Sanhita -which consists mainly of the hymns),
2. Brahmin -tells us our duties and means of performing them) and
3. Upanishad -containing the essence of these duties).
The shrutis include the Vedas along with their components. The brahmanas are like the
appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
Some people believe that Vedas contain no specific laws, while some believe that the laws have
to be inferred from the complete text of the Vedas.
Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of
women from inheritance, and partition but these are not very clear cut laws.
During the vedic period, the society was divided into varns and life was divided into ashramas.
The concept of karma came into existence during this time. A person will get rewarded as per his
karma. He can attain salvation through "knowledge". During this period the varna system
became quite strong.
The vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-smriti
sutras and gathas were composed. However, not much is known about them today. It is believed
 

that various rishis and munis incorporated local customs into Dharma and thus multiple
"shakhas" came into existence.
2. Smritis
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis
contain those portions of the Shrutis which the sages forgot in their original form and the idea
whereby they wrote in their own language with the help of their memory. Thus, the basis of the
Smritis is Shrutis but they are human works.
There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is
almost the same. The difference is that the Dharmasutras are written in prose, in short maxims
(Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we
find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word
Smriti is used to denote the poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted Smriti
writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are
Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh,
Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories viz.
1. Achar (relating to morality),
2. Vyavahar (signifying procedural and substantive rules which the King or the State
applied for settling disputes in the adjudication of justice) and
3. Prayaschit (signifying the penal provision for commission of a wrong).
1. 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.
2. Dharmashastras
Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they
were a lot more systematic and clear.
3. 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 known 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.
4. 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.
5. 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. Commentaries and Digests
After 200 AD, most 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 earlier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan’s
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘New
Word’ and is paramount source of law in all of India.
4. Custom
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

Family 
Custom
CLASS or Caste 
Custom

1. Local Customs- These are the customs that are followed in a given geographical area.
In the case of Subbane vs Nawab, Privy Council observed that a custom gets it force due to the
fact that due to its observation for a long time in a locality, it has obtained the force of law.
2. Family Customs- These are the customs that are followed by a family from a long
time. These are applicable to families where ever they live. They can be more easily abandoned
that other customs. In the case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy
Council observed that customs followed by a family have long been recognized as Hindu law.
3. Class and Caste Customs- 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 sources of laws.
Requirements for Valid Custom
1. Ancient
2. Continuous
3. Certain
4. Reasonable
5. Not against morality
6. Not against public policy
7. Not against any law
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’.
Schools of Hindu Law

The Mitakshara SchoolThe Dayabhaga School

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.

1. The 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.
Dravidian School of Thought (Madras School)
Maharashtra School (Bombay School of Thought)
Banaras School of Thought
Mithila School of Thought

2. The Dayabhaga School

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.

Short Questions Answers

Q,1. Define Custom and its importance.
Ans. Custom
Custom is a principle source and its position is next to the Shrutis and Smritis but usage of
custom prevails over the Smritis. It is superior to written law.
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’)
is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule
which in a particular family or in a particular class or district has from long usage obtained the
force of law.
 

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-
1. Local Customs
These are the customs that are followed in a given geographical area. In the case of Subbane vs
Nawab, Privy Council observed that a custom gets it force due to the fact that due to its
observation for a long time in a locality, it has obtained the force of law.
2. Family Customs
These are the customs that are followed by a family from a long time. These are applicable to
families where ever they live. They can be more easily abandoned that other customs. In the case
of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs
followed by a family have long been recognized as Hindu law.
3. Class and Caste Customs
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 sources of laws.

Requirements for a valid custom

Not against 
Ancient Reasonable
any law

Not against 
Continuous
morality

Not against 
Certain public 
policy

1. Ancient
 

Ideally, a custom is valid if it has been followed from hundreds of years. There is no
definition of ancientness, however, 40yrs has been determined to be a ancient enough. A
custom cannot come into existence by agreement. It has to be existing from long before.
Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not
recognized in Tamil Nadu. In the case of Rajothi vs Selliah, a Self Respecter’s Cult started a
movement under which traditional ceremonies were substituted with simple ceremonies for
marriage that did not involve Shastric rites. HC held that in modern times, no one is free to
create a law or custom, since that is a function of legislature.
2. Continuous
It is important that the custom is being followed continuously and has not been abandoned.
Thus, a custom may be 400 yrs old but once abandoned, it cannot be revived.
3. Certain
The custom should be very clear in terms of what it entails. Any amount of vagueness will cause
confusion and thus the custom will be invalid. The one alleging a custom must prove exactly
what it is.
4. Reasonable
There must be some reasonableness and fairness in the custom. Though what is reasonable
depends on the current time and social values.
4. Not against morality
It should not be morally wrong or repugnant. For example, a custom to marry one's
granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that permits
divorce by mutual consent and by payment of expenses of marriage by one party to another was
held to be not immoral. In the case of Gopikrishna vs. Mst Jagoo 1936 a custom that dissolves
the marriage and permits a wife to remarry upon abandonment and desertion of husband was
held to be not immoral.
6. Not against public policy
If a custom is against the general good of the society, it is held invalid. For example, adoption of
girl child by nautch girls has been held invalid. In the case of Mathur vs Esa, a custom among
dancing women permitting them to adopt one or more girls was held to be void because it was
against public policy.
 

8. Not against any law

If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated
most of the customs except the ones that are expressly saved. In the case of Prakash vs
Parmeshwari, it was held that law mean statutory 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.
Q. 2. What are the differences between Mitakshara and Dayabhaga Schools?
Ans.Differences between Mitakshara and Dayabhaga Schools

Mitakshara  Dayabhaga
1. As regards alimentation  
Members of joint family cannot
dispose of their shares while
undivided.
2. As regards inheritance
1. Before the Hindu Succession
Act, 1956 the principle of
inheritance was consanguinity
(i.e. blood-relationship).
2. But cognates are postponed to
agnates.
3. As regards joint property
 
1. Any member of joint family
may sell or give away his share
even when undivided.
1. Before the Hindu Succession
Act, 1956 the principle of
inheritance was spiritual
efficacy (offering of Pindas).
2. But cognates like sister’s son are
preferred to many agnates.

1. Right to property arises by

birth (of the claimant); hence
the son [and after the Hindu
Succession (Amendment)
Act, 2005, daughter] is a co-
owner with the father in
1. Right to property arises by death
(of the last owner); hence, son
has no right to ancestral
property during father’s life-
time.
 

As regards inheritance of separate property there is no difference betwwn Mitajshara and the
Dayabhaga law after the commencement of the Hindu Succession Act, 1956.

4. As regards Doctrine of Factum

Valet, i.e.,a fact cannot be altered
by hundred texts-
1. Doctrine of factum valet is fully
1. It is recognised to a very limited
recognised.
extent.
2. Dayabhaga is a digest of all the
2. Mitakshara is a commentary.
Codes.
3. Mitakshara is an orthodox school.
3. Dayabhaga is a reformed school.

Very Short Question Answers

Q. 1. Who is Hindu and application of Hindu law?
Ans. Who are Hindus?
As per various legislation related to the Hindus, the following persons are deemed to be Hindus:
Any person who is Hindu by religion irrespective of or regardless of its forms
or developments, including-
(a) A Virashaiva, (b) a Lingayat, (c) a follower of the Brahmo, Prarthana or Arya Samaj.
Any person who is either-
(a) A Buddhist by religion; (b) a Jain by religion; or (c) a Sikh by religion.
 

Any other person domiciled in the territories to which this Act extends who is
not-
(a) A Muslim by religion; or
(b) A Christian by religion; or
(c) A Parsi by religion; or
(d) A Jew by religion, except when it is proved that any such person would or usage as a part of
that law (Hindu Law) in respect of any of the matters which are dealt with in these Acts, if these
had not been passed.
Persons to whom Hindu law applies
• Hindus by birth and also Hindus by conversion in any of its forms ore developments
including Brahmans, Arya Samajists, etc.
• Illegitimate children whose parents are Hindus.
• Illegitimate children born of a Christian father and a Hindu mother and brought up as
Hindus.
• Buddhists, Jainism and Sikhs and Namburdy Brahmans except, so far as such law is
buried by custom and Lingayats who are considered as Shudras.
• Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism where the
sons are taken into the family of Hindu grandparents and are brought up as Hindus.
• A Hindu by birth who having renounced Hinduism, has reverted to it after performing the
religious rites of expiation and repentance, or even without a formal ritual of
reconversion when he recognized as a Hindu by the community.
Categories of persons to whom Hindu law applies
• Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.
• Any person who is born of Hindu parents (viz., when both the parents or one of the
parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and
• Any person who is not a Muslim, Christan, Parsi or Jew, and who is not governed by any
other Law.
Q. 2. Is it true to say “Hindu Law is not Lex Loci but a law of status?”
Ans. In fact is true to say that Hindu Law is not Lex Loci but a law of status. The meaning of
this statement is that Hindu migrates from one particular locality but is personal law and when a
 

Hindu migrates from one place to another he carries his personal law with him. In order to
establish that he has adopted the local law it must be proved beyond doubt. It is the law of place
of domicile which would follow him to his place of migration. Thus, where a person belonging
to Lucknow shifts to Calcutta and is settled permanently there he would be governed by
Mitakshra law particularly it’s Banaras School rather than by Dayabhaga law which is the law
governing the Hindus of West Bengal but where nothing is known about the place of permanent
residence. The Privy Council observed “If nothing is known about a person except that he lived
in a certain place, it will be assumed that personal law is the law which prevails in that place.
 

KAMKUS COLLEGE OF LAW

B.A. LL.B. Vth SEM.
Hindu Law
CODE BL-(504)
UNIT- IInd

Detailed Questions Answers

Q. 1. Discuss in detail the provisions of Hindu Marriage Act 1955 to decide the
legitimacy of children born out of a ‘void’ or ‘voidable’ marriage.
Or
Q. 1. If valid consent has not been obtained by any of the parties to a Hindu
Marriage will that marriage is void or voidable under the provision of Hindu
Marriage Act 1955.

Ans. Void Marriage

Section 11 of the Act had considered following marriage to be void
Any marriage solemnized after 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 one of the conditions specified in clauses (i), (iv) and (v), Section
5. It means..
1. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void
2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from
A. Five generation from the paternal side,
B. Three generations from the maternal side,
C. The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu
Marriage Act 1955 talks about the degree of prohibited relationship that is as follows:
3. Where parties to the marriage come with degrees of prohibited relationship.
According to section 3(f)(i) "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;
According to section 3(f) (ii) two persons are said to be "sapinda" of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if they have a common lineal
ascendant who is within the limits of sapinda relationship with reference to each of them;
According to Sec 3(g) "degrees of prohibited relationship” - two persons are said to be within
the "degrees of prohibited relationship"-
(I) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's
or grandmother's brother or the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters.
Explanation.- for the purposes of clauses (f) and (g) relationship includes-
(I) relationship by half or uterine blood as well as by full blood;
(ii) Illegitimate blood relationship as well as legitimate;
(iii) Relationship by adoption as well as by blood; and all terms of relationship in those clauses
shall be construed accordingly.
In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High Court that an
application for declaring a marriage void is not required to be presented by the victim only.
In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even
the decree of a court.
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 the second wife, has no right to move for a 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 a 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 a
perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil
Procedure Code and Section 54 of the Specific Relief Act.
Consequences of a void marriage
• The parties have no status of wife and husband
• Children of a void marriage are illegitimate (this is subject to the provision of section 16
of Hindu Marriage Act 1955).
• A void marriage doesn’t give rise to mutual rights and obligations.

Voidable Marriage

A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.
Section 12 Voidable Marriages

Section 12 of the Act mention about voidable marriage According to it, in case of marriage being
voidable, the court may decae it Null under following conditions :-
1. Where marital cohabitation has not occurred due to impotency of the respondent.
2. Where at the time of marriage any party failed to give valid consent due to unsoundness or has
been effected by mental retardness to such extent that he is incapable to marriage and giving
birth to child, or suffers from frequent insanity or is insane.
 

3. Where the consent of guardian is necessary for the marriage and such consent has been
obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to the
respondents.
4. Where the respondent is pregnant at the time of marriage from a person other than the
applicant.
Here is important that if marriage is voidable on the ground of consent obtained by fraud as
force, then such marriage shall be declared null only when:-
(a) The applicant is presented within one year from the date of knowledge of fraud as force used.
(b) The parties have not lived as husband and wife after the knowledge of force used or fraud.
Similarly if the marriage is voidable due to the pregnancy of wife then such marriage shall be
declared null only when the court is satisfied that :-
(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.
(b) If the marriage has been solemnised before this Act came into force, then the application
shall be presented within one year from the date of enforcement of the Act or if the marriage has
been solemnised after the act came into force then the application shall be presented within one
year from such marriage.
(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.
(d) Wife had been pregnant from a person other then the applicant.
(e) She was pregnant before the marriage.
Impotency
Impotency means the incompetency of any party to cohabit due to any physical or mental
situation. A case Digvijay v/s Partap Kumai -1970 and Bibi v/s Nath 1970 It was held that
nullity of marriage requires the existence of impotency at the time of first cohabitation.
Unsoundness
A case ofRatneshwari v/s Bhagwati- 1950 It was said that unsoundness insanity or lunacy for
the purpose of marriage means: The incompetency of any party to marriage to understand the
rituals of marriage.
Fraud of Force
Concealment of caste religion or misrepresenting a mother as a vingin or false praising or
concealing prior marriage etc., are good example of fraud.
Legitimacy of child born in void and voidable marriage
 

Section l6 provides for the legitimacy of child born in void and voidable marriages. According to
it, it can be said that such children are considered legitimate. Section 16 says- “ Where any
decree of nullity has been passed regarding marriage under section 11 & 12 then any child
having born or being in mother’s womb before the decree, if the marriage instead by decree of
nullity to declare null or void would have been breached shall have been the legitimate child of
the parties to marriage, shall be deemed to be legitimate even after passing of decree of nullity.
Such children does not obtain any right in the property of persons other than his own parents i.e
such children shall not inherit property from any other relative other than the parents. A case
Bansidhar v/s Chabi 1967 It was held that the children from void and voidable marriage shall be
deemed to be the legitimate children of their parents.
It has categorically been held in Bharatha Mathaa vs Vijaya Reganatham 2010 SC2685 that
children born out of live- in- relationship cannot benefit of sec. 16.

Q. 2. When was the provision for ‘Divorce by Mutual Consent’ introduced in

Hindu Marriage Act 1955? What are its requirements if a couple wants to have
divorce?

Ans Divorce by mutual Consent

When husband and wife both agree to a divorce, the courts will consider a divorce with mutual
consent. For the petition to be accepted, however, the couple should be separated for over a year
or two years (as per the relevant act) and be able to prove that they have not been able to live
together. Often, even when either husband or wife is reluctant, they still agree to such a divorce
because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as
children’s custody, maintenance and property rights could be agreed to mutually.
The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
amendment in 1976, by adding Section 13B[1]. Section 13B of the Hindu Marriage Act[2], 1955
runs:
• Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together,
whether such marriage was solemnised before or after the commencement of the
Marriage Laws (Amendment) Act, 1976, on the ground that they have been living
 

separately for a period of one year or more, that they have not been able to live together
and that they have mutually agreed that the marriage should be dissolved.
• On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solemnized and that the averments in the petition are
true, pass a decree of divorce declaring the marriage to be dissolved with effect from the
date of the decree.
Requirements of divorce by mutual consent
The first requirement is that the parties should be living separately for a period of at least one
year before filing the divorce petition. It is necessary to understand what does the term “living
separately’ means.
Living separately
The Supreme Court of India in the case of Sureshta Devi v Om Prakash has ruled out “that the
expression living separately connotes not living like husband and wife. It has no reference to the
place of living. The parties may live under same roof by way of circumstances, and yet they may
not be living as husband and wife. What seems to be important is that they have no desire to
perform marital obligations and with that they have been living separately for a period of one
year immediately preceding the presentation of the petition.” It has been ruled out by Supreme
Court in various cases that the expression “have been living separately’ does not necessarily
means physical separation or living separately and apart what is material is that no marital
obligations are performed between the spouses and they are not living together as husband and
wife.
Parties have not been able to live together
After establishing the first requirement that the parties were living separately for one year or
more, the second point that has to be established is that the parties have not been able to live
together.
In Sureshta Devi v Om Prakash the Supreme Court observed that expression “have not been
able to live together” seems to indicate the concept of broken down marriage so much so that
there is no possibility of any reconciliation. The parties need not establish the fact that they have
 

not been able to live together. The very fact that they have presented a petition by mutual
consent is indicative of this fact that they have not been able to live together. However, it is very
imperative to determine whether consent given by both the parties is free and not obtained by
any kind of force, fraud or undue influence.
After satisfying the above two requirements and filing a joint petition for divorce by mutual
consent, the parties must wait for at least six months, usually termed as the “cooling period”.
After the end of this period, if the initial petition is not withdrawn by either of the parties or
jointly, both the parties may move court by way of joint motion within the stipulated period of 18
months from the initial date of the filing of the joint petition. This period is given to parties to re-
think their decision.
The following aspects of this provision have been subject to judicial interpretation-
Whether the waiting period of six months is mandatory or directory
There have been conflicting judgments on this regard that whether the courts should mandatorily
wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi
Venkata Chitti Abbaicase, the court observed that- “If Section 13-B (2) is read as mandatory, the
very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated
more so when the parties started living separately for a considerable time. Thus s 13-B (2)
though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar
Shukla v Neeta,it was held that the waiting period is directory in nature and it can be brought
down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled) when all
efforts at reconciliation failed.
But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi,it was held that “the provision
has a definite purpose and object, i.e. giving time to the parties for introspection and
reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-
B (2) of the Act robbing away the right of the court from considering the petition earlier than six
months.”
In the case of Ashok Hurra v Rupa Ashok,it was held that “in exercise of its extraordinary
powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties
without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This
doctrine of irretrievable break-down of marriage is not available even to the High Courts which
 

do not have powers similar to those exercised by the Supreme Court under Article 142 of the
Constitution.”
Whether consent can be unilaterally withdrawn
There have been contrasting judgments on this issue. The controversy is that since under this
section both parties have to file a joint petition for divorce how can one party unilaterally
withdraw from it. Also, one of the purposes of giving a time period of six months is to allow
parties to re-think their decision and if one of the party decides to withdraw from it, why should
it not be allowed to do so.
In Jayashree Ramesh Londhe v Ramesh Bhikaji, the court held that once a joint petition by
mutual consent was filed, no party could withdraw from it without the consent of both the
parties. Likewise, in Nachhattar Singh v Harcharan Kaur, it was held that- “If both the parties
had voluntarily consented to file the petition for dissolving the marriage by mutual consent and
all other conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will
not be open to a party to withdraw the consent.”
Whether mere silence at the second stage would tantamount to withdrawal
If the parties who have filed for divorce under mutual consent and after the end of the 6 month
period what is to be done if either of them do not turn up. Will it amount to withdrawal of
consent? Rajasthan High Court in the case of Suman v Surendra Kumar has answered these
issues. In this case the husband after filing a joint consent petition for divorce did not appear for
hearings. The family court held that no decree could be passed in the absence of both the parties.
On appeal it was held by the court that- “When one party has himself left the matter for
inference, the inference ought to be drawn in favour of consent rather than for absence of
consent.” It was held that silence cannot be taken to amount to withdrawal of consent.

Q. 3. What are the various grounds of divorce with the help of case laws?
Or
Q. 3. Define the word ‘Cruelty’ as one of the grounds of divorce given in Hindu
Marriage Act 1955. Is demand for dowry ‘cruelty’? Refer to SC. Case on the
Subject.
Or
Q.3. Define the term ‘Desertion’ as ground of divorce and essential elements in
the light of Supreme Court case Bipin Chandra vs Prabhavati A.I.R. 1956 S.C.
 

Ans.Grounds of Divorce
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 the 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 the breakdown of the 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-
1. Adultery
Adultery is an extramarital sex. It is a consensual sexual intercourse between a married person
and a person of the opposite sex not being the other spouse, during the subsistence of the
former’s marriage.
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.
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 the wife found her husband and the adulteress to be lying
in the same bed at night and further evidence of the neighbours 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.
in Sachindranath Chatterjee vs Sm. Nilima ChatterjeeIn this case, the petitioner and the
defendant were married. After marriage, the husband leaves the wife in his home town so that
 

she can complete her studies and go to another city for work. He visited twice or thrice a month
to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual
intercourse with his own nephew, watchman etc. The plaintiff approaches the court to demand
divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.
Essentials of Adultery
1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another spouse.
2. Cruelty
It is an important ground for judicial separation and divorce. If any party to marriage behaves
with cruelty to the other party, then the other party can present an application for divorce
against the first party on this ground.
Definition of Cruelty
Cruelty has not been universally defined till now. It depends upon the circumstances of the case
and the country and time.Russel v/s Russel, 1897 Cruelty has been described as such characterial
behaviour or conduct which may put life and body under physical or mental form of danger or
may arise apprehension of such danger.
If the definition is understood in matrimonial context, it shall show that any party to marriage
may behave with other party in such manner that it shall be difficult for other party to live with
him, this shall be cruelty.
Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been held that husband along with his
parents use to regularly beat the wife. Father-in-law physically misconducted with her. Husband
neve went to bring back wife nor made any attempt towards it. Court held this behaviour of
husband to be cruelty because such circumstances arose that it became difficult for wife to live
with the husband.
Similar case isYadhister Singh v/s Smt. Sarita, 2002– wife used to live at ancestral home of
husband. Husband was working somewhere else. Husband never wanted to keep wife along with
him. He used to come at his ancestral home once a week. He did not used to say his wife that he
 

did not liked her, but he did say that she should live only with the other members of family at the
ancestral property.The Court held it to cruelty.
There are several cases of cruelty. Actually the definition of cruelty depends upon the
circumstances of the case.
3. Types of Cruelty
a. Physical Cruelty.
b. Mental Cruelty.
Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that it includes
both physical and mental type of cruelty.
Praveen Mehta v/s Indrajeet Mehta, 2002,the Supreme Court said that Mental Cruelty is a state
of mind and feelings. In this case, wife refused intercourse form the first day after marriage. She
also refused to undergo medical examination. She used to misbehave always with her husband.
She also left her matrimonial home. Court held it to be cruelty by wife towards husband.
Rakesh Sharma v/s Surbhi Sharma, 2002- Wife left the matrimonial home without the
permission of the husband. She used to charge husband with adultery and making constant
demand of dowry. Court held it to be a conduct of mental cruelty towards husband.
Shobha Srinivas v/s Srinivas Veranna, 2002- Court did not considered such a single act of wife
as cruelty in which the illiterate wife emotional anger threw the Mangal Sutra.
In all, it means that cruelty is determined by the facts and circumstances of every matter.
Demand of Dowry
Demanding dowry is one of the worst evil that is present in the Indian society. Materialism,
influenced by greed seems to be the primary cause for consistent dowry related violence against
women. Gender insensitivity coupled with indifference patronised by patriarchy fuels this
attitude beyond imagination. This is the precise reason why cruel and inhuman acts in the form
of dowry death continue to take place unabated.
The Demand of dowry from the wife or her parents and relations amounts to cruelty ( Sobha vs
Mdhukar, 1988SC1291.)
Gurbachan Singh v. Satpal Singh, the relation between demand for dowry and cruelty has been
explained by the Supreme Court. As per the facts of the case it was held that the victim, a
newlywed woman, who had committed suicide within a year of her marriage, was subjected to
utmost cruelty (she was also insinuated to have an illegitimate child). The accused family
 

demanded dowry and when she failed to bring it, they tortured her. The court, comprising a two
judge bench of said that, that the worst part of the cruelty was that she was even taunted for
carrying an illegitimate child. The Court also held that a respectable lady cannot bear this kind of
false allegation levelled against her and this must have mentally tortured her. Thus the persistent
demands of the accused for more money, their tortures and taunts amounted to instigation and
abetment that compelled her to do away with her life.
4. Desertion
It actually means when a party to the marriage permanently leaves the other party without any
valid reason and without the consent of another party. This may also include the ignorance of the
one party to the other party. Thus, it is not only the abandonment of place but it is also of the
situation and if this situation of desertion continues for more than two years, then it shall be the
ground of divorce.
In the case of Savitri Pandey vs. Premchand pandey2002 SC 591 the Supreme Court held that
“the desertion actually means the ignorance from matrimonial duties, by either party instead of
leaving any place. It also requires the existence of cohabitation between the parties earlier”.
In Bipinchandra v. Prabhavati, 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.
Elements of Desertion
1. The fact of separation
2. The intention to desert
3. Desertion without any reasonable cause
4. Desertion without the consent of the applicant
5. Desertion continues for two years
Types
1. Actual desertion
It mainly requires the intention of desertion without any reasonable cause and the situation when
one party leaves the matrimonial home permanently without the consent of the other partner.
This situation should be continued for two years and then it became the ground of the divorce.
This is also called as physical separation and Animus Desertion. In the case of Gur Bachan
 

Kaur v. Preetam Singh (1998) the court held that the desertion shall not be done by the consent
as desertion requires the guilt by one of the parties and desertion by the consent isn’t considered
as desertion.
2. Constructive desertion
Desertion is not always the abandonment of place, sometimes it is an abandonment of situation
and it is known as constructive desertion. It can also be said as that desertion means not
abandoning the place, rather it is ignoring the matrimonial obligations while living under the
same roof.
3. Willful neglect
Desertion includes willful neglect of the petitioner by the other party of the marriage. Subbarao
J. expressed the view that willful neglect is designed the cover constrictive desertion and thus it
must satisfy the ingredients of desertion.
5. Conversion
If one of the spouses converts his religion to any other religion without the consent of the
other spouse, then the other spouse can approach the court and seek the remedy of divorce.
Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce on the
ground of conversion.
In Suresh Babu vs LeelaIn this case, the husband converts himself into Muslim and marries
another woman. Here the wife Leela filed a case and demanded the divorce on the ground of
conversion without her consent and cruelty.
6. Insanity
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-
1. The respondent has been incurably of unsound mind.
2. The respondent has been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be expected to live
with the respondent.
In Vinita Saxena vs Pankaj PanditIn this case, the petitioner filed a case to get the divorce from
the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia
 

which means mental disorder. She came to know these after her marriage. Here, the court grants
the divorce on the ground of insanity of husband.
7. Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this
disease is transmitted from one person to another. Thus it is considered as the valid
ground for divorce.
In Swarajya Lakshmi vs G. G. Padma Rao In this case, the husband filed the case for
granting the divorce on the ground of leprosy. He claimed that his wife is suffering from
incurable leprosy with the expert’s reports. Here he succeeds in getting the divorce on the
ground of leprosy.
8. 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).
9. 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.
10. 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, 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.
Beside these grounds, the divorce as a customary divorce can also be seeked through mutual
consent under Section 13-B.
Q. 4. Explain the Concept of Hindu Marriage. Discuss?
 

Ans.Hindu Marriage
• According to Hinduism, marriage (vivaha) between two persons is a sacred relationship
that is not limited to this life alone. It extends across seven or more lives, during which
the couple help each other progress spiritually. The adage that marriages are made in
heaven is very much true in case of Hinduism. Two souls come together and marry
because their karmas are intertwined and they have to resolve many things together upon
earth in order to ensure their mutual salvation.
• The relationship between a couples is essentially a relationship of the souls. It is not
necessary that their gender roles are fixed forever. Sometimes they may switch roles and
the husband may become the wife and the wife the husband. Sometimes they may also
temporarily part their ways and come together again after one or two lives in a grand
reunion.
• Marriage in Hinduism is a sacred relationship. It is both an obligatory duty (dharma) and
a samskara (sacrament). Unless a person renounces life and accepts the life of a
renouncer (sanyasi), he is expected to marry and lead a householder's life. It is an
essential aspect of the four ashramas (brahmacharya, grihastha, vanaprastha and
sanyasa) and the four aims (purusharthas) of human life, namely, dharma, artha (wealth),
kama (sensuous pleasures) and moksha (salvation). For a Hindu woman marriage marks
the end of her life as a maiden. She has to leave her parent's home to begin life anew in
her her husband's house, amidst new people and new surroundings. After marriage her
relationship with her parents remain formal and minimal. Marriage therefore become a
matter of anxiety and stress for many women, till they become familiar with their new
surroundings and the new people in their lives. The early stages of marriage is a make or
break situation in case of many. It is also the period during which the bride either
becomes popular in her new home or unpopular, depending upon her behavior and her
relationships with each member of her husband's family.
• Hindu marriage tradition recognizes seven different types of marriage, ranging from the
popularly known arranged marriages to the extremely rare and forced marriages through
abduction. Generally most of the marriages are arranged with the consent of the bride and
the bridegroom and the blessings of the elders. Caste, natal charts, gotra (kinship or
family lineage), family background, financial status of the groom, appearance and
 

character of the bride and the bridegroom, the willingness of the parents are some
important considerations in arranged marriages. In some parts of southern India,
marriages between cousins (children of brother and sister) are considered normal. In
ancient India, if a woman's husband died, she had the permission to marry her deceased
husband's brother, strictly for the purpose of progeny. Polygamy was an acceptable norm
in ancient Hindu society. But presently Hindus are expected to be strictly monogamous.
Hindu Marriages in Modern Society
• Love marriages are on the increase, but there is still a lot of skepticism about them. Love
marriages within the same caste and financial background are favored, compared to inter-
caste and inter-religious marriages. Couples who dare cross the social conventions have
to cope with a lot of social pressure within their families and outside. These problems are
more acute in the rural areas compared to the urban areas and metropolitan cities. Much
depends upon the family background. If parents are educated and enlightened on both
sides, things would be easier for the children, who get involved in unconventional
relationships.
• One of the evils of Hindu marriages is the ubiquitous dowry system. The amount of
dowry can be a very substantial amount, even in dollar terms, depending upon the
financial status of the parties involved. Sometimes greedy mother-in-laws and husbands
subject the poor brides to innumerable hardships for not meeting their expectations in
respect of the dowry. Cases of bride burning are not unknown. Indian penal code
prescribes severe punishment for such acts. But the cases take years and decades before
the courts deliver justice. Hindu marriages are also very expensive because of the status,
dowry, expensive gifts, family prestige and other issues involved. The bride's parents
have to bear the brunt of most of the expenses and in many cases it leads to their financial
indebtedness.
Marriage Rituals
• In arranged marriages the marriage is consummated through elaborate ceremonies
presided over by a Vedic priest well versed in Vedic mantras. The marriage date is fixed
after consulting the astrological charts and then invitations are sent. Before the marriage
date, both the parties spend a lot of time in preparation and exchange of gifts. On the
marriage day, the bride and the bridegroom and relations on both sides assemble in a
 

public auditorium or a temple premises, or in the house of the bride's parents and
participate in an elaborate ceremony conducted by a priest.
• The marriage ceremony is generally a lengthy affair. A lot of vedic mantras are chanted
during the ceremony, while a band plays on in the back ground. All the guests are
entertained with food and beverages. Meat and alcohol are not generally served during
such ceremonies, except in some communities. In the last part of the ceremony the
bridegroom ties a sacred thread (mangalsutram) or a gold necklace around the bride's
neck with three knots, accepts her hand in marriage (panigrahanam) and then takes seven
steps (saptapadi) together with her, uttering vows of friendship, loyalty and
righteousness. After this both of them play some traditional games between themselves to
lighten the atmosphere and provide entertainment to the guests. This is followed by a gift
ceremony during which the couple acknowledge the gifts brought by the guests for the
their wedding. The marriage rituals usually vary from region to region and caste to caste.

However following are some of the most common and popular rituals
• Gifting the bride (kanya danam)- As the priest chants the mantras, the bride's father
first gives away his daughter to the gods and then, with gods as the witnesses to the
bridegroom. The bridegroom promises to look after the bride as his better half and protect
her for the rest of her life.
• Fire ceremony (homam) - The sacred fire is lit and the priests chant sacred mantras
offering oblations to various gods to make the marriage a success and bless the couple.
• Accepting the bride (pani grahanam) - The groom holds the left hand of the bride with
his right hand, as a symbolic gesture of accepting her as his bride, amidst vedic chants
and some accompanying rituals.
• Marriage vows (pratigya karan) - The bride and the groom take vows to remain loyal
to each other, performing their respective dharmas (duties).
• Walking around fire (agni parikrama) - The bride and the bride groom walk around
fire seven times, with fire as the witness, to sanctify the marriage. In some communities,
the groom ties a sacred thread (mangal sutra) around the neck of the bride as a mark of
the marriage bond.
 

• Taking seven steps together (seven steps) - The bride and the groom walk seven steps
together, each step calling for a particular auspicious situation in their lives: nourishment,
strength, prosperity, happiness, progeny, long life and harmony and understanding.
• Star gazing – The bride and the groom are shown either the
A few simple and straight facts about Hindu marriages
1. Hindu marriage is essentially an extension of the four aims (purusharthas) and the four stages
(ashramas) of human life. Unless a person has accepted the life of renunciation out of his intense
longing for liberation, marriage is sacred responsibility (dharma) of each and every individual in
society.
3. Hindus consider marriage as a sacred relationship, between two souls, not just two bodies.
Marriage is meant for the continuation of family and practice of dharma. In Hindu tradition,
there is no concept as divorce. Once married, a couple are wedded for life. Divorce is a modern
practice introduced into Hindu society through the Hindu Marriage Act in India.
5. Hindus believe that the marriage relationship extends beyond one's life.
6. In the traditional marriage, the bride and the bridegroom are considered as divinities. The
bride is first married to gods and then placed under the bridegroom's protection as a gift from
gods.
7. At the time of marriage, the bridegroom ties a sacred thread around the bride's neck and
accepts her hand (panigrahanam.) in marriage. Then they both take seven steps (saptapadi)
together around the fire uttering vows of friendship and mutual loyalty.
8. Hindu marriage tradition recognizes the importance of a woman in the family. She is expected
to share the responsibilities of the household like a goddess (grihalakshmi) and enjoy the love
and care of her husband and children.
9. According to Hindu marriage Act 1955 passed in India, the eligible age for marriage is 21
years in case of a boy and 18 years in case of a girl. This law has been passed mainly to ban child
marriages and such practices as polygamy, which is recognized as a punishable offence.

Q. 5. What are the essential conditions of a Hindu Marriage? What is the

consequence of non- fulfillment of conditions?
Or
 

Q. 5. What do you understand by ‘Prohibited Degree of Relationship’? Who are

included within it and for what purpose? What is the effect of custom in this
regard? Explain with example.
Or

Q. 5. Which of the relations of a Hindu are within his or her ‘Sapinda

Relationship?’ Are relatives by adoptions, illegitimate relationship or relation by
marriage also including in ‘Sapindas?’

Ans.Introduction
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other
a non-Hindu or both are Non Hindus, the marriage will not be a subject matter of this Act but
will relate to some other law i.e. Special Marriage Act etc. The essential conditions of valid
Marriage are given and discussed below.
Clause (1) 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.
Sec. 5 (1) Bigamy
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.
Clause (2)) – Mental Health and Capacity
 

Sub clause (a) 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) – 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) – 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.
Clause (3) – 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.
Clause (4) – Avoidance of Degrees of Prohibited Relationship
Section 3, cl. (g) and Sec.5 (iv) of the Hindu Marriage Act, 1955 deals with prohibited degrees of
relationship. Section 5, cl.( iv) prohibits marriage between persons who are within the prohibited
degrees of relationship with each other.
 

According to Section 3(g), two persons are said to be within the degrees of prohibited
relationship:
1. if one is a lineal ascendants of the other; or
2. if one was the wife or husband of a lineal ascendant or descendant of the other; or
3. if one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother or of the other; or
4. if the two are brother and sister, uncle and niece, aunt and nephew or children of
brother and sister or of two brothers or of two sisters;77
But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage
within the degrees of prohibited relationship, then such marriage will be valid and binding.
The degrees of prohibited relationship of a male and female –
1. A female ascendant in the line. 2. Wife of a descendant in the line. 3. Wife of the brother.
4. Wife of the father’s brother. 5. Wife of the mother’s brother. 6. Wife of the grandfather’s
brother. 7. Wife of the grandmother’s brother. 8. Sister. 9. Brother’s daughter. 10. Sister’s
daughter. 11. Father’s sister. 12. Mother’s sister. 13. Father’s sister’s daughter. 14. Father’s
brother’s daughter. 15. Mother’s sister’s daughter. 16. Mother’s brother’s daughter.
A lineal descent is a descendant in the male line. There is no limit of degrees and all descendants
in the male line are lineal descendants counted down wards in unbroken line.
The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra”
or “pravara” on the theory that his father and the girl’s father were both descendant of a common
ancestor in the male line and all such marriages were held invalid until the Hindu Marriage
Disabilities Removal Act, 1946 was passed. However the rule did not apply to Sudras, the reason
given being that Sudras had no gotra of their own.
Marriage between parties related with each other within the degrees of prohibited relationship is
forbidden to prevent:
1. Physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on
the edifice of joint family system.
2. A “Karewa” marriage between a father-in-law and daughter-in-law among the “jats”
(who are presumed to be Sudras) is invalid and cannot be validated by custom. Jagnahar
 

singh v. Sadhuram (1934)15 Lah 688; 149 IC 94; AIR 1934 Lah 283.A custom must
not be opposed to public policy or abhorrent to decency and morality.
Among the Jats of Punjab, marriage with brother’s widow and in South India, maternal uncle’s
daughter and paternal aunt’s daughter are treated as eligible for marriage. This is based upon
local custom or ‘Desa Achara’. In Andhra Pradesh, custom permits marriage with sister’s
daughter. A marriage between persons who are related to each other within prohibited degrees
would become void under Section 11 of the Hindu Marriage Act, 1955. The person procuring a
marriage in contravention of this provision would be punishable under Section18 (b) of the Act.
Simple imprisonment which may extend to one month or with fine which may extend to 1000,
rupees or with both.
Clause (5) – Avoidance of Sapinda Relationship
In the Hindu texts, the word sapinda has been used in two senses; firstly, it means a relation
connected through the same body; and secondly, it mean relation connected through oblation of
food. The prohibition of Sapinda marriage is also based on the rule of exogamy. The
Dharmashastra considered sex relationship with one’s mother or one’s sister or one’s daughter or
even with one’s son’s wife as ‘mahapataka’, the highest sin. According to Vishnu, for such a
person, there was no prayaschitta85 except that he should throw himself into the blazing fire.
Theories of Sapinda relationship
In the ancient Hindu law, two theories of sapinda relationship were propounded:
1. Oblation theory
This theory was propounded by Medhatithi and Kullukabhatt. According to this theory, when
two persons offer “pindas” to the common ancestor, they are Sapindas of each other. Before
Vijnaneshwara, the sapinda relationship was linked with the oblations that one offered to his
departed ancestors. The Hindus believe in ancestor worship and offer pindadan to their departed
ancestors. Every year in the Shradha ceremony, offerings are made to departed ancestors. These
offerings are mainly in the form of pinda. The pinda literally means a ball and is usually made
from rice.
The rule is that, one offers one full pinda each to his three paternal ancestors and one full panda
to his two maternal ancestors. One also offers one divided pinda each to his three next paternal
ancestors and one divided pinda each to his maternal ancestors. Thus, he is connected by
‘pindadan’ to the six ancestors on the paternal side and four ancestors on the maternal side and is
 

sapinda to them. When two persons offer pindas to the same ancestor, they are also sapindas to
each other.
2. Particles of the same body theory
This theory was propounded by Vijnaneswara. According to Vijnaneswara, “pinda” means
“Body”. “Sapinda” means “connected by particles of the same body”. He changed the meaning
of pinda from ball to particles of the same body. According to Vijnaneswara, the sapinda
relationship arises between two persons on account of their being connected by particles of one
body. He however limited this relationship up to 7th degree on the father’s side and up to 5th
degree on the mother’s side, counting upwards in ascending order from each. The “pindas”
theory also regarded two persons as sapindas of each other, because they offered pindas to 6
ancestors ascending on the father’s side and 4 ancestors ascending on the mother’s side. If the
persons offering “pinda” is included as himself being of one generation, it means 7 degrees on
the father’s side and 5 degrees on the mother’s side.
The passage in the Mitakshara in relation to sapinda relationship runs as
follows
“He should marry a girl who is non-sapinda with himself. She is called his sapinda, who has
particles of the body of some ancestor in common with him. Non-Sapinda means not his sapinda.
Such a one he should marry. Sapinda relationship arises between two people through their being
connected by particles of one body. Thus the son stands in sapinda relationship to his father
because of particles of his father’s body having entered his. In like manner stands the grandson
in sapinda relationship to his paternal grandfather and the rest, because through his father,
particles of his grandfather’s body have entered into his own. Just so is the son a sapinda relation
of his mother, because particles of his mother’s body have entered into his.
Likewise, the grandson stands in sapinda relationship to his maternal grandfather and the rest
through his mother. So also is the nephew a sapinda relation of his maternal aunts and uncles,
and the rest, because particles of the same body have entered into his and theirs; likewise he
stand in sapinda relationship with paternal uncles and aunts, and the rest.
So also the wife and the husband are sapinda relations to each other, because they together beget
one body (the son). In like manner, brother’s wives are also sapinda relations to each other,
because they produce one body (the son) with those (severally) who have sprung from one body
(i.e., because they bring forth sons by their union with the offspring of one person, and thus their
 

husband’s father is the common bond which connects them). Therefore one ought to know that
wherever the word sapinda is used, there exists between the persons to whom it is applied a
connection with one body, either immediately or by descent.
1. Sama gotra or ‘sagotra’ sapindas
The sagotra sapindas are agnates within seven degrees of the common ancestor; the Bhinnagotra
sapindas are cognates within five degrees of the common ancestor.
The reasons for limiting the ‘sagotra’ sapindas to seven degrees and ‘Bhinnagotra’ sapindas to
five degrees are obvious: For, one is the giver of the pinda and three- father, grand father and
great grand father are recipients of pindas, and three-beginning with great grand father are
recipients of divided pinds (LEPAS)97 or as vijnaneswara himself puts it, the first pinda is
efficacious up to the 4th ancestor, the second pinda up to 5th and the third pinda up to the 6th.
2. Bhinna gotra sapindas or ‘Bandhus
As regards ‘Bhinnagotra’ sapindas, the reason for the limitation of five degrees was that, as a
woman causes a change in the family, one had to offer oblations to mother’s father, grand father
and great grandfather and counting also the mother and himself, it became five degrees.
Section 3 (f) of the Hindu Marriage Act, 1955 defines sapinda relationship. According to clause
(f) of Section 3;
1. “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;
2. two persons are said to be “sapindas” of each other within the limits of sapinda
relationship, or if they have a common lineal ascendant who is within the limits of
sapinda relationship with reference to each of them. Section 5 (v) of the Hindu Marriage
Act, 1955 lays down that the parties to marriage should not be sapindas of each other.
The Act of 1955 modified Vijnaneswara’s theory. It restricts the sapinda relationship to
five degrees on the father’s side and three degrees on the mother’s side. Thus the sapinda
relationship extends up to five degrees on the paternal side and three degrees on the
maternal side.
It should be noted that, sapinda relationship shall be computed upwards either through the
mother or through the father or both and the person concerned shall always be counted as one
 

degree. Thus the Hindu Marriage Act, 1955 prohibits marriage between persons who are
sapindas of each other.
A Hindu marriage in contravention of this rule is null and void100 . Such a marriage is also
punishable under Section 18 (b) of the Act.101 However, where custom or usage governing each
of the parties to the marriage allows marriage between sapinda relations, such marriage is valid.

Short Questions Answers

Q.1. Define provision of Hindu Marriage act 1956? Regarding restitution of
conjugal rights with the help of case laws?
Ans. Introduction
Marriage is just not only a ceremony, it also includes various marital duties and legal rights
associated with it. One of the fundamental purposes of marriage is that the spouses live together
and one spouse is entitled to the society and comfort. A cause of action, therefore, arises when
one party to the marriage withdraws from the society of the other without reasonable and just
cause and excuse would be proceeded against by the other in the court of law praying for a
decree of restitution of conjugal rights. The expression ‘conjugal rights’ connotes two ideas:
1. Right of couple to have each other’s society, and
2. Right to marital intercourse
During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
Parliament for and against it. In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court
observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery
or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India
came into force, which guarantees personal liberties and equality of status and opportunity to
men and women alike and further confers powers on the State to make special provisions for
their protection and safeguard.”
This remedy of Restitution of Conjugal Rights has been laid down under Section 9 of Hindu
Marriage Act, 1955. It runs 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 with 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.”
The Explanation attached to the section clarifies that when a question as to the existence of
reasonable excuse for withdrawal from the other person’s society arises, the burden of proof to
prove the same shall be on the person who has withdrawn from the society.
Therefore, for restitution the following three conditions must be satisfied:
1. Respondent has withdrawn from the society of petitioner without reasonable excuse
2. Court is satisfied with truth of statement made in such petition, and
3. There is no legal ground why the relief should not be granted
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 fulfill 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 relationships, such as refusal 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 leaves a wife who is guilty of the
matrimonial offense (adultery, cruelty or apostasy), it cannot 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.
Sareetha v. Venkata Subbaiah(1983)The case was decided by the Andhra Pradesh High Court
which observed that Section 9 of the said Act was a savage and barbarous remedy violating the
right to privacy and human dignity and equality guaranteed by Article 14 & 21 of the
Constitution.Hence, Sec 9 was declared to be constitutionally void for abridging rights
guaranteed under Part III of the Constitution. According to the learned Judge, a decree for
restitution of conjugal rights deprived of her choice as and when and by whom the various parts
 

of her body should be allowed to be sensed. The court relied on the Scarman Commission’s
Report in England that recoended its abolition.
Harvinder Kaur v. Harmander Singh 1983It was held that sec 9 was not violative of Articles 14
and 21 of the Constitution since the leading idea behind Sec 9 was to preserve the marriage. The
remedy of restitution was aimed at cohabitation and consortium and not merely at sexual
intercourse.

Very Short Question Answers

Q.1. What is the overriding effect of Hindu Marriage Act 1955 under section 4
previous laws governing Hindu Law.

Ans.Section 4 in the Hindu Marriage Act, 1955

Overriding effect of Act —Save as otherwise expressly provided in this Act,—
a. any text rule or interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act;
b. any other law in force immediately before the commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the provisions contained in this Act.
Q. 2. What are the Distinctions between Void and Voidable Marriages?

Ans. Distinctions between Void and Voidable Marriages

Void Marriage  Voidable Marriages
1. Meaning: A void marriage is no
marriage at all. It does not exist
from the very beginning.
2. Section: Section 11 of the Hindu
marriage Act, 1955 deals with void
marriage.
3. Marriage does not exist in the eye
of law.
4. The court simply passes the decree
of nullity since the marriage has no
existence at all.
 
1. Meaning: A voidable marriage is one
which can be avoided at the option of
one of the parties to the marriage. It
remains valid for all practical purposes
until and unless its validity is
questioned.
2. Section: Section 12 of the Hindu
marriage Act, 1955 deals with voidable
marriage.
3. Marriage exists and continues to be
valid unless it is challenged.
4. The court passes the decree after taking
into account necessary conditions.

5. Parties can remarry without decree 5. Parties cannot do so.

of nullity from the court.
 

Q.3. What are the difference between judicial separation and divorce?

Ans. Difference between judicial separation and divorce

Judicial separation Divorce

1. Can file a petition at any time post 1. Can file only after completion of one

marriage. year of marriage.

2. Only one stage of judgment. If 2. Judgment is a two-step process. First

grounds are satisfied, decree reconciliation, then divorce.

granted.
3. Temporary suspension of 3. Brings marriage to an end.

marriage. 4. Can remarry once decree in favor of

4. Cannot remarry after the passage divorce is passed.

of decree. 5. Living in an adulterous relationship

5. A single instance of adultery necessary.

sufficient for Judicial Sep.

6. The possibility of reconciliation. 6. No possibility of reconciliation.
 

KAMKUS COLLEGE OF LAW

B.A. LL.B. Vth SEM.
Hindu Law
CODE BL-(504)
UNIT- IIIrd

Detailed Questions Answers

Q. 1. Examine the legal status of a karta of a Hindu joint family. Can a female
be a Karta of a joint family?

Ans. Karta
In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There
is no office or institution in any other system of the world can be compared with it. He is a
person with limited power but he possesses such vast power within ambit of joint family which
nobody enjoys.
Who is a Karta
Karta means manager of joint family and joint family properties. He is the person who takes care
of day to day expenses of the family looks after the family and protects the joint family
properties.
Who can be a Karta
It is a presumption that ordinarily senior most male member is the Karta and Karta is always a
member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as
Karta. By his death Kartaship will pass on to next senior most male member.
In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta.
Karta owes his position by consent or agreement of all coparceners.
Female Member
Generally female member cannot become Karta but in exceptional circumstances female also can
act as Karta.
 

Nagpur High Court held the view that mother even though not a coparcener, in the absence of
adult male member can act as Karta.
In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any
female member could not be Karta of joint family and therefore cannot alienate joint family
property.
Position of Karta
Karta is sui generis (of its own kind) the relationship between him and members is not like
principal or agent or like partners in a partnership firm.
He is the head of the family and acts on behalf of other members.
He stands fiduciary relationship with other members but he is not a trustee, nobody can question
what he spent unless charges of misappropriation.
When any coparcener charges of improper alienations made by Karta, burden of proof lies on
him to prove such are malafide act of Karta.
Powers of Karta
With in joint family Karta has vast powers with limitations.
1. Power of management
He is the head of the family, his management powers are absolute. He may manage the family
affairs and family property and business the way he likes for the benefit of estate, no one can
question his management.
2. Right to Income
It is general rule that all members who works or do business out of joint family property must
hand over income to Karta. It is for Karta to allot funds to the members and look after needs and
requirements, so long as family remains joint, no member can ask for any specified share in the
income.
3. Right to representation
He represent the family, represents the family in all matters, legal, social and religious. He can
enter into any transaction on behalf of the family, his acts are binding on the entire joint family.
4. Power to compromise
He has power to compromise all disputes relating to family property or their management. He
can compromise pending suits, family debts, and other transactions. However if his act is not
 

bonafide can be challenged in a partition.

5. Power to refer a dispute to arbitration
Karta has power to refer any dispute to arbitration and Arbitrator’s award is binding on all the
members.
6. Power of acknowledgement and to contract debts
Karta has power to acknowledge on behalf of the family any debt due to the family, also has
power to pay debt or to make pack payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of
business are binding on entire joint family.
Even Karta when takes loan or execute promissory note for family purpose or for family
business joint family is liable to pay such loan.
7) Power to enter into contract
Karta has power to enter into contract and such contract is enforceable against the family.
8) Power of alienation
Nobody in the family has power to alienate joint family property. However Karta has power of
alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Q. 2. Define the ‘Agnates’ and Cognates’ given in Hindu Succession Act 1956.
What is their importance in matter related to Succession?
Ans. ‘Agnates’
Sec. 3 (1) Hindu Succession Act runs “one person is said to be an agnates of another if the
two are related by blood or adoption wholly through males.”
When a person trace his relationship with another wholly through males, he she is an agnates.
For instance, brother, brother’s son, son’s son, son’s sons, father, father’s fathers’, mother,
father’s, father’s father or mother, son’s daughter; son’s sons daughter, etc. are agnates. the sex
of the person who traces his relationship with another is immaterial. What is material is that in
 

between him or her and the common ancestor or ancestress; all persons through whom
relationship is traced should be males.
Cognates
Sec. 3(1) Hindu Succession Act, “one person is said to be a cognate of another if two are
related by blood or adoption but not wholly through males.” A cognate may be descendant,
ascendant or collateral.”
Whenever in the relationship of a person with another, a female intervenes anywhere in the line,
one is a cognate to another. Number of cognates is larger than that of agnates Prabhu Dyal vs
Survaram, 1994 Raj 149.For instance, sister’s sons and daughters, daughters sons and daughters;
mother’s mother and father; father’s mother’s father and mother, mother’s father’s son and
daughter (maternal uncles and aunts) are all cognates.
Succession among Agnates and Cognates
In case of non-availability of Class I and Class II heirs, the property of the deceased devolves
upon his agnates and if there are no agnates, upon his cognates. Therefore when agnates are
present, cognates would not get any share in the property of the deceased. However, if more than
one agnates or cognates are present, then the order of succession among them is governed by the
provisions of section 12 of The Hindu Succession Act, 1956.
Sections 12 provides as under
12.Order of succession among agnates and cognates.
The order of succession among agnates or cognates, as the case may be, shall be
determined in accordance with the rules of preference laid down hereunder –
Rule 1
Of two heirs, the one who has fewer or no degrees of ascent is preferred.
This rule says that of two heirs, the one who has fewer or no degrees of ascent is preferred means
that an heir who claims as the descendant of the Hindu male who has died intestate or one who is
in the nearer line to him is to be preferred to one who claims in a remoter line. Thus a son’s son’s
son being a descendant in the line of the deceased is to be preferred to brother’s son’s son who
comes in father’s line which is remoter than one’s own line. Again brother’s son’s son being in
the father’s line is to be preferred to father’s brother’s son’s son who is in a remoter line namely
the line of grandfather. The rule lays down merely that a relation who traces his relationship to
 

the deceased either in the deceased’s own line or in the line of a nearer ancestor is to be preferred
to one who traces his relationship in the line of a remoter ancestor in the male line.
Rule 2
Where the number of degrees of ascent is the same or none, that heir is preferred who has
fewer or no degrees of descent.
This rule lays down that in the case of agnates or cognates, where the number of degrees of
ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. This
means the same thing as that where a person in the same line is nearer to the common ancestor
than another relation of the same line, the former is preferred to the latter. Thus a father’s
brother’s son being nearer than father’s brother’s grandson is preferred to the latter though both
of them are in the same line, namely the line starting from father’s father. So also the brother’s
son’s son is to be preferred to the brother’s son’s son’s son for though both the claimants are in
the same collateral line beginning from father, brother’s son’s son is nearer or has fewer degrees
of descent than the brother’s son’s son’s son. In the same way a son’s son’s son’s son is to be
preferred to a son’s son’s son’s son’s son for though the claimants are in the same line namely
the line of the deceased, the former is a nearer degree than the latter.
Sec. 13Computation of degrees
(1) For the purposes of determining the order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or
degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending.
This section lays down that for the purpose of determining the order of succession among
agnates and cognates, the relationship shall be reckoned from the intestate to the heir in terms of
degrees of ascent or degrees of descent or both as the case may be. Degrees of ascent and
degrees of descent shall be computed inclusive of the intestate. Every generation constitutes a
degree either ascending or descending.
 

Q. 3. What are the general rules of succession in the case of a female dying
intestate? Will there be any difference in the order of succession if the property
of the female dying intestate is inherited by her from father? Discuss.
Ans. Succession to Property of Female
Hindu Succession (Amendment) Act, 2005 four states had amended the Hindu Succession Act
and had introduced unmarried daughters as coparceners. In the state of Andhra Pradesh, the
amendment came into force with effect from 5th September 1985. Since this date the daughter
became a coparcener and consequently all the rights of a coparcener also vested in her.
The Section 6 of the Hindu Succession Act 1956 has been amended as stated
below-
“In a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
1. by birth become a coparcener in her own right in the same manner as the son;
2. have the same rights in the coparcenary property as she would have had if she had been a
son;
3. be subject to the same liabilities in respect of the coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener”.
Section 14 (1): Property possessed by- The term ‘possessed’ has been widely
interpreted. It includes the cases of actual possession as well as constructive possession. Where a
person has illegally dispossessed of any property the property still would be deemed to be in her
possession, irrespective of the fact that she was not in possession. Section 14(1) is wide in its
scope and ambit. Any property possessed by a female Hindu whether acquired before or after the
commencement of the Act, shall be held by her as full owner.
Explanation- in this sub- section, “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance
or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after
the marriage, or by her own skill or exertion. Or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as stridhana immediately before the
commencement of this Act.
 

Section 14 (2) According to this sub- section the woman does not become the absolute owner of
the property acquired by gift, will, instrument, decree, order instrument, decree or order of a
Civil Court or an award gives her only restricted right.
According to Section 15 – Hindu woman’s limited estate has been abolished and so long as the
woman is alive, she has absolute power over all types of property yet for the purpose of intestate
succession, the sources of property is still material. The old Hindu female (stridhan) was
extremely complicated. The modern law of succession to the property of a Hindu female is
simple though it suffers from some bad draftsmanship.
For the purpose of succession the property of a Hindu female falls under the following three
heads-
1. Property inherited by a female from her father or mother.
2. Property inherited by a female from her husband or her father-in-law. And
3. Property obtained from any other source by inheritance or otherwise.
It should be noted that the former two head would become operative only if the female dies
issueless. If she has her issues the distinction between the sources from which she got the
property is not material.
Under sub section (1) of sec.15 heirs of Hindu female are divided into five categories called
entries. If there are no heirs in any of these five entries, property goes to government by escheat.
The general rule of preference is that heirs in an earlier entry exclude heirs in latter entries.
Entry (a) – In entry a there is following heirs-
1. Sons, 2. Daughters. 3. Husband. 4. Son and daughter of a pre-deceased son and. 5. Son
and daughter of predeceased daughter.
[P] H

S D D S

DS DD SS SD
Sons and daughters
Under this entry sons and daughters are used in a very wide sense. They include son and
daughter by natural birth, legitimate or illegitimate Grubachan vs Khichar Singh 1917 Punj
 

240, Narayni vs Govind 1975 Mad 275, Ansayabai vs Jagdish 1977 H.PL.J.7. posthoums
children, and adopted children. Legitimate children may be by on husband or more than one
husband. Children of void and voidable marriage are also included. However step- children
Malappa v Shivappa 1962 Mys 140, Namdeo vs State of Mah 1981 L.J.25.are not included in
the expression, son and daughter, through it is possible for a stepson or daughter to succeed to
her property in entry (b as an heir husbandDebrat Mondal v State of West Bangal, 2008 Cal. 13.
Grand Children
The sons and daughters of a predeceased son will included only legitimate children by natural
birth or by adoption, illegitimate children or excluded. The term children does not include
children of children or step- children of the son. Children of a son whose marriage is void,
whether declared void or not included. Similarly children of a son whose marriage is voidable
will not be included if the marriage has been annulled. It is because sec 16(3) Hindu Marriage
Act provides that such children can inherit the property of their parents alone. This applies to
children of the predeceased daughter also, with this exception that her illegitimate children will
be entitled to inherit s under sec. 3(j) Hindu succession Act illegitimate children are related to the
mother, i.e., they are children of the mother. Under this entry sons and daughters of a
predeceased daughter and predeceased son inherit as the representative of their mother or father,
as the case may be.
Husband
Husband means the husband who was a lawfully wedded husband of the proposita at the time of
her death. Thus, a divorced husband is not included. Similarly the husband of a void marriage or
of an annulled voidable marriage is also not included.
Shares of heirs’ entry (a)the heirs of entry (a) are simultaneous heirs. They inherit the
property of proposita simultaneously. From sec. 16 Rule 1and 2, we my deduce the following
three rule relating to distribution of property among the heirs of entry ((a)
1. Son, daughter and husband each take one share.
2. Among the heirs of the branches of the predeceased sons, the predeceased daughter the
doctrine of representation applies, i.e., the children take the same share which the
daughter or son would have taken had she or he been alive.
3. Among heirs of branch they take per capita.
P H
 

D S1 S2 S3
In diagram 1, P leaves behind her husband H, three sons- S1, S2, S3 and daughter D. Each will
take 1/5 share in the property.
Entry (b)
On the failure of heirs in entry (a) the property will devolve on the heirs of entry (b). Entry (b)
runs as under-“Upon the heirs of the husband.”
This entry lays down on the failure of heirs in entry (a) the property will devolve as if the
property of her husband. In this Entry ‘husband’ means the last husband of the proposita, i. e,.
the one who her lawful husband when she died. Since the property is deemed to be that of her
husband, the inheritance will be determined by the scheme laid down in the Act relating to
succession to the property of a Hindu male Amar Kaur vs Raman Kumari 1985 P. & H. 86,
Roshan Lal vs Dalipa 1985 H.P.8.In other words order of succession will be first to Class I
Heirs; on their failure to agnates; on their failure to cognates Krishma vs Nishmani 1987 Ori.
105. On the failure of cognates property will devolve on the heirs of entry (c).
Entry (c)
In this entry are only two heirs’ father and mother of the proposita. The expression, mother
means natural mother as well as adoptive mother. Even if wasand the proposita was an
illegitimate daughter of the mother, mother will inherit. Mother does not included stepmother.
Father does not included a putative father or stepfather. Natural or adoptive father is included.
When the proposita leave behind both father and mother they inherit simultaneously and between
them take per capita. In diagram M and F will take ½ each.
M F

[P]

Entry (d)
 

Upon the failure of heirs in entry ( c ) the property of the intestate female devolves upon ‘the
heirs of father.’ Here the expression father means the same thing as in entry (c). The devolution
of the property under this entry will take place assuming that the property is that of the father.
This means that heirs will the heirs of a Hindu male, i. e,. Class I, Class II, agnates and cognates.
Entry (e)
Upon the failure of heirs in entry (d) the property will devolve upon the ‘heirs of the mother.’
The devolution of property of the proposita will take place here if it is the mother. This means
heirs of the Hindu female, from entry (a) to (c).
Property inherited from father and Mother
Under sec 15(2) a, only the property that a female inherited from her father or mother is
included. The property which she gets in gift at the time of her marriage from her mother or
father is not included. Such a property is her stridhan and succession to it is governed by sec. 15
(1) Meyappa vs Kannappa 19776 Mad 14.Similarly if she converted the property she inherited
from her parents into some other property succession will not governed under sec. 15(2) Emana
vs Gudiseva, 1976 A.P.337.
If proposita had inherited property from father or mother the heirs fall the following two
categories –
1. Sons, daughters, sons and daughter of predeceased son and sons and daughter of
predeceased daughter.
In this category it may be noted, husband is not n heir Raghuwan vs Janki Prasad, 1981
M.P.39.
The rules of distribution of property among the heirs of this category are the same as entry (a)
discussed above under the head “heirs to property specified under (c)” above.
P

S D D1 S1

DS DD S1S SD
 

2. Upon heirs of the father Mahadevappa vs Gauramma 1973 Mys. 142.on the failure of
heirs in category (1) the property devolves upon the heirs of father, i. e. as if was the
property of the father. Here there seems to be flaw in draftsmanship. Suppose P inherited
properties from her mother. When P died, the father survived her does it mean that father
will not take the property and it will go to his heirs? It is submitted that the clause should
be read upon the father and in default of the father, upon his heirs.
Where a female Hindu had inherited property from her mother her death it would devolve on her
sister as per section 15(2) and not on the heirs of her predeceased husband.
However, it has been held in Shashi Ahuja vs Kulbhushan Malik 2009 Del. That in case of
bequest from mother (not inheritance) in first instance children will be the heirs and after that
husband.
Property inherited from Husband or Father-in-law
In case proposita had inherited properties from her children will be the father- in- law, her heirs
fall in two categories Baiya vs Gopikabai, 1978. S.C.93.
Category (1) - Son, daughter, sons and daughters of predeceased sons, and sons and daughter of
predeceased daughters. (this is the same as under the preceding head).
Category (2) – Upon the heirs of husband-
On the failure of heirs in category (1) property devolves upon the heirs of husband i. e, As if it
was the property of the husband which means heirs of a Hindu male. Here also there seems to be
apparently a flaw of draftsmanship of the same nature’s state above. If proposita has inherited
property from her father –in –law and her husband survives her, then does it mean that he will be
inherited has property but his heirs will? However it should be noted that under the Hindu
Succession Act 1956 the daughter-in-law inherits only when she is a widow. Therefore she
cannot inherit from her father –in- law inherits only when she is no survived by her husband.
Thus in factual operation of this category there is no flaw. Then another difficulty may arise-
suppose proposita inherited property from her father-in-law. Subsequently she remarried. Under
this head for the heirs of husband mean the heirs of the first husband or heirs of the second
husband? Seems clearly the intention of Parliament was that the property would devolve upon
the heirs of the first husband. In case she has also inherited property from the second father-in-
law property will go to the heirs of the second husband. This will mean that if a woman had
 

inherited property from two father-in-law or two husbands, there will be different set of heirs in
each case they will be heirs of the second husband.
The proposita died issueless and she had inherited property from her husband. The husband also
did not have a living heir. The property would go to her brother and not by escheat to the
government.
Government: Escheat
Just as in the case of a Hindu male, in case of a Hindu female if she dies leaving behind no
relation the government takes her property as an heir subject to all obligations and liabilities of
the intestate.
Q. 4. Discuss the general rules of Succession in the case of a male Hindu dying
intestate.
Ans.Succession of Hindu Male
The Hindu Succession Act, 1956 deals with the inheritance to: (a) the separate properties of
Mitakshara male, (b) to the separate and coparcenary properties of a Dayabhaga male, and (c) to
the undivided interest in the joint family property of a Mitakshara coparcener, who dies leaving
behind a family property of a Mitakshara coparcener, who dies leaving behind a widow, mother,
daughter, daughter’s daughter, son’s daughter, son’s widow, grandson’s daughter, grandson’s
widow or daughter’s son. The Act does not apply to the property of a Hindu who is married
under the Special Marriage Act.
Heirs of a Hindu male
Under the Act, heirs of a Hindu male fall under the following heads:
Section 8, Hindu Succession Act-
it dealt with the order of priority among classes of heirs by laying down that the property
will first go to the Class I heirs and then to Class II heirs, failing which to agnates and thereafter
to cognates.
1. Class I heirs- we have following enumeration of heirs.
(i) Mother;
(ii) Widow;
(iii) Daughter;
(iv) Son;
 

(v) Widow of a predeceased son;

(vi) Son of a predeceased son;
(vii) Daughter of a predeceased son;
(viii) Widow of a predeceased son of a predeceased son;
(ix) Daughter of a predeceased son of a predeceased son;
(x) Son of a predeceased son of a predeceased son;
(xi) Daughter of a predeceased daughter;
(xii) Son of predeceased daughter;
(xiii) Son of predeceased daughter of a predeceased daughter;
(xiv) Daughter of a predeceased daughter of a predeceased daughter;
(xv) Daughter of a predeceased son of a predeceased daughter;
(xvi) Daughter of a predeceased daughter of a predeceased son;

[P] W

S (D) (S)(S)
D (SS)
SS SW SD DSDD

SS SSW SSD
Sec. 9. lays down that Class I heirs are simultaneous heirs, i.e., no one excludes the other, alltake
simultaneously in accordance with the rules of distribution of property among them, whileClass
II heirs, who are listed in nine categories in the Schedule, the heirs in the previous categories
preferred to later categories.
Section 10
it defines the property distribution among Class I heirs.

2. Class II Heirs and their Shares

Section 11, Hindu Succession Act: the class II heirs are divided into nine categories.
 

(i) Father: Father is the only nearest heir who has not found a place in
Class I, along with the mother. But such has been the Mitakshara
notion of propinquity that under the Mitakshara Law, mother was
considered to have greater propinquity than the father.
(ii) (a.) Son’s Daughter’s Son.
(b.) Son’s Daughter’s Daughter.
(c.) Brother.
(d.) Sister.
Brother and Sister
Brother and Sister here include the following-
(a) Brother and Sister by full blood, and
(b) Brother and Sister by half blood.

(P) Brother Sister

(S)
(SD)

SDS SDD

iii. (a.) Daughter’s son’s son.

(b.) Daughter’s son’s daughter,
(c.) Daughter’s daughter’s son,
(d.) Daughter’s daughter’s daughter’s
[P]

(D)

(DS) (DD)
 

DSS DSD DDD DDS

(iii) (a.) Brother’s son.

(b.) Brother’s son.
(c.) Sister’s son.
(d.) Sister’s daughter.
(v) (a.) Father’s father.
(b.) Father’s mother.
(vi) (a.) Father’s widow, and
(b.) Brother’s widow
(vii) (a.) Father’s brother, and
(b.) Father’s sister.
(viii) (a.) Mother’s brother, and
(b.) Mother’s mother.
(ix) (a.) Mother’s brother, and
(b.) Mother’s brother, and
(c.) mother’s sister.
Explanation
In this schedule, reference to a brother or sister does not include reference to a brother or sister
by uterine blood.
• There is no heir of any of two classes, then upon the agnates of the deceased, and
• If there is no agnate, then upon the cognates of the deceased.
Agnate and Cognates
Section 12, Hindu Succession Act: agnates and cognates are not enumerated heirs, and no
exhaustive enumeration can possibly be made. The rule for determining who are agnates and
cognates are the same, so are the rules relating to distribution of property among them. However,
agnates are as a rule preferred over cognates – howsoever remote an agnate may be, he will be
preferred over cognates. Here, agnates and cognates as heirs are those agnates and cognates who
are not include in class I and class II heirs those agnates and cognates who have already found a
 

place among class I and class II heirs inherit the property in accordance with the order of
inheritance laid down for class I and class II heirs.

Q.4.Explain the general rules of succession under the Hindu Succession Act,
1956.
Ans.General Provision in Relation to Succession
Introduction
There are certain general provisions relating to the succession, as laid down from Section 18 to
28 of the Hindu Succession Act. These provisions apply to all the properties irrespective of the
fact whether it is left by a male or a female Hindu dying intestate. These provisions are
supplementary to the provisions in Section 5 to 17 of the Act. Moreover, the provisions are not
only explanatory but some of them lay down substantive rules involving legal principles.
Section 18 Sets out a lead of general applicability to male and female heirs alike yet the
applicability is liable to the words, "if the way of the relationship is the same in each other
regard. “From the arrangements of the section obviously a full-blood relation is wanted to half-
blood relation. Be that as it may, the run can't be invoked when a specific beneficiary is wanted
to another by operation of any manage influencing the order of succession.
Full blood preferred to half blood-
Section 18 states that, “Heirs related to an intestate by
Full- blood shall be preferred to heirs related by half-blood, if the nature of the relationship is
same in every other respect.”

Section 18 sets out a lead of general applicability to male and female heirs alike yet the
applicability is liable to the words, "if the way of the relationship is the same in each other
regard.” From the arrangements of the section obviously a full-blood relation is liked to half-
blood relation.
Be that as it may, the lead can't be invoked when a specific beneficiary is wanted to another by
operation of any manage influencing the order of succession. The words 'full-blood' and 'half-
blood' have been explained in section 2 (e) of the Act. Two people are said to be identified with
each other by full blood when they are plummeted from a common ancestor by a similar wife,
and by half-blood when they are slid from a common ancestor yet by various wives. Section 18
 

makes it clear that the heirs related by full-blood might be wanted to heir’s related byhalf-blood,
gave the way of relationship is same in each other regard.
Thus, the full sister’s daughter shall be preferred to half- brother’s son. Similarly, a full sister
excludes a half -sister.
Mode of succession to two or more heirs
Section 19 of the act provides that, “If two or
more heirs succeed together to the property of an intestate they shall take the property
(a) Save as otherwise expressly provided in this Act, per capita and not per stripes;
and
b. As tenants-in-common and not as joint tenants.
The section sets out a general rule of distribution of the property. It says that when at least two
heirs succeed to the property of an intestate, they take the property per capita and as inhabitants
in like manner unless there is an express arrangement actually. Occurrences of special cases to
the general rule about distribution per capita are set down under Rules 1, 3 and 4 of section 10
and Rule 2 of section 16, and so forth.
Right of child in womb
Section 20 provides that, “a child who was in the womb at the time of the death of an intestate
and who is subsequently born alive shall have the same right to inherit to the intestate as if he or
she had been born before the death of the intestate, and inheritance shall be deemed to vest in
such a case with effect from the date of the death of the intestate.
Presumption in the case of simultaneous death
Section 21 provides that, “Where two persons have died in circumstances rendering it uncertain
whether either of them, and if so which, survived the order, then, for all purposes affecting
succession to property, it shall be presumed, until the contrary is proved, that the younger
survived the elder”.
Preferential right to acquire property in certain case
Section 22 provides preferential rights to other heirs or heirs to acquire property when one of
them desires to transfer his or her interest in the property inherited. Section 22 runs as follow:
(1) Where, after the commencement of this act, an interest in any immovable property of an
intestate, or in any business carried on by him or her, whether solely or in conjunction
 

with others, devolves upon to or more heirs specified in Class I of the schedule, and any
one of such heirs proposes to transfer his or her interest in the property or business, the
other heirs shall have a preferential rights to acquire the interest proposed to be
transferred.
(2) The consideration for which any interest in the property of the deceased may be
transferred under this section shall, in the absence of any agreement between the parties,
be determine by the court on the application being made to it in this behalf, and if any
person proposing to acquire the interest is not willing to acquire it for consideration so
determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs specified in Class I of the schedule proposing to acquire
any interest under this section, that heir who offers the highest consideration for the
transfer shall be preferred.
Disqualification for Heirs
The Act mentions certain disqualifications which debar certain heirs who are under such
disqualifications, in succeeding to the property of intestate. These disqualifications are:
(1) Disqualification arising from murder
Section 25 A person who commits murder or abets the commission of murder shall be
disqualified from inheriting the property of the person murdered, or any other property in
furtherance of the succession to which he or she committed or abetted the commission of the
murder.
(2) Disqualification arising from conversion
Section 26 Where, before or after the commencement of this Act a Hindu has ceased or ceases
to be a Hindu by conversion to another religion, children born to him or her after such
conversion and their descendants shall be disqualified from inheriting the property of any their
Hindu relative, unless such children or descendants are Hindu at the time when the succession
opens.
Disease, defect, etc. not to disqualify
Section 28“No person shall be disqualified from succeeding to any property on the ground of
any disease, defect or deformity, or save as provided in this Act, on any other ground
whatsoever”.
 

Effects of disqualifications
Section27 If any person is disqualified from inheriting any property under this Act, it h person
had died before the intestate”.
This section is prospective and not retrospective.
Testamentary Succession
Section 30“Any Hindu may dispose of by will or other testamentary disposition any property,
which is capable of being so (disposed of by him, or her), in accordance with the provisions of
The Indian Succession Act, 1925, or any other law for time being force and applicable to Hindus.

Short Questions Answers

Q.1. Is it possible for Hindu to write a will regarding his separate and joint
property both? What is the law provision in Hindu Succession Act in this matter?
Ans. Joint Family Property and Separate Property
The term property is derived from the Latin term 'propertietat' and the French equivalent
'proprious' which means a thing owned. There are two kinds of property i.e. joint family property
and self-acquired property. Property acquired by joint funds of the family is known as joint
family property. All the needs of the family are fulfilled from it. Self-acquired property is
acquired by self-exertion or labour. Thus, it includes property by one's own learning. Gains of
Learning Act, 1930 defines “learning” as education whether elementary, technical, scientific, and
special or general. It defines training as every kind of training, which is usually intended to
enable a person to pursue any trade, industry, profession or vocation in life. A person can make a
will only of his/her separate property. It is known as testamentary succession and is governed by
the Indian Succession Act, 1925. The joint family property passes on to the heirs (a person who
inherits the property of another following the latter's death). Inheritance means the right of an
heir (to succeed to property on the death of an ancestor) by way of succession. If a Hindu dies
intestate i.e. without making a will, then, both separate property as well as joint family property
passes on to his heirs in accordance with the Hindu Succession Act, 1956.

Q.2. Write the short notes on ‘Women’s Estate.’

Ans.Women’s Estate
 

Thus Section 14 has abolished women’s estate by converting it into stridhan and woman’s estate
and has converted existing woman’s estates into full estates. It has introduced fundamental
changes in the traditional Hindu law of property of woman.
The objects of this section are
• To remove all disability of Hindu woman to acquire and deal with property, that is, all the
property that she acquires will be her absolute property.
• To convert existing woman’s estate into full estate. It incorporates the following propositions.
(A) • Any property acquired by a Hindu female after the commencement of the Act will be held
by her as her absolute property.
• . Any property held by a Hindu female as woman’s estate and is in her possession will also
become her property.
• But, if any property is covered by the provision of subsection (2) neither (a) nor (b) above will
apply. In other words, if any property is acquired by a Hindu female by way of gift or under a
will or any other instrument under a decree or order of a civil court or under an award, and the
terms of the gift, will or other instrument or the decree order or award prescribe a restricted
estate in such property, she will take it accordingly.
(B) The requirement of being possessed in subsection (1) applies only to the woman’s estate
existing at the time of the commencement of the Act; this obviously cannot apply to the
properties acquired by her after the commencement of the Act.
(C) The definition of the term property contained in the explanation applies to both types
covered under (a) and (b) of (A).
(D) This section has qualified retrospective application. It applies retrospectively to those
woman’s estates which were in the possession of the Hindu female when the Act came into
force. It does not apply to those women’s estate over which she had no possession when the Act
came into force. To such estates old Hindu law continues to apply.
Stridhan and Woman’s Estate
1. Gifts and bequests from relations
Such gifts may be made to woman during maidenhood, covertures or widowhood by her parents
and their relations or by the husband and his relation. Such gifts may be inter vivos or by will.
The Dayabhaga School doesn’t recognize gifts of immovable property by husband as stridhan.
2. Gifts and bequests from non-relations-
 

Property received by way of gift inter vivos or under a will of strangers that is, other than
relations, to a woman, during maidenhood or widowhood constitutes her stridhan. The same is
the position of gifts given to a woman by strangers before the nuptial fire or at the bridal
procession.
3.Property acquired by self-exertion, science and arts
A woman may acquire property at any stage of her life by her own self exertion such as by
manual labour, by employment, by singing, dancing etc., or by any mechanical art. According to
all schools of Hindu Law, the property thus acquired during widowhood or maidenhood is her
stridhan.
Property purchased with the income of stridhan
In all schools of Hindu Law it is a well settled law that the properties purchased with stridhan or
with the savings of stridhan as well as all accumulations and savings of the income of stridhan,
constitute stridhan.
Property purchased under a compromise
When a person acquires property under a compromise; what estate he will take in it, depends
upon the compromise deed. In Hindu Law there is no presumption that a woman who obtains
property under a compromise takes it as a limited estate. Property obtained by a woman under a
compromise where under she gives up her rights, will be her stridhan. When she obtains some
property under a family arrangement, whether she gets a stridhan or woman’s estate will depend
upon the terms of the family arrangement.
Property obtained by adverse possession-
Any property acquired by a woman at any stage of her life by adverse possession is her stridhan.
Property obtained in lieu of maintenance
Under all the schools of Hindu Law payments made to a Hindu female in lump sum or
periodically for her maintenance and all the arrears of such maintenance constitute stridhan.
Similarly, all movable or immovable properties transferred to her by way of an absolute gift in
lieu of maintenanceconstitute her stridhan.
Property received in inheritance
A Hindu female may inherit property from a male or a female; from her parent’s side or from
husband’s side.
 

Property obtained on partition

When a partition takes place except in Madras, father’s wife mother and grandmother take a
share in the joint family property.
Stridhan has all the characteristics of absolute ownership of property. The stridhan being her
absolute property, the female has full rights of its alienation. This means that she can sell, gift,
mortgage, lease, and exchange her property. This is entirely true when she is a maiden or a
widow. Some restrictions were recognized on her power of alienation, if she were a married
woman. For a married woman stridhan falls under two heads:
• The sauadayika (gifts of love and affection)- gifts received by a woman from relations on
both sides (parents and husband).
• The non-saudayika- all other types of stridhan such as gifts from stranger, peoperty acquired
by self-exertion or mechanical art.
In Janki v. Narayansami,(1906)43 IA 87,the Privy Council aptly observed, “her right is of the
nature of right of property, her position is that of the owner, her powers in that character are,
however limited… So long as she is alive, no one has vested interest in the succession.”
Powers of a Hindu Female over her Woman’s Estate
• Power of Management.
• Power of Alienation.
• Surrender-.
• Reversionary.
• Right of Reversion
Sources of Woman’s Property
Property received in Lieu of Portion
The Karta can grant some property to a member of the family for his or her maintenance. A
Hindu female can also be granted property for her maintenance under a family arrangement or a
partition. In Chinnappa Govinda v. Valliammal, AIR 1969 Mad 187.The Court held that she
need not surrender the properties held by her under the maintenance deed.
Property given under an Award or Decree
 

In Badri Prasad v. Kanso Devi,AIR 1970 SC 1963where, The Supreme Court was of the view
that a share obtained by a Hindu female in a partition under section 14(1) even though her share
is described as a limited estate in the decree or award.
Property under an agreement or compromise
The test that if the decree or award is the recognition of pre-existing right then sub-section (1)
will apply and if property is given to the Hindu female for the first time under an award or decree
subsection (2) will apply. It has been applied to the acquisition of property under an agreement
or compromise. This distinction has been clearly brought out by Mahadeo v. Bansraji AIR 1971
ALL 515, and Lakshmichand v. Sukhdevi.AIR 1970 Raj 285.
Property received in inheritance
Any property that a Hindu female inherited from a male or female relation was taken by her as
limited estate except in the Bombay school. Section 14 lay down that any property that a Hindu
female inherits from any relation after the commencement of the Act will be her absolute
property. On her death it will devolve on her heirs under the provisions of section 15 and 16. If
any property has been inherited by her before the commencement of the Act and if it is in her
possession then that property also became her absolute property.
Property received in gift
Under the Act, there is no distinction between the gifts received by her from relatives or
strangers and at any stage of her life, and all gifts that she receives will be her absolute property.
Ornaments received by her at the time of her marriage are ordinarily her stridhan property. A full
bench in Vinod Kumar Sethi v. State of PunjabAIR 1982 P& H 372,held that dowry and
traditional presents made to a wife at the time of the marriage constitute her stridhan. In Gopal
Singh v. Dile RamAIR 1987 SC 2394, a widow having a life estate purported to make a gift of
the property before the Hindu Succession Act 1956 came into force.
Property received under a will
In Karmi v. Amru AIR 1971 SC 74.It was held that where only life estate is conferred under a
will, Section 14(2) will apply, and the estate will not become full estate .But if a will confers on
her full estate, she will take absolutely. Properties given under a settlement to the widow which
were to revert to the settler on his brother on her death do not get enlarged into full estate.
 

Very Short Questions Answers

Q. 1. What do you understand by ‘Notional Partition?’ When is required.
Ans. Notional Partition
Under the provisions of section 6 of the Hindu Succession Act, 1956, where a Hindu male dies
intestate on or after 17th June 1956, having at the time of his death an interest in a Mitakshara
coparcenary property leaving behind a female heir of the class I category, then his interest in the
coparcenary property shall devolve by succession under that Act and not by survivorship. The
interest of the deceased will be carved out for devolution as if a notional partition had taken
place before the death of the deceased. This is the concept of notional partition.
Notional partition and destruction of the family
The notional partition only crystallises the share due to the female heir and does not disrupt the
joint family.
A direct authority can be found in the decision of the Supreme Court in the case of State of
Maharashtra vs. Narayan Rao Sham Rao Deshmukh, which is reported in [1987] 163 ITR 31
{SC}, wherein it was held that the purpose of section 6 is only for ascertainment of the share of
the female heir and unless the share is given away, the same cannot be excluded from the assets
of the HUF.
The Gujarat High Court in the case of CWT vs. Chandrasinhrao D. Gaikwad [1999] 237 ITR
875 came to the same conclusion without referring to the above decision of the Supreme Court.
In fact, the widow of a deceased coparcener is entitled to the share of the deceased in a Hindu
individual family governed by Mitakshara Law according to section 6 of Hindu Succession Act,
1956 continues to be member of HUF until she files suit for partition.
[Gurupad Khandappa Magdum vs. Hirabhai Khandappa Magdum [1981] 129 ITR 440
y(S.C.) followed in Kishandas vs. CWT [2000] 243 ITR 307 (A. P.)]

Q.2. If Hindus die in circumstances where is difficult to decide who died earlier
and died later, then which provision of law under Hindu Succession?
Ans.Section 21 provides that, “Where twopersons have died in circumstances rendering it
uncertain whether either of them, and if so which,survived the other, then, for all purposes
 

affecting succession to property, it shall be presumed,until the contrary is proved, that

the younger survived the elder.”
Sometimes it may happen when two persons die in an accident and then it is impossible to
assertainwhich of them died first. In such situations it may be presumed that both died
simultaneously orone died earlier. Controversy regarding inheritance in such a situation can be
arises as who willsucceed whose property. Before the enactment of the said section there was no
answer to suchsituation. The burden of proof falls on the party who asserted affirmative.
If the evidence in thecourt are proved then the probabilities of decision is in the favor of
the younger.
In this section the presumption of survivorship applies, by which the younger is presumed
tosurvive the older.
In this Section, ‘younger’ means younger in status not in age and only whenthe status is the
same, younger in age. Thus if an uncle aged thirty years and a nephew aged thirty-five years, die
in a plane crash or a ship wreck, it will be presumed that the nephew died later, eventhough he is
older in terms of actual age. On the other hand, if two brothers die simultaneously inany accident
or calamity, the brother younger in age is presumed to have died later.This is a peculiar feature
of this Act, as it was altogether not provided for at all in the classicallaw or the previous
legislations regarding Hindu succession

Q. 3. What do you understand by the term ‘Full blood’, ‘Half-blood’ and

‘Uterine blood?’
Ans. Full blood
When the father and mother of two persons are the same, they are related to each other by full
blood. According to clause to sec.3 (1) (e) (1) Hindu Succession Act, “Two person are said to be
related to each other by full blood when they are descended from common ancestor by the same
wife.” Thus, children of the same parents are children by full blood, e.g., brother or sisters or a
bother and a sister. In the common parlance, they are known as the ‘real’ brothers the ‘real’
sisters or the ‘real’ brother and sister.
Half blood
 

When two persons have the same father but different mother, they are related to each other by
half blood. According to clause (e) (1) of sec. 3(1) Hindu Succession Act, two persons are said to
be related to each other by half-blood “when they are descended from a common ancestor but by
different wives. For instance, A marriage Q and a son B is born to him from Q; Q dies and A
marries S. A son D is born to him from S, B, C, and D are related to each other as brother and
sisters by half blood.
Uterine blood
When two persons have the same mother but different fathers, they are said to be related to each
other by uterine blood. According to clause (e) (ii) of sec. 3(1) of the Act-“Two persons are said
to be related to each other by uterine blood when they are descended from a common ancestress
but by different husband.” For instance, P takes a husband S and from him she gets a son A. S
dies and P marries Y and gets a son B. Subsequently, she divorces him and takes another
husband Z, and C are related to each other as brother and sister by uterine blood.

Q. 4. What happens to property of a Hindu who dies leaving no heirs in any

category of heirs?
Ans. Section 30Testamentary succession
2 [* * *] Any Hindu may dispose of by will or other testamentary disposition any property,
which is capable of being so disposed of by him, in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
Explanation
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 the tarwad, tavazhi, illom,
kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for
the time being in force, be deemed to be property capable of being disposed of by him or by her
within the meaning of this 3 [section.]

Q.5. What do you mean by Survivorship?

Ans.Survivorship
 

On the death of member of a joint and undivided family, his interest in the joint family property
passes by the right of survivorship to the surviving members. So long as the family remains joint
and undivided an individual member cannot point to a particular share as executively his own he
has no such interest there as is capable of being inherited by his heirs. Thus Mayne says- “there
is no such thing as succession to property so called in an undivided family.” On the death of a
coparcener without leaving any male issue, his undivided coparcenary’s interest does not pass by
descent to his heirs but lapses in the joint property and thereby causing an increase in the share of
the surviving coparceners. This increase in their share is known as “Right of Survivorship.” It is
recognized only by Mitakshara and not by Daybhaga school of Hindu Law.
In the instant case of inheritance by survivorship, property was acquired by two brothers. One of
them was not heard thereafter for 7 years. It was held the presumption that he is dead arises and
surviving brother was entitled to property in entirety.
His right and interest in the joint family devolves on surviving brother by survivorship.
 

KAMKUS COLLEGE OF LAW

B.A. LL.B. Vth SEM.
Hindu Law
CODE BL-(504)
UNIT- IVth

Detailed Questions Answers

Q.1 . What do you understand the words “capacity” and Right to adopt? Define
both and bring out the distinction between them.
Or
Q.1.. What is meant by ‘Capacity’ and right to adopt under Hindu Adoption and
Maintenance Act 1956.Can an Unmarried woman adopt Under the Act?
Or
Q.1. Discuss the essentials of a valid adoption as laid down in Hindu Adoption
and Maintenance Act 1956.

Ans. ADOPTION
According to Manu, adoption is the “taking of a son, as a substitute for the failure of a male
issue.” Thus it is a transplantation of a son from one family in which he is born to another family
where he is given by the natural parents by way of gift. Adoption is a legally recognised mode of
affiliation as the son of a person, of one who in fact was not his son.
On adoption, ties of the son with his old family are severed and he is taken being born in the new
family, acquiring rights, duties and status in the new family.
Now, in the present scenario, the Hindu Adoption and Maintenance Act, 1956 has completely
codified the law of adoption and has materially modified it in correspondence to the needs of
dynamism of Hindu society. Therefore, every adoption shall be made in conformity with this act
and any contravention of the provisions of this act shall be void.
Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid
adoption. The person adopting has the capacity and also the right to take in adoption. The person
giving in adoption has the capacity to do so, the person adopted is capable of being taken in
 

adoption and the adoption made in compliance with the other conditions mentioned in Chapter II
of the Hindu Adoption and Maintenance Act, 1956.
No adoption shall be valid unless
1. The person adopting has the capacity and also the right to take in adoption.
2. The person giving in adoption has the capacity to do so.
3. The person adopted is capable of being taken in adoption: and
4. The adoption made in compliance with the other conditions mentioned in Chapter II of the
Hindu Adoption and Maintenance Act, 1956.
According Section 5 of the Act, an adoption made in contravention of the provisions of Chapter
II of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s Shakuntla, 2002
the Supreme Court opined that Section 16 of the Hindu Adoptions and Maintenance Act,
1956envisages a statutory presumption that in the event of there being a registered pertaining
adoption, adoption would be presumed to have been made according to law.
According Section 7 Capacity of a male Hindu to take in adoption
According to Section 7 of Hindu Adoption and Maintenance Act, 1956, 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 on the consent
of his wife.
In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P & H), the Court upheld
that if adoption taken by the husband without the consent of the wife, that adoption will be
illegal.
But the consent of the wife of a male Hindu is not necessary in the following three conditions:-
• The wife has completely and finally renounced the world, or
• The wife has ceased to be Hindu, or
• The wife has been declared by a Court of competent jurisdiction to be unsound mind.
In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114, the Court held that where the
above three disabilities of wife have not been established the consent of such wife would be
mandatory for a valid adoption. If the consent of wife is not established, the Court will declare
the Adoption null and void.
If a man has more than one wife living at the time of adoption, the consent of all the wives must
be obtained. The Act has given two qualification for a male Hindu to be capable to take a child in
 

adoption i.e. the person must be of sound mind and he must not be a minor. The man is required
to take consent of the wives or wife, before adoption. Without the consent of wife or wives the
adoption will be void.
According Section 8 Capacity of a female Hindu to take in adoption

A female has also the capacity to adopt any child. Section 8 of the Act provides that any female
Hindu who is of sound mind, who is not minor and who is not married or if married, whose
marriage has been dissolved or whose husband is dead or her husband has renounced the world
finally and conclusively or her husband has become a convert or her husband has been declared
to be of unsound mind by a court of competent jurisdiction has the capacity to take a son or
daughter in adoption.
A woman who is of sound mind and is not a minor can take child in adoption. The woman has no
right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the
disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the
right to take in adoption any child.
In the case of Narinderjit Kaur v. Union of India and another, AIR 1997 P&H 280, it was
held that the adoption of a child under the authority of parents is valid. Where a child was given
in adoption willingly by natural parents and was taken in adoption by the adoptive mother
through her attorney, it was held to be a valid adoption. It was also held that subsequent marriage
of adoptive mother does not invalidate the adoption.
However the 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu Law.
The newly enacted Section 8 reads as under,
“Any female Hindu who is of sound mind and is not a minor has the capacity can take a son or
daughter in adoption,
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the
consent of her husband unless the husband 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.”
According Section 9 Person capable of giving in adoption
 

Section 9 of the Act lays down the capacity of person, who may give the child in adoption to
another. No persons except the father or mother or the guardian of the child shall have the
capacity to give in adoption.
• Capacity of the father to give in adoption– If the father is alive, he shall alone have the
right to give in adoption but such right shall not be exercise save with the consent of the
mother.
• Capacity of the mother to give in adoption -The mother may give the child in adoption
if the father is dead or had completely and finally renounced the world or has ceased to
be a Hindu or has been declared by a court jurisdiction to be unsound mind.
• Capacity of the guardian to give in adoption – Where both the father and mother are
dead or to be unsound mind or had finally renounced the world, is declare by the court
then the guardian of a child may give the child in adoption with the following conditions
laid down by the courts:-
1. That the adoption will be for welfare of the child.
2. That the applicant for permission has not received any payment in consideration
of the adoption.
3. That no person has given any payment to the applicant for consideration of the
adoption of child.
The father has preferential right to give the child in adoption. If he is unsound mind or suffering
from chronic disease has the right to give a child in adoption. The guardian may give the child in
adoption with the prior permission of the court.
According Section 10 Person who can be adopted
Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfill
the conditions are capable for adoption:-
a) He should be Hindu.
b) He or She not already be adopted any child adopted.
c) He or She has not been married unless there is a custom applicable which permits being can
adopt.
d) He or She has not completed the age of fifteen years which is to be considered being taken for
adoption.
Other conditions for a valid adoption
 

According to Section 11, in every adoption, the following conditions must be complied with:
1. 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;
2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son’s daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
3. 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;
4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother
is at least twenty-one years older than the person to be adopted;
5. the same child may not be adopted simultaneously by two or more persons (does not refer
to if both persons are adoptive mother and father) ;
6. the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the
family of its birth or in the case of an abandoned child or child whose parentage is not
known, from the place or family where it has been brought up to the family of its
adoption:

Q. 2. What are the consequences of a valid adoption? Can an adoptive child

deprive his adoptive parents to dispose of their property? Discuss the relevant
provisions of the Hindu Adoption and Maintenance Act 1956.

Ans.Sec. 12 Effects of Adoption

Sec. 12 An adopted child shall be deemed to be the child of his or her adoptive father or mother
for all purposes with effect from the date of the adoption and from such date all the ties of the
child in the family of his or her birth shall be deemed to be severed and replaced by those created
by the adoption in the adoptive family-
1. in the Natural Family
Under Hindu law the adoption if the child means that the child is totally uprooted from the
natural family and transplanted in the new family.
a. Relationship with the members of the natural family
 

For secular, religious and civil purpose, the adopted child ceases to be the child of natural family.
His father and mother ceases to be his parents all relations on the father’s side and mother’s side
ceases to be his relation. After adoption he is not entailed to any share in property of his natural
parents Rangappa vs Channamma, 2008 Kar. 47 (D.B). Only tie that he retains with his natural
family is that he cannot marry any person in his natural family whom he could not have married
before his adoption.
The natural parent right of guardianship ceases with effect from the date of adoption whatever be
the age of child.
b. Divesting of Property
Provision(b) to sec 12 of the Act provides that “any property which vested in the adopted child
before the adoption shall continue to vest in such person subject to the obligations if any
attaching to the ownership of such person subject to the obligations, if any attaching to him
family of his her birth. Thus, any property that the child inherited from any relation befor
adoptionwill continue to be his property even after adoption Muthurishan vs Sri Palani 1969(1
MLJ129.
2. in the adoptive family
The adopted child is deemed to be the child of the adopter for all purposes. His position for all
intents and purposes is that of natural born son- he has same rights, privileges and the same
obligations in the adoptive family Kesharpal vs State of Mah, 1981 Bom 115.
a. Relationship with the members of the adoptive family
The adoption of Hindu law means complete transplantation of the child in the adoptive family.
This means that he is not merely the child of the adoptive parents but he is also related to all
relations on the mother’s side as well as the father’s side as if he is the natural born child of the
family, Thus father’s and mother’s parents re his grand – parents. His adoptive parent’s daughter
is he sister and so on. In Prafulla Balla Mukharji vs Satish Chandra Mukharji 1998 Cal 86.I t
was held under the facts there was no proof of adoption. But under the modern law as well under
the old Hindu law if an unmarried person a bachelor or virgin, adopts a child the child will have
only one parent adoptive father or adoptive mother and he will have only one line parental or
maternal as the case may be. For example if a virgin adopts a son the child will have only
maternal side, i.e., his adoptive mother parents will be his maternal grandparents but he will not
have any paternal side as the child has no father.
 

In sawan Ram vs Kalawati 1967 SC 1761 The Supreme Court has taken a view that even now
the deceased husband of widow is the adoptive father of the child.
b. Guardianship, inheritance and maintenance
The adoptive parents are the natural guardian of their adopted minor child, first the father, then
the mother if the adopted child is less than five years, then the adoptive mother will have
preferential claim to the custody of the child.
The position of an adopted child in respect of inheritance and maintenance is the same as that of
the natural born child. If there is an adopted child and a natural child both will inherit equality.
The adopted child right has the right of collateral succession both on his adoptive mother’s side
and adoptive father’s side.
He claims the maintenance against his adoptive parents or against any person against whom as a
natural child be could have claimed maintenance. He is liable to maintain all those parsons
whom a natural child has an obligation to maintain. The adopted child’s right of maintenance
ceases on his attaining majority Nanda Kishor vs Bhupendra 1966 Cal 181.
c. Divesting of Property
Section 12(c) specifically lays down that the adopted child shall not divest any person of any
estate which vested in him or her before the adoption Chandrani vs Pradeep 1991 MP 286.The
Hindu law of divesting of property on adoption was very complicated and a sources of constant
litigation Krishnamurthy vs Krishnamurthy 1927 PC 139. Under the modern Hindu Law this
sources of litigation has been done away with by laying down that the adopted child cannot
divest ant person of the properties vested in him or her before adoption.
Anti-adoption agreements
Section 13 lays down that subject to any agreement to contrary an adoption does not deprive the
adoptive father or mother of power to dispose of his or her property by transfer inter vivos or by
will Ugre Gowda vs Nagegowada 2004 SC, 3974. It was held that second adoption did not divest
her estate. If there is no ante – adoption agreement referring the power of adoptive parents have
full power of alienating their property.

Q. 3. Who can give child in Adoption?

Or
Q. 3. Who can give and take in adoption?
 

Ans. Section 7, 8, 9 and 10 of Hindu Adoption and Maintenance Act 1956 provides the
following terms for adoption:-
1. Competency if Hindu Male to adopt.
2. Competency of Hindu Female to adopt.
3. Person competent to give adoption.
4. Person who can be adopted.
All these above can be studied under the following heads:-
1. WHO CAN ADOPT -Section 7 and 8 mention those person who can adopt. These section has
two types of methods of adoption by male and adoption by female.
Adoption by Male
Section 7 provides that an adoption by male requires the following three conditions-
i) Such male shall be of sound mind.
ii) He is major.
iii) Must have the consent of his wife.
Thus such Hindu male can adopt a child who is major, sound mind and has obtained the consent
of his wife. If the adoption is performed without the consent of wife then such adoption shall be
void. Refer a case of Bhola v/s Ram Lal -1989, It has been held that if any male has more than
one wife then the consent of all wives are required. If any wife attend the adoption ceremony it
shall be deemed to have given the consent refer a case of Praful Kumar v/s Shashi Bewa -1990.
It is pertinent to mention that the consent of wife is not necessary in all circumstances i.e. the
consent of wife is not necessary in the following conditions:-
1. When wife had renounced the world.
2. When she is no more Hindu.
3. When she has been declare d unsound by the competent court.

Adoption by Female
Section 8 provides that any female can also adopt a child only when such female fulfil the
following conditions-
1. is unmarried or widow.
2. Is a major
 

3. Is of sound mind.
It is clear that a female cannot adopt until the husband is living. Female can adopt a child even
when the husband living only when:
i) The husband had renounced the world.
ii) The husband is not more a Hindu.
iii) The husband has been declared unsound mind by a court.
Here are some important things that if male wants to adopt a female or vice-versa then the age
difference between the two shall be at-least 21 years.
Who can give Adoption?
Section 9 mentions those persons who can give a child in adoption. The followings are eligible
for giving a child in adoption:-
1. Father 2, Mother 3 Guardian appointed by the court.
If a father gives a child in adoption the consent of mother shall be required. The consent of
mother shall not be required in following situations-
1. When the mother is renounced the world.
2. When the mother is no more Hindu.
3. When the mother has been declared unsound mind by a court.
Generally a mother cannot give a child in adoption till the father is living. A mother can give a
child in adoption only when the following occur:-
1. The father had already died.
2. Father is renounced the world.
3. The father is no more Hindu.
4. The father has been declared unsound mind by a competent court.
Mother means only the natural mother not the step mother. Step mother cannot give a child in
adoption. Refer a case of Dharamraj Jain v/s Suraj Bai-1973.
A guardian appointed by the permission of court can give a child in the
Following conditions:
1. When both father and mother had died.
2. When they have renounced the world.
3. When they do not remain Hindu.
4. When they have been declared unsound mind by a competent court.
 

It is further to submit that the court will consider the following points while permission for the
adoption:-
1. The age of child.
2. Knowledge of the child.
3. Intention of the child.
4. Interest and welfare of the child.
5. No consideration by the guardian etc.
Who may be adopted
Section 10 mentions that those persons who may be adopted. According to the provisions such
person may be adopted or may be given in adoption:-
1. Who is Hindu?
2. Who has not already been adopted?
3. Who is not married where it has been permitted by the custom or traditions.
4. Who is not above the age of 15 years where it has not been permitted by the custom or
traditions?
The case of Balakrishna v/s Sadashive-1977, another case of Mayaram vs Jai Naraian -1989
and Kodippa Rama Papal urf Shirke v/s Kannappam -1990. It was held that where customs or
traditions allow there a person above 15 years of age or married can be adopted.
Section 14 describes the position of mothers in certain situations
1. When a male adopts with the consent of the wife, the wife becomes the adoptive mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the step
mother.
3. If a single adoptive mother later marries, the husband of the adoptive mother becomes the
step farther.
4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife
becomes the adoptive mother and other wives become the step mothers.
Valid adoption not to be cancelled
Section 15 says that a valid adoption cannot be canceled either by the adoptive father or
mother. Neither can the adopted child renounce the adoptive parents and go back to the family of
his birth.
 

Q. 4. Maintenance is the right of woman critically examine under HAMA, HMA

and CRPC?
Or
Q.4. Can a wife demand separate residence from her husband? If also so state
the conditions in which Under Hindu Adoption and Maintenance Act 1956.
Ans. Maintenance of Wife under Hindu Law
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. At this point of time I would also like to mention that according to my
understanding maintenance not only includes basic necessities like food, clothing and residence
but it also includes the things necessary for comfort and status in which the person entitled is
reasonably expected to live.
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 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.
Types of Maintenance
There are two types of maintenances:-
(1) Interim maintenance and maintenance pendente lite
(2) Permanent maintenance
1. 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.
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.
2. 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.
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. [7] 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. [8] According to me 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.
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,
(d) His father or mother, unable to maintain himself or herself.”

Short Questions Answers

Q. 1. Who is bound to maintainAccording to Hindu Adoptions and maintenance

Act 1956? Is a married daughter also liable to maintain her old parents? Refer to
a decided Supreme Court case on the subject.

Ans. Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the
deceased out of the estate inherited by them from the deceased. Thus, this obligation is to be
fulfilled only from the inherited property and so it is not a personal obligation. 22(2) says that
where a dependent has not received any share, by testamentary or intestate succession, he shall
be entitled to maintenance from those who take the estate. 22(3) says that the liability of each
 

heir is in proportion to the estate obtained by him. 22(4) says that a person who himself is a
dependent cannot be forced to pay any amount of maintenance if the amount causes his share to
reduce below what is required to maintain himself.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her
parents. The parents will be entitled to claim maintenance against their daughter provided the
above mentioned conditions are fulfilled. However, before passing an order in favour of parents
against their married daughter, the court must be satisfied that the daughter has sufficient means
of her own which should be independent from that of her husband.
Daughter is entitled to maintenance under CrPC when read with Hindu Adoption and
Maintenance Act, 1956 even after attaining majority but till her marriage, Jagdish Jugtawat v.
Manju Lata, (2002) 5 SCC 422.
Q. 2. Point out the important changes brought about by the Hindu Adoption and
Maintenance Act 1956.
Ans. Under the provisions of Hindu Adoption and Maintenance Act, 1956, the giving of child in
adoption to another person is not the sole and absolute privilege of the father. His absolute power
to give his child in adoption is now qualified to the extent that he cannot do so without the
consent of the child's mother. The Act has affected the following important changes-
(1) It has considerably enlarged the powers of Hindu female to adopt a child. A Hindu woman
need not take prior permission of the husband to adopt a child. A widow and an unmarried Hindu
female have full right to adopt a child.
(2) Now the Act provides the adoption not only of son, but also that of a daughter.
(3) The performance of Dattaa Homan, a religious ceremony is no longer necessary.
(4) The simple ceremony of giving and taking is only necessary. [Ranjit Kumar Jain v. Kamal
Kumar Chowdhury and another (AIR 1982 Cal. 493)].
(5) The upper age limit of the child who is adopted has been fixed at fifteen years unless the
custom permits such adoption.
(6) The law has been given a uniformity and all differences between various schools and sub-
schools have been removed.
(7) The father, without the consent of the mother, cannot give a child in adoption except in
certain circumstances.
 

(8) The adoptee must be below 15 years of age and unmarried unless the custom permits such
adoption.
(9) Adoptive father or mother shall not be deprived of their power to transfer the property merely
by reason of adoption of a child.
(10) Provisions relating to registration and presumption therefore has been made.
(11) Specific provisions regarding the maintenance of wife have been incorporated.
(12) The list of the persons entitled to maintenance has been clearly provided. Their rights to get
it and the amount to which they will be entitled have been clearly laid down by the Act.

Q.3. What are the rights of Widowed Daughter-In –Law to Claim Maintenance
under Hindu Adoption and Maintenance Act?
Ans.Rights of Widowed Daughter-In-Law to Claim Maintenance under Hindu
Law
According to ancient texts the father-in-law was neither under any legal obligation nor any
personal obligation to provide maintenance to widowed daughter-in-law. It was merely a moral
obligation. If the father-in-law received some property by survivorship on the death of his son,
who died leaving behind his widow, he would be under legal obligations to maintain the widow
of such a son.
Section 19 of the Act does not laydown a personal obligation upon the father-in-law to maintain
his son’s widow. It lays down only a moral obligation upon the father-in-law to maintain his
daughter-in-law, but after the death of the father-in-law, whosoever inherits his self acquired
property, is legally bound to maintain the daughter-in-law of such deceased person.
According to Section 19, any Hindu whether her marriage took place either before the
commencement of the present Act or thereafter, on the death of her husband, would be entitled to
maintenance from her father-in-law to the extent and so long
(a) She is unable to maintain herself out of her own earnings or other property; or
(b) She is unable to obtain maintenance from the estate of her husband; or
(c) She is unable to obtain maintenance from the estate of her father; or
(d) She is unable to obtain maintenance from the estate of her mother; or
(e) She is unable to obtain maintenance from the estate of her son; or
 

(f) She is unable to obtain maintenance from the estate of her daughters; or
(g) She is unable to obtain maintenance from the estate of her son or daughter;
(h) If the father-in-law has no coparcenary property in his possession out of which she has not
obtained a share, and
(i) She has remained unmarried. Where the father-in-law has coparcenary as well as self-
acquired property to his credit and the amount of earning from self-acquired property is
sufficient enough to enable him and his wife to maintain themselves, the widowed daughter-in-
law acquires a right to get herself maintained out of the earnings of the coparcenary property. In
such a case there would be not any obligation upon the earnings of coparcenary property with
respect to the maintenance of father-in-law and wife.
In Smt. Balbir Kaur v. Harinder Knur, the Punjab and Haryana High Court held that Section 19
of the Hindu Adoptions and Maintenance Act, 1956 deals with the right of maintenance of a
widowed daughter-in-law.
Whether married before or after the commencement of the Act, she can claim maintenance only
if she is unable to maintain herself from her own sources or out of the estate of her husband or
her father or mother or from her son or daughter, if any or his or her estate.
The right to claim maintenance from the father-in-law, in the circumstances stated above, is
however conditional upon the father-in-law having in possession of coparcenary property out of
which widowed daughter-in-law has not obtained any share. Though under the Act, the right to
claim maintenance by widowed daughter-in-law against her father-in-law is limited to the extent
of coparcenary property in the hand of father-in-law, out of which widowed daughter-in-law has
not taken any share but under the old Hindu law, prevailing before the enactment of the Act, this
right of maintenance to the widowed daughter-in-law against the self-acquired property of her
father-in-law, was available.
This right is still available to the widowed daughter-in-law of the pre-deceased son against the
self-acquired property of her father-in-law as this right shall not cease to be in force because the
same is not inconsistent with any provision contained in the Act. Thus the widowed daughter-in-
law of a pre-deceased son is entitled to claim right of maintenance against the self-acquired
property of her father-in-law, whether it is in his hand or iii the hand of his heir or done.
Section 19(2) lays down those conditions in which the liability to maintain the daughter-in-law
comes to an end. These conditions are as follows:—
 

(1) Where the father-in-law does not have any means for maintenance out of coparcenary
property which was owned by her deceased husband;
(2) Where the widowed daughter-in-law received any share in the coparcenary property;
(3) Where she has remarried;
(4) Where she has converted into other religion.
The widowed daughter-in-law could claim maintenance in the property notwithstanding the fact
that she does not live in her father-in-law’s home.
In Kanailal v. Pushparani Pramanik, the Calcutta High Court held that sub-section (2) of
Section 19 applies only to parties governed by Mitakshara law. There is no question of a widow
inheriting the share of her husband in any coparcenary property under the Dayabhag school of
Hindu law. The provision of sub-section (2) of Section 19 cannot, therefore, apply when the
parties belong to the Dayabhag school of Hindu law.
But sub-section (1) of Section 19 confers a right on a widowed daughter in-law to claim
maintenance from her father-in-law irrespective of whether they are governed by Mitakshara or
the Dayabhag school of Hindu law.
Recently in S.V. Parthasaratliy Battachariar and others v. S. Rajeswari and others, Madras
High Court observed that father-in-law is liable to pay maintenance to widowed daughter-in-law
if husband of widow is not known for more than seven years and deemed to have been died.
However, there is no provision for maintenance of grandson by the paternal grandfather. But
where considering the commitment of a widow to maintain her children and minors being sharers
in joint family properties not deriving any income, paternal grandparents being in possession of
joint family property are liable for maintenance of minor grandsons with widowed daughter-in-
law.

Very Short Questions Answers

Q. 1. Define “Maintenance” according to the provision of Hindu Adoption and

Maintenance Act 1956.

Ans. Maintenance
Maintenance means the right of dependents to obtain food, clothing, shelter, medical care,
education, and reasonable marriage expenses for marriage of a girl, from the provider of the
 

family or the inheritor of an estate. The basic concept of maintenance originated from the
existence of joint families where every member of the family including legal relations as well as
concubines, illegitimate children, and even slaves were taken care of by the family. However,
maintenance does not mean unreasonable expectations or demands.
In the case of Ekradeshwari vs Homeshwar in 1929, Privy Council had enunciated certain
principles in governing the amount of maintenance. It said that maintenance depends on a
complete analysis of the situation, the amount of free estate, the past life of the married parties
and the family, the requirements of the claimants, and a consideration regarding future changes.
In the case of Mutyala vs Mutyala 1962 AP HC held that amount of maintenance cannot be a
matter of mathematical certainty.
Position and Status of parties
In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed the living standard of the
wife, and her reasonable wants in determining the maintenance amount.
Reasonable wants
In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed that the husband had a
second wife and so the fact that the claimant is living separately will not go against her in
determining the amount.
In the case of Krishna vs Daimati 1966 Orrisa HC held that when a minor child lives with
the mother, the necessities of the child constitute reasonable demands of the mother.
Separate earning of the claimant
whether the claimant has separate earning on income is a question of fact and not a question of
presumption. It cannot be, for example, presumed that a college educated girl can maintain
herself.
In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM from
her father. This was not considered to be her income but only a bounty that she may or may not
get. However, income from inherited property is counted as the claimant’s earning.
Arrears of Maintenance
In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of maintenance is a
recurring right and non-payment of maintenance prima facie constitutes proof of wrongful
withholding.
Q.2. What are rights of adoptive parents?
 

Ans. Right of adoptive parents to dispose of their properties

Section 13 lays down that where there is no agreement to the contrary, an adoption does not
deprive the adoptive father or mother of the power to dispose of his or her property by transfer
inter vivos or by will.
• Thus an adoptive parent is in no way restrained in the disposal of their property by reason
of adoption.
• Adoptive parent’s right to disposing off his property is subject to an agreement to the
contrary that might have been entered into at the time of adoption between the adoptive
parents and the natural parents on behalf of the child for his benefit. Under the Act, thus,
agreements restricting the power of alienation of the adoptive parents are void.
 

KAMKUS COLLEGE OF LAW

B.A. LL.B. Vth SEM.
Hindu Law
CODE BL-(504)
UNIT- Vth

Detailed Questions Answers

Q. 1. Who are the natural guardians of a Hindu minor? When do they lose the
right o guardian? Can the y appoint testamentary guardian if so when? State the
relevant law referring the provisions given in Hindu Minority and Guardianship
Act 1956.
Ans. 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. Sec 4 of HMGA 1956 defines Guardian as follows:
 

Definition (Section 4)-Guardian means a person having the care of a person of a minor or of his
property or of both the person and his property. This includes:
• natural guardian
• guardian appointed by the will of a natural guardian (testamentary guardian)
• a guardian appointed or declared by court
• a person empowered to act as such by the order of Court of Wards.
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.
Natural Guardian (Sec 6)
Section 6 of HMG Act 1956 defines only three natural guardians:
• For a legitimate boy or a girl, the father, and after father, the mother, provided that the
custody of a child less than 5 yrs of age will be with the mother.
• For an illegitimate boy or a girl, the mother, and after mother, the father.
• For a married woman, the husband.
It further states that no person shall be entitled to be a natural guardian of a minor if
• he ceases to be a Hindu or
• He renounces the world completely by becoming a sanyasi.
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.
In case of E.M. Nadar v/s Shri Haran, 1992, it was held by the court that the father is guardian
of minor even if living separately.
In case of Vijaylakshmi v/s Police Inspector, 1991, it was held that when father converts to be
non-Hindu then mother shall be natural guardian.
In case of Chandra v/s Prem Nath, 1969, it was held that the guardian below the age of 5 years
is mother.
But several decision with the time it has been considered that if the father is unable and do not
have sufficient fund then the natural guardian shall be mother as described by the court in the
following cases:-
 

(i) R. Venkat Subaiya v/s M. Kamalamma, 1992

(ii) Smt. Geeta Hariharan v/s Reserve Bank of India, 1999.
Natural Guardianship of adopted son(section 7) -Natural guardianship of an adopted
son passes on to his adoptive father and after adoptive father to adoptive mother.
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 vs. Ganga AIR 1973 Raj.Afather’s right to guardianship is subordinate to the
welfare of the child. In the case of Githa Hariharan vs 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.
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.
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.
Powers of a natural guardian (Sec 8)
Section 8 of Hindu Minority and Guardianship Act, 1956 describes the powers of a natural
guardian as follows-
 

• A guardian can do any act, subject to provisions of this section, that are necessary or are
reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But
the guardian, in no case, shall bind the minor by a personal covenant.
• The guardian cannot, without prior permission from the court,
• Mortgage, charge, or transfer the immovable property of the minor by way of sale, gift,
exchange, or otherwise.
• Lease the immovable property for a term more than 5 years or where the lease ends one
year after the minor attains majority.
• Any sale of immovable property in violation of the above two points, is voidable at the
insistence of the minor.
• The court shall not give permission for sale of immovable property unless it is necessary
or clearly in the benefit of the minor.
These powers also include the following
• right in education
• right to determine religion
• right to custody
• right to control movement
• right to chastisement
In the case of Manik Chandra vs 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.

Q. 2. What do you understand by the term ‘Testamentary guardians’ in Hindu

Minority Guardianship Act 1956? Who has the Right to appoint testamentary
guardian for a minor Hindu.
Ans.Section 9 Testamentary Guardian
A testamentary guardian is one who is appointed by a will of the natural guardians of the minor.
Father who is the natural guardian of his minor children can appoint guardian for them who are
 

known as testamentary guardians. Section 9 of the Hindu Minority and Guardianship Act, 1956,
relates to the testamentary guardians and their powers.
Under old Hindu Law a testamentary guardian appointed by father could function even though
when the mother was alive. But according to Section 9, even though the father has appointed a
guardian if the mother is alive, she would be his guardian, and she also can appoint under her
will a guardian of her own choice.
But if the mother does not appoint any guardian, the appointment of the guardian under “father’s
will” will come into operation. Such a testamentary guardian becomes functional only after the
death of natural guardians, as a will comes into effect only on the death of its executor. Section 9
of the Act runs as follows-
“(1) A Hindu father entitled to act as a natural guardian of his minor legitimate children may, by
will, appoint a guardian Tor any of them in respect of the minor’s person or in respect of the
minor’s property (other than the-undivided interest ratted to in Section 12) or in respect of both,
(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the
mother, but shall revive, if the mother dies without appointing by will, any person as guardian.
(3) A Hindu widow, entitled to act as the natural guardian of her minor legitimate children, and a
Hindu mother entitled to act as the natural guardian of her minor illegitimate children by reasons
of the fact that the father has become disentitled to act as such, may by will appoint a guardian
for any of them in respect of minor’s person or in respect of minor’s property (other than the
undivided interest referred to in sub-section (2) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children, may
by will, appoint a guardian for any of them in respect of the minor’s persons or in respect of the
minor’s property or in respect of both.
(5) The guardian so appointed by will has the power to act as the minor’s guardian after the death
of the minor’s father or mother, as the case may be, and to exercise all the powers of a natural
guardian under this Act to such extent and subject to such restrictions, if any as are specified in
this Act and in the will.
(6) The right of guardian so appointed by will shall, where the minor is a girl, cease on her
marriage.”
Who can Appoint Testamentary Guardian?
 

Thus according to the above section the following persons can exercise the right to appoint a
testamentary guardian in respect of minor’s person or property or both:
(1) Father, natural on adoptive
(2) Mother, natural or adoptive
(3) The widowed mother, natural or adoptive.
Father
A Hindu father, who is entitled to act as a natural guardian and has not become disqualified to
act as such, may by will appoint a guardian in respect of minor’s person or his property or both,
but not of undivided interest of the minor in the joint-family property.
The undivided interest of minor in a joint Hindu family remains in the hands of Karta. Hence no
testamentary guardian can be appointed in respect of that. The father cannot supersede the power
of the mother to act as a natural guardian by appointing a testamentary guardian in case he
predeceases her but if the mother died without appointing any guardian, the appointment made
by the father shall revive.
Thus where the father dies during the life time of his wife (minor’s mother) after appointing a
guardian by will, the appointment will not become effective and the mother by virtue of the
provisions in Section 6 of the Act will become the natural guardian of the minor. But where the
widowed wife, i.e., minor’s mother dies without appointing any person as guardian by will of the
minor, the appointment made by the father will revive.
Widowed Mother:
A Hindu widowed mother entitled to act as the natural guardian of her legitimate children may
by will appoint a guardian for any of them in respect of the minor’s person or separate property
or both. Any appointment made by her husband will be of no effect on the face of the
appointment made by the widow.
Where the child is illegitimate, the mother being a natural guardian can appoint a guardian by
will even during the life time of her husband. In such ease the father has not right to appoint any
person as guardian.
A Hindu mother entitled to act as the natural guardian of minor legitimate children could appoint
a guardian by will during the life time of her husband provided he has ceased to be a Hindu or
has become a sanyasi by renouncing the world. Similarly where the mother entitled to act as a
 

natural guardian of her illegitimate children, may appoint a guardian by will either with respect
of minor’s person or property or both.
In such cases the presence of her husband is no bar nor is it necessary that he is disqualified to
act as such because the father is not competent to act as a natural guardian of the minor children
during the lifetime of their mother, who alone could exercise the right of appointing a guardian
by will.
There is nothing in the act which limits the choice of natural guardian to appoint any person as
the guardian under a validly executed will. But the person so appointed must be one who is not
suffering from any disqualifications like minority, renunciation of the world or being a non-
Hindu or insanity.
Powers of Testamentary Guardian
The testamentary guardian becomes entitled to act as the guardian of the minor after the death of
the natural guardian. He can exercise all the rights and powers of a natural guardian to such
extent and subject to such restrictions as are specified in the Act and in the will. Thus the powers
of testamentary guardian and the natural guardian arc the same except that the power of a
testamentary guardian to deal with property belonging to the minor is also subject to the
restrictions imposed by the will.
Since the powers of the testamentary guardian are similar as that of natural guardian, it is
relevant to know that Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the
powers of the natural guardian. Section 8 lays down that the natural guardian has every power to
do any act subject to the provisions of the law if necessary or found to be beneficial to the estate
of the minor.
However, it should be noted that a natural guardian has no power to sell, make a gift or exchange
any property of the minor without the permission of the Court. In the same way natural guardian
can’t lease the property of the minor for more than five years or more than one year beyond the
date on which the minor attains majority.
Removal of a Testamentary Guardian
Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary
guardian could be removed. It may be noted here that the above section has not been abrogated
by the present Act of 1956 hence it stands a good law even today. Thus a testamentary guardian
 

could be removed on the following grounds as mentioned in Section 39 in the Guardian and
Wards Act:—
1) Abuse of his trust.
2) Continuous failure to perform the duties.
3) Incapacity to perform the duty.
4) Ill-treatment or neglect to take proper care of his ward.
5) Continuous disregard to any of the provisions of the Act.
6) Conviction in case of an offence relating to lapses in the character.
7) Keeping an adverse interest.
8) Ceasing to reside within the local limits of the jurisdiction of the court, and
9) Insolvency or bankruptcy.
In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the following
grounds:
(i) If he ceases to be Hindu, or
(ii) Has completely and finally renounced the world by becoming a hermit or an ascetic.
Guardians Declared or Appointed By the Court
Where the court is satisfied that it is for the welfare of a minor that a guardian should be
appointed with respect to his person or property or both, it may pass an order to that effect under
the Guardian and Wards Act, 1890. In appointing or declaring a person as the guardian of a
minor, his welfare shall be the paramount consideration. This has been specifically provided in
Section 13 of the Hindu Minority and Guardianship Act, 1956, which runs as under:
“Section 13(1)—In appointing or declaring any person as a guardians of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
Who can apply for the appointment as guardian?
The court can consider the appointment of a guardian on the application of
(1) The person desiring to be appointed or claiming to be the guardian of the minor; or
(2) Any relative or friend of the minor; or
(3) The Collector of the district or other local area in which
(a) The minor ordinarily resides;
(b) The minor holds property; or
 

(4) If the minor belongs to a class, then the Col++lector, having authority with respect to that
class.
The powers of the guardian, thus appointed by the court and the limitations on his power are the
same as that of a natural or testamentary guardian.

Q. 3. What is the law regarding appointment of guardian for minor’s interest in

undivided joint family property under the management of an adult family
member?
Ans.Section 12 Guardian not to be appointed for minor's undivided interest in
joint family property -
Where a minor has an undivided interest in joint family property and the property is under the
management of an adult member of the family, no guardian shall be appointed for the minor in
respect of such undivided interest-
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to
appoint a guardian in respect of such interest-
Where a Hindu father dies leaving behind his sons who are coparceners and also daughters and
the widow, by applying the fiction of partition on the date of death of the father, the female heirs
along with the sons have the right to an equal share in the father's share of the property. Having
such an individual share in the joint family property there is a chance for an adult female
member of the family to be in management of the joint family property. According to the present
provision, it can be said in such cases also that no guardian can be appointed for the undivided
interest of the minor in the joint family property as it applies to a case where the property is
under the management of any adult member and not necessarily an adult male member. There
may be a case where there is an adult member of the family but he or she may not be in
management of the joint family property for some reason. In such a case, this provision is not
applicable. This provision does not indicate that the adult member in management of the joint
family property should be the senior adult member. According to the notions of Hindu Law, in
the absence of the father, the eldest male member is to be the manager of the joint family
property, though it is permissible for a junior member to become the manager with the consent of
the other members of the family.-Ramakrishna v. Manikka 1937 (1) MLJ 587. But under s.12
 

of the Act, it is sufficient if any adult member is in management of the joint family property in
order to attract the prohibition contained in this section.
Section 12(1)of the said Act, the Court is empowered to make an interlocutoryorder so as to
protect the person or property of the minor as it thinks fit. While consideringan application for
appointment of guardian, if it is found at an interlocutory stage that thewelfare of the minor
requires an amount be made available for being paid to the minor witha view to protect the
person of the minor and his/her interests, such power would beavailable with the Court.
Provisions ofSection 12(1) of the said Act will have to beconstrued in a manner that would
protect the person of the minor and if for such purposegrant of interim maintenance is warranted,
the Court would be empowered in that regard.The Allahabad High Court in Khurshid
Grover (supra) has rightly observed that provisionsofSection 12(1) of the said Act are of wide
amplitude and no restrictive meaning should begiven to said provisions. The welfare of the
minor being the paramount consideration, thepower to grant interim maintenance will have to be
read in aforesaid provisions. Moreover,during pendency of proceedings when it is brought to the
notice of the Court that thewelfare of the minor requires to be taken care of by directing one
party to pay an amountof interim maintenance, such power can surely be exercised in the facts of
the case.Bombay High CourtSreenivasagopalan vs Meenakshi Tripurari on 31 July, 2015.

Short Question Answers

Q. 1. Define the terms ‘Minor’ and ‘Guardian’ with to the provisions of Hindu
Minority and Guardianship Act 1956.
Ans. Minor
under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has
not completed the age of eighteen years. A minor is considered to be a person who is physically
and intellectually imperfect and immature and hence needs someone's protection. In the modern
law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a
person having the care of the person of the minor or of his property or both person and property."
It may be emphasized that in the modern law guardians exist essentially for the protection and
care of the child and to look after its welfare. This is expressed by saying that welfare of the
child is paramount consideration. Welfare includes both physical and moral well-being.
 

Definition- (Section 4) -Guardian means a person having the care of a person of a minor or
of his property or of both the person and his property. This includes:
• natural guardian
• guardian appointed by the will of a natural guardian (testamentary guardian)
• a guardian appointed or declared by court
• a person empowered to act as such by the order of Court of Wards.
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.

Q. 2. What are the duties and liabilities of guardian appointed by Court? Explain
the removal of guardian.
Ans. 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 favour of the father. In Kumar v.
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 grandfather by SC in case of Poonam v. 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 v. 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.
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.
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.
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.
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.
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.

Very Short Question and Answers

Q. 1. Definition of “Guardian” according to Hindu Minority and Guardianship
Act 1956.
Ans. Guardian
Meaning
If a person donates propertyto a minor and appoints a guardian to look after the property he
would not be a guardian within the meaning of the ActRajalakshmi v. Ramachandran, AIR
1967 Mad 113: (1966) 1 MLJ 420.
According to Section 4 of Hindu Minority and Guardianship Act, 19564 “Guardian” means a
person having the care of a person of a minor or of his property or of both the person and his
property. This includes
i. natural guardian
ii. a guardian appointed by the will of a natural guardian (testamentary guardian)
iii. a guardian appointed or declared by court, and
iv. a person empowered to act as such by the order of Court of Wards.
The above mentioned types of guardians are 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-facto guardian as per section 11. Testamentary guardians
 

were also introduced in Hindu law: It was also accepted that the supreme guardianship of the
minor children vested in the State as parens patrie and was exercised by the courts.
Guardianship of the person Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(a), minor means a person who has
not completed the age of eighteen years. A minor is considered to be a person who is physically
and intellectually imperfect and immature and hence needs someone's protection. In the modern
law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a
person having the care of the person of the minor or of his property or both person and property."
It may be emphasized that in the modern law guardians exist essentially for the protection and
care of the child and to look after its welfare. This is expressed by saying that welfare of the
child is paramount consideration. Welfare includes both physical and moral well-being.

Q. 2. What do you understand by the term ‘De facto guardian? Can he alienate
with a minor’s property under the provisions of minority and guardianship and
minority and guardianship Act 1956.
Ans. De Facto Guardian Section 11 of the Hindu Minority and Guardianship
Act, 1956 deals with De Facto Guardian-Section 11 of the said act prohibits a de facto
Guardian to deal with minor’s property. According to Section 11 of the 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.In other words, a de facto guardian is a person who
is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has
assumed, the management of the property of the child as though he were a guardian. De facto
guardianship is a concept where past acts result in present status. The term literally means 'from
that which has been done.'The de facto guardian was recognized in Hindu law as early as 1856.
The Privy Council in Hanuman Prasad Singh and Ors v. Bhaguati Prasad Singh and Ors
3(1897) ILR 19 All 357. said that 'under Hindu law, the right of a bona fide encumbrance, who
has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the
estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the
de jure title. 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. 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

Q. 3. What do you understand by ‘Ad hoc Guardian?

Ans.Ad hoc Guardian
Ad hoc means “for this purpose.” Before a person can be described a guardian de facto there
must be some course of conduct in that capacity it implies some continuity of conduct some
management of the property beyond the isolated act of alienation which is being challariged. A
person who over many years has never intermeddle or acted as guardian cannot come forward
and claim to be a guardian de facto and authorized to sell property on behalf of a minor. Such a
person would be guardian ad hoc and not a guardian de facto. Alienation by a guardian ad hoc is
void. The Ad hoc guardian too place in this Act.