1. What is a family? Characteristics of family? Different types of family?

The most important primary human group is the family. The word family is derived from the
Roman word famulus, meaning a servant. In the olden days, the word referred to a group of
producers, slaves and other servants, as well as members of the group related to one another by
common descent or by marriage.
Several writers have given different definitions of the word family, some of which are as follows:
Davis: A family is a group of persons whose relations to one another are based on consanguinity,
and who are therefore kin to one another.
Clare: A family is a system of relationships existing between parents and children.
Maclver: A family is a group defined by a sex relationship, sufficiently precise and enduring to
provide for the procreation and upbringing of children.
Nimkoff: A family is a more or less durable association of husband and wife with or without
children, or a man or woman alone with children.
Eliot & Merril: A family is the biological social unit composed of husband, wife and children.
The salient characteristics of a family
The following may be regarded as the twelve salient characteristics of a family:
1. Universality - The institution of a family has existed in all societies, past and present.
Every human being belongs to one family or the other
2. Mating relationship. - A family comes into existence when a mating relationship is
established between a man and a woman. Such relationship may be a short one or one
which endures for a lifetime. When the marital relations break up, the family
disintegrates.
3. Marriage - The mating relationship is established through a form of marriage, which may
take one of many forms it may be monogamous or polygamous, today, it may be a love
marriage or an arranged one.
4. Fixed habitation - Every family has a more or less food place of habitation a home where
the essential functions of a family are carried out.
5. Financial or economic provision - Some kind of financial or economic provision is made
in every family, so that the basic requirements of the family and their economic needs
may be met. The head of the family generally meets the economic needs of the members
of the family.
6. System of nomenclature - Every family is known by a name usually referred to as its
'surname (as in India) or family name (as in USA). Depending on the type of family,
descent may be reckoned through the male line or through the female line. Today, it is
quite common that, after marriage, a girl retains her maiden surname or adds the surname
of her husband to her maiden surname.

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 7. Closed group - A Family is a closed group, where membership is open only through birth,
marriage or adoption.
8. Limited size - Since a family is the nucleus of all other social groups, it is limited in size.
In fact, it is the smallest kinship group of all human groups.
9. Emotional basis - The bonds which tie a family together are blood relationship and
mutual affection. Such ties are based on love and affection and not on reason. Members
of a family share their pleasures and pains together.
10. Sense of security and responsibility. - A family provides full security to all its members
and every member of the family bears responsibility towards the other members.
11. Educative Role: As the earliest period of every human being is spent in his family, it is
here that a person learns his earliest and most fundamental lessons in socialization.
12. Permanence coupled with change - Although as an institution, the family is permanent
and universal, as an association, it undergoes constant changes caused by births and
deaths.
TYPES OR FORMS OF FAMILIES
Families can be classified into various types or forms, on the basis of authority, structure,
residence, manage, ancestry or lineage, in-group or out-group affiliation and blood
relationships.
1. On the basis of authority: On the basis of authority, families can be divided into patriarchal
families and matriarchal families.
a) Patriarchal families: In a patriarchal family, the male head has all the inclusive powers
and is instrumental in taking decisions on behalf of family. He is the administrator of the family
and presides over all the religious rites of the family. He also acts as the protector and the ruler
of the family, enjoying full authority over all the family members.
In the olden days, this type of family was prevalent amongst the Hebrews, the Greeks, the
Romans and the Aryans of India. The Old Testament contains several descriptions of such
families, such as those of Abraham, Jacob and Isaac. In ancient Athens, the wives and daughters
of the family were confined to women's apartments and were not allowed to go out without the
permission of the patriarch. Likewise, it is said that ancient China followed the practice of tying
the feet of women, signifying that they were not free to leave their household.
In Vedic times, the Indian family was strongly patriarchal. The father exercised supreme power
over his wife and children, who could not even own any property. The wife had to endure a
position of total subordination and was subject to the will of her husband in all matters. It was
the duty of every girl to obey her father before marriage, her husband after marriage, and her son
after widowhood. In recent times of course, things have changed.
The chief characteristics of a patriarchal family are:
1. After marriage, the wife comes to live in the husband's and in-laws' home.
2. The father is the supreme lord of the family property.

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 3. Descent is reckoned through the father, and the children are known by the name of the
family of the father, that is, they take the surname of the father.
4. The children often inherit the property of the father only.
b) Matriarchal families: In a matriarchal family, it is the mother who is the supreme
commander of the family. She is the ruler of the family and also the owner of the family property.
Such types of families prevailed amongst the most primitive tribes who led a wandering life. The
father went hunting for the family and came home irregularly, staying away from the family for
long periods of time. His absence naturally made the woman rule the family, and she came to
possess complete authority over all the members of the family. This type of family prevailed in
many parts of the world, as for instance, amongst the Red Indians of North America. Today, this
type of family is to be found amongst the Nan's in Kerala and the Garos and Khasis in Assam. 2
features of matriarchal family are the husband after marriage goes to live in house of his wife
and the power, authority, control vested in the woman who is the head of family with all male
subordinate to her.
2. On the basis of structure: On the basis of structure, families can be classified into nuclear
families, extended families and joint families.
A nuclear family is the smallest composite family unit. It consists of the husband, his wife
(or wives, where permitted by law) and the children. The children leave their parental household
as soon as they are married. A nuclear family is completely free from the control of elders, and
the parents take decisions all the time without any hindrance. As newlyweds start their own
nuclear family, such a family is an autonomous unit, free from the control of their parents and
other elders. As separate residence ensures a physical distance between the parents and their
married children. The typical American family is a good example of a nuclear family. Some
authors have singled out eight possible relationships in nuclear families, namely – 1. husband
and wife, 2. Father and son, 3. father and daughter, 4. mother and son, 5. mother and daughter, 6.
brother and brother, 7. brother and sister, 8. sister and sister.
An extended family comes into existence on a merger of two or more nuclear families. A
large extended family may include a man and his wife (or wives, where permitted by law), their
unmarried daughters, married sons and the sons' wives along with their unmarried children. A
typical case of an extended family is where the nuclear families of the married sons are merged
into the nuclear family of their parents. An extended family may live together in the same house
or may occupy a cluster of houses within the same locality.
Extended Family Nuclear family
Extended family is continuous Nuclear family is not continuous.
Nuclear family comes to end when
one of the parent die.
an extended family is run by the a nuclear family is a separate and
patriarch and the married sons have Independent unit, which is run by the
little or no say in decision-making. husband and wife.
Even after marriage, the son of an
extended family often continues to be

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 regarded as a child or at best, a
married child.

A joint family is a form of an extended family. It consists of two or more primary families;
whose members are blood relatives or close kins. Such a family often consists of three or more
generations, namely, the older parents, their sons, the wives of the sons and their children. All
such persons live under one roof, eat food of the same Kitchen, hold property in common and
participate jointly in worship and religious ceremonies. A Hindu undivided family (HUF) is a
typical example of a joint family
3. On the basis of residence: On the basis of residence, families can be classified as follows:
Matrilocal family: In this type of family, the husband goes to live in the house of his wife after
Marriage.
Patrilocal family: Here, the wife goes to the husband's family. and resides there after marriage.
Bi-local residence family: Here, a married couple can choose to live either with the wife's
parents or with the husband's parents.
Avunculocal residence family: In this type of family, the married couple lives with the husband's
maternal uncle, namely, the brother of the husband's mother.
Neo-local family: Here, the husband and wife live in separate residences, which are usually close
to their respective jobs. This type of families is found today in the west, where for instance, an
American husband lives in one state (where he has a job), whereas the wife lives in another state
(where she has a job). The husband may come and spend some days. as for instance, a weekend
at the wife's house, and vice versa. Such families are also sometimes referred to as "changing
residence families, as neither the husband nor the wife lives permanently with the other spouse.
4. On the basis of marriage: On the basis of marriage, families can be divided into *
monogamous, polygamous and polyandrous families. In a monogamous family, neither the
husband nor the wife can marry again in the lifetime of his or her spouse (as for instance,
amongst Christians, Parsees and Hindus after the Hindu Marriage Act. 1955). In a polygamous
form of family, the husband is allowed to have more than one wife at the same time (as for
instance amongst Muslims). In a polyandrous family, the wife is allowed to have more than one
husband at the same time.
5. On the basis of ancestry or lineage: On the basis of ancestry or lineage, families can be
divided into patrilineal and matrilineal families. The terms ancestry' and 'descent signify descent
in one line from a common ancestor or ancestress. In a patrilineal family, the father is the basis
of ancestry and this is the most common type of family in several parts of the world today. In a
matrilineal family, on the other hand, the basis of ancestry is the mother and the rights of every
member of the family depend on such member's relationship with the mother.
The term 'patriline" literally means 'father's line' One's patriline is one's father, his father, his
father's father and so on. Patrilineality or genetic kinship, as it is sometimes referred to is a
system in which a person belongs to his father's lineage. The person uses his father's surname
and inherits property and titles from the male line. The agnatic ancestry of a person is thus the

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pure male ancestry of that person. An agnate is a person's genetic relative exclusively through
males, a kinsman with whom he has a common ancestor by descent in an unbroken male line.
On the other hand, matrilineality is a system in which descent is traced through the mother and
maternal ancestors. It is a social system where a person belongs to this matriline or mother's
lineage and which involves the inheritance of property and titles through the mother. In this
system of descent, a person is considered to belong to the same descent group as his or her
mother. Today, although most cultures follow the patrilineal line of descent, matrilineality
prevails in some tribes like the Hopi, Cherokee and Navajo tribes of North America, the Basques
of France and Spain, the Nair’s and Bunts of Kerala and Karnataka and the Garos of Meghalaya.
6. On the basis of in-group and out-group affiliation: families can be looked at as being an
endogamous family or an exogamous family. In the endogamous, marriage is sanctioned
amongst members of the in-group. In an exogamous family, marriage is sanctioned only if it is
with a member of an out-group.
7. On the basis of blood relationships: families can be said to be conjugal or consanguineous. A
conjugal family consists of spouses, their offspring and relatives through marriage. On the other
hand, a consanguineous family consists of blood relatives, together with their mates and
children.

2. Short Note on Monogamous and Polygamous Family? Polygamy, polyandry, bigamy?

POLYGAMY: Polygamy, derived from the Greek 'polys gamos', literally means often married.
Also known as a plural marriage, polygamy involves a heterosexual marriage that includes more
than two partners. Anthropologists generally identify the sub-categories of polygamy as
polygyny (multiple wives) and polyandry (multiple husbands).
MONOGAMY: is a marriage consisting of only two parties. It is the exclusive union of one man
and one woman until separated by death or divorce. In many countries of the world, monogamy
has the advantage of exclusive legal sanction.
POLYANDRY:(multiple husbands) that is, where a woman has more than one husband, is
relatively rare and has been practiced sporadically in certain regions of India, Africa, Oceania,
America and the Arctic. The two main forms of polyandry are fraternal and non-fraternal. Where
a group of brothers share a wife, it is called fraternal polyandry. The Todas of South India used
to practice fraternal polyandry, but monogamy is gradually taking over, The Nambias (ethnic
Tibetans now living in Nepal) are also known to practice fraternal polyandry, wherein all the
brothers live together in large households, sharing a common estate, common domestic
responsibilities, as well as a common wife, with whom each brother maintains a sexual
relationship. When a polyandrous woman's husbands are not related, it is called non-fraternal
polyandry. The Nayars of South India, who follow a matriarchal lineage pattern with the oldest
woman as the head of the family, were known to practice non-fraternal polyandry. Today, all
matrimonial laws in India (including Muslim law) prohibit polyandry.

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POLYGAMY: (Multiple wives) sometimes technically referred to as polygyny, has been
practiced in many cultures throughout history. The early Jewish doctrine encouraged polygyny
because Jews were a minority and needed to increase their numbers rapidly. Islamic tradition
addresses polygamy directly. The Koran states that a man is allowed up to four wives, but only if
he can support them and treat them all equally. Many Islamic societies continue to allow
polygamy, but usually only the most affluent men can afford multiple wives. In Vietnam,
polygamy is not legal, but decades of war that has left the male population severely depleted,
which opened the doors for its practice. Polygamy was also common in China during the
prevalence of Confucianism. Many African and Native American tribes practiced polygamy. The
highest prevalence of polygamous practices can be seen in Africa. In the United States,
polygamy was practiced in the olden days, but this ended in 1890. Polygamy was prevalent
amongst Hindus in ancient India during the Vedic period, although currently, it is illegal. It was
practiced mostly by rich merchants and the warrior castes. Marriage in traditional Hinduism was
meant primarily for procreation and to fulfil one's obligatory duties. If polygamy served these
ideals, Hinduism did not object to its practice. Many Hindu gods were also depicted as
polygamous, with two or more wives. Until 1955, there was no prohibition on polygamy for the
Hindus. Today, matrimonial legislation governing Hindus, Christians and Parsees, as well as the
Special Marriage Act, have laid down the rule of monogamy and prohibit both polygamy and
polyandry.
BIGAMY: is also an offence under the Indian Penal Code. (Ss. 494 & 495). S. 494 of the Indian
Penal Code makes bigamy an offence. It lays down the punishment for a person who has a
husband or wife alive and marries again in cases where such marriage is void under the law
because his or her spouse is alive. Such a person is punishable with imprisonment upto seven
years and also fine.
It is interesting to note that maitri karar arrangements or the so- called companionship contracts',
which originated in Gujarat and later became rampant all over India, have now been banned by
law.

CONCUBINAGE: The word concubine is derived from the Latin words con (with) and cubare
(to lie). A concubine is a woman who cohabits with a man to whom she is not legally married.
She is usually given an inferior position in the Indian society as compared to a legally wedded
wife. In Hindu law, such a woman is termed as avarudha stri. She is referred to as an avarudha
stri only if she is an exclusively kept mistress of her paramour. The concept of avarudha stri
under the old Hindu Law is not recognized under the Hindu codified law. Today, a concubine
does not enjoy any legal right to claim maintenance from the property of her paramour.
Generally, only men of high economic and social status had concubines. Many historical rulers
maintained concubines as well as wives. Historically, concubinage was voluntary (by the woman
and/or her family's arrangement), as it provided a measure of economic security to the woman.
It has also been settled through a series of cases (as for instance, Khemkor v. Umiashankar
(1873) Bom. H.C.R. 831, Vrandavandas Ramdas vYamunabai (1875) 12 Bom. H.C.R. 229,

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Yashvantrav v. Kashibai (1887) 12 Bom. 26), that in certain circumstances, concubines have a
right to maintenance. A concubine has, however, no claim for maintenance against her paramour
during his lifetime and the right arises only after his death, if the woman's relationship with him
has been continuous and exclusive. In Venkatasami Pillay v. Krishnamma [(1895) 18 Mysore
131], a gift to a concubine in consideration of future cohabitation was held to be invalid, as the
consideration was immoral. In earlier times, it was believed that, to claim any right, such a
woman should live in the family home of her paramour. However, in a landmark case (Nagabai
v. Monghi Bai, AIR 1926 PC 73), the Privy Council held that a woman is considered a
concubine, if she is an exclusively kept mistress of her paramour and the court dismissed any
requirement for her to be living in the family house of her paramour.
After the enactment of the Hindu Succession Act, 1956, under S. 3 thereof, only legitimate
relationships are recognized for the purpose of succession and inheritance. However, the right of
illegitimate children to succeed to their mother's property has been preserved and recognized.
This is covered by the provision in the said section which lays down that illegitimate children
shall be deemed to be related to their mother and to one another.

3. Note on CHILD MARRIAGE?

In India child marriage refers to any formal marriage or informal marriage/union between a
child under the age (female 18 & male 21) and an adult or another child.
A marriage is a cause for great celebration anywhere in the world. In India this is unfortunately
true even of child marriages. There is no doubt that a child marriage is a violation of human
rights and can result in bonded Labour, enslavement, commercial sexual exploitation and
violence against its victims. Since they cannot abstain from sex or insist on condom use, child
brides are often exposed to such serious health risks as premature pregnancy and sexually
transmitted infections like HIV and AIDS.
According to UNICEF's 'State of the World's Children - 2009 Report, 47% of India's women
were married before the legal age of - 18, with 56% child marriages occurring in rural areas. The
report also revealed another shocking fact: 40% of the world's child marriages occur in India.
Efforts to bring about social reform against the practice of child- marriage were made, amongst
others, by the Brahmo Samaj led by Raja Ram Mohan Roy and the Arya Samaj led by Swami
Dayananda Saraswati. This, however, was not enough, and a piece of prohibitory legislation was
thought to be the best solution.
The Child Marriage Restraint Act, 1929, was passed to restrain the solemnization of child
marriages. Although the Act was amended in 1949 and once again in 1978, its provisions were
far from being deterrent. The Act did not declare such marriages to be void or invalid or even
voidable. There were growing demands to make the law more effective and to make the
punishments thereunder more stringent so as to eradicate - or at least lessen - the socially
despicable practice of child marriages in the country. Ultimately, it was thought fit to pass a fresh
piece of legislation on the subject and the Prohibition of Child Marriage Act was passed in 2006.

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This Act repeals the earlier Act of 1929, and applies to the whole of India, except the State of
Jammu and Kashmir. It also applies to all citizens of India who are outside India. The only
exception that is made is in favour of the Renoncants of Pondicherry, to whom the Act does not
apply.
The salient features of the Prohibition of Child Marriage Act, 2006, may be summed up as
under:
Definitions: a.) A ‘child’ under the Act means a boy who has not completed twenty-one years of
age and a girl who has not completed eighteen years of age. b.) A “minor” is defined as a
person (that is, boy or girl) who has not attained the age of majority under the Majority Act,
1875, namely, eighteen years of age.
Effect of child marriages: Under S. 3 of the Act, all child marriages are declared to be voidable at
the option of the contracting party who was a child at the time of the marriage. Such a marriage
can be annulled by a decree of nullity passed by a District Court.
Even if a marriage has been annulled by a nullity decree (as above), the children of such a
marriage are deemed to be legitimate for all purposes. (S. 6)
However, a child marriage is null and void (under S12 of the Act) if the child-
- is taken or enticed out of the keeping of its lawful guardian; or is, by force, compelled to go
from any place; or
- is, by any deceitful means, induced to go from any place; or
- is sold for the purpose of marriage and is made to go through a form of marriage; or
- is sold or trafficked or used for immoral purposes after marriage.
Injunction prohibiting a child marriage: If a Judicial Magistrate of the First Class or a
Metropolitan Magistrate is satisfied that a child marriage in contravention of the Act has been
arranged or is about to be solemnized, the Magistrate may issue an injunction against any person
(including a member of an organization or association) prohibiting such a marriage. (S.13). A
child marriage solemnized in contravention of an injunction order issued under S.13 (above) is
void ab initio. (S. 14)
Punishments
 For a male adult over eighteen years of age contracting a child marriage > Rigorous
imprisonment upto 2 years or Fine upto Rs. 1 lakh or Both
 For performing, directing, conducting or abetting a child marriage - unless such a proves
that he had reason to believe that such a marriage was not a child marriage > Rigorous
imprisonment upto 2 years and fine upto 1 Lakh.
 For promoting or permitting the solemnization of a child marriage, whether as parent or
guardian or any other person (including a member of an organization or association) >
Rigorous imprisonment upto 2 years and Fine upto Rs. 1 lakh.
 For willful disobedience of an injunction restraining a child marriage > Simple or
rigorous imprisonments upto 2 years or Fine upto Rs. 1 lakh.

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  All offences under the Act are cognizable and non-bailable.
 It is specifically provided that no woman can be punished with imprisonment for any
offence committed by her under the Act
Child Marriage Prohibition Officers
Under S. 16 of the Act, the State Government must appoint officers, known as Child
Marriage Prohibition Officers to discharge the following duties:
(a) to prevent solemnization of child marriages by taking such action as they deem fit;
(b) to collect evidence for the effective prosecution of persons contravening the provisions of
the Act;
(c) to advise in individual cases or counsel the residents of a locality generally not to indulge
in promoting, helping, aiding or allowing the solemnization of child marriages;
(d) to create awareness of the evils which result from child marriages;
(e) to sensitize the community on the issue of child marriages;
(f) to furnish such periodical returns and statistics as the State Government may direct; and
(g) to discharge such other functions and duties as may be assigned to them by the State
Government.

4. Note on SATI?
The word sati refers to the ancient Indian practice of burning a widow on her husband's funeral
pyre or burying her alive in his grave. The term is sometimes also used to apply to the widow
who commits the act. The word "sati' comes from the feminine present participle of the Sanskrit
word Asti, meaning "true or pure".
According to tradition, sati was supposed to be voluntary, and often it was seen as the proper
final act of a marriage. In fact, the practice symbolized the "epitome of wifely devotion".
However, many accounts exist of women who were forced to go through the rite. They were
often drugged, or tied up before being placed on the pyre or into the grave. In addition, strong
societal pressure was exerted on women to accept sati, particularly if they had no surviving
children to support them. A widow had no social standing in traditional society, and was
considered to be a drag on resources.
Even though sati is considered to be an Indian custom and often a Hindu custom it was not
practiced all over India or by all Hindus, but was prevalent only among certain communities of
India. On the other hand, sacrificing the widow in her dead husband's funeral or pyre was not
unique only to India. In many ancient communities it was an acceptable feature. This custom was
prevalent among Egyptians, Greek, Goths, Scythians and others.

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On September 4, 1987, 17-year-old Roop Kanwar consigned herself to flames and was burnt
alive on the funeral pyre of her husband Maal Singh Shekhawat at Deorala village of Sikar
district in Rajasthan. This infamous incident came to be referred to as the "sati case". Sixteen
years later, on January 31, 2004, a Special Court acquitted, for lack of evidence, all the persons
charged with glorifying the incident of sati. (It may be noted that the accused were tried under
the Indian Penal Code, as the Sati Prevention Act was not in existence when the incident took
place.) Strange as it may seem, a crime which had been witnessed by thousands could not be
proved in a court of law. Clearly, the law, its procedures and the legal machinery were totally
inadequate to punish the guilty. Women's organizations all over the country took to the streets to
publicly protest against this dastardly crime. It was this country-wide campaign that compelled
the government to pass the Commission of Sati (Prevention) Act, 1987, which recognized widow
immolation as well as any glorification of the act of sati as penal offences.
The Commission of Sati (Prevention) Act, 1987, which extends to the whole of India, except the
State of Jammu and Kashmir, contains a comprehensive definition of the term 'sati and provides
stringent punishments for:
(a) attempt to commit sati;
(b) abetment of sati; and
(c) glorification of sati.
All offences under the Act are to be tried by Special Courts set up under S. 9 of the Act.
Definition of sati: S2(c) of the Act defines sati as the burning or burying alive -
(i) of any widow along with the body of her deceased husband or any other relative or with
any article, object or thing associated with the husband or such relative; or
(ii) of any woman along with the body of any of her relatives, irrespective of whether such
burning or burying is claimed to be voluntary on the part of the widow or the woman, or
otherwise.
Attempt to commit sati: S. 3 of the Act provides that, notwithstanding any provision of the
Indian Penal Code, whoever attempts to commit sati and does any act towards such commission,
shall be punishable with imprisonment for a term which may extend to one year or with fine or
with both. However, before convicting any person, the Special Court must take into
consideration, the circumstances leading to the commission of this offence, the act which was
actually committed, the state of mind of the person charged with the offence and all other
relevant factors.
Abatement of sati: whether directly or indirectly - has made punishable by S. 4 of the Act. If
sati is actually committed, its abatement is punishable with a death sentence or life
imprisonment, in addition to fine. The abatement of an attempt to commit sati is punishable with
life imprisonment, in addition to fine. In such cases, the burden of proving that a person has not
committed the offence is on the accused, that is, the person who is prosecuted for committing the
offence. Such a person is also disqualified from inheriting any property of the person who has

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committed sati as also the property of any other person which he would have been entitled to
inherit on the death of the person who committed sati.
The Act provides that any of the following acts or the like shall also be deemed to be an
abetment, namely:
(a) any inducement to a widow or woman to get her burnt or buried alive along with the
body of her deceased husband or with any other relative or with any article, object or thing
associated with the husband or such relative, irrespective of whether she is in a fit state of mind
or is labouring under a state of intoxication or stupefaction or other cause impeding the exercise
of her free will;
(b) making a widow or woman believe that the commission of sati would result in some
spiritual benefit to her or her deceased husband or relative or the general wellbeing of the
family;
(c) encouraging a widow or woman to remain fixed in her resolve to commit sati and thus
instigating her to commit sati;
(d) participating in any procession in connection with the commission of sati or aiding the
widow or woman in her decision to commit sati by taking her along with the body of her
deceased husband or relative to the cremation or burial ground;
(e) being present at the place where sati is committed as an active participant to such
commission or to any ceremony connected with it;
(f) preventing or obstructing the widow or woman from saving herself from being burnt or
buried alive;
(g) obstructing or interfering with the police in the discharge of its duties of taking any steps
to prevent the commission of sati.
Glorification of sati: S. 5 of the Act punishes glorification of sati. Any person who does any
act for the glorification of sati is punishable with imprisonment of not less than one year, but
which can extend to seven years and with fine of not less than Rs. 5,000, but which may extend to
Rs. 30,000.
An inclusive definition of 'glorification of sati is given in S. 2(b) of the Act. Amongst other
things, the expression includes -
(i) the observance of any ceremony or the taking out of a procession in connection with the
commission of sati; or
(ii) the supporting, justifying or propagating the practice of sati in any manner; or
(iii) the arranging of any function to praise the person who has committed sati; or
(iv) the creation of a trust, or the collection of funds, or the construction of a temple or other
structure or the carrying on of any form of worship or the performance of any ceremony thereat,

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with a view to perpetuate the honor or to preserve the memory of a person who has committed
sati.
Other relevant provisions of the Act
 S. 6 of the Act empowers the Collector or the District Magistrate to prohibit the doing
of any act towards the commission of sati by any person in any area or areas specified
by him.
 Under S. 7 of the Act, the State Government is empowered to direct the removal of
any temple or structure if it is satisfied that, in such temple or other structure (which
has been in existence for not less than twenty years), any form of worship or the
performance of any ceremony is carried on with a view to perpetrate the honour or to
preserve the memory of any person who has committed sati.
 S. 8 of the Act empowers the Collector or the District Magistrate to seize funds or
property if he has reason to believe that any funds or property have been collected or
acquired for the purpose of glorification of sati. Such funds or property are then to be
disposed of as directed by the Special Court.

 Appeals against the orders of Special Courts can be filed in the HC within a period of
thirty days from the date of the judgment or sentence of the Special Court. (S. 14)
 The provisions of the Act have been given an overriding effect, notwithstanding
anything inconsistent in other enactments. S. 20)

5. Note on DOWRY?

Dowry is an ancient system under which the parents of the bride pay the bridegroom and/or his
parents money, goods or estate, honoring the bridegroom's willingness to accept the bride in
marriage. Dowry or dahej, as it is referred to in India, thus refers to the payment in cash or kind
by the bride's family to the bridegroom's family at the time of giving away the bride. Dowry is
related to the ancient Hindu customs of kanyadan and stridhan. In kanyadan, the father of the
bride offers the father of the groom money, property or other gifts, whereas for stridhan, the bride
herself gets jewellery and clothes at the time of her marriage, usually from her parents and
relatives. It is provided in the Dharmashstra that the meritorious act of kanyadan is not complete
until the bridegroom is given a dakshina. It is said that, in the olden days, dowry served as a form
of protection for the wife against the possibility of her ill-treatment by the husband and his
family. Even today, it is sometimes contended that dowry facilitates the groom and his family in
taking up the onerous responsibility of supporting the bride for the rest of her life. Others argue
that dowry is meant to help the newly-weds to set up their own home. Still others justify it by
saying that dowry is given as compensation to the groom's parents for the amount they have
spent in educating and upbringing their son. Most such explanations, however, make little or no
sense.
The dowry system, aptly described as a social evil', is unfortunately deeply rooted in Indian
culture. Even among the educated sections of society, dowry continues to form an essential part
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of the negotiation process that takes place in an arranged marriage. Sadly, dowry is still
considered a status symbol in the Indian society. A number of marriage negotiations break down
if there is no consensus between the bride's and the groom's families regarding the quantum of
dowry. Dowry deaths of newly married brides are regularly in the news and even today,
newspapers often carry horrific details of such deaths in various parts of India.
As the evils of the dowry system began to assume enormous proportions, in an attempt to combat
this social evil, the Dowry Prohibition Act was passed in 1961. It came into force on July 1, 1961
and extends to the whole of India except the State of Jammu and Kashmir. Important
amendments were also made in the Indian Penal Code and the Indian Evidence Act. Thus, S.
498-A of the Indian Penal Code deals with punishment for cruelty to the wife by the husband and
his relatives and S.304-B provides stringent punishments for dowry deaths'. It is now provided
that if the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage, and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband or his relatives for or in
connection with any demand for dowry, such husband or relative shall be punished with
imprisonment for a term of not less than seven years but which may extend to life imprisonment.
It is interesting to see that even before Parliament enacted this piece of central legislation, some
State Governments had taken the initiative and passed dowry laws applicable within such states.
Thus, the Bihar Dowry Restraint Act was passed in 1950 and the Andhra Pradesh Dowry
Prohibition Act was passed in 1958. Interestingly, even before independence, the provincial
government of Sind had passed an anti-dowry Act, aptly called the Sind Deti Leti Act, 1939, with
a view to curb this social menace. Unfortunately, these Acts had very little impact on the
prevailing social evil.
Definition: Into Under S. 2 of the Dowry Prohibition Act, 1961, dowry means any property or
valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person, -
at or before or any time after the marriage in connection with the marriage of said parties. The
following are, however, not covered under the umbrella of the term dowry':
- dower or Mahr in case of persons to whom the Muslim Personal Law (Shariat) applies;
- presents which are given at the time of marriage to the bride or bridegroom without any
demand having been made in that behalf, provided such presents are entered in a list in
accordance with Rule 2 of the Dowry Prohibition (Maintenance of Lists of Presents to the
Bride and Bridegroom) Rules, 1985.
Under S. 5 of the Act, any agreement for the giving or taking of dowry has been declared to be
void.

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Penalties: Under S. 3 of the Act, if any person gives or takes or abets the giving or taking of
dowry, he is punishable with imprisonment for a term of not less than five years and with the fine
of not less than Rs. 15,000 or the amount of the value of such dowry, whichever is more.
However, the Court may, for adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of less than five years in a fit case.
Under S. 4 of the Act, if any person demands, directly or indirectly from the parents or other
relatives or guardian of a bride or bridegroom as the case may be, any dowry, he is punishable
with imprisonment for a term of not less than six months but which may extend to two years and
with fine which may extend to Rs. 10,000. Here also, the Court may, for adequate and special
reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less
than six months in a fit case.
The Act also bans dowry advertisements and makes them punishable. S. 4-A of the Act lays
down that if any person
(a) offers, through any advertisement in any newspaper, periodical journal or through any other
media, any share in his property or of any money or both or a share in any business or other to
interest as consideration for the marriage of his son or daughter or any other relative, or
(b) prints or publishes or circulates any such advertisement,
he becomes punishable with imprisonment for a term of not less than six months, but which may
extend to five years, or with fine which may extend to Rs. 15,000. In the case of this offence
also, the Court may, for adequate and special reasons to be recorded in the judgment. impose a
sentence of imprisonment for a term of less than six months in a fit case.
A further provision is made by S. 6 of the Act which provides that where any dowry is received
by any person other than the woman in connection with whose marriage it is given, that person
shall transfer it to the woman
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within three months after the
date of its receipt; or
(c) if the dowry was received when the woman was a minor, within three months after she has
attained the age of eighteen years.
Pending such transfer, the concerned person holds it in trust for the benefit of the woman.
If any person fails to transfer any property as required above within the specified time limits, he
becomes punishable with imprisonment for a term of not less than six months, but which may
extend two years or with fine of not less than Rs5,000, but which may extend to Rs. 10,000, or
with both.
Where the woman entitled to any such property dies before receiving it, the heirs of the woman
are entitled to claim it from the person holding it for the time being. However, if such a woman

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dies within seven years of her marriage, otherwise than due to natural causes, such property
shall-
- if she has no children be transferred to her parents, or
- if she has children be transferred to such children and - pending such transfer, be held in trust
for such children.
Where any person is prosecuted for demanding or for taking or abetting the taking of any dowry
under the Act, the burden of proving that he had not committed any such offence is on him.
Likewise, under the relevant provisions of the Indian Evidence Act, there is a presumption that a
death caused within seven years of marriage is a 'dowry death'.
All offences under the Act are declared to be non-bailable and non- compoundable. Additionally,
the provisions of the Code of Criminal Procedure, 1973, apply to such offences as if they were
cognizable offences. (S. 8)
S. 8-B of the Act also envisages the appointment of Dowry Prohibition Officers:
 to ensure that the provisions of the Act are complied with;
 to prevent, as far as possible, the taking or abetting the taking of, or the demanding of dowry;
 to collect necessary evidence for prosecuting persons committing offences under the Act; and
 to perform such additional functions as may be assigned to them by the State Government or
by Rules made under the Act.
Cases:

1. The Supreme Court has observed that the furnishing of a list of ornaments and other household
articles like furniture, refrigerator and electrical appliances at the time of settlement of the
marriage, amounts to a demand for dowry under the Act. (Madhu S. Malhotra V. K. C. Bhandari,
1988 BLJR 360)
2. In a case where a demand for money was made when the marriage ceremony was being
performed and was repeated after the ceremony got over, it was held that an offence under the
Act was committed. (L. V. Jadhav v. Shankar Rao, (1983) 2 Crimes 470).
3. In one case, a husband demanded a sum of Rs. 50,000 from his father-in-law a few days after the
marriage. On the demand not being fulfilled, he began to torture his wife and threatened her
that he would take a second wife. the Allahabad High Court held that the amount had been
demanded "in connection with the marriage" and it amounted to a demand for dowry, although
it was made some days after the marriage (Y. K. Bansal v. Anju, 1989 All L. J. 914).
4. In Pawan Kumar & Ors. vs. State of Haryana [(1998) 3 SCC 309], on there was a demand for
dowry immediately after marriage. On the demand not being fulfilled, the bride was constantly
ill-treated and harassed. The bride finally committed suicide. The Court held that section 4 of the
Dowry Prohibition Act makes the mere demand for dowry punishable. It is not necessary that
there should also be any agreement for payment of dowry.

6. What is social change?

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"Social change is a term used to describe variations in, or modifications of, any aspect of social
processes, social patterns, social interaction or social organization". The term 'social change by
itself does not suggest anything as far as its direction or value is concerned. Social change can
take different forms and may be accompanied by revolution, adaptation, accommodation,
evolution or progress. The word 'change' symbolizes a variation - good or bad- in social
phenomenon observed over a period of time. The trends and processes of social change in India
are discussed under the following eight heads:
A. Sanskritization, B. Westernization, C. Secularization, D. Universalization, E.
Parochialization, F. Modernization, G. Industrialization, H. Urbanization.

7. Short Note on SANSKRITIZATION?

Although the caste system is peculiar to India, social inequality prevails in all human societies.
Wealth, intelligence, power and prestige are not equally distributed in any social group. Social
strata exist universally, and as Surokin has remarked, unstratified society, with real equality of its
members, is a myth. No society, however, remains static. The term 'social mobility is used to
refer to the movement from one stratum of society to another. Societies where the rate of social
mobility is high are sometimes referred to as 'open societies', as opposed to 'closed societies',
where such rate is quite low. The Indian society is generally regarded as falling in the 'closed'
category, as the rate of mobility is quite low. However, one interesting avenue of upper mobility
in India is what is referred to as 'sanskritization'.
The word 'sanskritization' was coined by the late Prof. Mysore Narasimhachar Srinivas in his
Ph. D. thesis submitted to the Oxford University which was later published under the title,
"Religion and Society amongst the Coorg’s of South India". Prof. Srinivas used this term to
denote a process whereby people of lower castes collectively try to adopt and imitate the
practices, rituals and beliefs followed by those belonging to the upper castes or the twice-born',
in order to acquire a higher status in society. It is thus a process of cultural mobility that is
taking place in the traditional social system of India.
Prof. Srinivas, who made a detailed study of the Coorg’s in Karnataka, found that persons
belonging to lower castes collectively adopted some of the customs, practices - and even the
dress codes of the Brahmins and gave up some of their own, in order to raise their position in the
caste hierarchy. For instance, they gave up eating meat drinking liquor and sacrificing animals to
their deities, and imitated the Brahmins in matters of food, dress and rituals. By doing so, they
could stake a claim for a higher position in the caste hierarchy. Typically, this is a slow process
which takes a long time; it could be decades or on full generation, or sometimes, even a few
centuries.
Yogendra Singh has taken the view that sanskritization is a important component of the process
of socialization. The emulation by the lower class of the ways of life of the higher class leads to
significant changes in the social behavior of the lower castes. For them, it is a process of
learning, where they unlearn some of their own previous social habits and learn new modes of
social behavior from the higher caste groups, regarded as their reference model.

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Although the reference group followed by such persons is usually the Brahmins, it may
sometimes be some other dominant caste of the locality. Thus, if the dominating case of a
particular region is Kshtriya then the Kshtriya model is emulated. Some tribal groups have been
found to emulate the Shudras in order to become part of the Hindu society. Sanskritization is,
however, not confined to Hindu castes; it exists amongst non-Hindu tribal and semi-tribal groups
also. It is a form of social change observed not only in India, but also in other countries like
Nepal. The process of sanskritization is not confined to particular individuals; rather it takes
place at a group level. It explains changes in the status of a specific group over a period of time
over two or more centuries.
Sanskritization thus leads to the upward mobility of the caste which is undergoing the process.
However, such mobility may take place even without sanskritization, as sanskritization is only
one of the modes of This mobility. Conversely, sanskritization may not always result in upward
Social mobility. It may also be noted that sanskritization leads only to positional changes; but it
does not lead to any structural change. In other words, it does not change the caste system as a
whole. It is thus not considered to be a threat to the caste system which is deep-rooted in the
Hindu society.

8. Note on WESTERNISATION?
Societal changes, brought about by the influence of advanced western countries, are referred to
by sociologists as westernization. It is a gradual replacement and transformation of the
traditional culture of the society concerned, by that of the west. Westernization is used to signify
the effect of western societies like the UK, USA, France or Germany, on eastern societies like
India, Sri Lanka, Bangladesh and Pakistan. Modernization is synonymous with Westernization
in cases where underdeveloped societies use western models to bring about a social change in
their societies. However, according to Prof. M.N. Srinivas, the term Westernization is ethically
neutral, in that, it does not claim to be a process of social change that is good or bad for the
society.
Westernization in India can be classified into three prominent phases: pre-British, pre-
independence and post-independence westernization.
Prior to the British reign, India was a highly traditional society that afforded few opportunities
for social change. Westernization initiated India's transition from an extremely rigid and static
society that it was, to a dynamic and flexible society which it is today. Westernization also
facilitated industrialization, urbanization and secularization in India.
In the pre-independence period, the British rule brought with it western influences that triggered
fundamental changes in the Indian society. The growth of science and technology, the
advancement of transport and communication, the invention of the printing press, the institution
of an intricate and orderly bureaucratic structure, the introduction of a new educational and legal
system, the establishment of a uniform police service and a new army structure, brought about a
gradual ideological change in the Indian society. Individualism and humanitarianism were

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encouraged and this lead to social reforms that put an end to many social injustices. Religious
customs became subject to law and reason. These factors presented opportunities for an
accelerated social mobility in British India.
Post-independence, the western societies of Europe, America and Canada have greatly
influenced social change in India. These changes are evident in almost all facets of daily life, be
it the mode of dressing, hair styles, music and dancing preferences, use of slang and abuses or
the fast-food (Coke and McDonald) culture.

9. Note on SECULARISATION?
The secularization definition refers to a decline in the importance of religion and the
supernatural or sacred. Secularization is based upon the following elements: Separation
between religious institutions and state institutions. Freedom of individuals to practice their own
beliefs. According to M.N. Srinivas, the term 'secularization implies that what was previously
regarded as religious is now ceasing to be such.
The significance of religion in today's society has drastically diminished. Religious customs and
rituals now have to stand the test of logic and reason to survive. The Preamble to the Indian
Constitution declares India to be a secular republic. The secular nature of the Indian state is
enshrined in Articles 27 to 30 of the Constitution which guarantee the right to freedom of
religion.
Secularization has had a tremendous impact on Indian society. The authority of religion over the
society has diminished greatly. This is evident from the gradual breakdown of the caste system,
the increase in inter-religious marriages, the abolition of untouchability and the improved status
of women. Ideals of equality, fraternity and brotherhood are now ingrained in the society. State-
owned educational institutions and government offices are required to strictly adhere to a secular
policy
The main features of secularization, as stated by Vidya Bhushan and Sachdeva are as follows:
(i) Decrease in religious beliefs: Secularisation is opposed to blind faith in religion. As
secularisation grows, the customary practices of religious rites decrease and they have to stand
the test of logic and reason to survive. Religious customs and rituals performed at the time of
births, deaths and marriages are slowly losing their value. Secularisation is therefore marked by a
decrease in the influence of religion on the different aspects of social life.
(ii) Differentiation: Religion no longer binds the various aspects of social life. Economic,
political, legal and ethical facets of social life exist independently of religious influences and are
subject to their respective principles and doctrines. Secularisation is therefore characterized by a
differentiation or separation of different aspects of social life such that they exist independent of
religious influences.

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(iii) Rationality: Secularisation appeals to the rational side of man. Religious customs are
followed so long as they are in keeping with rationality and reason but not when they defy logic
and plain reasoning.
(iv) Scientific attitude: Secularisation is often accompanied by a replacement of religious
explanations by scientific explanations. There is therefore a perceptible shift from faith in
religious beliefs to a reliance on scientific theories and explanations.

10. Note on UNIVERSALISATION?

Universalization is the process of integration of the societies of the world into a global
community. It is commonly referred to as globalization or internationalization and represents
the process of unification and integration of regional economies, societies and cultures through
cross-border transport, communication, migration and trade. Universalization is characterized
by economic, social, cultural and political integration.
A unification of the world's economic order can be achieved through a reduction in barriers to
international trade and tariffs, foreign direct investments, signing of bilateral and multilateral
investment treaties, expansion of foreign exchange markets, adoption of a global currency and
free and fair trade among countries. A defining feature of globalization, therefore, is an
international industrial and financial business structure. International bodies such as the WTO
(World Trade Organization), IMF (International Monetary Fund) and the WB (World Bank) are
dedicated to the cause of globalization and integration of world economies. The World Trade
Organization is, for instance, a pan- governmental entity that was set up to formulate a set of
rules to govern global trade and flow of capital.
The United Nations Organization (UNO) and European Union (EU) are international bodies
incorporated against a global background. International disputes are resolved in an amicable
manner by the agency of international bodies such as the ICJ (International Court of Justice),
ICC (International Criminal Court) or ECJ (European Court of Justice). The formation of such
supra-national entities is evidence of the trend of nations to move towards a world government.
UNESCO (United Nations Educational, Scientific and Cultural Organization), UNICEF (United
Nations International Children's Emergency Fund), Red Cross, Blue Cross and Médecins Sans
Frontières (Doctors without Borders) are a few organizations that promote international cultural
understanding and humanitarianism.
Technology has been the principal impetus for globalization. In particular, advances in
information technology have dramatically transformed economic life in almost all countries of
the world. The tremendous growth and advancement in technology, transport facilities and
communication has greatly reduced distances between nations. Culinary homogenization,
television, internet, the global media, transnational dressing habits and the use of English as a
common global language have aided globalization to a large degree.

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 11. Note on PAROCHIALIZATION?
The word 'parochialism' means being provincial and narrow in one's scope of thinking. The term
originates from the Latin word, parochia, meaning a parish, that is, one of the smaller divisions
within a church. Events, groups and decisions within a parish were often made locally, taking
little heed of what was good for church as a whole. Thus, a parish could sometimes be
excessively focused at the local level, showing little interest in a more universal approach.
This term is sometimes used in politics, when for instance, a State Government takes a decision
based on solely local interests that do not take into account the effect of the decision on the entire
country. Thus, the government of the State of Texas may take a decision pass a law which is
beneficial to the citizens of that State, but not necessarily so to other citizens of USA as a whole.
Parochialism is to be found all over the world and has sometimes been acknowledged openly by
local institutions. For example, when the Harvard University changed its curriculum in February,
2007, it openly said that one of the main purposes of the major curriculum overhaul (the first in
thirty long years) was to overcome "American parochialisms"
If parochialism is found to exist in excess, it can cause hindrance to the formation of a strong
state, nation or country. India is particularly susceptible to this evil. If an inefficient peon is
suspended, the debate is why an employee of a particular caste or community was suspended and
not why an efficient employee was given this punishment. Likewise, when a cricketer is
excluded from the Indian team on account of his recent performance, the debate is not whether
he was in good form or otherwise, but as to why a player from West Bengal or Maharashtra was
dropped from the team!
One can find several sects and sub-sects of the Protestant and Roman Catholic groups within
India. Indian Christians are heavily influenced by the caste system and social stratification of
India. Parochialization brought with it Christian ideals of faith, hope, charity and equality before
God. These ideologies facilitated social mobility and brought about social change in India.

12. Note on MODERNISATION?

The social trend, wherein a society adopts practices and procedures followed by other 'modern'
or 'developed societies, is commonly referred to as modernization. Daniel Lerner, in his 1958
study titled 'The Passing of Traditional Society: Modernizing the Middle East, has defined
modernization as, "the process of change whereby less developed societies acquire
characteristics common to the more developed.
The process of modernization occurs simultaneously at different levels. It begins at the
individual level and grows to cover the political, economic, educational and occupational spheres
of society. Changes in individual attitudes and behaviors eventually lead to changes at the
societal level. Alex Inkeles, in his book titled 'Becoming Modern: Individual Change in Six
Developing Countries. conducted a survey of people in six different countries and concluded that

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a 'modern man' undergoes certain changes in his attitude and personality, irrespective of his
cultural origin. These traits, common to all modern men, may be set out as follows:
1. A disposition to accept new ideas and try new methods.
2. Readiness to express opinions.
3. A time sense that makes men more interested in the present and future than the past.
4. Better sense of punctuality.
5. Greater concern for planning, organization, and efficiency.
6. A tendency to see the world as calculable.
7. Faith in science and technology.
8. A belief in distributive justice.
Several authors have explained the phenomenon of modernisation from different angles. Cyril E.
Black, a historian, believes that the growth of new knowledge and its application to human
affairs forms the basis of modernization. Edward Shils, a sociologist. is of the opinion that
modernisation is always accompanied by development of skills and a spirit of creativity.
According to psychologist Hadley Cantril, striving to get desired results is a necessary
personality change seen in modem individuals. Such changes in the personality of a minority of
the population ultimately lead to changes in the entire social structure.
Samuel P. Huntington, in his book titled 'The Change to Change: Modernisation, Development,
and Politics' has identified nine characteristics of modernization, as follows:
1. It is a revolutionary process.
2. It is a complex and multi-dimensional process.
3. It is a systematic process.
4. It is a global process.
5. It is a lengthy process.
6. It is a phased process.
7. It is a homogenizing process.
8. It is a reversible process.
9. It is a progressive process.
Modernisation and traditionalism. In contrast to modernization, traditionalism resists change
and advocates strict adherence to ancient traditions and customs. Tradition is therefore, often
synonymous with immutability and rigidity. However, traditionalism and modernisation do not
necessarily represent opposite extremes. Modernisation does not call for a complete replacement

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of traditional customs with modern ones. Instead, older traditions are inter-woven with modern
practices, leading to a metamorphosis of the society as a whole.

13. Note on INDUSTRIALISATION?

Industrialization is the process of social and economic change that transforms a human group
from an agrarian society into an industrial one. In the words of Moore, "Industrialization is the
extensive use of inanimate sources of power in the production of economic goods and services."
According to Coleman, "Industrialization signifies the growth of any form of industry as
opposed to agriculture."
With the advent of industrialization, the economy in most countries of the world began to be
based on differentiation, complex division of labour and a large-scale mechanised system of
production. Production was not just for domestic consumption, but for exchange in the market
and for profits.
The more industrialised a society, the smaller is the proportion of labour force engaged in
agriculture. Agricultural work tends to provide a very low income. Industrialisation, on the other
hand, brings with it a higher per capita income and a greater equality of income. It also increases
the ratio of non-manual to manual workers in the non- agricultural labour force. This is most
likely the reason for the shift from agricultural to industrial jobs. In India, the decay of village
handicrafts and hereditary occupations, which is the inevitable result of industrialisation, has
affected the social structure in a number of ways. There is much more freedom of choice of
occupation today than several years ago. Whatever restrictions the caste system may have
imposed on the choice of occupation have now ceased to exist. Industrialisation leads to
urbanisation of the population. The place of caste panchayats has been taken over by trade
unions and courts of law. In mills and factories, members from the lower class rub shoulders
with members of the higher class. People of different castes mix freely and plan their strategy for
the pursuit of common ends.
Industrialisation is not, however without its pitfalls. One of the drawbacks of rapid
industrialisation is its effect on the rural population. Industrialisation draws its labour force from
villages and creates a problem of rural brain drain. It also leads to an overall fall in agricultural
production. Nevertheless, the industrial revolution, given a strong impetus by none other than
Jawaharlal Nehru, has been a pivotal factor in transforming the social structure of India.

14. Note on URBANISATION?

Urbanization refers to the population shift from rural to urban areas, the corresponding
decrease in the proportion of people living in rural areas, and the ways in which societies adapt
to this change. According to Louis Wirth, an American sociologist, urbanization is a way of life.
The sociologically significant elements of urbanization, which mark it as a distinctive mode of
human group life, include social mobility, higher standard of living, greater employment

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opportunities, specialization and differentiation of Labour, heterogeneity and anonymity.
Therefore, Wirth suggested that an urban population is characteristically large, dense and
heterogeneous.
According to Nels Anderson, urbanization is a two-way process. It involves not only movement
from villages to cities and change from agricultural occupation to business, trade, service and
profession, but it also denotes a change in the migrants' attitudes, beliefs, values and behavior
patterns.
The term 'urban' refers to the demographic and social status of a society. The Indian census
authorities have identified the following demographic specifications for urban areas:
(i) A minimum population of 5000 persons.
(ii) Density of population of 900 persons (or more) per square km.
(iii) Minimum 75% of the male population engaged in non- agricultural activities; and
(iv) Presence of a local authority like a municipality or a cantonment board.
Sorokin and Zimmermann, in 'Principles of Rural-Urban Sociology", draw a distinction between
rural and urban communities based on occupational pursuits. Rural communities are primarily
agrarian, with its people essentially involved in cultivation of plants and rearing of animals.
Urban population, on the other hand, is engaged in varied occupational and industrial pursuits.
Warren S. Thompson states that urbanization is characterized by a movement of people from
small communities concerned chiefly or solely with agriculture to other, larger communities,
whose activities are centered in trade, manufacture or allied pursuits.
The merits of urbanization include specialization and division of Labour, social mobility, social
heterogeneity and economic opportunities. On the other hand, its drawbacks include transiency
and superficiality anonymity and economic disparity.
Urbanization in India
The provisional 2011 India Census figures show that more and more people especially in the
southern states are moving to towns and cities. It is estimated that, today, 32% of the Indian
population, that is, almost one out of three Indians lives in an urban area.
There is yet another angle to the rise of urbanization in the latest official figures. The number of
towns shown in the census has more than doubled from the previous figures. This number has
gone up from 1,362 to 3,894. However, many of these "towns" have almost no urban facilities;
they merely satisfy the census definition of a "town". This could perhaps explain the big jump of
urbanisation in Kerala from 26% in 2001 to 47.7% in 2011. This tempo of urbanisation is,
however, not uniform throughout the country. What seems to be a matter for worry is that, in
states like Bihar, the corresponding rate is only 10%.
The Isher Ahluwalia Report on Urban India identified eight areas where the country needs to
focus in the matter of urbanisation, namely:

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 Water supply
 Sewage
 Waste management
 Storm water drains
 Urban roads
 Urban transport
 Street lighting
 Traffic support infrastructure.
According to the Center for Study of Developing Societies, in the next ten years, 50% of India's
population will be living in towns and cities. The McKinsey Report, echoing a similar prediction,
states that there will be 590 million city-dwellers in India in the next twenty years But is the
country ready for this big jump? The common feeling is in the negative. Unfortunately, India still
lacks a comprehensive policy for sustainable urban development.

15. Note on Family Courts?

Family Courts are established to deal with diverse matters like divorce, separation,
maintenance, custody of children, etc. It is generally accepted that litigation in family matters
needs to be less formal, less inquisitorial and less adversarial. Such courts should endeavor to
save and stabilize the institution of marriage, rather than destroy it. It was with these social
objectives in mind that India opted for the establishment of family courts by passing the Family
Courts Act in 1984.
The Act envisages the establishment of Family Courts by the State Government by a Notification
in the Official Gazette, after consultation with the High Court of the State. As observed by the
SC, State Governments should establish Family Courts not only because it is so provided in the
Act, but also to discharge its social obligation to provide a less formal platform for resolving
family disputes. (Gangadharan v. State of Kerala, AIR 2006 SC 2360)
Under the Act, the State Government must establish one Family Court for every area in the State
comprising of a town or city which has a population of one million or more. Family Courts may
also be established for other areas in the State as the State Government may deem necessary.
The appointment of the Judges of Family Courts is made by the State Government, which may
appoint one or more Judges for each such Court. Persons who are appointed Judges must have
the necessary qualifications prescribed by S. 4 of the Act, namely, the person should have, for at
least seven years, held a judicial office of a member of a Tribunal or any post under the union or
state requiring special knowledge of laws; or the person has been an Advocate of a High Court
or of two High Courts in succession for at least seven years; and the person possesses such
other qualifications as the Central Government may prescribe with the concurrence of the Chief
Justice of India.
Additionally, such a person must be committed to the need to protect and preserve the institution
of marriage and to promote the welfare of children. Preference is to be given to women when

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making such appointments. However, no person can be so appointed if he has attained the age of
sixty-two years. When a Family Court consists of more than one Judge, each Judge can exercise
any or all of the powers conferred on the Family Courts by the Act.
Jurisdiction of Family Courts: S. 7 of the Act lays down that Family Courts shall have and
exercise all the jurisdiction which is exercised by any District Court or any subordinate civil
court under any law for the time being in force in respect of suits and proceedings relating to the
following matters, namely,
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (that
is, declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage;
b) a suit or proceeding for a declaration as to the validity of a (marriage or as to the matrimonial
status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital
relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance; and
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.
In addition to the above, a Family Court also has jurisdiction which can be exercised by a
Magistrate of the First Class in matters relating to maintenance of wives, children and parents.
Procedure to be followed by Family Courts: Procedural matters relating to Family Courts may be
summed up as under:
- A Family Court is deemed to be a 'civil court and has all the powers of a civil court. The
provisions of the Code of Civil Procedure, 1908, apply to all suits and proceedings before a
Family Court.
- In every suit or proceeding, the Family Court must, whenever it is possible to do so, endeavor
to assist and persuade the parties to the litigation to arrive at a settlement.
- All suits and proceedings may be held in camera if the Family Court so desires, and shall be so
held if either party so desires. (Proceedings are said to be held in camera when members of the
public are not allowed to attend such proceedings.)
- In every suit or proceeding, the Family Court may take the assistance of medical and welfare
experts, in discharging its functions under the Act.

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- No party to the suit or proceeding before a Family Court can engage a lawyer as a matter of
right. He can do so only if to the Court considers it necessary, in the interest of justice, to allow
him to be represented by a lawyer.
- A Family Court may receive as evidence, any report, statement document, information or other
matter which, in its opinion, would assist it in effectively dealing with a dispute before it whether
or not the same would be relevant or admissible under the Indian Evidence Act, 1872.
- A Family Court need not record the evidence of witness at length. It would be sufficient if the
Judge records, or causes to be recorded, a memorandum of the substance of the deposition of the
witness. The Judge and the witness must sign such a memorandum, which then forms part of the
record of the case.
- If evidence is of a formal nature, it may be given by way of an affidavit.
- The judgment of the Family Court must contain a concise statement of the case, the points for
determination, the decision of the Court and the reasons for the decision.
- All decrees and orders of a Family Court can be executed under the relevant provisions of the
Code of Civil Procedure, 1908.
- Appeals from judgments and orders of a Family Court can be filed, both on points of law and of
facts, before the High Court, within thirty days of the date of the judgment or order. No appeal
can, however, be filed: against an interlocutory order of the Court, or against an order or decree
passed with the consent of the parties. All such appeals are to be heard by a Bench of the High
Court consisting of two or more Judges.
Case law
1. A wife can implead a close relative of her husband - or even a stranger to support her claim
that the husband had handed over his property to them to avoid recovery of such property. This
fact would not have the effect of depriving the Family Court of its jurisdiction. (Shyni v. George,
AIR 1997 Ker 231)
2. The expression "parties to a marriage" would include a divorced wife, and therefore, such a
person can file proceedings in a Family Court. (K. A. Abdul v. T. A. Sahida, AIR 1997 Ker 269)
3. The Bombay High Court has observed that the Act does not contain any absolute bar to the
appointment of advocates to represent the parties, and wherever necessary, the Court must freely
make available the service of an advocate to the party before it. (Leela v. Mahadeo, AIR 1991
Bom 105)
4. As no specific procedure has been prescribed by the Act for deciding applications for custody
of minor children, the only points to be ensured in appeal are whether the procedure which was
followed by the Court conformed to the rules of natural justice and whether the paramount
consideration in the mind of the Family Court was the welfare of the child. (Dr. Rohit Dandekar
v. Dr. Raj Kavitha, (2004) 1 DMC 216)

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5. The jurisdiction of Family Courts have precedence over matrimonial and family laws statutes
in force in India. (Rajan v. Shobha, AIR 1995 Bom 246)

16. Note On UCC? Its Objectives? Relevant case laws?

Uniform Civil Code resonates with one country one rule, to be applied to all religious
communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part 4, Article 44 of the
Indian Constitution. Article 44 says, “The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.” A Uniform Civil Code means that all
sections of the society irrespective of their religion shall be treated equally according to a
national civil code, which shall be applicable to all uniformly. They cover areas like- Marriage,
divorce, maintenance, inheritance, adoption and succession of the property. It is based on the
premise that there is no connection between religion and law in modern civilization. The
objective underlying a uniform civil code is to enhance national integration by elimination
contradictions based on religious ideologies. As once observed by the Supreme Court, the
implementation of a uniform civil code is imperative for both, the protection of the oppressed
and the promotion of national integrity and unity. It is based on the concept that there is no
necessary connection between religion and personal law in a civilized society.

Art. 44 of the Constitution of India lays down an important directive principle of state policy,
namely, that the State shall endeavor to secure for its citizens, a uniform civil code throughout
the territory of India. However, as clarified by Art. 37, directive principles are not enforceable by
any court, although they are fundamental in the governance of the country.
Today, citizens of India are governed by different personal laws based on their religion, caste,
community, etc. A uniform civil code would ensure that all citizens of India are governed by the
same set of secular civil laws in matters of marriage, divorce, maintenance, adoption,
inheritance, etc. Under the present set of laws, Hindus are bound by law to practice monogamy,
whereas Muslims are not. Similarly, whereas Hindus have a comprehensive enactment on
adoption, this concept is not recognized by the personal laws of Christians and Parsees. If a
uniform civil code is enacted, all citizens of India would be governed by the same law in all such
matters.

What Are the Pros of the Uniform Civil Code?

 To give all citizens the same rights: In a democratic republic, civil and personal laws should
be the same for everyone, no matter their religion, class, caste, or gender.
 To try to achieve gender equality: Most people think that almost every religion’s rules about
personal behavior are unfair to women. When it comes to succession and inheritance, men
often have more rights than women. Men and women will be on the same level if there is a
single civil code.
 To meet the hopes and dreams of the younger generation: More than half of the population of
India are under the age of 25. The universal and global ideas of equality, humanism, and

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 modernity set the goals and attitudes of their societies. If we want to build a better country,
we need to take their belief that identity shouldn’t be based on religion.
 To bring the country together: Except for personal laws, all criminal and civil laws in India
are the same for everyone. It means that all Indian people are already treated the same in
court. With the Uniform Civil Code in place, all citizens will have to follow the same rules.
There will be no way to politicize discrimination, concessions, or special rights that a
certain group of people gets because of their religion.
 To avoid the potentially divisive issue of changing personal laws that are already in place:
Personal rules are mostly based on the patriarchal beliefs of the upper class, which are the
same in all religions. This is because patriarchal and orthodox people still worry that
changing the personal rules would make them less pure, so they are against it.

What are the Cons of the Uniform Civil Code?

 India has a lot of problems to deal with because it has a large and diverse population: India
has so many different religions, sects, classes, and states that it’s hard to develop a set of
rules for things like a marriage that apply to everyone.
 People worry that the UCC will take away their freedom of religion: Many people, especially
religious minorities, think that the Uniform Civil Code takes away their right to religious
freedom. They are afraid of a universal code of conduct because it would override their
traditions and replace them with rules set by the majority religious group.
 Getting the government involved in private matters: According to the constitution, people are
free to choose whatever religion they want to follow. If rules are set and followed the same
way for everyone, religious freedom will be limited.
 The job is important and difficult: Ideally, such a code must be made by borrowing freely
from different personal laws, making small changes to each, issuing judicial rulings that
ensure equality between men and women, and adopting broad interpretations of marriage,
maintenance, adoption, and succession by recognizing the benefits that one community gets
from the others. The government should always be fair and careful with both the majority
and minority groups. If this isn’t done, it could lead to violence and riots.
 This change is still not ready: As the beef debate, the saffronisation of school and college
curriculum, and the love jihad debate continue, the Muslim community in India is very
vocal about its opposition to these issues.

In the latest landmark judgment delivered on February 9, 2011 the Supreme Court looked at the
issue from a slightly different angle and lamented that ever since independence, the attempts of
the government to reform personal laws have not gone beyond Hindus who have shown more
tolerance in this respect. In the words of the apex court, "The Hindu community has been
tolerant of these statutory interventions. But there appears a lack of secular commitment, as it has
not happened for other religions."
Sandwiched between the Supreme Court's mixed response and the legislature's wariness, it is
clear that the implementation of a uniform civil code in India will remain a distant dream for a
long time to come. Some writers are of the view that the reason why Parliament has been unable
to pass a suitable legislation in this respect, even after six long decades of independence, is that
there is no sufficient support for the move within the Parliament itself. However, since this

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involves radical changes in existing personal laws, the move for reform would take a better shape
if there is sufficient pressure from within the various communities that co-exist in India, rather
than by one broad sweep of legislation. Moreover, for historical and other reasons, the demand
for a uniform civil code has now acquired communal and political overtones, which have
effectively overshadowed the innate merits of such a law.
The Uniform Civil Code in Goa
Whilst the entire nation swings in uncertainty over the implementation of a uniform civil code,
the tiny state of Goa has shown the right path to the rest of the country. Whilst a nation-wide
civil code is still being debated, a positive step in this direction has already been taken by this
state, which has enacted a set of 'Family Laws, which apply to all communities in Goa. There is
no discrimination in this Code between Hindus or Muslims or Christians or any other
community. Based on the Portuguese Civil Code of 1867, it governs personal matters like
marriage, divorce, succession, guardianship, etc. and embraces the concept of gender equality.
Under this Code, which enacts a very progressive law, every birth, death and marriage is
compulsorily registrable, and it provides for an equal division of property between husband and
wife (irrespective gender) and also between children. It enacts the rule of monogamy and
Muslims whose marriages are registered in Goa can neither take a second wife nor divorce the
existing one by a pronouncement of triple talak.
Strict provisions have also been made about the distribution property at the time of divorce. Each
spouse is entitled, in case divorce, to a half share in the property. As far as succession concerned,
in case of the death of a spouse, it is provided that the ownership of half the property is retained
by the surviving spouse, the other half to be equally divided amongst all the children,
irrespective of whether they are male or female, or whether they are unmarried a have got
married and left the house. This provision has disabled parents from totally disinheriting their
children because the children of deceased parents fall in the category of what is known as
"mandatory heirs". They cannot be disinherited save under extraordinary circumstances (listed in
the Code).
It is therefore not a matter of surprise that the former Chief Justice of India, Mr. Y. V.
Chandrachud once expressed his hope that the Goa Civil Code would one day "awaken the rest
of bigoted India and inspire it to emulate Goa". He further remarked: "It is heartening to find that
the dream of a uniform civil code in the country finds its realization in the Union Territory of
Goa."
Case laws:
Shah Bano Begum v. Mohammad Ahmed Khan (1985): The Supreme Court upheld the right of
a Muslim woman to claim maintenance from her husband under Section 125 of the Criminal
Procedure Code, even after the expiry of the Iddat period. It also observed that a UCC would
help in removing contradictions based on ideologies.

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The SC ruled in her favour in 1985 under the “maintenance of wives, children and parents”
provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective
of religion. Further, it recommended that a uniform civil code be set up.

After this historic decision, nationwide discussions, meetings and agitations were held. The then
government under pressure passed The Muslim Women’s (Right to protection on divorce) Act
(MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to
Muslim women.

Sarla Mudgal Case: In this case, the question was whether a Hindu husband married under the
Hindu law, by embracing Islam, can solemnize a second marriage. The court held that the Hindu
marriage solemnized under Hindu law can only be dissolved on any of the grounds specified
under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by
itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after
converting to Islam would be an offence under section 494 of the Indian Penal Code(IPC).

John Vallamattom Case: In this case, a priest from Kerala, John Vallamattom challenged the
Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-
Hindus in India. Mr. Vallamattom contended that Section 118 of the act was discriminatory
against Christians as it imposes unreasonable restrictions on their donation of property for
religious or charitable purposes by will. The bench struck down the section as unconstitutional.

Shayara Bano & Others vs Union of India & Others, 2017: This is popularly known as the
'Triple Talaq' case and is known for bringing the curtains down on Talaq-e-Biddat. The court
order mentioned the debates of the Constituent Assembly with reference to Article 44 wherein
many argued that religious denominations be given the right to adhere to their own personal law
else it would amount to interfering with "...the way of life and religion of the people..." as
allowed under Article.
"But all these submissions were rejected. All this leads to the clear understanding that the
Constitution requires the state to provide for a uniform civil code to remedy and assuage the
maladies expressed in the submissions advanced by the Attorney General," the court order said.

17. Note on NATURE AND SCOPE OF HINDU LAW?

Hindu Law, it has rightly been observed, has the most ancient pedigree of any known system of
jurisprudence. However, it is not "law" as understood in modern times. Today, the word "law"
signifies an Act passed by the Legislature of a country. Ancient Hindu Law, however, is not the
result of any such legislation governing the Hindus. Hindu law is supposed to be of divine origin,
being derived from the Vedas, which are the revelations of the Almighty Himself. Law, as
understood by the Hindus, is a branch of Dharma, i.e., the duties and the rules of conduct (moral,
religious and political) enjoined by God on the Hindu community. Its ancient frame-work is the
law of the Smritis, which declare the rules of Dharma. Thus, it covers all the systems of law,
civil, religious and moral, which are treated separately in modern times. Hindu Law is thus "what
is followed by those learned in the Vedas, and what is approved by the conscience of the virtuous

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who are exempt from hatred and inordinate affection". (Manusmriti) Thus, Hindu Law, as
understood in ancient times, was not the command of the political sovereign of a community.
Rather, it was a command of the Supreme Being, applicable both to the king and his subjects, the
ruler and the ruled. The observations of the Privy Council in Mookka Kone v. Amma Kutti, (51
Mad. 1). In this case, the court observed: "What is ordinarily understood a Hindu Law is not the
customary law of the country like the common law of England. Neither is it a statute law, in the
sense that some king or legislature framed the law, and enforced its acceptance be the people.
The Hindu Law, as commonly understood, is a set rules contained in several Sanskrit books,
which the Sanskritists consider as books of authority on the law governing the Hindus. However,
it may be observed that Hindu Law was, at no time static or staid - but was emperic and
progressive.
Today, however, the picture is different. Once upon a time Hindu Law was a mixture of religion
and legal philosophy. Today legislation has come on the scene, and has considerably curtaile the
extent of the application of the uncodified Hindu Law. Thus, for instance, if a Hindu commits
murder or rape, he will not be tried today according to the ancient Hindu jurisprudence; rather,
his case will be governed by the Indian Penal Code and the Criminal Procedure Code, which
apply to all other Indians also,
In the earlier texts, Hindu Law has been defined as "the Law of the Smritis as expounded in the
Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is
administered by the Court" (Mayne's Treaties on Hindu Law). Today such a definition of Hindu
Law cannot hold good. A very large portion of Hindu Law has now been codified, and is mainly
to be found in the following four Acts:
(1) The Hindu Marriage Act, 1955
(2) The Hindu Minority and Guardianship Act, 1956
(3) The Hindu Succession Act, 1956.
(4) The Hindu Adoptions and Maintenance Act, 1956.
However, the law relating to Hindu Joint Families, their partition and re-union, as well as the law
relating to wills, gifts and religious usages and institutions, (in so far as it is not abrogated or
modified by any other Act) continues to be derived from the ancient sources of Hindu Law.

18. Note on SOURCES OF HINDU LAW?

Hindu Law today is the result of several ingredients, and the following are the eight important
sources of Hindu Law:
1. Sruti
2. Smriti
3. Commentaries on the Smrities (Nibandhas)

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 4. Puranas
5. Judicial decisions
6. Legislation
7. Justice, equity and good conscience
8. Customs and usages
1. Sruti: Sruti (or Shruti) literally means that which was heard. The Srutis are believed to contain
the very words of God. They are supposed to be the divine utterances to be found in the four
Vedas, (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), the six
Vedangas (i.e., appendages to the Vedas) and the eighteen Upanishads. Although the Srutis are
believed to be the ultimate sources of law, in the sense of rules of human conduct, they are
mostly religious in character and one finds very little secular law in the Srutis.
2. Smriti: Smriti literally means that which was remembered. Both Sruti and Smriti refer to the
utterances and precepts of the Almighty, which have been heard and remembered respectively,
and handed down by the Rishis (sages) from generation to generation. The exact number of
Smritis (or Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The
principal Smritis are those of Manu, Yajnavalkya and Narada.
As understood by a devout Hindu, law is a branch of Dharma and its ancient framework is the
law of the Smritis. Traditionally Dharma is defined as that which is followed by those who are
learned in the Vedas, and what is approved by the conscience of the virtuous who are exempt
from hatred and inordinate affection.
Smritis deal with rules of morality and religion, one finds in them more of secular law, than in
the Srutis. For a practical purpose, the interpretation put on the Smritis by the commentaries
written on the Smritis forms the basis of Hindu Law. Of course, the Commentaries and Digests,
in their turn, are controlled by the decisions of the Courts, which are ultimately the most fertile
sources of Hindu Law.
It may be remembered that if the text of the Smritis conflict with any of the Vedic texts, the
former is to be disregarded. "Where there is a conflict between the Vedas and the Smriti, the
Veda should prevail". (Vyasa)
3. Commentaries on the Smritis (Nibandhas): All the Smritis did not agree with one another in
all respects and this conflict led to several interpretations put upon them. This in turn, gave rise
to commentaries called Nibandhas. Nibandhas are thus nothing but the interpretations put on the
Smritis by various commentators. it is interesting to note that these commentators did not merely
interpret the Smriti, but they also recited the customs and usages which the commentators found
prevailing around them. In other words, while professing to interpret the law as laid down in the
Smriti, these commentators introduced modifications in order to bring it into harmony with the
current usages. Despite the fact such commentators have modified the original 47 texts in order
to bring them in line with the local customs and conditions, the commentaries are now
considered to be more authoritative than the original texts themselves. The reason for this is that

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although the interpretations of the age-old texts may be inaccurate, they nevertheless have the
sanction to recognize the rules contained in such Nibandhas, the reason being that under the
Hindu system of Law, "clear proof of usage will outweigh the written text of the law". (Collector
of Madras v. Moottoo Ramalinga, 12 M.I.A. 397)
The authority of the several commentators varied in different parts of India, giving rise to what
are known as the different schools of Hindu Law. Broadly speaking, there are two Schools, the
Mitakshara School and the Dayabhaga School. The former prevails throughout India, except in
Bengal, where the latter finds a large following.
4. Puranas: The Puranas are also a source of Hindu Law. The Puranas are Codes which illustrate
the law by instances of its application. As observed by the Allahabad High Court in Ganga Sahai
v. Lekhraj (9 All. 253): "Somewhere in the order of precedence, either between the Srutis and the
Smritis, or more probably after them, come the Puranas, which the celebrated author Colebrooke
states, are reckoned as a supplement to the scripture, and as such, constitute a fifth Veda".
5. Judicial decisions: After India came under British rule, another element was added to the
effective sources of Hindu Law. The courts had to ascertain and administer the personal law of
the Hindus in various matters such as marriage, adoption, inheritance, and so on. The decisions
of the courts, based on the judicial interpretation of the ancient Hindu texts, began to stake their
claim as the most practical source of Hindu Law. Strictly speaking, it cannot be said that judicial
decisions are a source of law. This is so, because the Judge is supposed to interpret and explain
the existing law, and not to create new law. Nevertheless, since all the important aspects of
Hindu Law have now found their way into Law Reports, these may now be considered as a
source of Hindu Law. Such decisions have played an important part in ascertaining, and
sometimes in developing and crystallizing, Hindu Law. The commentaries are often silent on
several points and the Judges have filled in these blanks while deciding cases coming before
them. As a result of the British rule in india judicial precedents became necessary and useful
guides in the application of Hindu Law. Thus today, no lawyer will be seen referring to the
original texts of Hindu Law, as he would find all his requirements in the Law Reports.
Commenting on the sources of Hindu law, the Supreme Court has (in Shri Krishna Singh v.
Mathura Ahir, (1981) 3 S.C.C. 689) observed that in applying Hindu law, the Judge should not
introduce his own concepts of modern times, but should enforce the law as derived from
recognized and authoritative sources of Hindu law, i.e. Smritis and commentaries, as interpreted
in the judgments of the various High Courts, except where such law is altered by any usage or
custom, or is modified or abrogated by statute.
In the olden days, case law had never formed part of the judicial system of the Hindus, but since
the administration of Hindu Law was taken up by the Courts, judicial decisions have not only
become a source of Hindu Law, but have been the chief agency by which changes have been
effected in that law. The progress that Hindu law has made in the 19th and 20th centuries is
entirely due to the rulings of the Courts. The decisions of these Courts have often superseded the
Commentaries. As precedents, these decisions have a binding force.

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6. Legislation: The next source of Hindu Law is legislation. Several enactments had come into
force with the advent of British rule in India, and kept coming with greater gusto after the British
departure. These legislative enactments which declare, abrogate or modify the ancient rules of
Hindu Law, thus form an additional modern source of Hindu Law. The Hindu Law Committee,
appointed in 1941, recommended that this branch of the law should be codified in gradual stages.
However, the most important enactments were those which came in 1955 and 1956, namely the
Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession Act and
the Hindu Adoptions and Maintenance Act. (All these statutes are discussed at length later in this
book.)
This process of legislation is a continuous one. Thus, several amendments have been made in the
four principal Acts referred to above. Notable amongst such amendments was the Amendment
passed in 1976, which has radically modified the Hindu Marriage Act, as for instance, by
introducing the concept of divorce by mutual consent in Hindu matrimonial law.
Yet another recent landmark is the amendment of the Hindu Succession Act in 2005, which has
conferred equal rights on a daughter in coparcenary property. Gender inequality in this respect
has now become a thing of the past. The 2005 Amendment has also abolished the doctrine of
"pious obligation" which was deeply rooted in uncodified Hindu law.
7. Justice, equity and good conscience: The principles of justice, equity and good conscience
may also be regarded as a modern source of Hindu Law. In the absence of any specific law in the
Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good
conscience would be applied. In other words, what would be most fair and equitable in the
opinion of the Judge would be done in a particular case. As the Supreme Court has observed in
Gurunath v. Kamalabai (A.I.R. 1955 S.C. 206), in the absence of any clear Shastric text, the
Courts have the authority to decide cases on principles of justice, equity and good conscience.
8. Customs and usages: Custom is one of the most important sources of Hindu Law. Where
there is a conflict between a custom and the text of the Smritis, such custom will override the
text. As observed earlier, "Under the Hindu system of law, clear proof of usage will outweigh the
written text of law". (Collector of Madurai v. Mootoo Ramalinga, 12 M.L.A. 397) Custom may
be defined as a habitual course of conduct generally observed in a community. The Sanskrit
equivalent of custom is sadachara, which means "the approved usage" or "the usage of the
virtuous man”. Custom is thus a rule which, as a result of a very long usage, has obtained the
force of law in a particular community or in a particular district. Custom thus plays a very
important part in Hindu Law. It modifies and supplements the written law. "Immemorial custom
is transcendent law". (Manu)
Kinds of Customs: Customs may be broadly divided into (i) local customs, (ii) class customs,
and (iii) family customs. Local customs are those which are confined to a particular locality like
a district, town or village and are binding on all the inhabitants of that locality. Class customs
are the customs of a caste or a sect of the community or the followers of a particular profession
or occupation, such as agriculture, trade and the like. Family customs are confined to a
particular family only and do not apply to persons who are not members of such family.

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Essentials of valid custom: In Hurpurshad v. Sheo Dayal (1876, 3 I.A. 259), the Privy Council
observed that "a custom is a rule which, in a particular family, or a particular caste or
community, or in a particular district, has from long usage obtained the force of law. It must be
ancient, certain and reasonable". Moreover, such a custom must not be immoral, or opposed to
public policy, or expressly forbidden by law.
in order to be valid, a custom must satisfy the following six requirements:
(a) It must be ancient. A custom must be of long standing, which would indicate that, by
common consent, it has been accepted as the law governing a particular locality, class of family.
If need not be of immemorial antiquity, but a long usage is absolutely necessary.
(b) It must be certain. In order to make a custom definite and certain, universality in observance
is absolutely necessary. If the custom is varied from time to time, there will be no universality,
and consequently, it will not be a valid custom.
(c) It must also be reasonable. This means that it should be in accordance with the rules of
justice, equity and good conscience.
(d) It must be continuous. Continuity is pre-requisite for the validity of a custom. If a custom is
well-established, it is continuous. It does not start and end by fits and starts. However, if there is
a breach of a custom in a particular instance, it cannot be said that the custom is destroyed,
because it may continue to be applicable thereafter. In the case of class customs and local
customs, once a Court takes judicial note of such customs, i.e., once such customs are recognized
by the Courts, there is no need to give positive proof of their continuity in future cases. Rather,
the party who alleges their discontinuance would have to prove such discontinuance. In the case
of family customs, however, positive proof of their continuance is always required. The several
enactments relating to Hindu Law also provide that if a custom consists of a rule applicable only
to a family, it should not have been discontinued by such family.
(e) It must not be opposed to morality or public policy. Although the standards of morality vary
from time to time, from place to place, and from community to community, the Courts take upon
themselves and responsibility of determining what is moral in the facts and circumstances of the
particular case. If a custom is immoral or opposed to public policy, it will naturally not be
enforced.
(f) It must not be opposed to any law. In order that the custom be a valid one, it is also essential
that it must not be forbidden by any act of the legislature. If it is so forbidden, the Courts will not
recognize such a custom, although it may satisfy all the other requirements of a valid custom.
Thus, the following are examples of customs, which the Courts have refused to recognize:
(i) A caste custom, authorizing a wife to abandon her husband, and marry again without his
consent.
(ii) A custom permitting a husband to dissolve his marriage. without the consent of the wife by
paying a fixed sum of money.
(iii) The custom among dancing girls of adopting one or more daughters.

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 (iv) A custom in South India, according to which a man could marry his daughter's daughter.
Proof of custom: A custom should be established before the Court by means clear and
unambiguous evidence. If a party to the suit, who plead a custom has produced general evidence
of a reliable nature showing that such custom prevails in that community, such evidence can be
accepted. Thus, if instances are cited to show the existence of a custom for a span of more than
thirty years, it may rightly be inferred that the custom has been in existence even before such
instances took place. A judgment relating to the existence of a custom can be produce to
corroborate the evidence adduced to prove a particular custom in another case. (Mst. Kesarbai v.
Indarsingh, (1945) Nag. 1)
Burden of proof: It is to be remembered that the burden of proof of a custom of Hindu Law
which is derogatory to that law, is upon the person who asserts it. Conversely, when a custom
has been proved, the burden of proving its discontinuance lies on the party who alleges such
discontinuance.
Judicial notice of a custom: A Court takes judicial note of a custom if such custom is so clearly
established that no further evidence of its existence is necessary. When a custom or usage is
repeatedly brought to the notice of the Court, such a custom will form a part of the law without
any need of proof of such custom in every case in the future. In these circumstances, the Courts
are said to take "judicial notice" of that custom.
"Custom" and "usage" under Codified Hindu Law: Under the codified Hindu Law, the
expressions "custom" and "usage" are defined to signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family. However, such a custom or usage
should be (1) certain, (ii) not unreasonable, and (iii) not opposed to public policy. Moreover, in
the case of a rule applicable only to a family, it should not have been discontinued by that family.

19. Note on SCHOOLS OF HINDU LAW?

The Hindu scriptures were not uniformly interpreted by the Hindu scholars, and this gave rise to
diverging opinions on the interpretation of particular texts. Colebrook, the learned European
scholar of Hindu Law, spoke of this divergence as representing schools of Hindu Law. Thus, the
Hindu jurists themselves never propounded any theory or doctrine dividing Hindu Law into
various schools of thought, and it was the European writers on the subject who labelled the
differences in interpretation as representing specific "schools", a term which has now gained
currency in Hindu Law.
As regards the origin of schools of Hindu Law, the following observations of the Privy Council
are relevant: "The remoter sources of Hindu Law (i.e. the Smritis) are common to all the
different schools. Broadly speaking, there are two main schools of Hindu Law, the Mitakshara
and the Dayabhaga.

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The Mitakshara (literally meaning "a concise work") is a running commentary on the code of
Yajnavalkya. It has been written by an eleventh century jurist by the name of Vijnaneshwar, and
prevails in all parts of India, except in Bengal. The Dayabhaga School, which is followed mainly
in Bengal, is not a commentary on any particular code, but is a digest of all the codes. It has been
written by Jimutavahana, who lived sometime in the twelfth century. It may also be noted that
the Mitakshara is the orthodox school, whereas the Dayabhaga (or the Bengal school, as it is
sometimes called) is the reformist school of Hindu Law.
It may be noted that the Dayabhaga is not divided into any sub- schools. However, the
Mitakshara is sub-divided into four schools prevailing in different parts of India. These different
schools have the same fundamental principles, but differ in matters of details especially with
reference to the topics of adoption and inheritance. These four Mitakshara sub-schools are as
follows:
(a) The Banaras School, which prevails in northern and western India;
(b) The Mithila School, which has most of its followers in Bihar
(c) The Dravida or Madras School, which prevails in southern India; and
(d) The Maharashtra or Bombay School, which prevails in western India.
The Mitakshara and the Dayabhaga Schools differed on important issues as regards the rules of
inheritance. However, this branch of the law is now codified by the Hindu Succession Act 1956,
which has dissolved the differences between the two. The main divergence between the two in
matters connected with the joint family system has now been diluted further after the 2005
Amendment of the Hindu Succession Act, which has abolished the gender inequality which
existed prior to the said Amendment
Jimutavahana: Jimutavahana, who lived around the beginning of the twelfth century, was the
founder of the Dayabhaga School. Very little is known about him, although there is sufficient
evidence to indicate that he was an eminent Judge and a Minister of a King of Bengal.
Jimutavahana's doctrines on the law of inheritance and the joint family system were totally
opposed to some basic rules of the Mitakshara School. Although he did not break away from any
of the authoritative texts of the leading Smritikars, he did differ basically from the Mitakshara
system, which favour a particular mode of devolution of joint family property at the time of the
death of a coparcener. This can clearly be seen from the points of difference between a
Mitakshara and a Dayabhaga coparcenary. His theories show that his appeal is more to reason
and stern logic, than to precepts or precedents, and his approach to most of the controversial
questions is direct and forthright.
Application of Hindu Law Under the uncodified Hindu Law: The Hindus are divided into four
castes, viz., the Brahmins, the Kshatriyas, the Vaisayas and the Sudras. Prior to the partial
codification of Hindu Law in 1955 and 1956, this classification was of considerable importance
to the Courts in deciding in any given case, whether a person was a Hindu or not. Thus, the

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following are instances of persons who were held to be Hindus by various Courts before the said
partial codification of Hindu Law, namely: -
(1) Hindus by birth;
(2) Hindus by religion, i.e., converts to Hinduism;
(3) Illegitimate children, where both parents were Hindus;
(4) Illegitimate children of a Christian father and a Hindu mother, provided that such children
were brought up as Hindus;
(5) Jains, Buddhists, Sikhs and Nambudri Brahmins;
(6) Hindus by birth, who had renounced Hinduism, but reverted back to the Hindu faith after
performing the prescribed religious rites; and
(7) Persons belonging to Brahmo and the Arya Samaj.
Likewise, under the said uncodified law, the Courts had held that Hindu Law did not apply to the
following, viz.:
(1) to the illegitimate children of a Hindu father by a Christian mother, if such children were
brought up as Christians;
(2) to Hindu converts to Christianity;
(3) to converts from the Hindu to the Mahomedan faith; and
(4) to descendants of Hindus who had formed themselves into a distinct community with a
religion quite different from that propounded by the Shastras.
Application of Hindu Law Under the codified law: The four major enactments passed in 1955
and 1956 to codify certain portions of Hindu Law, contain detailed provisions as to who are
Hindus for the purposes of those Acts. Thus, S. 2 of the Hindu Marriage Act, 1955, provides that
the provisions of the Act apply to the following classes of persons, namely -
(a) Any person who is a Hindu by religion in any of its forms or development, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) Any person who is a Buddhist, Jain or Sikh by religion.
(The effect of this provision is to give legislative sanction to the existing provisions of the law,
which lay down that even though Jains may not be Hindus by religion, they are to be governed
by the same law as the Hindus.)
(c) Any other person domiciled in India, who is not a Muslim, Christian, Parsi or Jew by
religion, unless it is proved that any such person would not have been governed by Hindu
Law, or by any custom or usage as part of that law, in respect of any of the matters dealt
with in the Act, if the said Act had not been passed.

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It has rightly been observed that for the purposes of statutory Hindu Law, it is easier to say who
is not a Hindu, than to lay down as to who exactly is a Hindu. This clause is negative in form,
and lays down that it is to be presumed, until the contrary is proved, that any person domiciled in
India who is not a Muslim, Christian, Parsi or Jew by religion, will be regarded as a Hindu and
will, therefore, be governed by the Act.
(d) Hindus domiciled in the territories to which the Act extends, but who are outside such
territories.
(e) The Explanation to S. 2 clarifies that the following persons have also to be considered to be
Hindus, Buddhists, or Jains by religion, as the case may be, viz.:
(i) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains
or Sikhs by religion;
(ii) any child, legitimate or illegitimate, one of whose parent is a Hindu, Buddhist, Jain or
Sikh, provided such child brought up as a member of the tribe, community, group o
family to which such parents belong or belonged.
(iii) any person who is a convert or re-convert to the Hindu Buddhist, Jain or Sikh religion.
It may be noted that no formal ceremony of purification expiation is necessary for a person who
wishes to become a Hindu. An intention to become a Hindu, accompanied by conduct
unequivocally expressing that intention, would be sufficient evidence of conversion. (Raman
Nadar v. Snehapoo, A.I.R. 1970 S.C. 1759
The Supreme Court has held, in S. Rajagopalan v. C. M Armugam (A.I.R. 1969, S.C. 101), that a
Hindu belonging to a Adidravida caste (a Scheduled Caste) converted to Christianity ceases to
belong to the Adidravida caste. The burden lies on him to prove that, on re-conversion, he again
became a member of the Adidravida caste. When a person is converted to Christianity, he ceases
to belong to the Adidravida caste, as Christianity does not recognize caste divisions.
In a case decided by the Calcutta High Court, a child whose father was a Hindu, and whose
mother was Christian, and who had a Hindu name and surname, was held to be a "Hindu". (Raj
Kumar Gupta v. Barbara Gupta, A.I.R. 1989 Cal. 165)
CODIFICATION OF HINDU LAW: Codification refers to the process of incorporating the law
on a particular subject in statutes or Acts of the legislature. This process has both advantages as
well as disadvantages. The greatest champion of codification was Bentham.
The first step in this direction was taken in 1941, when the Hindu Law Committee was appointed
to examine this question. This Committee recommended that Hindu Law should be codified in
gradual stages, beginning with the law of marriage and intestate Succession.
This Committee unfortunately ceased to function, but was revived in 1944, under the president
ship of Sir B. N. Rau. One of the objects of the Committee was to evolve a uniform code of
Hindu Law by blending the most progressive elements from the different schools of Hindu Law.
The Committee made its report and presented a draft Code. The Hindu Bill (as the draft Code

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was called) remained on the anvil for a long time, and ultimately it was decided to split it up and
pass separate Bills on each part. The first of these saw the light of the day only in May 1955, in
the form of the Hindu Marriage Act. This was followed by the Hindu Succession Act in June
1956 (which underwent radical amendments in 2005), the Hindu Minority and Guardianship Act
in August 1956, and the Hindu Adoption and Maintenance Act in December 1956.
It will be noticed that these four enactments cover some very important aspects of personal law,
viz., marriage and divorce, intestate succession, minority, guardianship, adoption and
maintenance. In other matters, the old uncodified law continues to apply.
THE DOCTRINE OF FACTUM VALET: The doctrine of factum valet states that once an act
is done or a fact is accomplished it can't be altered by the written texts of laws. As the fact is
considered to be a concrete establishment and is deemed to be legally binding. The
corresponding maxim of the Roman Civil Law is factum valet quod fieri non debuit, which
literally means that what ought not to be done becomes valid when done.

20. Note on Hindu marriage whether a sacrament or a civil contract?

For a Hindu, marriage is a samskara (religious rite or sacrament). It is in fact, the last of the ten
sacraments, enjoined upon him by the Hindu religion for purifying the body from inherited taint.
This view has been accepted by the High Courts of Bombay and Madras. Thus, a Hindu marriage
is looked upon as something which is more of a religious necessity and less of a physical luxury.
As once observed by the Calcutta High Court, a Hindu marriage is "more religious than secular
in character."
According to the Vedas, a marriage is "the union of flesh with flesh and bone with bone". It is a
union which the Vedas regard as indissoluble. As long as her husband is alive, the wife is
enjoined to regard him as her God; likewise, the wife is declared to be half the body of her
husband (Ardhangini) and shares with him equally, the fruits of all his acts, good or bad.
It may be noted that the concept of a Hindu marriage as a sacrament continues to exist even after
the enactment of the Hindu Marriage Act. This concept is not, in any way, inconsistent with the
provisions of the Act, which has merely laid down certain conditions for a valid Hindu marriage,
and certain grounds for obtaining judicial separation and divorce.
It may be noted that a marriage under Hindu Law is not only samskara or sacrament, but the only
samskara prescribed for women under Hindu Law. Although there was a conflict of decision on
the point, it was generally accepted that a Hindu marriage also a contract. A reference to Manu
shows that there is actual a gift of the bride. Thus, an essential part of the marriage ceremony is
what is called kanyadan. Such kanyadan fulfils all the requirements of a gift under the Hindu
Law. It is, therefore, clear that to the extent that a marriage is a gift, it is also a contract.
Similar observations are to be found in several decided cases some of which are given below:
(i) In Purshottamdas v. Purshottamdas (21 Bom. 23), the Court observed that "Marriage of Hindu
children is a contract made by their parents."

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(ii) In Muthusami v. Masilamani, (33 Mad. 342), the Court observed: "A marriage, whatever else
it is, i.e., a sacrament, and institution, is undoubtedly a contract entered into for consideration,
with co-relative rights and duties."
(iii) The Calcutta High Court has also observed, in Anjona Das v. Ghose (6 Bengal Law
Reporter, 243), that suits relating to marriage deal with that which in the eye of the law must be
treated as a civil contract, and important civil rights arise out of that contract.
In view of the above-mentioned and other cases, it can safely be concluded that under the
ancient, uncodified Hindu Law, a Hind Marriage was not only a sacrament, but also a contract.

21. Note On Ancient Forms of Marriage? Essential Conditions of Marriage Under

Ancient Hindu Law?
Eight forms of marriage are to be found in the ancient Hindu Law. They are:

(1) Brahma: ‘Brahma’ is one of the most practiced forms of marriage in India and has the most
supreme position out of all the eight forms of marriage. Manu-Smriti has also laid great
importance on this form of marriage. The Brahma marriage, in dharma texts, has been explained
as the gift of a daughter, after being decked with ornaments and honored with jewels to a man
selected by the father himself and who is learned in Vedas is called the “Brahma marriage”. In
this form of marriage, the father (or some other guardian) gave the bride away in marriage
without receiving any consideration from the bridegroom

(ii) Daiva: Daiva-vivāha means ‘marriage related to the rite of the gods’. In this form of
marriage, unlike Brahma, the father gives away his daughter to a priest as a Dakshina
(sacrificial fee) for officiating in the sacrifice conducted by the father of the bride. In this form
of marriage, the groom doesn’t come looking for a bride, the parents of the bride go looking for
the groom for her daughter. This form of marriage is considered inferior to the Brahma marriage
because, in Daiva, because in Daiva, the father gave away his girl for the purpose of deriving a
spiritual benefit

(iii) Arsha: This is different from Brahma and Daiva forms of marriage because, in Arsha, the
father of the bride doesn’t have to give anything to the bridegroom. In the Arsha, the father of the
bridegroom is the one who gives 2 cows or bulls to the father of the bride.

(iv) Prajapatya: Prajapatya form of marriage is similar to Brahma form of marriage except there
is no trading or Kanyadan in Prajapatya and the father of the bride searches for the groom.
Because of these differences, Prajapatya is inferior to Brahma except that it was not necessary
for the bridegroom to be a bachelor. In this form of marriage, the father while giving away her
daughter addresses the couple with a condition that both the bride and bridegroom may perform
their dharma together. The basic condition requested by the father of the bride is that the
bridegroom must treat the bride as a partner and fulfil their religious and secular duties together.

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(v) Asura: In this form of marriage, the father (or guardian) of the bride was given some kind of
monetary consideration for the marriage. As per the ancient texts, "where a man marries a girl
for gladdening her father or guardian by money, it is called asura marriage". Thus, this form of
marriage was almost a marriage by sale, because it amounted to a sale of the daughter by the
father.
(vi) Gandharva: This ancient form of marriage was very similar to what may be called "a love
marriage" in modern times. There is a mutual agreement between the girl and boy to get married.
This mutual agreement arises from pure lust. The approval of parents does not play a role.
(vii) Rakshasha: This form of marriage was preceded by rape or the abduction of a virgin in
times of war. This kind of marriage was effected by a forcible capture of the girl after her
relatives had been killed or wounded in the war.
(viii) Paishacha: In this, a man seduces women and enters in a sexual act when the girl is either
sleeping, intoxicated or mentally disordered mostly in the night. The girl and her parents out of
shame of such activity have to agree to the marriage with the man. The canons of Hindu Law
provided that, in such a case, the man was obliged to marry that girl.
Out of the above eight forms of marriage, the first four approved forms, whereas the last four are
considered to be unapproved forms of marriage.
It may be noted that the Hindu Marriage Act, 1955, has not specifically prescribed or recognized
any one of the above ancient forms of Hindu marriage. Rather, the Act had laid down certain
conditions which are essential for a valid Hindu marriage. Essential conditions of a valid
marriage under the ancient textual Hindu law are:
(i) Identity of caste - The ancient texts prescribed that if the parties did not belong to the same
caste, the marriage was invalid unless sanctioned by custom. These texts prohibit a marriage
between a male of a lower caste and a female of a higher caste (pratiloma marriage). However, a
marriage between a male of higher caste and a female of a lower caste (anuloma marriage) was
permitted and recognized by the ancient Hindu texts. This requirement of the textual Hindu Law
(that both parties the marriage must belong to the same caste) lost its force after the passing of
the Hindu Marriage Validity Act, 1948, which provided that no marriage shall be deemed to be
invalid only because of the fact that the parties thereto belong to different religions, castes, sub-
castes or sects.
(ii) Parties should be beyond the prohibited degrees - The second condition prescribed by the
ancient Hindu texts was that a man could not marry a girl of the same gotra or pravara, and that
the parties to a marriage should not be sapindas of each other. However, this rule did not apply to
Sudras, as they had no gotra of their own.
(iii) Performance of proper marriage ceremonies - The third and the last condition prescribed by
the ancient Hindu texts was as regards the proper marriage ceremonies. Broadly speaking, the
were two such ceremonies, which were necessary to validate a Hindu marriage, viz.,
(a) Vivah homa, or invocation before the sacred fire, and

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 (b) Saptapadi, which consists in the bride and the bridegroom taking seven steps around
the sacred fire, the marriage being complete only when the seventh step is taken.

Hindu Marriage Act applies to Hindus who are domiciled in the territories to which the Act
extends, but who are outside such territories.
Section 2 provides that the Act applies to the following persons:
(a) Any person a Hindu by religion in any of its forms or developments, including a Virashaiva,
a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) Any person who is a Buddhist, Jain or Sikh by religion. The effect of this provisions of the
Act is to give legislative sanction to the existing provisions of the law, which lay down that even
though Jains may not be Hindu by religion, they are to be governed by the same law as the
Hindus.
(c) Any other person domiciled in India, who is not a Muslim. Christian, Parsi or Jew by
religion, unless it is proved that any such person would not have been governed by the Hindu
law, or by any custom or usage as part of that law.
(d) Hindus domiciled in the territories to which the Act extends, but who are outside such
territories.
(e) The Explanation to Section 2 clarifies that the following persons have also to be considered to
be Hindus, Buddhists or Jains by religion, as the case may be, viz.-
(i) Any child legitimate or illegitimate both of whose parents are Hindus, Buddhists, Jains or
Sikhs by religion.
(ii) Any child legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jain or Sikh,
provided such child is brought up as a member of the tribe, community, group or family to which
such parent belongs or belonged.
It will be seen that the Act makes no distinction between legitimate and illegitimate children. The
usual rule of law that a legitimate child follows his father's religion and an illegitimate child that
of his mother, is not accepted by this Act.
(iii) Any person who is a convert or re-convert to the Hindu Buddhist, Jain or Sikh religion. The
above clause gives legislative sanction to the view that conversion or re-conversion of any
person to the Hindu religion attracts the application of the Act.
It may be noted that no formal ceremony of purification of expiration is necessary for a person
becoming a Hindu. An intention to become a Hindu, accompanied by conduct unequivocally
expressing that intention, would be sufficient evidence of conversion. (Raman Nadar v.
Snehapoo, A.I.R. 1970 S.C. 1759)
The Hindu Marriage Act does not, however, apply to the following two categories of persons:

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(1) Hindus who have renounced the Hindu religion and have become converts to some other
religion, e.g., Christianity.
(2) Persons descended from Hindu ancestors, whose marriage or new occupation has had the
effect of converting them into a distinct community, with their own individual religion and
usages. The Kalis of Burma is one such community, and although they have descended from
Hindu ancestors, they are not governed by Hindu Law.

22. Define Full blood, Half-blood, uterine Blood

Two persons are said to be related to each other by full blood when they are descended from a
common ancestor by the same wife. [one father one mother]
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. (It should be noted that the term "ancestor" includes the
father.) [one father two mothers.]
Two persons are said to be related to each other by uterine blood when they are descended from
a common ancestress, but by different husbands. (The term "ancestress" includes the mother.)
[two fathers and one mother]

23. Note on Sapinda relationship?

The Act provides that a Sapinda relationship, with reference to any person, extends as far as the
third generation (inclusive of the third generation) in the line of ascent through the mother, and
the fifth generation (inclusive of the fifth generation) in the line of ascent through the father. In
determining the Sapinda relationship, the line is always to be traced upwards from the person
concerned, and such a person has to be counted as the first generation. Two persons are said to
be sapindas 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.
It has also been clarified that relationship includes:
(i) relationship by full blood, half blood, as well as uterine blood;
(ii) legitimate as well as illegitimate blood relationship; and
(iii) blood relationship, as well as relationship by adoption.
From what has been stated above, the following seven rules as regards Sapinda relationship can
be laid down:
(1) Sapinda relationship extends as far as the third generation in the line of ascent through the
mother in case of both the parties.

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(2) Sapinda relationship extends as far as the fifth generation in the line of ascent through the
father in case of both the parties.
(3) Sapinda relationship may subsist only through the father, or only through the mother, for both
the parties, or it may be through the father in case of one of the parties and the mother in case of
the other.
(4) The line is to be traced upwards in case of both the parties, counting such party as the first
generation. Thus, the generation in the line of ascent (whether third or fifth) is to be counted
inclusive of the person concerned and the common ancestor or ancestress.
(5) The line of ascent not restricted to a male ancestor, but covers females also. Thus, for
example, a person's father's mother's father, as also his father's father, are in the line of ascent
through the father. Similarly, the mother's mother as well as the mother's father, are in the line of
ascent through the mother.
(6) Sapinda relationship includes relationship by full blood, half blood, uterine blood, as well as
by adoption.
(7) Sapinda relationship includes both legitimate and illegitimate blood relationships.

24. Two persons are said to be within the degrees of prohibited to relationship:
(1) if one is a lineal ascendant of the other; or
(2) if one is the wife or husband of the lineal ascendant or descendant of the other; or
(3) if one is the wife of the brother or of the father's or mother's brother, or of the grandfather's
or grandmother's brother 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.
It has also been expressly clarified that relationship includes-
(i) relationship by full blood, half blood, as well as uterine blood;
(ii) legitimate, as well as illegitimate, blood relationship; and
(iii) blood relationship, as well as relationship by adoption.

24. essential conditions of a valid Hindu marriage (SS. 5-7)? Evolution of institution of
marriage?
Section 5 of the Act lays down the requisites of a valid Hindu marriage. The five important
conditions of a valid Hindu marriage laid down by S. 5, are as follows:

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(1) Neither party should have a spouse living at the time of the marriage. This clause establishes
the rule of monogamy and prohibits polygamy, which was permitted before the Act came into
force. It also prohibits polyandry, which was prohibited by the ancient Hindu law also.
The contravention of the first condition will render the marriage void under Section 11, and a
competent Court may declare such a marriage to be a nullity on a petition presented by either
party to such marriage. Further, the parties to a bigamous marriage are also liable to be punished
under Section 494 and 495 of the Indian Penal Code (which has been made applicable to such a
Hindu marriage by Section 17 of the Act). The Supreme Court has held that a marriage with a
person who has living spouse a is totally null and void; it cannot be treated as voidable under S.
12 of the Act. (Adhav v. Adhav, A.I.R. 1988 S.C. 644)
(2) Neither party should be suffering from unsoundness of mind, mental disorder or insanity.-
Under the pure Hindu Law, a Hindu marriage was a pure sacrament, and therefore idiots and
lunatics could be lawfully married, as a consenting mind was not necessary There were
conflicting decisions on the point as to whether a Hindu marriage was also a contract, and this
conflict of decisions was set at rest by the Act, which originally laid down that lunatics and idiots
could not marry at all, thus making free consent a necessary ingredient of a valid Hindu
marriage. After the 1976 Amendment of the Act, the second requirement of a valid Hindu
marriage is that at the time of marriage neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind, or to such an extent, as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity.
If this condition of a valid marriage is not fulfilled, the marriage becomes voidable at the option
of the other party under S. 12 of the Act.
(3) The bridegroom should have completed the age of 21 years and the bride the age of 18, at the
time of marriage. Under the ancient Hindu Law, no minimum age limits were prescribed for a
Hindu marriage. This clause prescribes the minimum ages, in keeping with the minimum age laid
down by the Child Marriage Restraint Act.
The violation of this clause does not make a marriage void or even voidable. However, every
person who procures a marriage of himself or herself to be solemnized in contravention of the
condition becomes punishable with rigorous imprisonment upto two years or fine upto Rs. 1 lakh
or both.
4) The parties to the marriage should not be within the degrees of prohibited relationship, unless
a custom or usage governing each of them permits such a marriage. Under this clause, a marriage
between persons who are within the degrees of prohibited relationship with each other is
prohibited. Under the ancient Hindu Law also, such a marriage was not allowed.
This requirement of a valid Hindu marriage is mandatory, and its contravention will render a
marriage void, unless such a marriage is sanctioned by custom or usage of both the parties. To be

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a valid custom or usage, such a custom or usage must satisfy the definition of this term laid down
in Section 3 of the Act. Thus, a custom must not be unreasonable or opposed to public policy. A
custom would not be recognized if it is abhorrent to decency or morality or if it, is inconsistent
with the practices of good men.
Thus, a custom prevailing amongst the Jats of Punjab allows a marriage with a brother's widow.
Likewise, in some parts of South India, a marriage of a man with his sister's daughter is also
recognised by custom. A marriage which is performed in breach of this condition is void ab
initio, and a competent Court can declare it to be so, on a petition presented by either party to
such a marriage. Further, the persons contravening the provisions of this clause are also liable to
be punished with simple imprisonment upto one month or with fine upto Rs. 1,000 or both.
(5) The parties to the marriage should not be sapindas of each other, unless a custom or usage
governing each of them permits such a marriage. A marriage between sapindas would be valid
only if the custom or usage governing both the parties permits such a marriage. Needless to say,
such a custom must fulfil the requirements of a valid custom, laid down by Section 3 of the Act.
Thus, a custom must not be unreasonable or opposed to public policy. No custom would be
recognized if it is abhorrent to decency or morality or if it is inconsistent with the practices of
good men.
A marriage between sapindas is void ab initio and the persons contravening the provisions of this
clause are liable to simple imprisonment upto one month or with fine upto Rs. 1,000 or both.
Shortly stated, the effect of violating any of the above five conditions is an under:
Violation of Condition No.1: The marriage is void and the parties are liable to punishment.
Violation of Condition No.2: The marriage is voidable at the option of the other party
Violation of Condition No.3: The marriage is valid, but the parties are liable to punishment
Violation of Condition No.4: The marriage is void and the
Violation of Condition No.5 The marriage is void and the parties are liable to punishment.
parties are liable to punishment
Ceremonies of a Hindu marriage (Section 7)
Section 7 of the Act deals with the ceremonies of a valid Hindu marriage. It lays down that a
Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party thereto. Thus, the customary rites and ceremonies of any one of the parties of such
marriage must be followed. Further, the marriage must fulfil the five conditions of a valid
marriage laid down by Section 5 of the Act,
It is clarified by Section 7 that where such rites and ceremonies include the Saptapadi (i.e..
taking seven steps by the bridegroom and bride jointly before the sacred fire), the marriage
becomes complete and binding only when the seventh step is taken.
It will thus be seen that the Act does not prescribe any special ceremony for Hindu marriage. It is
to be noted that even the Saptapadi is not obligatory under the Act.
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Before the passing of the Act, Saptapadi, literally meaning 'seven steps', was the most important
rite of a Hindu marriage. After tying the mangalsutra (or the holy thread which the groom ties
around the bride's neck and which she continues to wear as a sign of her marital status), the
couple would take seven steps around the holy fire and after the seventh step, the couple would
become legally married husband and wife. This is also referred to as 'saat phere' (seven steps).
Fire is considered to be pure and sanctified in many religions, including the Buddhists and the
Parsees. In a Hindu marriage, fire is seen as a symbol for the couple to solemnize their marriage
with seven steps with fire as their witness (agni sakshi).
Before 1955, the act of Saptapadi was considered to be the core of a Hindu marriage. An elder
person would tie a knot with one end of the bride's clothes and one end of the groom's clothes.
The couple would then take seven rounds or saat phere around the holy fire (agni kund), whilst
the priest would chant Sanskrit Slokas to bless the couple.
As seen earlier, according to Hindu Law, a marriage is both a sacrament as well as a contract.
The religious ceremonies consist of:
(a) invocation before the sacred fire (vivah homa or laja homa), which consists of recitation of
Vedic Mantras and the formal giving away and acceptance of the bride; and
(b) the Saptapadi, i.e., the taking of the seven steps by the bride and bridegroom jointly before
the sacred fire.
Where it is proved that a marriage was in fact performed, the Court will presume that it is a valid
marriage. (Fakirgauda v. Gang 2 Bom. at page 277.) Where it is shown to the Court that
marriage has in fact taken place, this gives rise to a dual presumption, viz., that all the legal
formalities of the marriage have been complied with, and also that all the necessary ceremonies
have been performed. It would be for the persons who challenge the validity of such a marriage
to rebut these presumptions. (Sitab v. Vithabai, 1958 Nagpur Law Journal 10)

25. Distinction between Void Marriage And Violable Marriage?

No Void Marriage Voidable marriage

.
1. Meaning: A void marriage is no Meaning: A voidable marriage is one
marriage at all. It does not exist from which can be avoided at the option of one
the very beginning. of the parties to the marriage. It remains
valid for all practical purposes until and
unless its validity is questioned.

2 Section: Section 11 of the Hindu Section: Section 12 of the Hindu marriage

Marriage Act, 1955 deals with void Act, 1955 deals with voidable marriage.
marriage.
3 Marriage does not exist in the eye of Marriage exists and continues to be valid

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 law. unless it is challenged.
4 The court simply passes the decree The court passes the decree after taking
of nullity since the marriage has no into account necessary conditions.
existence at all.
5 Parties can remarry without decree Parties cannot do so.
of nullity from the court.
6 Wife cannot claim maintenance Wife can claim maintenance.
under Section 125 of Cr.P.C
7 Void marriage is void ab initio A voidable marriage is regarded as valid
until the competent court annuls it.
8 Parties to a void marriage are Parties to voidable marriage are not laid
criminally liable. down with penalty.
9 In void marriages, not only first wife In voidable marriages, only the parties
but a third party who is affected can have right to apply for annulment of
bring a suit in Civil Court for marriage.
declaring such marriage void.

26. Note on RESTITUTION OF CONJUGAL RIGHTS (S. 9)

It is one of the fundamental purposes of a marriage that the spouses must live together, and it is
an equally well-established rule of matrimonial law that one spouse is entitled to the society and
comfort (consortium) of the other. If, therefore, one spouse leaves the other without any just
cause or excuse, the latter can approach a Court of Law, praying for a Decree of restitution of
conjugal rights, i.e., an order of the Court which requires that the spouses must continue to live
together.
According to Jowitt's Dictionary of English Law, the expression "conjugal rights" connotes two
ideas: (a) the right which the husband and wife have to each other's society; and (b) marital
intercourse.
If, without any reasonable excuse, the husband or the wife has withdrawn from the society of the
other, the aggrieved party may apply to the Court for restitution of conjugal rights. Such an
application is in the form of a Petition made to the District Court. If the Court is satisfied about
the truth of the statement made in such a Petition (and if there is no ground on which the
application ought not to be granted), it may pass a decree for restitution of conjugal rights. (S. 9).
It is also clarified that where a question arises whether there has been reasonable excuse for
withdrawal of one of the parties to a marriage from the society of the other, the burden of
proving reasonable excuse is on the person who has withdrawn from the society of the other.
The Madhya Pradesh High Court has held that if a wife accepts employment (without the
husband's consent) at a place different from the husband's home, and refuses to live with him at
his place, it can be said that she has withdrawn from her husband's society without reasonable
excuse. (Gaya Prasad v. Bhagwati, A.I.R. 1966, M.P. 212)
The practical importance of the provisions contained in S. 9 is that it enables the aggrieved
spouse to apply to the Court for maintenance under S. 25, and for maintenance pendente lite

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under S, 24. It is also to be noted that if a decree for restitution of conjugal rights is passed by the
Court, and yet the parties do not resume cohabitation for a period of one year (or more) after
such a decree, either party can obtain a divorce on that ground alone under S. 13 of the Act.

27. Note on JUDICIAL SEPARATION (S. 10)?

A judicial (or legal) separation is one which permits the parties to a marriage to live apart. If a
decree for judicial separation is passed by a competent Court, it is no longer obligatory for either
party to cohabit with the other. Such a decree does not, however, dissolve the marriage or sever
the matrimonial ties between the parties. Yet, it is equally true that certain mutual rights and
obligations arising from the marriage are, so to say, suspended when such a decree is passed.
Under the Act, a Petition for divorce can be presented on the ground that cohabitation has not
been resumed for a period of one year (or more) after the passing of a decree for judicial
separation.
Formerly S 10 provided six grounds on which either party to a marriage could present a Petition
for judicial separation. However, when S. 10 was amended in 1976, these six grounds were
deleted, and it is now provided that such a Petition can be presented on any of the grounds
mentioned in S. 13(1) (which are the grounds for divorce available to both the parties to a
marriage), and in the case of the wife, also on any of the grounds specified in S. 13(2) (which are
the grounds for divorce available only to the wife).
Effect of the decree (S. 10(2)): As stated above, when a decree for judicial separation has been
passed, it is no longer obligatory for the Petitioner to cohabit with the Respondent. However, the
Court has the power to rescind such a decree on an application by either party, if it considers it
just and reasonable to do so.
It may be noted that the statutory relief of judicial separation is a discretionary one. The Court is
not bound to grant such relief only because one of the prescribed grounds exists. Thus, if the
Petitioner has connived at the adultery of the Respondent, the Court may refuse to pass a decree
under S. 10. Similarly, if desertion by the Respondent is due to the Petitioner's cruelty, such
relief may be refused by the Court.
JUDICIAL SEPARATION DISTINGUISHED FROM DIVORCE
The following are the main points of distinction which distinguish a divorce from judicial
separation:
Firstly, judicial separation does not dissolve the marriage, it only absolves the parties from their
marital duty of cohabitation. Divorce on the other hand, completely dissolves the marriage tie.
Secondly, from what is stated above, it follows that during judicial separation, each party can
inherit from each other as "husband" and "wife".
Thirdly, a decree of judicial separation can be subsequently rescinded by the Court, whereas a
divorce decree cannot be so rescinded.

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Fourthly, non-resumption of cohabitation by a party for a period of one year or more after the
passing of a decree for judicial separation by itself constitutes a good ground for dissolution of
the marriage by a decree of divorce.
Lastly, prior to 1976, the provisions relating to divorce were more stringent than those for the
grant of judicial separation. Now of course, the grounds for both are exactly the same.

28. Note on NULLITY OF MARRIAGE? Discuss Void and Voidable Marriages?

Void Marriages (S. 11): A marriage under the Act is, as seen above, voluntary union of one man
with one woman to the exclusion of all others. S. 5 of the Act has also laid down six essential
conditions of a valid marriage. S. 11 lays down that if any marriage is solemnized after the Act
has come into force, in contravention of three of these six conditions, such a marriage would be
null and void, and may be so declared by a decree of nullity passed by the Court on a petition
presented by either party to such a marriage against the other party. These three conditions are
the following, viz.,
(i) Neither party should have a spouse living at the time of marriage.
(ii) The parties should not be within the degrees of prohibited relationship, unless the custom or
usage governing each of them permits such a marriage.
(iii) The parties should not be sapindas of each other, unless the custom or usage governing each
of them permits such a marriage.
The non-fulfilment of any of these three conditions renders a marriage void ab initio, i.e., null
and void from its very inception, and either party to such marriage can obtain a decree of nullity
from the Court. However, it is to be noted that neither party is under any obligation to obtain
such a declaration, which is more for purposes of precaution and record. Even without such a
declaration of the Court, a party to such a void marriage can marry another person, because such
a marriage is a total nullity, i.e., it is no marriage at all in the eyes of law. 81
Children born of a void marriage: Whether legitimate or illegitimate: Under the general law,
the children of a marriage which is void ab initio are illegitimate, and are not entitled to any of
the rights conferred by the law on a legitimate child. However, S. 16 of the Act lays down that
the children conceived of such a void marriage are to be deemed to be legitimate, even if a
decree of nullity has been passed declaring the marriage to be null and void.
Voidable Marriages (S. 12): The Act lays down four grounds on which a Hindu marriage
become voidable, whether such marriage was solemnized before or after the commencement of
the Act. Such a marriage may be annulled by a decree of nullity on application to the Court by
the spouse entitled to avoid the marriage. The four grounds mentioned in S. 12 are as follows:
(a) Impotency, namely, that the marriage has not been consummated owing to the impotence of
the Respondent. Impotency refers to incapacity to consummate the marriage i.e. incapacity to
have marital intercourse which is one of the objects of every marriage.

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The Supreme Court has observed that a person is impotent if his (or her) physical or mental
condition makes consummation of the marriage a practical impossibility. (Digvijay Singh v.
Pratap Kaur, A.I.R. 1970 S.C. 137) It is to be remembered that the Petitioner's own infirmity is
no ground for relief under S. 12. Under the English law, such relief can be granted if the
Petitioner was not aware of his (or her) infirmity at the time of marriage. (Harthan v. Harthan,
1948 2 All E.R. 639) Impotency referred to in S. 12 does not signify sterility or incapacity of
conception; what is referred to is incapacity to have sexual intercourse. Further, it is not
absolutely necessary that the incapacity to perform the act of coitus must be general, because a
person may be generally capable of that act, and yet he may be incapable of it with a particular
individual (as for instance, his own wife). This is sometimes referred to as relative impotency. In
a case before the Andhra Pradesh High Court, a petition for divorce was filed by the wife on the
ground of the husband's impotency. It was shown that the spouses had slept together for four
nights, and thereafter lived together for four months, but the husband could not have sexual
intercourse with his wife. The Court held that such evidence would lead to the inference that he
was impotent, i.e., incapable of having sexual intercourse, and the burden would be on him to
rebut such an inference. (Elizabeth v Stanley, A.I.R. 1985 A.P. 238)
(b) Unsoundness of mind, mental disorder or insanity, as seen earlier, the consent to the marriage
of either party should not be affected by unsoundness of mind, mental disorder or insanity. If this
condition is not satisfied, the marriage is voidable at the option of the other party.
(c) Consent obtained by force or fraud, namely, that the consent of the Petitioner was obtained by
force or fraud as to the nature of the ceremony or as to any material fact or circumstance
concerning the Respondent. Although a marriage under the Act creates a relation, and a status
not imposed or defined by contract, it nevertheless does require the consent of the parties.
Absence of such free consent makes the marriage voidable. In a case before the High Court of
Punjab and Haryana, a material physical deformity of the wife (viz., that her left hand was
partially disabled because of polio in childhood) was not disclosed to the husband and his family
before the marriage. The Court held that, in such a case, it can be said that the husband's consent
was taken by fraud. He was, therefore, entitled to a decree of nullity. (Balbir Kaur v. Maghar
Singh, A.I.R. 1984 Pun. & Har. 417)
Two further conditions are laid down by S. 12, viz.-
(1) that the petition should be presented within a year after the force has ceased to operate, or (as
the case may be), the fraud has been discovered; and
(2) that the petitioner should not have (with his or her consent) lived with the other spouse as
husband or wife, after the force had ceased to operate or (as the case may be), the fraud was
discovered. It is obvious that where consent of a party to a marriage is obtained by force or
coercion or duress, there is absence of a consenting will to marry. Similarly, if the party is kept
under the impression that what is being performed is only the betrothal, or if there is a deception
as to the identity of the other party, there is a fraud, which forms a ground for annulment of the
marriage under Section 12.

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(d) Pregnancy of the Respondent, namely, that the respondent was, at the time of marriage,
pregnant, by some person other than the petitioner.
The basis of this rule is suppressio veri by the woman who was pregnant at the time of the
marriage. Three further conditions have to be satisfied under S. 12 in such cases, viz.- (1) that at
the time of the marriage, the petitioner was ignorant of such pregnancy:
(2) that the petitioner has commenced proceedings under S. 12 within one year of the marriage;
and
(3) that the petitioner did not have (with his consent) marital intercourse with his wife ever since
he discovered that the wife was pregnant by some other man. In Mahendra Nanavati v. Sushila
Nanavati (A.I.R. 1965 S.C. 364), the Supreme Court observed that, under this clause, the
petitioner has to establish such facts and circumstances as would lead the Court either to believe
that the Respondent was pregnant by someone else at the time of the marriage, or to hold that a
prudent man, would, on these facts and circumstances, be completely satisfied that it was so.

29. Note on DIVORCE (Ss. 13-16)?

GROUNDS OF DIVORCE: Ss. 13 and 138 enumerate twelve grounds on which either party to a
marriage can make a Petition to the Court for a decree of divorce dissolving the marriage, it
being immaterial whether such a marriage was solemnized before or after the commencement of
the Act. The section also provides four more grounds of divorce available only to the wife. These
sixteen grounds can thus be divided as follows:
1. GROUNDS OF DIVORCE AVAILABLE TO EITHER HUSBAND OR WIFE (Ss. 13 & 13B)
The following twelve grounds of divorce available to either spouse, i.e. husband or wife:
(1) ADULTERY, namely, that the other party has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her spouse Formerly, to obtain a
divorce on the ground of adultery, the Petitioner had to prove that the other party was living in
adultery which expression would cover a more or less continuous and habitual course of action,
and not isolated acts of immorality However, after the 1976 Amendment, in view of the above
language even one single and isolated act of infidelity would be a sufficient ground for obtaining
divorce.
Adultery has been one of the principal grounds for relief in the matrimonial law of all legal
systems. The term adultery has been defined as consensual sexual intercourse between a
married person and another of the opposite sex during the subsistence of the marriage.
Direct evidence of adultery is not necessary, and the nature of the act is such that it would not
even be reasonable to expect any direct evidence. The Courts have, therefore, observed that
circumstantial evidence is all that can be expected in such cases. The time and place of adultery,
therefore, need not be proved (Barker v. Barker, A.I.R. 1955 Mad. 103)

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Thus, the proof which is required to prove adultery is not proof "beyond a shadow of doubt". As
stated in one English case, such proof "need not reach certainty, but must carry a high degree of
probability". (Miller v. Minister of Pensions (1947) 2 All E.R. 372)
Evidence of sheer opportunity is, however, not enough. There must be something more than
opportunity, as for instance, evidence of inclination or passion. In several cases, where the
evidence consisted of entries in hotel registers and of the respondent being seen in a room with a
woman, the Courts have insisted on further evidence of a background of adulterous association.
Thus, apart from evidence of opportunity, some evidence of disposition on the respondent's part
is also required to be adduced.
A charge of adultery may be based on non-access and a long period of gestation of a child born
to the wife. In Jones v. Jones (1951 1 All E.R. 124), the only evidence of adultery was that a
normal child was born 360 days after the husband had the last intercourse with his wife. The
Court granted a decree in favour of the husband, and observed that it would be a fantastic
suggestion that a normal child born 360 days after the last intercourse was a child of the husband.
Confessions or admission of adultery are admissible in connection with other relevant evidence
on a charge of adultery. However, such confessions, though admissible, are looked upon with
some measure of distrust, and are normally not taken at face value by the Court.
(2) CRUELTY, namely, that the other party has, after the solemnization of the marriage, treated
the petitioner with cruelty. The legal concept of cruelty cannot be defined with any degree of
precision. It would indeed be unsafe to attempt any comprehensive definition which would cover
all cases of "cruelty". Thus, cruelty may be brutal or subtle. It may be physical or "mental. It may
be by words or by gestures or even by mere silence. Cruelty refers to "conduct of such a
character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a
reasonable apprehension of such danger." It is to be noted that two distinct elements are present
in the legal concept of cruelty. Firstly, the ill-treatment complained of, and secondly, the
resultant danger or apprehension of such danger. This apprehension is that further cohabitation
will be harmful or injurious to the aggrieved party.
The culture of the spouses, their age, temperament, standard of living and other relevant
circumstances would have to be taken into account. At one time, it was thought the actual
physical harm (or a reasonable apprehension thereof) was the prime ingredient of cruelty.
However, it is now well-established that this expression is comprehensive enough to cover cases
of mental cruelty also. Indeed, in a given case, mental cruelty may be more serious, and may
cause more grievous injury, than physical cruelty.
Whilst on the point of mental cruelty, a case decided by the Allahabad High Court, deserves
special mention. The unique question before the Court in that case was: If a wife refuses to
prepare tea for the husband and his friends, would this amount to mental cruelty? Answering the
question in the affirmative, the Court observed that such an act on the wife's part certainly hurts
the husband's ego, and causes him humiliation before his friends. This act, along with other acts
on the wife's part (viz., lodging false police complaints against her husband and terminating her

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pregnancy without the husband's consent) were held to constitute a grave form of anguish and
gross mental cruelty. (Kalpana Srivastava v. Surendra Nath, A.I.R. 1985 All. 253)
As observed by the Supreme Court, mental cruelty can be defined as "that conduct which inflicts
upon the other party such mental pain and suffering as would make it impossible for that party to
live with the other." (Bhagat v. Bhagat, A.I.R. 1994 S.C. In Bhagat v. Bhagat (above), it was
held that if wife calls her husband (who, incidentally, was an Advocate) a lunatic, and further
alleges that a streak of insanity ran through his entire family such conduct would amount to
mental cruelty.
The Rajasthan High Court has held that a wife's allegation that her husband is impotent, although
only by way of an abuse, is a serious stigma on the husband's manhood, and is bound to cause
great mental agony and pain to the husband. This would, therefore amount to act to cruelty.
(Shanti Devi v. Raghav Prakash, A.L 1986 Raj. 13) In Shanti Devi's case (above), the wife had
also burnt the thesis of her husband, who was a Lecturer, and this too was held to be an act of
gross cruelty on the wife's part. In one case, a wife of an Army Officer sent a letter to his
superior, falsely complaining about his affair with woman for more than three years, and asking
for his transfer to a field area, and that too, on a high altitude. Copies of the letter were also sent
to the President, Prime Minister, etc. The Court held since the charge of adultery was proved to
be baseless, such conduct was mental torture and humiliation of an extreme kind, and amounted
to cruelty (Jalan v. Jalan, A.I.R. 1988 All. 239)
It may also be noted that an actual intention of one spouse to injure the other is not an ingredient
of this matrimonial offence. The SC has also held that cruelty also includes unintentional cruelty
as for instance where there is repeated demands of dowry by the husband or his relatives (shobha
rani v. madhukar reddi, AIR 1988 SC 121)
The Courts have held that drunkenness by itself is not cruelty but persistent drunkenness despite
several warnings to the effect that such conduct is injuring the health of other spouse may in
given case may amount to cruelty.
Similarly, although accusing the other spouse of infidelity would not, per se, amount to cruelty,
malicious charges of adultery, persistently made in bad faith, may so amount in a given case.
Mere proof that the parties to the marriage are unhappy because of the unruly temper of one of
the spouses would fall short of proof of cruelty. Nor is it enough to show that the other spouse is
moody or whimsical or inconsiderate. Such defects of temperament, like defects of health, are to
be accepted, for better or for worse. Likewise, a solitary instance of emotional outburst or violent
behaviour is not cruelty. (Gangadharan v. Thankam, A.I.R. 1988 Ker. 244) In one case, where a
husband publicly called his wife a 'prostitute and tried to wipe her vermilion mark (on the
forehead at the parting of her hair) by dashing her against a wall, it was held that it amounted to
cruelty. (Saptami Sarkar v. Jagdish, 73 C.W.N. 502). The Gujarat High Court has held that a
wild and reckless allegation made by a husband that his wife was unchaste, would amount to
mental cruelty under the Act. (A v. B. A.I.R. 1985 Guj. 121)

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The Gujarat High Court has held that if a husband insists on having perverted sexual relations
with his wife, such as cunnilingus and fellatio, this would amount to physical cruelty, and entitle
the wit to obtain a divorce on this ground. (A. v. B. A.I.R. 1985 Guj. 121). Likewise, persistent
refusal to have marital intercourse also amounts to cruelty. (Jytish v. Meera A.I.R. 1970 Cal.
266).
The Supreme Court has observed that the concept of cruelty is fast changing. A set of facts
which amount to cruelty in one case may not be regarded as cruelty in another case. The concept
of cruelty is to be viewed against the background of the way of of the parties, their economic and
social condition, their culture sense of values, etc. Therefore, precedents cannot always be relied
upon. (Shobha Rani v. M. Reddi, A.I.R. 1988, S.C. 121)
(3) DESERTION, namely, that the other party has deserted the petitioner for a period of not
less than two years immediately preceding the presentation of the petition. It may be noted that
the concept of desertion (from the point of view of matrimonial law) is not easy to define. It has
rightly been said that no judge has ever attempted to give a comprehensive definition of
desertion, and no judge would probably ever succeed in doing so. It is, however, a well-
established principle of English matrimonial law that desertion is a withdrawal, not from a place.
but from a state of things. (Pulford v. Pulford, 1923 P. 18)
It has also been clarified that the term desertion means desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish of
such party, and includes the willful neglect of the petitioner by the other party to the marriage.
The leading Indian case on desertion is Bipin Chander v. Prabhawati (1956 S.C.R. 838), where
the Supreme Court discussed the term, quoting extensively from Halsbury's Laws of England.
The principles laid down in this case have also been followed by later decisions of the Supreme
Court and other Courts.
In Halsbury's Laws of England, the position is well-summarised in the following words: "In its
essence, desertion means the intentional forsaking and abandonment of one spouse by the other
without that other's consent and without reasonable cause. It is a total repudiation of the
obligations of marriage............. There can be desertion even without previous cohabitation by the
parties or without the marriage having been consummated".
It is now well-established that proof of the factum of separation, which is one of the essential
ingredients of the matrimonial offence of desertion, does not consist merely in ascertaining
which spouse left the home first. It is now well-accepted by the Courts, both in India and in
England, that a spouse may be guilty of such misconduct as would render the continuance of
marital relations so unbearable, that the other spouse is compelled to leave the matrimonial
home. In such a case, it is the former, and not the latter spouse, who is guilty of desertion. This is
sometimes also referred to as constructive desertion. definition of constructive behaviour -
Behaviour by one spouse causing the other to leave the matrimonial home. If the behaviour is so
bad that the party who leaves is forced to do so, it is the spouse who stays behind who is
considered, in law, to have deserted, and not the spouse who actually left. A petition for divorce

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may therefore be brought, after two years, on the ground of desertion by the spouse who
remained behind.
Thus, it has been held that if a husband creates circumstances which compel the wife to leave the
house, it is the husband, and not the wife, who is guilty of desertion. (Asha Handa v. Baldev
Handa, A.I.R. 1985 Del. 76)
It is now well-established that two factors must co-exist to establish desertion. Firstly, there must
be the factum, i.e., the actual separation, and secondly, this must be accompanied by the animus
deserendi, i.e., the intention to desert. Both these ingredients must continue throughout the
statutory period (i.e. two years or more).
In one case, it was shown to the Court that the husband and wife were living separately from
February, 1979. Although the husband was informed of their child's death (in September, 1979),
he did not bother to attend the funeral. he also neglected to pay the maintenance ordered by the
Court. In the circumstances, the Court granted a divorce to the wife, on the ground of her
husband's desertion. (Om Wati v. Kishan Chand A.I.R. 1985 Del. 43)
It will be seen that one of the essential ingredients of desertion is the separation of one spouse
from another. Thus, as a general rule, there can be no desertion when the parties are living
together. However, it has been held, in an English case, that in exceptional cases, there may be
desertion even if the husband and wife are living in the same dwelling place, if there is such a
forsaking and abandonment by one spouse of the other that the Court comes to the conclusion
that the spouses have separate households, (Baker v. Baker (1952) 2 All. E.R, 248)
Lastly, it may be noted that desertion differs from other matrimonial offences (like adultery or
cruelty) in that it does not consist of an act or a series of acts which are separate and distinct in
themselves. Rather, it is an activity or course of conduct which must persist for the statutory
period upto the presentation of the petition. If the period is broken, the broken periods cannot be
added together to make a period of two years.
(4) CONVERSION, namely, that the other party has cease to be a Hindu by conversion to
another religion. Under the ancient, uncodified Hindu Law, there was no rule forbidding the
subsistence of a marriage where one of the parties had ceased to be a Hindu. The Act now gives
a right to the spouse who continues to be Hindu to obtain a divorce on the ground that the other
spouse has ceased to be a Hindu by conversion to some other religion.
The term Hindu, as used in this clause, must be understood the wide sense given to it in S. 2 of
the Act, and would therefore include all Hindus, Buddhists, Jains and Sikhs. Thus, a person will
continue to be a Hindu even if he opts for conversion from, say the Sikh to the Buddhist or Jain
faith. Further, a person does not cease to be a Hindu merely because he is an ardent admirer of
some other religion or if he professes a theoretical allegiance to such other religion. If, however,
he has abdicated the Hindu faith by a clear act of renunciation, and formally converts himself to
the other religion, he would cease to be a Hind under this clause,

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(5) INSANITY, namely, that the other party has been incurably of unsound mind or has been
suffering continuously or intermittently from mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the Respondent.
As observed earlier under S. 5, one of the essential conditions of a valid Hindu marriage is that
neither party should be an idiot or - a lunatic at the time of the marriage. This section deals with
supervening unsoundness of mind and makes it a ground for divorce. 5 The onus of proving
unsoundness of mind will be on the Petitioner, i.e., the spouse seeking divorce on this ground.
Further, the terms "mental disorder" and "psychopathic disorder have also been defined as
follows:
(i) The expression "mental disorder" means mental illness, arrested or incomplete development
of mind, psychopathic disorder or any other disorder or disability of mind, and includes
schizophrenia.
(ii) The expression "psychopathic disorder" means a persistent disorder or disability of mind
(whether or not including sub- normality of intelligence), which results in abnormally aggressive
or seriously irresponsible conduct on the part of the other party, and whether or not it requires
or is susceptible to medical treatment.
Dealing with this ground of divorce, the Supreme Court has cautioned that mere branding of a
spouse as schizophrenic is no sufficient. The degree of mental disorder of the spouse must be
proved to be such that the other spouse cannot reasonably be expected to live with him or her.
(Gupta v Gupta, A.I.R. 1988 S.C. 2260)
In England, the Matrimonial Causes Act, 1950, recognises incurable unsoundness of mind as a
ground for divorce, and requires that the Respondent should have been taking care and treatment
continuously for at least five years before the divorce Petition.
(6) LEPROSY, namely, that the other party has been suffering from a virulent and incurable
form of leprosy. Leprosy was "the dreaded disease" once upon a time. However, modern
medicine has taken great strides in the direction of its treatment, and with the new drugs that are
now available, a scientific approach is warranted when answering the question whether in any
given case, leprosy is virulent or not. Before the 1976 Amendment, it was necessary that such
leprosy should have existed for at least three years before the presentation of the petition. This
minimum requirement of three years is no longer necessary
(7) VENEREAL DISEASE, namely, that the other party has been suffering from venereal
disease in a communicable form. Before the 1976 Amendment, it was necessary that such
venereal disease should have existed for at least three years before the presentation of the
petition. This minimum requirement is no longer necessary.
(8) RENOUNCING THE WORLD, namely that the other party has renounced the world, by
entering any religious order. Under the ancient Hindu Law, if a person entered a religious order,
renouncing all worldly affairs, his action would tantamount to civil death. Under the Act, his
action would afford a ground of divorce to the other spouse.

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Two essential conditions have to be satisfied before a Court can grant divorce under this clause,
viz :-
(1) Such person must have renounced the world.
(2) Such person should have entered some religious order.
Both these requirements must co-exist, and the presence of one of them will not suffice.
It is to be remembered that a person cannot be said to have adopted a religious order merely by
declaring himself to belong to such order. Thus, for example, if a person calls himself a sanyasi,
puts on clothes of a particular color, and shaves his head, he does not thereby become a sanyasi.
He will be deemed to have entered that order only if he has also performed the necessary rites
and ceremonies prescribed for this purpose by the shastras
(9) NOT HEARD OF namely, that the other party has not been heard of as being alive, for a
period of at least seven years, by persons who would naturally have hear of him had he been
alive.
It is a well-established legal presumption that a person can be taken to be dead, if he is not heard
of for a period of 7 years or more, by those persons (like his near relatives and friends) would
have naturally heard of him had he been alive. This is a presumption of legal convenience, and
has been adopted by the Indian Evidence Act also. Under this clause, the fact that for a long
period of seven year (or more), the Respondent has been absent from the Petitioner, and the
Petitioner (and other close relatives) have not heard of him: all, should normally be sufficient
evidence that such a person is dead, and a divorce ought to be granted to the Petitioner. It is to be
noted that a decree of divorce granted under this clause is valid and effective, even if it is
subsequently discovered that the Respondent was in fact alive when the decree was passed.
(10) DECREE OF JUDICIAL SEPARATION, namely, that a decree a for judicial separation
between the parties has been passed and there has been no resumption of cohabitation for period
of at least one year after the passing of such decree.
As pointed out earlier, the scheme of the Act is not to encourage divorce or to enforce conditions
which may cause hardship to the parties. Therefore, a period of one year has been fixed, and this
would give maximum opportunities of mutual adjustment after a decree of judicial separation. If
cohabitation is not resumed during this period, the marriage ought to be regarded as having been
a complete failure, and a decree for divorce can be granted to either party to such a marriage.
It is to be noted that this clause does not confer any absolute or unrestricted right on a spouse to
obtain a divorce. Under S. 23, the Court would still have to be satisfied that there is no bar of any
kind to the granting of such relief. Thus, for example, if the Court is satisfied that the Petitioner
is taking advantage of his own wrong, the Court will decline to grant a divorce, even if the case
falls under this clause. Under this clause, either party to the marriage, and not necessarily the one
who had obtained the judicial separation, can present a divorce petition.

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(11) DECREE OF RESTITUTION OF CONJUGAL RIGHTS, namely, that a decree for
restitution of conjugal rights between the parties has been passed, but there has been no
restitution of conjugal rights for a period of at least one year after the passing of such a decree
Under this clause also, either spouse can present a divorce petition. In other words, this right is
not given only to spouse who had obtained the decree for restitution of conjugal rights.
(12) DIVORCE BY MUTUAL CONSENT (S. 138) A radical concept was introduced in the
Hindu Marriage Act by the 1976 Amendment in the form of S. 13B, dealing with divorce by
mutual consent. Prior thereto, such a divorce was possible only under the Special Marriage Act.
Now, such a divorce can be obtained also under the Hindu Marriage Act, on a petition of both
the parties to the marriage, on the ground
(i) that they have been living separately for at least one year;
(ii) that they have not been able to live together; and
(iii) that they have mutually agreed that their marriage should be dissolved.
After such a petition is presented, on the motion of both the parties made not earlier than six
months from the date of the petition, and not later than eighteen months from that date, if the
Court is satisfied that the averments made in the petition are true, the Court passes a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.
UNILATERAL WITHDRAWAL OF CONSENT. An interesting question arise as to whether
one of the parties can withdraw his or her consent unilaterally at a later stage of the divorce
petition, and whether the Court can proceed to grant a decree of divorce by mutual consent after
such withdrawal.
There has been a conflict of judicial opinion on this point. High Courts of Punjab and Haryana,
Karnataka and Kerala has taken the view that mutual consent for divorce must continue exist
until the Court passes a decree, and if one of the spouse withdraws such consent, the decree of
divorce cannot be passed (H. Kaur v. N.Singh, A.I.R. 1988 P. & H. 27; Prakash Kaur Bikramjit
Singh, A.I.R. 1989 P. & H. 46); Rama Prasad v. Vanama AIR. 1988 Kar. 162; and Mohanan v.
Jeejabai A.I.R. 1988 Ker.
The Bombay High Court has, however, taken a contrary view in Londhe v. Londhe (A.I.R. 1984
Bom. 302). The question was again considered by the Delhi High Court where some of the above
cases were referred to, and the Judge preferred the Bombay view, and held a party cannot
unilaterally withdraw his consent, unless of course, such consent was proved to have been
obtained by force, or undue influence. (Chander Kar v. Hans Kumar, A.I.R. 1989 Del. 73)
Interestingly, when the same question came up before the Supreme Court, it left the question
open, although in the facts of the case, divorce was granted although the wife had unilaterally
withdrawn her consent. (Ashok Hurra v. Rupa, (1997) 2 SCC 22.
2. GROUNDS OF DIVORCE AVAILABLE TO THE WIFE ONLY
four additional grounds are available only in those cases where the wife applies for a divorce:
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(1) BIGAMY, namely, that in the case of a marriage solemnized before the commencement of
the Act, the husband has married again before such commencement, or that any other wife of the
husband, married before such commencement, was alive at the time of the Petitioner's marriage.
This ground can obviously exist only in the case of a marriage solemnised before the Act came
into force. As regard marriages solemnised after the Act, under Ss. 5 and 11, such marriages
would be bigamous and void ab initio, and there would naturally be no question of divorce in
such cases. It is also necessary under this clause that the other wife should be alive at the time
when the Petition is presented to the Court. It will be seen that this remedy is available to a wife,
irrespective of the fact that the other marriage had taken place before or after the marriage of the
petitioner wife with him. Thus, the remedy is available to the first as well as the subsequent
wives.
(2) RAPE, SODOMY OR BESTIALITY, namely, that the husband has been guilty of rape,
sodomy or bestiality after the solemnization of the marriage. Rape refers to the ravishing of a
woman, whereas sodomy and bestiality refer to carnal intercourse by a man against the order of
nature with another man or with an animal, respectively. Although these are also offences under
the Indian Penal Code, a divorce would be granted even if the husband has not been convicted of
any of these offences in any criminal proceedings.
(3) DECREE OR ORDER AWARDING MAINTENANCE, namely, that in a suit under S. 18 of
the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under S. 125 of the
Criminal Procedure Code, 1973, a decree or order has been passed against the husband awarding
maintenance to the wife (notwithstanding that she was living apart), and that since the passing of
such decree or order, cohabitation between the parties has not been resumed for one year or
more.
4) REPUDIATION OF THE MARRIAGE, namely, that the marriage was solemnised before
the wife attained the age of fifteen years, and that she has repudiated the marriage after attaining
that age, but before attaining the age eighteen years.
For the purposes of this ground of divorce, it is immaterial whether the marriage was
consummated or not.
When the Hindu Marriage Act came into force, one of essential conditions of a valid Hindu
marriage was that the bride should be at least fifteen years old. This age was raised to eighteen in
1978. However, in case of a marriage before the 1978 Amendment, even if the bride was under
fifteen, such a was not void or voidable; only the parties to such a marriage were liable to
imprisonment, or fine, or both. This provision now enables a wife in such a case to obtain a
divorce, provided that she has repudiated the marriage before she becomes eighteen years old.
SUMMARY OF GROUNDS OF DIVORCE
Twelve Grounds available to both husband and wife: (1) Adultery, (2) Cruelty, (3) Desertion,-
for a continuous period of two years or more before the Petition is filed, (4) Conversion, (5)
Insanity, (6) Leprosy, provided it is virulent and incurable, (7) Venereal disease in a
communicable form, (8) Renouncing the world, (9) Not heard of, for seven years or more, (10)

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Judicial separation decreed, and no cohabitation for one year after the decree., (11) Restitution of
conjugal rights decreed, and no cohabitation for one year after the decree., (12) Divorce by
mutual consent
Four grounds available only to the wife: (1) Bigamy, (2) Rape, sodomy or bestiality, (3)
Maintenance decreed to the wife, and no cohabitation for one year after the decree, (4) Wife was
under 15 when she was married, and had repudiated the marriage before she is 18
Whether a Hindu marriage can be dissoved by execution of a deed of dissolution of
marriage. In Subramani and Others v. M. Chandralekha (AIR 2005 SC 485), the Supreme Court
was faced with the question as to whether a marriage under the Act could be dissolved by the
husband and the wife executing a document of dissolution of marriage. The Court held that in the
absence of any pleadings that marriages between a husband and his wife could be dissolved in
their community under a custom and in the absence of leading any satisfactory evidence to prove
a custom prevalent in community or the procedure to be followed for thus dissolving a marriage,
the marriage between the parties could not be dissolved merely by executing a marriage
dissolution deed.
30. WHEN A DIVORCE PETITION CAN BE PRESENTED (S. 14)
It is provided that at least one year should have elapse between the date of marriage and the
presentation of a Divorce Petition. This provision is enacted for the dual purpose of not
encouraging divorce, and also for providing adequate time for the spouses to make up their
differences.
It is further provided that in a fit case, the Court may, by special leave, allow a Petition to be
presented even before one year after the marriage, on the ground that the case is one of
exceptional hardship to the Petitioner or of exceptional depravity on the part of the Respondent.
This provision thus enables the Court to exercise its discretion in exceptional cases.
31. WHEN DIVORCED PERSONS CAN RE-MARRY (S. 15)
Formerly, it was provided that when a Hindu marriage had been dissolved by a decree of
divorce, either party could marry again after the one year had elapsed from the date of the decree
in the Court of the first instance, provided that -
(a) there was no right of appeal against the decree; or
(b) if there was such a right of appeal.
(i) the time for appealing had expired without an appeal having been filed; or
(ii) an appeal had been filed and dismissed.
This rule was founded on the well-recognized principle that it would be contrary to good morals
and public policy that a divorced person should be allowed to re-marry some other person with
indecent haste. The rule was intended to ensure that a divorce was obtained as an extreme
remedy, and not for the sheer purpose of marrying some other person. However, this one-year
restriction was, removed by the 1976 Amendment, with the result that it is now open to persons
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divorced under the Act to marry at any time after the divorce, provided that conditions (a) and
(b) above are satisfied.

32. POWERS AND DUTIES OF THE COURT: BAR TO MATRIMONIAL RELIEF?

The following rules, laid down by S. 23, relate to the powers and duties of the Court in the matter
of granting any of the reliefs referred to in the Act. No relief can be granted to the Petitioner if
any of the absolute bars (listed below) apply to the facts of the case.
(1) A decree for restitution of conjugal rights (S. 9), judicial separation (S. 10), declaration of
nullity of marriage (S. 11), annulment of a voidable marriage (S. 12) or divorce (S. 13) can be
granted only when any ground for granting the relief asked for is established to the satisfaction of
the Court.
(2) The Petition must be dismissed if the Court is satisfied that the Petitioner, though able to
establish the ground for granting relief, is, in any way, taking advantage of his (or her) own
wrong or disability.
(3) Likewise, the Petition must be dismissed if the Court is satisfied that the Petitioner has, in
any manner, been accessory to, or has connived at or condoned, the acts of adultery, or has, in
any manner, condoned the cruelty of the Respondent.
(4) Similarly, the Petition (not being a Petition presented under S. 11), must be dismissed if the
Court is satisfied that there is any collusion between the parties.
(5) The Court would also dismiss the Petition if there has been any unnecessary or improper
delay in instituting the proceedings.
(6) The Petition may also be dismissed, when a divorce is sought on the ground of mutual
consent, if such consent has been obtained by force, fraud or undue influence.
7) The Petition would be dismissed also if there is any other legal ground for not granting the
relief.
It is also expressly provided that before granting relief under the Act, it is the duty of the Court to
make every endeavour to bring about a reconciliation between the parties wherever it is possible
to do so.
In order to aid the Court in bringing about such reconciliation, the Court may adjourn the
proceedings for a reasonable period (no exceeding fifteen days) and refer the matter to any
person named by the parties or nominated by the Court (if the parties fail to name a person) Such
a person must report to the Court as to whether a reconcilable can be, or has been, effected, and
the Court must have due regard to this report when disposing of the matrimonial proceedings.
The above rules apply as much to ex parte proceedings as to proceedings which are defended or
contested by the other side. Lastly, when a Court passes a decree of divorce dissolving a
marriage it must give a copy of the decree, free of cost, to both the parties.

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 33. Note on MAINTENANCE & PERMANENT ALIMONY (Ss. 24 and 25)?
MAINTENANCE PENDENTE LITE AND EXPENSES OF PROCEEDINGS (S. 24): Under the
English matrimonial system, the right of a wife for maintenance is a well-recognized incident of
the status of matrimony. Generally speaking, therefore, it would be the duty of the husband to
pay the wife's costs in any matrimonial proceedings, and also to provide such maintenance and
support pending the disposal of such proceeding. S. 24 not only recognizes these principles, but
goes a step further to lay down that such an order can be made by the Court even in favour of the
husband.
S. 24 provides that in any proceedings under the Act. if the Court is of the opinion that either the
wife or the husband has no independent income for her or his support and the necessary expenses
of the proceedings, it may, on the application of one spouse, order the other spouse to pay -
(i) the expenses of the proceedings; and
(ii) during the proceeding, such sum monthly, as the Court feels reasonable, having regard to the
income of both the spouses.
It may be noted that an analogous provision has been made in the Special Marriage Act, 1954,
with the important difference that under that Act, it is only the wife who can claim alimony
pendente lite. (i.e. alimony during the pendency of the Court proceedings). If the decision of the
Court in the matrimonial matter is appealed against, the Appeal Court would also have a similar
power. In England, the Appeal Court does not have such power.
S. 24 makes it clear that the costs of the proceedings and alimony pendente lite can be ordered to
be paid in any proceedings under the Act, viz., for restitution of conjugal rights, judicial
separation, divorce, or nullity of a void or voidable marriage. The mere fact that the Respondent
denies the factum of the marriage is no bar to the power conferred on the Court by this section.
Such applications are to be disposed of, as far as possible, within sixty days from the date of
service of notice on the respondent husband or wife.
It is clear that the Court has ample discretion in passing such an order, and the amount of interim
maintenance that one spouse may be ordered to pay to the other will be such as appears
reasonable to the Court in the exercise of such discretion. In exercising this discretion, the Court
takes into consideration, the income of the spouse who makes such an application, as also the
income of the other spouse, i.e., the spouse who is ordered to pay the expenses and alimony
pendente lite.
The Madras High Court had held that under S. 24, interim maintenance should be a "reasonable"
amount. This is not restricted to one-fifth of the husband's income, as is the position under the
Divorce Act, 1869. Also, the fact that the wife's brother is an income-earner is not a valid ground
for refusing interim maintenance to her. In the case before the Court, a sum of Rs. 150 per month
granted to the wife by the lower court was held to be reasonable. (Rajendran v. Gajalakshmi,
A.I.R. 1985 Mad. 195)

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In a case decided by the Bombay High Court, it was pointed out that S. 24 of the Act speaks of
fixing a reasonable amount. Therefore, the question is essentially one of balancing several
competing claims. The Court held that, ordinarily, reasonableness would require that the wife
should be ensured of the same amenities and comforts as she was getting when residing with her
husband minus the reduction brought about by separation and creation of two establishments.
(Dinesh Mehta v. Usha Mehta, (1978) 80 B.L.R. 298)
The Supreme Court has held that the main consideration for the grant of maintenance pendant
lite is whether the spouse seeking such maintenance has independent income which is sufficient
for his or her support. Once it is shown that he or she does not, the court is bound to grant
maintenance and the only discretion left with the court is as regards its quantum. (Amarjit Kaur
v. Harbhajan Singh, (2003) 10 SCC 228)
If the court orders it, interim maintenance is an order instructing the other party to pay them a
fixed amount of money each month until the divorce is over.
PERMANENT ALIMONY AND MAINTENANCE (S. 25): Whereas the previous section (S. 24)
deals with alimony pendente lite, S. 25 makes provisions for permanent alimony and
maintenance, and provides that a Court may, at the time of passing any decree (or even at any
time subsequent thereto), on the application made by the wife or the husband, order that the other
spouse shall pay to applicant, for his or her maintenance or support, such gross sum or monthly
or periodical sums as the Court deems just. In case the Court orders a monthly or periodical sum,
such a sum can be for any term not exceeding the life-time of the applicant.
In making an order under S. 25, the Court must have regard to-
(i) the respondent’s own income and other property, if any;
(ii) the income and other property of the applicant;
(iii) the conduct of the parties; and
(iv) the other circumstances of the case.
Further, the payment ordered by the Court may be secured, if necessary, by a charge on the
immovable property of the Respondent.
Formerly, such an application could be made to the Court only if the applicant had not remarried.
However, this restriction was removed by the 1976 Amendment.
It will be seen that an order for permanent alimony or maintenance under this section can be
made not only in favour of the wife, but also in favour of the husband. In making this provision,
S. 25 makes a bold departure for analogous matrimonial legislation. Even under the Special
Marriage Act, 1954, it is only the wife who is entitled to alimony or maintenance.
In Narayanaswami v. Padmanabhan (1966 A.M. 394), the Court held that a second wife, whose
marriage with the Respondent was a nullity on the ground that he had a wife living at the time of
his marriage with her, is not entitled to alimony or maintenance under this Section. It is
submitted with respect that this view is not sound, because S. 25 would also cover the case of a
marriage which is void under S. 11, read with S. 5 of the Act.

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In a case before the Bombay High Court, an interesting question arose as to whether a Hindu
woman, whose marriage has been declared null and void, is entitled to maintenance from her
former spouse. On behalf of the husband, it was argued that the words "wife" and "husband"
used in S. 24 of the Act could mean only a lawfully wedded Hindu wife and a lawfully wedded
Hindu husband. Rejecting this argument, the Court held that these words would include persons
who have gone through a ceremony of marriage, which would have conferred the status of a
husband and wife them, but for the provisions of S. 5. and S. 11 of the Act. Moreover S. 25
allows the Court to award maintenance at the time passing any decree under the Act. Now, a
decree for nullity is one such decree, and therefore, a Court can award maintenance in such cases
also. (Govindrawo Mulsale v. Anandibai Mulsale, 79 B.L.R. 73)
It is also provided that if the Court is satisfied that there is any change in the circumstances of
either party at any subsequent time it may, at the instance of either party, vary, modify or rescind
earlier order passed by it. Further, if the Court is satisfied that the spouse in whose favour an
order has been made has re-married, it can rescind the order. The Court can similarly rescind the
order if it is satisfied, in the case of the wife that she has not remained chaste, or in the case of a
husband that he had sexual intercourse with any woman outside wedlock. Lastly, it must be
remembered that the right to maintenance is a statutory right, and therefore, a party cannot
contract himself (or herself) out of the same. Thus, a wife cannot bind herself under an
agreement with her husband to forgo her right of applying to the Court for maintenance in case
of matrimonial proceedings between them. (Hayman v. Hayman, 1929 A.C. 601)

34. Note on Maitri Karar?

This may be a little known fact, but India has been, and continues to be, home to a range of
bigamous relationships. We have such 'arrangements' in the form of 'maitri karar' in Gujarat, nata
patra' in Rajasthan, and so on.
Perhaps the most imaginative and innovative alternate to bigamy practised in Gujarat (until
officially banned by the government) was the companionship contract' or the 'maitri karar. When
the government banned such connived carnal contracts, a host of other extra-marital devices
cropped up to circumvent the Hindu matrimonial law of monogamy and the provisions of the
Indian Penal Code relating to bigamy. Some of them took the shape of service contracts, whilst
others were called caretaker arrangements, still others were termed guardianship agreements and
some were even called 'nursing contracts'.
The system appears to have originated in Gujarat, where a man and a woman would enter into a
"friendship agreement" before a magistrate, popularly known as "maitri karar", which has given
a new dimension to commercial sex. A typical form of such an agreement would be by way of an
affidavit on a stamp-paper of Rs. 10, signed by both the parties, two witnesses and a Sub-
Registrar, who would affix his seal on the document thus giving the 'other woman' a false sense
of legal security. It is common knowledge that this practice was rampant in Gujarat in the 60's
and 70's and was reportedly followed by many Ministers and senior bureaucrats.

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The maitri karar often took the form of a pact between a married Hindu man and his 'other
woman' to circumvent the provisions of the Hindu Marriage Act, which prohibits the re-marriage
of such a man as long as the wife is alive and not divorced from him. Thus, the agreement was
essentially a method to bypass the stringent provisions of the said Act and enter into an
undeclared second marriage. Though not legally enforceable, the document was meant to give
solace and a sense of security to such 'other woman'. As rightly pointed out, it is often the
Muslims who are targeted for their matrimonial practices. However, the fact is that Hindus are
also involved in polygamous practices. In fact, as many as 29,951 cases of maitri karar were
found officially registered at the District Collectorate in Gujarat several years ago.
In Minaxi Zaverbhai Jethwa v. State of Gujarat, in the judgement of Calla J., delivered on
December 15, 1999, the court declared a maitri karar to be void ab initio in plain terms. It was
clear that such contractual live-in arrangements made a mockery of the sanctity of marriage.
Apart from the parties themselves those also to blame were unscrupulous lawyers and
government officials who turned a blind eye to such happenings. Such 'registered liaisons were
also cited as one of the reasons for the rising rate of suicides committed by Gujarati woman in
those days.
The problem assumed such gigantic proportions that the Gujarat government ultimately passed
an Act in 1982, prohibiting such love- pacts (by whatever name called), making them punishable
with rigorous imprisonment upto five years and a fine upto Rs. 5,000. In one interesting case, a
wife approached a court in Gujarat, seeking to restrain her husband from entering into such a
contract arguing that such extra-marital relations of her husband with another woman would
curtail her conjugal rights as a wife. When the city civil Judge granted the injunction against the
husband, the other woman threatened to sue the wife for defamation and promptly the wife's
parents tendered an unconditional apology!
35. Note on guardianship under MINORITY AND GUARDIANSHIP?
The law of guardianship is based on the incapacity which the law attributes to minors and to
persons who are deficient in mental capacity (e.g, lunatics and idiots). It is presumed that such
persons are incapable of looking after themselves or of maintaining their property or entering
into a contract. It is, therefore, necessary to entrust the management of their affairs to proper
guardians. It follows from this proposition that a minor cannot himself be a guardian of another
minor.
The general law relating to guardianship is contained in the Guardians and Wards Act, 1890.
This is an Act which applies to all persons in India, including Hindus. However, as far as Hindus
are concerned, the law on this point is also to be found in the Hindu Minority and Guardianship
Act, 1956, which came into force on 25th August, 1956. The provisions of this Act are in
addition to, and not in substitution or derogation of, the Guardians and Wards Act. Thus, if the
Act is silent on any particular point, the Guardians and Wards Act would apply. Again, if
different provisions are made by these Acts on the same point, those of the Hindu Minority and
Guardianship Act will apply in the case of Hindus.

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Apart from these two Acts, the Hindu Marriage Act, 1955, also declares certain persons to be
guardians in marriage. Other instances of guardians are de facto guardians, guardians ad litem,
ad hoc guardian and the Karta of Hindu Joint Family, who acts as a guardian of the minor
members of the family.
DEFINITIONS (S. 4):
"Minor": For the purposes of this Act, a minor is a person who has n completed the age of
eighteen years.
"Guardian": The term "guardian" is defined as follows: Guardian means a person having the
care of the person of minor, or his property, or of both his person and property, an includes
(i) a natural guardian;
(ii) a guardian appointed by the will of the minor's father or mother (testamentary
guardian);
(iii) a guardian appointed or declared by a Court; and
(iv) a person empowered to act as such by or under an enactment relating to any Court of
Wards.
CHANGES BROUGHT ABOUT BY THE ACT: The basic changes brought about by the Hindu
Minority and Guardianship Act, and the specific principles of minority and guardianship (under
the uncodified law) which have been repealed by the Act, may be summarized as follows:
1. The age of minority amongst Hindus has been made the same as under the general law (viz.,
eighteen years (See S. 4.)
2. The long list of natural guardians existing under the Hindu Law has been reduced to three
only, namely, father, the mother and the husband.
3. Some control has been imposed over the powers of natural and testamentary guardians
4. It has been provided that a de facto guardian has no power to deal with a Hindu minor's
property. Prior to the Act, de facto guardian had the power to alienate property and bind the
minor's estate by such alienations (which could even include the immoveable property of the
minor.)
5. The right of a father to appoint a guardian for the minor by will, during the lifetime of the
mother, has been taken away.
6. The Act has vested the mother with the power to appoint by will, a guardian, who would act in
preference to guardian appointed by the father in certain cases.
7. Under the Act, the custody of a minor child below 5 years is ordinarily to be with mother.
Under the uncodified Hind law, the father was entitled to the custody of such a child

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NATURAL GUARDIANS OF LEGITIMATE AND ILLEGITIMATE CHILDREN (Ss. 6
and 7)
section 4 of the Act lays down that a "natural guardian" means any of the guardians mentioned in
S. 6, which lays down a few rules which show as to who are the natural guardians of a Hindu
minor. It provides that the natural guardians for a minor's person, as well as his property, are:
(a) In the case of a boy or an unmarried girl- the father, and after him, the mother. (However, the
custody of a minor who has not completed the age of five years is to be ordinarily with the
mother.)
(b) In the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her,
the father.
(c) In the case of a (minor) married woman- the husband.
It is interesting to note that if a Hindu widow remarries, she does not lose her preferential right of
guardianship over her minor children by the deceased husband. The right of the mother to act as
the natural guardian of her children after the father is absolute and unconditional.
Section 6 also provides four disqualifications, which would prevent a person from acting as a
natural guardian of a Hindu minor, namely:
1. If such a person has ceased to be a Hindu.
2. If he has completely and finally renounced the world by becoming a hermit (vanaprastha) or
an ascetic (yati or sanyasi).
3. If such person is the step-father.
4. If such person is the step-mother.
Section 7 of the Act lays down the rule of Hindu Law, that guardianship of an adopted son, who
is a minor, passes on his adoption, from the natural father and mother to the adoptive father and
mother.
This section speaks only of an adopted son, but makes no mention of an adopted daughter. The
uncodified Hindu Law also did not recognise the adoption of a daughter. However, it may be
noted that the Act came into force before the passing of the Hindu Adoptions and Maintenance
Act, 1956, which now recognises adoption of a daughter also, and confers that right both upon a
male and female Hindu. S. 12 of that Act provides that 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. The effect of this Section would be that the adoptive father and mother would be
regarded as the natural guardians of the adopted child, in keeping with the rules relating to the
law of adoption laid down in that Act.
POWERS OF A NATURAL GUARDIAN (S. 8)
Section 8 deals with the powers of a natural guardian, with special reference to immoveable
property. Prior to the passing of the Act, a natural guardian of a minor had very wide rights, and
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he could sell, mortgage, charge or otherwise dispose of the minor's property without the sanction
of a Court, provided such an alienation was in the minor's interest. After the passing of the Act, it
is now provided, by Section 8 of the Act, that the natural guardian of a Hindu minor has power to
do all acts which are necessary or reasonable and proper-
(i) for the benefit of the minor, or
(ii) for the realization, protection or benefit of the minor's estate.
However, the previous permission of the Court is required in the following two cases, viz.-
(i) Cases where the guardian wishes to mortgage or charge, or transfer by sale, gift, exchange
(or otherwise), any part of the immoveable property of the minor; and
(ii) Cases where the guardian wishes to lease any part of the immoveable property of the
minor-
(a) for a term exceeding five years; or
(b) for a term exceeding more than one year beyond the date on which the minor would
attain majority.
The Act expressly provides that any disposal of immoveable property of a minor by his natural
guardian in contravention of what is stated above, is voidable at the instance of the minor or any
person claiming under him. This rule is obviously for the protection and benefit of the minor.
Such a transfer, it may be noted, is not void, but merely voidable at the minor's instance, which
means that he can repudiate it, or adopt it if he so chooses.
Section 8 also clarifies that in no case can the natural guardian bind the minor by a personal
covenant. The position under the Guardians and Wards Act is also the same. It may also be noted
that although the Court's permission is Necessary for an alienation of the minor's property, no
such permission is necessary for purchase of property for a minor.
When an application is made to the Court for the alienation of a minor's property, the Court
would have to be satisfied that such a transfer is made for an evident advantage to the minor or
because of a necessity. The provisions of the Guardians and Wards Act apply to such an
application, as if the application was made under that Act. Consequently, the Court may attach
conditions to its permission. Thus, it may order that the sale should not be completed without the
sanction of the Court, or that the sale should be made to the highest bidder at a public auction,
and so on.
TESTAMENTARY GUARDIANS AND THEIR POWERS (S. 9)
Section 9 of the Act has introduced some important changes in the law relating to testamentary
guardians of a Hindu minor. Prior to the passing of the Act, a Hindu father could nominate a
guardian of his children, so as to exclude even the mother from guardianship. Even in cases
where the father was dead, the mother did not have the power to appoint a testamentary guardian,
i.e. a guardian appointed under a will.

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Section 9 now provides that a Hindu father, who is entitled to act as the natural guardian of his
minor legitimate children, may, by will, appoint a guardian for the person or property (or both)
of such children. However, no such testamentary guardian can be appointed by the father of the
undivided interest of the minor in joint family property.
An appointment of a testamentary guardian under the above provisions has no effect if the father
dies before the mother (because, in that case, the mother automatically becomes the natural
guardian under Section 6). However, such an appointment would revive if the mother dies
thereafter, without appointing a guardian under her will. Thus, the Act ensures that a father
cannot appoint a testamentary guardian, so as to exclude the mother from her right to act as the
natural guardian of her children under Section 6.
Under the earlier uncodified law, the mother had no right to appoint a testamentary guardian.
However, the present Section also confers the right to appoint a testamentary guardian of minor
children on the mother in certain circumstances. It provides that a Hindu widow, who is entitled
to act as the natural guardian of her minor legitimate children, and a Hindu mother who is
entitled to act as the natural guardian of her minor legitimate children, may, by will, appoint a
guardian for the person or property (or both) of such minor children but not in respect of the
undivided interest of the minor in the joint family property
Likewise, a Hindu mother who is entitled to act as the natural guardian of her minor illegitimate
children, can also, by will, appoint a guardian for the person or property (or both) of such
children. thus it will be seen that the father does not have the right to appoint a testamentary
guardian of his illegitimate children, as the mother is the natural guardian of such children, and it
is only after her death that the father can act as the natural guardian of his illegitimate children.
It has also been expressly provided that when a testamentary guardian is appointed in the case of
minor girl, the rights of such a guardian cease when the girl gets married. This is so because after
her marriage, her husband would become her natural guardian
POWERS OF A TESTAMENTARY GUARDIAN
Under the old, uncodified law, a testamentary guardian nominated by the father had very wide
powers, and could deal with the minor's property only subject to the restrictions, if any,
contained in the father's will. Thus, in the absence of any such restriction, he could mortgage, sell
or otherwise dispose of the minor's property without the sanction of the Court.
Now, under S. 9 of the Act, the powers of such a guardian are considerably curtailed, and he can
exercise only the rights of a natural guardian, subject to the restriction, contained in S. 8 (above)
and also subject to the restriction, if any, contained in the will appointing him as such guardian.
Thus, for instance, under the earlier law, a testamentary guardian could sell a considerable
portion of the minor's immoveable property, if circumstances warranted such sale. Now, the
guardian would (as a result of the combined effect of S, 8 and S. 9 of the Act) require the
previous permission of the Court before doing so.
INCOMPETENCY OF A MINOR TO ACT AS GUARDIAN OF ANOTHER MINOR'S
PROPERTY (S. 10)

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The Guardians and Wards Act recognizes, by implication, that a minor may act as the guardian
of the property of his minor wife or child. This rule is now superseded (as far as Hindus are
concerned by S. 10 of the Act, which provides that a minor is incompetent to act as the guardian
of the property of any Hindu minor. It is to be noted that this Section only prohibits a minor from
being the guardian of the property of any other minor. Thus, his right to act as the natural
guardian of the person of say, his minor wife and children, is still preserved.
DE FACTO GUARDIANS (S. 11)
Section 11 brings about a material change in the law relating to de facto guardians, by providing
that, after the commencement of the Act, no person can dispose of, or deal with, a Hindu minor's
property, merely on the ground that he (or she) is de facto guardian of the minor.
It has rightly been observed that in the eyes of the law, there is nothing like a de facto guardian.
Undoubtedly, the term is used in Section 11 to refer to a person who has taken upon himself the
general management of a minor. However, it is better to describe such a person as a de facto
manager. This term would thus cover relatives and friends who are interested in a minor who
has no legal guardian, and who, therefore, take upon themselves, the management of his estate,
out of their love and affection for him.
In Hunooman Prasad Pandey's case (6 M.I.A. 393), the Privy Council had held that a de facto
guardian has the same power as a natural guardian as far as alienating the minor's property is
concerned. Section 11 now does away with the authority of any person to deal with or dispose of
a minor's property on the ground that he is the de facto guardian of such a minor. The Patna
High Court has held that S. 11 of the Act cannot be pleaded as a bar to the disposal of the joint
family property by the Karta (manager) of a joint family for a legal necessity. (Nathuni Mishra
v. Mahesh, A.I.R. 1963 Pat. 146)
Under the uncodified law, a daughter could not be adopted. The Hindu Adoptions and
Maintenance Act, 1956, recognizes adoptions of both a son and a daughter.
DEFINITIONS (S. 3)
"Maintenance": Maintenance has been defined to include-
(i) in all cases, provision for food, clothing, residence, education. and medical attendance and
treatment; and
(ii) in the case of an unmarried daughter, also the reasonable expenses of, and incidental to,
her marriage.
The Kerala High Court has observed that the expression "maintenance" includes the basic
requirements of life. The Court added that this responsibility cannot be avoided by one parent by
pleading that such liability is been taken up by the other parent. (T Kumar v. R. Nair, A.I.R.
1985 Ker. 20)
"Minor": A minor is defined to mean a person who has not complete his or her age of eighteen
years.

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36. Changes brought about by the Hindu Adoption and Maintenance Act?
1. As to persons who can adopt. –
(a) Under the previous law, only a male could adopt, and that too, only a son. Ss. 7 and 8 d
the Act now lay down that both a male and a female Hindu can take a son or daughter in
adoption, provided the other conditions of a valid adoption prescribed by the Act are
satisfied.
(b) Formerly, a wife could not adopt a son to herself, i.e., in her own right; a wife could only
adopt a son to her husband, but she could not do so during her husband's lifetime, except with
his express consent. Under the Act (as amended in 2010). it is now competent to female
Hindu to take a son or a daughter in adoption to herself (i.e., her own right) in certain
circumstances. (See S. 8 of the Act.)
(c) Under the old Hindu Law, the consent of the wife was not required to validate an
adoption by the husband, whereas under the Act, such consent is necessary.
(d) An unmarried girl could not adopt at all under the uncodified Hindu Law; now, there is
no such bar under the Act.
(e) Under the uncodified law, after the death of her husband widow could adopt a son, in
certain parts of India, if he had expressly authorized her to adopt, and in other parts of India,
even without such authority. S. 8 recognizes the right of a Hindu widow to adopt a son or
daughter, provided, of course, the other requirements and conditions laid down in the Act are
fulfilled.
2. As to persons who can give in adoption.
(a) Formerly, the only persons who could give a child in adoption were the father and the
mother. S. 9 of the Act re-affirms this position, but it also lays down that when both the
father and the mother are dead or disabled from exercising this right by reason of mental
incapacity, renunciation of the world, etc., the guardian of the child can give the child in
adoption with the previous permission of the Court.
(b) Under the old Hindu Law, the mother's consent was not necessary when the child's father
exercised his right to give in adoption. Now, under the Act, he cannot exercise this right
without the mother's consent.
3. As to persons who can be adopted. –
S. 10 of the Act has introduced certain radical changes in the previous uncodified law as regards
the persons who can be adopted. Formerly, the law on this branch of the subject was not uniform,
and there was a divergence of judicial opinion on certain aspects of the matter. S. 10 now lays
down some simple rules on the point, applicable to all Hindus. The main changes introduced by
S. 10 may be summarized as follows:
(a) Formerly, the person to be adopted had to be a male, since adoption of a daughter was not
recognized. Now, adoption can be of a son as well as of a daughter.
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 (b) Formerly, the person to be adopted had to belong to the same caste as his adoptive father.
Thus, a Brahmin could not adopt a Kshatriya, and so on. Now, no restrictions are imposed by
the Act as regard the caste of the child and his adoptive parent.
(c) Formerly, a near relative had to be taken in adoption in preference to strangers. The Act
contains no such restriction, i.e., now a stranger may be adopted even if there are near
relatives.
(d) Formerly, there was a difference of opinion between the various schools of Hindu Law as
to the age of the son to be adopted. Now, it is provided, by S. 10 of the Act, that the son or
daughter to be adopted must not be more than 15 years old- unless there is a custom or usage
to the contrary.
(e) Formerly, there was a difference of opinion among the various schools of Hindu law as to
whether a married person could or could not be adopted. Now, it is provided by S. 10 of the
Act that the son or daughter to be adopted must not be a married person- unless there is a
custom or usage to the contrary.
(f) Under the earlier uncodified law, it was laid down that the person to be adopted could not
be a boy whose mother the adopting father could not have legally married. There is no such
restriction in the present Act.
g) Under the uncodified law, an orphan could not be adopted, now there is no such bar under
the Act.
4. As to conditions of a valid adoption
(a) Formerly, conflict of opinion as to whether datta homam (i.e., oblations of clarified butter
to fire) was necessary for a valid adoption, and there was a conflict of opinion on this point.
Now, S. 11 clearly lays down that the performance of datta homam is not essential to the
validity of an adoption
(b) S. 11 lays down that in the case of adoption of a daughter by a male Hindu, the daughter
must be at least 21 years younger than the adoptive father. There was no similar rule under
the previous law.
(c) Likewise, S. 11 lays down that in the case of adoption of a son by a female Hindu, the son
must be at least 21 years younger than the adoptive mother. There was no similar rule under
the previous law.
5. As to effect of adoption.
Under the old law, the rule that an adopted son had, in matters of succession, the same rights as a
natural-born son, was subject to certain exceptions. These exceptions have now been abolished
by S. 12, and the adopted son or daughter is, for all purposes of succession, to be deemed to be
the natural-born child of the adoptive parents.
6. As to maintenance. –

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 (a) S. 20 of the Act gives statutory - recognition to the obligation of a Hindu to maintain his
children and his aged or infirm parents. However, the section goes a step further and lays
down that, not only a male Hindu (as was prescribed by the earlier, uncodified law), but also
a female Hindu is under a like obligation.
(b) Formerly there was no provision in Hindu law for the maintenance of illegitimate
children. Now, under S. 20 of the Act such children also can claim maintenance during their
minority.
(c) Before the passing of the Act, a wife could claim separate residence and maintenance, if
the husband married again during her lifetime. Now, under the Act, the mere existence of
more than on wife does not entitle any one of them to claim separate residence and
maintenance.
(d) Under the Act, unchastity of a widow is not a ground for refusing her maintenance,
although she would forfeit such right re-marriage as under the old law also.
(e) Before the passing of the Act, conversion to another religion did not disentitle a person to
claim maintenance. Now, it has been made a necessary prerequisite that the claimant should
be a Hindu.
(f) Lastly, the Act has widened the list of persons who are entitled to maintenance from the
property of a deceased Hindu.

36. Note on OBJECTS OF ADOPTION? Essentials of valid adoptions?

The objects of adoption are two-fold. The first object is religious, namely, to secure spiritual
benefit to the adopter and his ancestors by having a son to offer funeral cakes and libations of
water. The second object of adoption is secular, namely, to secure an heir and perpetuate the
name of the adopter. (Sitaram v. Harihar, (1911) 35 Bom. 169)
REQUISITES OF A VALID ADOPTION (Ss. 5 to 11): S. 5 of the Act lays down that all
adoptions made after the Act came into operation are to be regulated and governed by the
provisions of the Act.
Four important requisites of a valid adoption, are mentioned in S. 6, as follows:
(a) The person adopting should have the capacity, and also the right, to take in adoption.
(b) The person giving in adoption should also have the capacity to do so.
(c) The person who is adopted should be capable of being taken in adoption.
(d) The adoption should be made in compliance with the other conditions mentioned in the Act.
The above requirements are cumulative, and all of them have to be complied with.

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(a) The person adopting should have the capacity, and also the right, to take in adoption.(Ss. 7
and 8): Sections 7 and 8 bring about important changes in the Hindu law of adoption, and
specify the persons who may lawfully take a son or daughter in adoption.
Under S. 7, any male Hindu of sound mind, and who is not a minor, can take a son or a
daughter in adoption. If he has a wife who is alive, he cannot adopt without her consent,
unless the wife-
(i) has completely and finally renounced the world; or
(ii) has ceased to be a Hindu; or
(iii) has been declared to be of unsound mind by a Court of competent jurisdiction.
If such a person has more than one wife living at the time of adoption (as polygamy was not
prohibited by Hindu Law prior to 1955), the consent of all the wives is necessary. It may be
noted that the consent of the wife need not be express consent, i.e., it can also be spelt out from
the facts and circumstances of the case. Thus, if the wife has taken a prominent part in the
adoption ceremonies, such an inference can validly be made.
Under S. 8 of the Act (as amended by the Personal Laws (Amendment) Act, 2010), any female
Hindu who is of sound mind and is not a minor, has the capacity to take a son or a daughter in
adoption. However, if she has a husband who is alive, she cannot adopt without the consent of
her husband, unless the husband
(i) has completely and finally renounced the world; or
(ii) has ceased to be a Hindu; or
(iii) has been declared to be of unsound mind by a court of competent jurisdiction.
Under the previous law, only a male Hindu could take in adoption. S. 8 (as amended in 2010)
brings about an important innovation, by providing that a female Hindu can also now adopt
provided she satisfies the conditions stated above. It is to be noted that this right is now also
conferred on a widow.
(b) The person giving in adoption should have the capacity to do so. (S. 9)
S. 9 of the Act (as amended by the Personal Laws (Amendment) Act, 2010) deals with persons
who can lawfully give a son or daughter in adoption. Only three categories of persons, viz., the
father, the mother and the guardian are given this right. Further, it is also clarified that the terms
"father" and "mother" do not include the adoptive father and the adoptive mother.
Under the amended section, both the father and the mother have an equal right to give a son or
daughter in adoption. However, either of them cannot exercise this right except with the consent
of the other spouse, unless such other spouse -
(i) has completely and finally renounced the world; or
(ii) has ceased to be a Hindu; or

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 (iii) has been declared to be of unsound mind by a court of competent jurisdiction.
The guardian of the child has also been given the power to give a child in adoption, with the
previous permission of the Court, in cases where-
(i) both the father and mother-
a) are dead; or
(b) have completely and finally renounced the world; or
(c) have abandoned the child; or
(d) have been declared to be of unsound mind by a Court of competent jurisdiction; or
(ii) the parentage of the child is not known.
It may be noted that a child can be given in adoption to any person, including the guardian
himself.
It is also clarified that a "guardian" in this context, means a person having the care of the minor's
person, or of both his person and property, and includes-
(i) a guardian appointed by the will of child's father or mother, and
(ii) a guardian appointed or declared by a Court.
The Gujarat High Court has, in a case involving adoption of Hindu children by Norwegian
couples, observed that the welfare of the child ranks in priority over all else, including religion of
the child. It held that, in such cases, a petty contention like the change of religion or culture of
the child cannot stand in the way of sanctioning any inter-country adoption. (Jayantilal Shah v.
Asha Shah, A.I.R 1989 Guj. 152)
(c) The person who is adopted should be capable of taken in adoption. (S. 10)
S. 10 provides that no person shall be capable of being taken in adoption, unless the following
four conditions are satisfied,
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she is not married- unless there is a custom or usage applicable to the parties,
which permits persons being taken in adoption; and
(iv) he or she has not completed the age of fifteen years unless there is a custom or usage
applicable to the parties which permits persons over fifteen years being taken adoption.
Under this Act, it is amply clear that adoption can be both of a son and as well as daughter. all
that is now necessary is that both parties should be Hindus. Clause (ii) above reiterates the rule
of uncodified Hindu Law that a person can be given in adoption only once, and that the law not
recognize a second adoption of the same person.

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(d) The adoption should be made in compliance with the other conditions mentioned in the Act.
(S. 11):
S. 11 lays down six further conditions of a valid adoption. These vital rules are mandatory, and
non-compliance with any of them will render the adoption invalid.
The first condition is that if a son is being adopted, the adoptive father or mother 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 the adoption. It will be noticed that the section speaks of a Hindu son. Thus,
if there is only one son (and no son's or son's son's son) and such a person had renounced
Hinduism by a formal conversion to another religion, S. 11 will not come in the way.
The second condition is that if a daughter is being adopted, the adoptive father or mother must
not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by
adoption) living at the time of the adoption.
The third condition to be fulfilled applies only to cases where a Hindu male is adopting a female.
In such cases, the adoptive father should be at least twenty-one years older than the girl to be
adopted. There was no similar rule under the previous law, and S. 11 seems to have adopted it as
a precautionary measure (for obvious reasons).
Under the fourth condition, if a Hindu female is adopting a male, the adoptive mother should
likewise be at least twenty-one years older than the boy to be adopted. No similar rule existed
under the previous law.
The fifth condition lays down that the same child may not be adopted simultaneously by two or
more persons. This clause is in keeping with the previous rule of Hindu Law on the subject.
The sixth condition prescribed by S. 11 is that 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 abandoned child or a child whose
parentage is not known, from the place or family where it has been brought up) to the family of
its adoption.
There is a two-fold reason why the law insists on a formal ceremony of "giving" the adopted
child to its adoptive parents. The natural father or the adoptive father that the child is being
taken out of its natural family and being "transplanted", so to say, in the adopter's family. The
second reason is that the formal "giving the child would make the fact of adoption known to
everyone concerned. (Ramji Dass v. Manget Sen Kripa Ram, 1.L.R. 195 Patiala, 309)
EFFECTS OF ADOPTION (S. 12)
The primary and principal result of adoption is that transferring the adopted boy (or girl) from his
(or her) natural family to that of his (or her) adoptive parents. S. 12, therefore. provide that an
adopted child is to be deemed to be the child of his adoptive father or mother for all purposes,
with effect from the date of the adoption. From that date, all the ties of the child in the family of
his or her birth are deemed to be severed and replaced by those created by the adoption in the
adoptive family.

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What has been stated above has to be understood subject to three important qualifications laid
down by S. 12. Firstly, such child cannot marry any person whom he or she could not have
married, if he or she had continued in the family of his or her birth. Secondly, any property
which vested in the adoptive child before the adoption continues to vest in such person, subject
to the obligations (if any) attaching to the ownership of such property including the obligation to
maintain relations in the family of his or her birth. Lastly, the adopted child cannot divest any
person of an estate which has vested in him or her before the adoption.
DETERMINATION OF THE ADOPTIVE MOTHER IN CERTAIN CASES (S. 14)
Normally, if a person having a wife adopts a child, such a child also becomes the child of the
adoptive mother. S. 14, therefore, lays down three simple rules for determining who is the
adoptive mother in certain circumstances. Thus, -
1. If a male Hindu having a wife, adopts a child, the wife is deemed to be the adoptive mother.
2, If such a Hindu has more than one wife and the adoption is made with their consent, the
senior-most in marriage amongst them is deemed to be the adoptive mother, and the others are
to be reckoned as step-mothers.
3. Where a widower or a bachelor adopts a child, any woman whom he subsequently marries is
deemed to be the step- mother of the adopted child.
S. 14 also provides that where a widow or an unmarried woman adopts a child, any man whom
she subsequently marries, is deemed to be the step-father of the adopted child.

37. Note on MAINTENANCE?

"The aged parents, a virtuous wife, and an infant child must be maintained"
Maintenance of wife (S. 18):
S. 18 of the Hindu Adoptions and Maintenance Act, 1956 gives a right to a Hindu wife (whether
married before or after the commencement of the Act) to be maintained by her husband during
his lifetime. This right of the wife is an incident of the status estate of matrimony, and a Hindu is,
therefore, under a leg obligation to maintain his wife. S. 18(2) then lays down seven cases in
which a Hindu wife entitled to live separately from her husband, without forfeiting her right to
maintenance, viz.,
(i) if the husband guilty of desertion, that is to say, abandoning her without reasonable cause
and without h consent or against her wish, or of willfully neglecting her
(ii) if he has treated her with such cruelty, as to cause reasonable apprehension in her mind
that it will be harmful or injurious to live with her husband;
(iii) if he is suffering from a virulent form of leprosy,
(iv) if he has any other wife living:

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 (v) if he keeps a concubine in the same house in which his wife is living or habitually resides
with a concubine elsewhere
(vi) if he has ceased to be a Hindu by conversion to another religion;
(vii) if there is any other cause justifying her living separately.
Under clause (vii) above, the Court is given discretion to award maintenance to a wife who is not
living with her husband, if there is any other cause justifying her living separately. i.e. any reason
not covered by the other six clauses. In the language of the decide cases, if there is a "grave and
weighty reason" or a "grave and convincing reason" for the separate residence of the wife, the
clause will be attracted. Thus, conduct which may fall short "cruelty" could nevertheless entitle
the wife to live separately, an also claim maintenance.
This right of a Hindu wife is, however, not absolute, because S. 18(3) lays down that the wife
cannot claim separate residence and maintenance from her husband in two cases, viz.-
(a) if she is unchaste; or
(b) if she ceases to be a Hindu by conversion to another religion.
It is pertinent to note that S. 18(3) does not say that an unchaste wife is not entitled to any
maintenance at all from her husband. What the Section says is that she cannot claim separate
residence and maintenance. Of course, in such a case, the Court would take the wife's conduct
into consideration while awarding maintenance to her.
S. 18 has to be read with S. 22, which deals with maintenance of dependents. A widow of a
deceased Hindu is included in the list of "dependents", and as such, entitled to claim maintenance
as a dependent in the circumstances set out in S. 22. This Section must also be read with S. 23,
which lays down that it is in the discretion of the Court to decide whether any, and if so, what
maintenance is to be awarded under the provisions of this Act.
Maintenance of widowed daughter-in-law (S. 19)
S. 19 provides that after the death of her husband, a Hindu wife is entitled to be maintained by
her father-in-law. It is immaterial whether such a woman had married before or after the
commencement of this Act. Further, she can exercise this right only if she is unable to maintain
herself out of her own earnings or other property, or in cases where she has no property of her
own, is unable to obtain maintenance -
(a) out of the estate of her husband or her father or her mother ог

(b) from her son or daughter or his or her estate.

This right of a Hindu widow to claim maintenance from her father-in-law cannot be enforced if
the father-in-law does not have the means to do so from any coparcenary property in his
possession out of which the daughter-in-law has not obtained any share. Further, his obligation
ceases, in all cases, when the daughter-in-law re-marries.

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S. 19 has also to be read with S. 22, which relates to the rights of the dependents of a deceased
person to claim maintenance from heirs who have inherited the estate.
Maintenance of children and aged parents (S. 20)
S. 20 casts a duty on a Hindu, during his (or her) life-time, to maintain his (or her) legitimate as
well as illegitimate children and his (or her) aged or infirm parents. Further, a legitimate child
can claim maintenance from his or her father or mother, so long as the child is a minor.
However, it is expressly provided that this obligation of a person to maintain his (or her) aged or
infirm parent or a daughter who is unmarried, extends only as far as such parent or unmarried
daughter (as the case may be) is unable to maintain himself (or herself) out of his (or her) own
earnings or property. It is also expressly clarified by S. 20 that the term "parent", as used above,
also includes a childless step-mother.
It may be noted that the obligation of a Hindu to maintain his wife, minor sons, unmarried
daughters and aged parents (whether he himself possesses any property or not) is personal and
legal in character and arises from the very existence of the relationship between the parties.
S. 20 not only substantially confirms the existing law on the point, but also goes a step further to
lay down that not only a male Hindu -as was the position under the previous law- but also a
Female Hindu, -is now under a legal obligation to maintain the above-mentioned persons.
It has been held in Kalla Maistry v. Kanniammal (A.I.R. 1963 M. 210) that a claim for
maintenance under S. 20 can validly be made by an illegitimate child who is born of adulterous
intercourse.
Maintenance of dependents (Ss. 21 and 23)
S. 21 lays down a list of relatives of the deceased who would be included within the term
"dependents". This list runs as follows:
(i) his or her father;
(ii) his or her mother;
(iii) his widow so long as she does not re-marry:
(iv) his or her son, or the son of his predeceased son, or the son of a predeceased son of his
predeceased son, so long as he is minor- provided and to the extent that he is unable to
obtain maintenance, in the case of a grandson, from his father's or mother's estate, and in
the case of a great-grandson, from the estate of his father or mother or father's father or
father's mother;
(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son, or the
unmarried daughter of a predeceased son of his predeceased son, so long as she remains
unmarried- provided and to the extent that she is unable to obtain maintenance, in the case of
a grand- daughter, from her father's or mother's estate, and in the case of a great-great-grand-
daughter the estate of her father or mother or father's father or father's mother:

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 (vi) his widowed daughter - provided and to the extent that she is unable to obtain
maintenance-
(a) from the estate of her husband; or
(b) from her son or daughter, if any, or his or her estate; or
(c) from her father-in-law, or his father, or the estate of either of them;
(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry
-provided and to the extent that she is unable to obtain maintenance from her husband's
estate, or from her son or daughter, if any, or his or her estate, or in the case of grandson's
widow, also from her father-in-law's estate.
(viii) his or her minor illegitimate son- so long as he remains a minor,
(ix) his or her illegitimate daughter- so long as she remains unmarried.
S. 22 then provides that, subject to what is stated below, the heirs of a deceased Hindu are bound
to maintain the dependents of the deceased out of the estate inherited by them from the deceased.
It is further provided that if a dependent has not obtained (by testamentary or intestate
succession) any share in the estate of a Hindu dying after the commencement of the Act, such a
dependent can claim maintenance from those who take the estate.
It may also be noted that the liability of such persons (as are referred to above) is not joint and
several, but is proportionate to the value of the share or the part of the estate received by each of
such persons.
S. 22 also lays down that a person who is himself a dependent of the deceased male or female,
and has taken a share or part of the estate of the deceased, is liable to contribute towards the
maintenance of any other dependent who has not obtained any share by testamentary or intestate
succession. His proportionate contribution in any such case is, however, to be computed in such
a manner that what remains with him of the share of the estate after his liability to make
contribution is enforced, is not less than what would have been awarded to him by way of
maintenance as a dependent.
Amount of maintenance (Ss. 23 and 25)
Under Section 23, it is in the discretion of the Court to determine whether any, and if so what
maintenance should be awarded under the Act. In exercising this discretion, the Court will have
regard to the following considerations, as far as they are applicable. When determining the
amount of maintenance to be awarded to a wife, children or aged or infirm parents, the Court
will have regard to the following, viz.
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately whether he (or she) is justified in doing so:

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(d) the value of the claimant's property and any income derived from such property, or from the
claimant's own earning or from any other source; and
(e) the number of persons entitled to maintenance under the Act.
In the words of the Privy Council, the amount of maintenance to be awarded to a wife would
depend on "a gathering together of all the facts of the situation, the amount of free estate, the past
life of the married parties and the families, a survey of the conditions and the necessities and
rights of the members, on a reasonable view of change of circumstances possible in the future
regard being, of course, had to the scale and mode of living, and to the age, habits, wants and
class of life of the parties" (Ekradeshwari v. Hameshwar, A.I.R. 1929 P.C. 128)
Likewise, when determining the amount of maintenance to be awarded to a dependent, the Court
will have regard to the following seven considerations, viz.-
(a) the net value of the estate of the deceased, after providing for the payment of his debts;
(b) the provisions, if any, made under the will of the deceased in respect of the dependent;
(c) the degree of relationship between the two:
(d) the reasonable wants of the dependent;
(e) the past relations between the dependent and the deceased
(f) the value of the property of the dependent and any income derived from such property, or
from his or her earnings from any other source; and, or
(g) the number of dependents entitled to maintenance under the Act.
It is to be noted that the Court has a wide discretion in the matter of granting maintenance.
Firstly, it is left to the Court's discretion whether any maintenance should be granted at all.
Secondly, it is also in the Court's discretion to determine the amount of maintenance to be
awarded to such a person. This discretion. however, is judicial, and not arbitrary or capricious. It
is to be based on sound principles of law, and is to be exercised within the ambit of the
provisions of the various sections of the Act and also having regard to the objects of the Act.
The Bombay High Court has observed that in a suit for maintenance, the Income-tax return is not
the sole guide for determining the income of a party in such as it is quite notorious that, in India,
all tax-payers do not disclose their full incomes. (Vinod Mehta v. Kanak Mehta, A.I.R. 1990
Bom. 120)
Section 23 should be read along with S. 25, which provides that the amount of maintenance,
whether fixed by a decree of a Court or by agreement (whether before or after the
commencement of the Act), may be altered subsequently if there is a material change in the
circumstances justifying such alteration.
In addition to the factors mentioned above, the Delhi High Court has enumerated eleven factors
which must be kept in mind when awarding maintenance under the Act, namely, -

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(a) The status of the parties.
(b) The reasonable wants of the claimant.
(c) The independent income and property of the claimant.
(d) The number of persons whom the non-applicant has to maintain.
(e) Whether the amount granted would aid the applicant to live in a similar life-style as he or she
enjoyed in the matrimonial home.
(f) The liabilities, if any, of the non-applicant
(g) Provisions for food, clothing, shelter, education, medica assistance, etc. of the applicant.
(h) payment capacity of the non-applicant,
(i) Some guess-work, while estimating the income of the non-applicant when all sources or
correct sources are not (The disclosed court took judicial notice of the fact that, in India
unfortunately, parties do not reveal their real income.)
(j) Defraying the cost of litigation by the non-applicant,
(k) The amount, if any, awarded under S. 125 of the Code of Criminal Procedure.
Claimant to maintenance should be a Hindu (S. 24) Section 24 declares that a person cannot
claim maintenance under the Act if he or she has ceased to be a Hindu by conversion to another
religion. Act applies only to Hindus.
Debts to have priority (S. 26) Section 26 lays down that debts contracted or payable by a
deceased Hindu are to have priority over the claims of his dependents for maintenance, unless
there is a valid charge created in respect of the same under S. 27 .
Effect of transfer of property on the right to maintenance (S. 28) Section 28 lays down that if a
dependent has a right to receive maintenance out of an estate, and such estate (or a part thereof is
transferred, the dependent can enforce his right to receive maintenance against the transferee
(i) if the transferee has notice of such right; or
(ii) if the transfer is gratuitous; but not against a transferee for consideration and without notice
of such a right.

38. Note on Hindu Succession Act?

The Hindu Succession Act, which came into force on 17th June, 1956. This Act amends and
codifies the law relating to succession among the Hindus, and at the same time, introduces some
fundamental and radical changes in the law of succession. The greatest merit of the Act is that it
lays down a uniform and comprehensive system of inheritance, applicable to all Hindus. The act
applies to the whole of India, except the state of Jammu and Kashmir.

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Changes brought about the Hindu Succession Act, 1956: The following are certain basic changes
brought about by the Hindu Succession Act, 1956:
1. Uniformity of application. - The Act lays down a uniform and comprehensive system of
inheritance, and applies to persons governed by both the Mitakshara and the Dayabhaga schools,
as also to persons in certain parts of Southern India, who were previously governed by the
Marumakkatayam, Aliyasantana an Nambudri systems of Hindu Law.
2. Devolution of interest in coparcenary property. When the Ad came into force, S. 6 provided
that when a male Hindu dies, having an interest in a Mitakshara coparcenary property, his
interest would devolve by survivorship upon the surviving members of the coparcenary, and not
according to the rules of succession laid down in the Act. However, this rule has now been
abrogated by the 2005 Amendment of the Act.
3. Inheritance to separate property. The two systems inheritance to the separate or self-acquired
property of a male dying intestate, which prevailed under the Mitakshara and Dayabhaga Schools
before the passing of the Act, are abolished, and a uniform system is introduced by S. 8 of the
Act.
4. Classes of heirs. Prior to the passing of the Act, the Mitakshara School recognized three
classes of heirs, viz., (a) Gotraja Sapindas, (b) Samanodakas, and (c) Bandhus. Likewise, the
Dayabhaga School recognised three classes of heirs, viz. (a) Sapindas, (b) Sakulyas, and (c)
Bandhus.
Under the Act, this classification of heirs is abolished, and the Act divides heirs into four classes
or categories, viz., (a) heirs of Class I, (b) heirs of Class II, (c) agnates, and (d) cognates.
5. Abolition of limited estate of Hindu women. - The Hindu women's limited estate is abolished
by the Act, and any property possessed by a female Hindu, howsoever acquired, is to be held by
her as her absolute property, and she is given full power to deal with it and dispose it of by will
as she likes.
6. Succession to property of a female intestate S. 15 of the Act lays down a uniform scheme of
succession to the property of a female Hindu who dies intestate after the commencement of the
act.
7. Disposal of coparcenary interest by will. - Prior to the passing of the Act, according to the
Mitakshara Law, no coparcener could dispose of by will, his undivided coparcenary interest,
even if the other coparceners consented to the disposition. This rule is now abrogated by the
Explanation to S. 30, which expressly lays down that such interest is to be deemed to be property
capable of being disposed of by a Hindu under a will.
8. Disqualification of heirs. Under the texts of the Dharma shastras as interpreted by the Courts,
certain defects, deformities and diseases excluded an heir from inheritance. Now S. 28 of the Act
discards such grounds of exclusion, and lays down that no person shall be disqualified from
succeeding to any property on the ground of any disease, defect or deformity.
9. Abolition of impartible estate

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10. Preferential right to acquire property. The Act also provides that in case where property of
an intestate devolves upon two or more heirs, if any one of them proposes to transfer his or her
interest therein, the other heirs have a preferential right to acquire the interest proposed to be so
transferred.
11. Simplification of rules of succession.
Changes brought about by the Hindu Succession (Amendment Act, 2005:
1. Equal rights for daughters. After the 2005 Amendment, daughter of a coparcener becomes, by
birth, a coparcener in her own right and has the same rights and liabilities as a son.
2. Doctrine of pious obligation abolished. The doctrine of obligation, which hitherto existed
under the uncodified Hindu law, now been abolished.
3. Rights of a female in a joint family dwelling place. The early provision of the Act under which
a female heir could not demand partition of a dwelling house wholly occupied by a joint family
has now been deleted.
4. Restriction on Hindu widows in the matter of inheritance. Earlier, S. 24 of the Act barred
certain widows who had remarried the inheriting. Now, S.24 has been deleted, and this bar has
been removed
5. Addition of heirs in Class 1- After the 2005 Amendment, more categories of heirs have been
added in Class I of the Schedule to the Act.

DEFINITIONS (S. 3)
"AGNATE": One person is said to be an agnate of another, if the two at related by blood or
adoption wholly through males.
"COGNATE": One person is said to be a cognate of another, if the two are related by blood or
adoption, but not wholly through males.
"HEIR": The word heir has been defined to mean any person, male or female, who is entitled to
succeed to the property of an intestate under this Act.
INTESTATE: A person is deemed to die intestate in respect of property of which he or she has
not made a testamentary disposition (i.e. a will) which is capable of taking effect.
"ALIYASANTANA LAW" : law means the system of law applicable to persons who, if this
Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or
by the customary aliyasantana law with respect to the matters for which provision made in this
Act.
"MARUMAKKATTAYAM LAW": Marumakkattayam Law means the system of law
applicable to persons-

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 (a) who, if this Act had not been passed, would have been governed by the Madras
Marumakkattayam Act, the Travancore Nayar Act, the Travancore Ezhava Act, the
Travancore Nanjinad Vellala Act, the Travancore Kshatriya Act, the Travancore
Krishnanvaka Marumakkathyee Act, the Cochin Marumakkattayam Act, or the Cochin
Nayar Act, with respect to the matters for which provision is made in this Act; or
(b) who belong to any community, the members of which are largely domiciled in the State
of Travancore-Cochin or Madras, (as it existed immediately before the 1st November
1956) and who, if this Act had not been passed, would have been governed with respect
to the matters for which provision is made in this Act by any system of inheritance in
which descent is traced through the female line; but does not include the aliyasantana
law.
"NAMBUDRI LAW": Nambudri Law means the system of law applicable to persons who, if
this Act had not been passed, would have been governed by the Madras Nambudri Act, the
Cochin Nambudri Act, or the Travancore Malayala Brahmin Act, with respect to the matters for
which provision is made in this Act.

39. Explain RULES OF SUCCESSION IN THE CASE OF A MALE HINDU (Ss. 8-13
and 19)?
Ss. 8 to 13, read with S. 19 of the Act contain a scheme of succession of the property and a male
Hindu dying intestate after the commencement of the Act. These sections contain a fasciculus of
rules which should be read together. Section 8 provides that the property of a male Hindu dying
intestate shall devolve -
(a) firstly, upon the heirs who are mentioned in Class I of the Schedule to the Act;
(b) secondly, if there is no heir of Class I then upon the heir mentioned in Class II of the
Schedule:
(c) thirdly, if there is no heir of Class I or Class II then upon the agnates of the deceased; and
(d) lastly, if there is no agnate then upon the cognates of the deceased.
The Schedule to the Act mentions a list of relatives falling under Class I and Class II. Thus, some
relatives like the son, daughter, widow and mother find place in Class I, whereas others like the
father, brother and sister are listed in Class II.
Interpreting the expression 'dying intestate" in S. 8 of the Act (above), the Supreme Court has
held that these words cover two situations, namely, (i) dying without any will at all, or (ii) dying
after having made an invalid will. (Smt. Manshen & Others v. Tej Ram & Others, (1980 Supp.
S.C.C. 367)
Section 9 then lays down that all the heirs of Class I are to take the property simultaneously and
to the exclusion of all the other heirs. This means that if there are any heirs falling under Class I,

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they will exclude all other heirs, as for instance, those falling under Class II. The relatives
mentioned in Class I are, therefore, also described as preferential heirs.
As regards Class II, there are nine sub-sections or entries and Section 9 provides that heirs
mentioned in Entry I will be preferred II. Likewise, those mentioned in to those in Entry II.
Likewise, Entry II will be preferred to those of Entry III, and so on...
As regards Class I, the heirs take simultaneously. However, their shares are not equal, and such
shares, are to be determined in accordance with the provisions of Section 10, which lays down
four important rules to be followed while determining the shares, viz.:
(i) Rule 1: The intestate's widow (or if there are more than one widow, all the widows together)
shall take one share.
(ii) Rule 2: The surviving sons and daughters and the mother of the intestate shall take one share
each.
(iii) Rule 3: The heirs in the branch of each pre-deceased son or each pre-deceased daughter of
the intestate shall take one share between them.
(iv) Rule 4: The distribution of the share referred to in Rule 3-
(a) among the heirs in the branch of the pre-deceased son are to be made in such a way that
his widow (or all his widows together) and the surviving sons and daughters get equal
portions and the branch of his pre-decease son should get the same portion;
(b) among the heirs in the branch of the pre-decease daughter are to be made in such a way
that surviving sons and daughters get equal portions. The
The above Rules are to be read with Section 19, which lay down a general rule that (subject to
any express provision to the contrary) if two or more heirs succeed together to the property of an
intestate, they take the property
(i) per capita, and not per stirpes; and
(ii) as tenants-in-common, and not as joint tenants.
Section 12 and 13 deal with the rules relating to succession among agnates and cognates. Section
12 provides three rules of preference to determine the order of succession among agnates and
cognates, viz.:
(i) Rule 1: Of two heirs, the one who has fewer or no degrees of ascent is preferred.
(ii) Rule 2: If the number of degrees of ascent is the same (or none), that heir is preferred who
has fewer or no degrees of descent.
(iii) Rule 3: If neither heir is entitled to be preferred to the other under Rule 1 or Rule 2, they will
take simultaneously.

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Section 13 then lays down the rules in accordance with which the degrees of relationship
between the intestate and his agnates or his cognates are to be computed. This section also lays
down three simple principles which apply for the purposes of determining the order of
succession among agnates and cognates, viz.:
(a) Relationship is to be reckoned from the intestate to the her in terms of degrees of ascent, or
degrees of descent, both, as the case may be.
(b) Degrees of ascent and descent have to be computed inclusive of the intestate.
(c) Every generation constitutes one degree, either ascending or descending, as the case may be.

40. Note on RULES OF SUCCESSION IN THE CASE OF A FEMALE HINDU (Ss. 15-
16)?
The general rules of succession in the case of a female Hindu have been laid down in Section 15,
which provides that the property of a female Hindu dying intestate shall devolve (according to
the rules set out in Section 16) on the following persons, viz.:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
Under the previous law, succession to stridhan (woman's property) depended on whether the
woman was married or unmarried, and if married, whether she was married in an approved or an
unapproved form. The different schools of Hindu Law also laid down different rules of descent.
The various kinds of stridhan have been abolished by S. 14 and property of every kind possessed
by a female Hindu, howsoever and whensoever acquired, has now become her absolute property.
It would include both movable and immovable property. The present section evolves a new and
uniform order of succession to her property, and groups all her heirs into the five categories
enumerated above.
Two exceptions are, however, engrafted on the above-stated principles of succession. These
exceptions provide that if a female Hindu dies without leaving any issues, then-
(i) in respect of property inherited by her from her father or mother, that property will devolve,
not according to the order laid down in the five categories above, but will go to the heirs of the
father; and

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(ii) in respect of property inherited by her from her husband or father-in-law, such property will
devolve, not according to the order laid down in the five categories above, but will go to the heirs
of the husband.
Section 16 then lays down three rules to regulate the order of succession among the heirs listed
in the five categories above. These Rules are as under:
(i) Rule 1: Amongst the heirs specified in the five categories above, those falling under (a) will
be preferred to those named in (b); those falling under (b) will be preferred to those named in (c),
and so on. In case the heirs fall under the same clause, they take simultaneously.
(ii) Rule 2: If any son or daughter of the intestate had pre- deceased the intestate, leaving his or
her own children alive at the time of the intestate's death, the children of such son or daughter
will get the share which such son or daughter would have got, if living at the intestate's death.
(iii) Rule 3: The devolution of the property of the intestate on the heirs referred to in clauses (b),
(d) and (e) above, and in the two exceptions (above), shall be in the same order. and according to
the same rules as would have applied if the property had been the father's or the mother's or the
husband's (as the case may be), and if such person had died intestate in respect thereof
immediately after the intestate's death.
PROPERTY OF A FEMALE HINDU TO BE HER ABSOLUTE PROPERTY (S. 14): Section
14 marks a bold departure and overrides the old law on the subject, by providing that any
property possessed by a female Hindu, whether acquired before or after the commencement of
the Act, is to be held by her as the full owner thereof, and not as a limited owner.
The Explanation to the section seeks to give a very comprehensive connotation to the term
'property', and deals elaborately with the various sources and the sundry modes of acquisition of
property by such a person. It provides that 'property' includes both movable and immovable
property acquired by a female Hindu
(i) by inheritance or devise, or
(ii) at a partition, or
(iii) in lieu of maintenance or arrears of maintenance, or
(iv) by gift from any person, whether a relative or not, and whether before, at, or after her
marriage,or
(v) by her own skill or exertion, or
(vi) by purchase, or
(vii) by prescription, or
(viii) in any other manner whatsoever,
and includes any such property held by her as stridhan immediately before the commencement of
the Act.

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What is stated above is subject to the qualification that the above provisions do not apply to any
property acquired by way of gift or under a will or any other instrument, or under a decree or
order of a civil court, or under an award, if the terms of such gift, will or other instrument, or the
decree, order or award prescribe a restricted estate in such property.
The object of the above provisions is to confer a benefit on Hindu females by enlarging their
limited interest in property inherited or held by them into an absolute interest with retrospective
effect. (Eramma v. Veerupana, (1966) 2 S.C.R. 626)

41. GENERAL PROVISIONS RELATING TO SUCCESSION (Ss. 18-24): Section 18

declares that heirs who are related to an intestate by full-blood are to be preferred to those related
by half-blood, if the nature of the relationship is the same in every other respect. Thus, this rule
applies only when the nature of relationship is the same according to the rules of preference laid
down in the Act. It cannot, therefore, be evoked when a particular heir is to be preferred to
another under any of the rules laid down in the Act.
MODE OF SUCCESSION OF TWO OR MORE HEIRS (S. 19): It is provided by S. 19 that if
two or more heirs succeed together to the property of an intestate, they will take the property-
(a) per capita, and not per stirpes (unless otherwise expressly provided in the Act); and
(b) as tenants-in-common, and not as joint tenants.
The terms per capita and per stirpes can be explained thus: Suppose A dies, leaving B, his son,
and C and D, who are the sons of another son of A, X, who has died before A. If the distribution
of A's property is to take place per capita, the estate will have to be divided into three shares, and
each heir will get one share. In this illustration, therefore, B, C and D will each get one-third of
the estate. On the other hand, in a distribution per stirpes, a claimant gets a share as representing
some other person. In this illustration, the property would be divided into two shares, and B
would get one share. The other share (representing that of the deceased son, X) would be divided
between C and D. In other words, B. C and D would not get equal shares. B would get one-half,
and C and D, one-fourth each.
Again, when property is jointly held, it may be held by the owners, either as tenants-in-common
or as joint tenants. In the case of tenants-in-common, on the death of one of them, his share
would go to his heirs, whereas in the case of joint tenants, the heirs of the deceased get nothing,
and his share devolves upon the remaining joint owner or owners..
RIGHT OF A CHILD IN WOMB (S. 20): Section 20 enunciates a view which is adopted by
most advanced legal systems of the world. It lays down that a child who was in the womb (at the
time of the death of the intestate) and who is subsequently born alive, has the same right to
inherit the property of the intestate, as if he (or she) had been born before the death of the
intestate.
This section expounds a legal fiction that the rights of a child born in justa matrimonio are
regarded with reference to the moment of conception in the womb, and not of actual birth. Such

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an unborn child in the womb, if later born alive, is treated as if it had been born at the time of the
death of the intestate.
PRESUMPTION IN CASES OF SIMULTANEOUS DEATH (S. 21): There may be cases
where two persons, as for instance, a husband and a wife, die in the same air-crash or the same
shipwreck. In such cases, the question may arise as to who died later in time, as this would be
important for the purposes of succession. Section 21, therefore, provides that if two persons die
in circumstances rendering it uncertain whether either of them, and if so which one, survived the
other, then a presumption arises (unless the contrary is proved), that the younger of the two
survived the elder.
Section 21 is intended to apply to catastrophes such as shipwrecks, earthquakes, explosions,
bombing, air or rail accidents and the like. In such cases, death may or may not have been
simultaneous; nevertheless, the section lays down an artificial rule of presumption such cases.
This presumption can, of course, be rebutted by leading evidence, to show that the elder of the
two had in fact survived the younger. It is only in the absence of such evidence that the Court
will presume that the younger survived the elder.
42. DISQUALIFICATION OF HEIRS (Ss. 25-28): Sections 24 to 28 enumerate certain
grounds on which heirs will be disqualified from succeeding to the estate of an intestate. S. 28
makes it clear that these are the only grounds of disqualification and that no person shall be
disqualified on any other ground whatsoever.
DISQUALIFICATION OF WIDOWS WHO HAVE RE-MARRIED (S. 24) (Now deleted)
Earlier, S. 24 had provided that if any heir fell within any of the following three categories, viz.,
if she was-
(a) the widow of a pre-deceased son, or
(b) the widow of a pre-deceased son of a pre-deceased son, or
(c) the widow of a brother, -
she would not be entitled to succeed to the intestate's property as such widow, if she had re-
married on the date on which the succession opened. Such a widow was disqualified, even if her
second husband had died or she had been divorced from him. However, the Section also made it
clear that the disqualification would not apply if the widow remarried after the succession had
opened. In such a case, there could not be a divesting of property which had already vested in
such a widow.
This disqualification has now been removed by the 2005 Amendment of the Hindu Succession
Act, which has deleted S.24 of the Act.
DISQUALIFICATION OF A MURDERER (S. 25)
Section 25 provides that a person who commits murder or abets the commission of murder will
be disqualified from inheriting-

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(a) the property of the person murdered; or
(b) any other property which he may become entitled to succeed by reason of the succession
resulting from the murder.
Thus, the effect of S.25 is that, in such cases, the murderer is regarded as non-existent when the
succession of the murdered person opens.

It will be noticed that the disqualification of S. 25 is not general; rather, it is confined to the
property mentioned in Clauses (a) and (b) above. Thus, a murder does not ipso facto forfeit his
right to property in general, so long as the deceased's estate is not in any manner altered or
accelerated by the murder.
DISQUALIFICATION OF A CONVERT'S DESCENDANTS (S. 26)
It is provided by Section 26 of the Act that if a Hindu cease to be a Hindu by conversion to
another religion, children born to him (or her) after the conversion and the descendants of such
children, are disqualified from inheriting the property of any of their Hindu relatives - unless
such children or descendants are Hindus at the time when the succession opens.
It is to be remembered that it makes no difference to the application of the above rule whether
the convert ceased to be a Hindu before or after the commencement of the Act. Also, the children
of the convert born before his conversion are not hit by Section 26.
SUCCESSION, WHEN HEIR DISQUALIFIED (S. 27)
Section 27 provides that if any person is disqualified from inheriting any property under the Act,
the property will devolve as if such person had died before the intestate.
The effect of this section is that no title or right to succeed can be traced by any person through
anybody who is disqualified from inheriting under the provisions of Sections 24 to 26. A
disqualified person has no interest in the succession and can transmit none to his or her own
heirs.
NO DISQUALIFICATION ON THE GROUND OF DISEASE, DEFECT OR DEFORMITY (S.
28)
Under the ancient texts, certain defects, deformities and diseases (e.g. blindness, deafiness,
dumbness, want of a limb or organ, leprosy, etc.) disqualified an heir from inheriting the
property of a deceased. This position was substantially remedied by the Hindu Inheritance
(Removal of Disabilities) Act, which was passed in 1928.
Section 28 of the Act now provides that no person will be disqualified from succeeding to any
property on the ground of any disease, defect or deformity, or any other ground whatever, except
as provided by the Act. It has thus been held that unchastity of a widow is not a disqualification
under this Act. (Jayalakshmi v. Ganesa lyer, 1972 A.M. 357)

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Escheat is a term employed to denote lapsing of property to the Government in default of heirs
on the death of the intestate. In modern times, escheat is not very common, as all persons
generally make wills, and even when they do not, some remote relative is bound to come on the
scene and claim the intestate's property. Section 29 of the Act provides that if an intestate has
left no heir qualified to succeed to his property in accordance with the provisions of the Hindu
Succession Act, such property goes to the Government. However, the Government will take such
property subject to all the obligations and liabilities to which an heir would have been subject.
TESTAMENTARY SUCCESSION (S. 30)
The right of a Hindu to dispose of by will (or other testamentary disposition) any property which
is capable of so being disposed of by him or her, in accordance with the provisions of the Indian
Succession Act is expressly recognised by Section 30 of the Act. Thus, S. 30 is merely an
assertion of the general rule that a Hindu is capable of disposing of by will any properly, which
is within his or her power to bequeath.
According to the ancient Mitakshara Law, no coparcener could dispose of by will, his undivided
coparcenary interest, even if the other coparceners agreed to such a disposition. This rule of
Mitakshara Law is now abrogated by this Section, because the Explanation to the Section makes
it abundantly clear that the interest of a male Hindu in the coparcenary property of a Mitakshara
coparcenary is now property which he is capable of disposing of by will notwithstanding any
other rule of law to the contrary. As seen earlier, according to the Dayabhaga law, a father can by
will, dispose of his entire property, whether ancestral or self- acquired. Likewise, a coparcener of
a Dayabhaga coparcenary can by will, dispose of a whole of his interest in joint family property
Now, after the passing of the Act in 1956, the same rules apply to Mitakshara Joint Family
properties also.
The Madras High Court has clarified that what a coparcener can do is dispose of his interest in
joint family property by will. There is still no power to do so by a gift. (M.S. B.Y. Board v.
Subramania, A.I.R. 1973 Mad. 277)
EXCLUSION FROM INHERITANCE PRIOR TO 1956
Before the passing of the Hindu Succession Act in 1956, certain disabilities and disqualifications
attached to Hindus under the uncodified Hindu law of inheritance, which are 1. Unchastity
(sexually immoral) (impure), 2. Change of religion and loss of caste, 3. Remarriage, 4.
Illegitimacy, 5. Congenital physical and mental defects, 6. Murder.

43. Note on JOINT HINDU FAMILY?

A joint and undivided Hindu family is the normal condition of Hindu society. A joint Hindu
family consists of all persons who are lineally descended from a common ancestor, and includes
their wives and unmarried daughters. On marriage, a daughter ceases to be a member of her
father's family, and becomes a member of her husband's family. Thus, if A has two sons, X and
Y, and an unmarried daughter Z, all of them (i.e., A, X, Y and Z) would constitute the joint

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family. On her marriage, Z would cease to be a member of this joint family, and would become a
member of the joint family of her husband.
Ordinarily, an undivided Hindu Family is joint, not only in estate, but also in food and worship.
However, the existence of joint estate is not absolutely necessary to constitute a joint family, and
it is possible to have a joint Hindu family which does not own any estate. But, if joint estate
exists, and the members of that family become separate in estate, the family ceases to be joint.
Mere severance in food and worship does not, however, operate as a separation. (Chowdhry
Ganesh Dutt v. Jewach, 1904 31 I.A. 10)
Thus, a joint Hindu family does not consist of male members only. It may consist, for instance,
of a single male member and widows of the deceased male members. Likewise, it may consist of
one male and one female member, e.g., a brother and his unmarried sister, or a son and his
mother (provided the female member is entitled to a share or to maintenance), or it may consist
even of two or more surviving females, as for instance, two or more widows, or an unmarried
daughter and her mother, and so on.
A joint Hindu family, as such, has no legal entity which is distinct and separate from that of the
members who constitute such a family. In this sense, it is different from a corporation or a
company which is considered to be a distinct legal person in the eyes of law. A joint Hindu
family is a unit to which no outsider can be admitted by consent of the parties concerned. It is a
status which can be acquired only by birth or by adoption, and in the case of women, by
marriage. Such a joint family may be broken up by separation of individual members or by a
partition amongst all the members. Such a separating member would then form a new family
with his descendants, and a new joint family would come into existence.
Features of Mitakshara Joint Family - In Mitakshara Joint Family Property son has a right over
the property since the birth, even an illegitimate son or a widowed daughter has a right over the
property of their father’s Joint Family Property. Another feature is the right to Maintenance and
right of survivorship which will be given to the unmarried daughters and other members
respectively in the Joint Family

44. Note on HINDU COPARCENARY?

The traditional age-old concept of a Hindu coparcenary was a male- dominated concept where
only sons, grandsons and great-grandsons acquired, by birth, an interest in the coparcenary
property. Earlier, no female could be a coparcener in a Hindu coparcenary, although she always
was a part of the joint Hindu family. This was in striking contrast with a Dayabhaga coparcenary,
from the very beginning, sons did not acquire any interest in coparcenary property by birth and
where females can be coparceners. This concept suffered a fatal blow when the States of Andhra
Pradesh, Karnataka, Maharashtra and Tamil Nadu passed legislation declaring that a daughter
becomes an equal coparcener by birth in a Hindu joint family in these four states. The State of
Kerala, however, went a step further and abolished the concept of right by birth and put an end to

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the system of the Hindu joint family, by passing the Kerala Joint Family System (Abolition) Act
in 1975.
Thereafter, male dominance in this field received the second fatal blow in the shape of the Hindu
Succession (Amendment) Act, 2005, which declares that the daughter of a coparcener shall, by
birth, become a coparcener in her own right in a joint Hindu family governed by the Mitakshara
law.
Before the 2005 Amendment, a Hindu coparcenary was a much narrower body than a Hindu
joint family. It included only those persons who acquired, by birth, an interest in the joint or
coparcenary property. Such persons were the sons, grandsons and great-grandsons of the holder
of the property for the time being. In other words, it included 3 generations of males next to the
holder of property. No female could be coparcener although she would be member of joint
family.
A Hindu joint family was a wider expression than a coparcenary, and the following three
important features of a Hindu joint family distinguished it from a coparcenary,
(1) the indefinite number of members in a Hindu joint family;
(2) the inequality of the rights of such members, some having an interest in the joint family
property, and other having only a right to be maintained; and
(3) the inclusion of females in the joint family.
It is also to be remembered that although every coparcenary must have a common ancestor to
start with, it is not necessary that every coparcenary is limited to four degrees from the common
ancestor. A member of a joint family may be a coparcener, even if he is more than four degrees
away from the common ancestor, i.e. the original holder of coparcenary property. Such a person
would be a coparcener if he can demand a partition of coparcenary property. If he cannot, he
cannot be reckoned as a coparcener. The general rule of Hindu Law is that a partition can be
demanded by any member of a joint family who is not removed more than four degrees from the
last holder of the property, however remote he may be from the original holder of the property,
i.e. the common ancestor.
Thus, only sons, grandsons and great-grandsons of the holder of the property took an interest
therein by birth, and not any other descendant who was further than three degrees from him. In
other words, so long as the common ancestor was alive, the sons of his great-grandson were out
of the coparcenary. They would form part of the coparcenary only on the death of the ancestor,
provided their father, grandfather or great-grandfather was alive at the time of death of such an
ancestor. If no such person was alive at that time, the undivided interest of the common ancestor
would pass by survivorship to his brothers, nephews, etc.
Position after the 2005 Amendment: The Hindu Succession (Amendment) Act 2005, which came
into force on 9th September, 2005. This amendment provides that -
(a) the daughter of a coparcener also becomes, by birth a coparcener in her own right in
the same manner as a son;

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 (b) the daughter of a coparcener shall have the same rights in the coparcenary property as
she would have had if she had been a son;
(c) the daughter of a coparcener shall be subject to the same liabilities in respect of the
coparcenary property as that of son; and
(d) any reference to a Hindu Mitakshara coparcener shall deemed to include a reference
to a daughter of a coparcener.
The said Amendment also provides that any property to which female Hindu becomes entitled to
as above shall be held by her with all the incidents of coparcenary ownership and shall be
regarded property capable of being disposed of by her by testamentary disposition.

45. Note on Formation of a Hindu Coparcenary? Features?

Salient Features of a Hindu Coparcenary: The following are the characteristic features of a
Hindu coparcenary:
(i) Formation: Before the 2005 Amendment, the concept of a joint Hindu family constituting a
coparcenary was that of a common male ancestor with his lineal descendants in the male line
within four degree counting from and inclusive of such ancestor (or three degrees exclusive of
such ancestor). Thus, it is clear that no coparcenary can commence without a common male
ancestor, although after the death, it may consist of collaterals, such as brothers, cousins, uncle
and nephews, and so on.
Consider the following example:
A

B C D

E F G H I

J K
The above diagram shows a coparcenary consisting of several families. A is the common
ancestor, and A, along with his three sons B, C and D, and their sons and grandsons, constitute
the "main" family. B, with his two sons, E, and F, C with his son G, D with his son’s H and I and
his grandson’s J and K, and I with his son’s J and K, constitute "branch" families. It will be
noticed that all the families can trace back to the same common ancestor, viz., A, who is the head
of the main family. Now, each branch family has also its own head, viz., B, C, D and I. On the
death of A, the coparcenary will consist of the three brothers B, C and D and their male issues. If

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later on, B and C die, the coparcenary will consist of D, his nephews E, F and G, his son’s H and
I, and his grandsons, J and K.
(ii) Creature of law: A Hindu coparcenary is a pure creature of law. It cannot be created by an
act of parties, except in the case of an adoption, whereby a stranger is introduced into the family.
Thus, if a joint family consists of X and his deceased brother's wife, W, and W adopts a son,
such a son will become a coparcener with X.
(iii) Exclusion of females: Before the 2005 Amendment, no female could be a coparcener,
although she could be a member of a joint Hindu family. Even a wife who was entitled to be
maintained out of her husband's property (and had, to that extent, an interest in his property) was
not her husband's coparcener.
(iv) Extinction when complete: A coparcenary cannot be said to be extinct till the death of the
last surviving coparcener. Thus, as long as there is even a single coparcener, the coparcenary
continues. Even on the death of the sole surviving coparcener, the family cannot be said to be at
the end, as long as there is a potential mother, i.e., a female member who can introduce a new
male member by birth or by adoption. (Approvier v. Rama Subba, 11 M.L.A. 75)
(v) Unity of ownership and possession: The most characteristic feature of a Mitakshara
coparcenary is the unity of ownership and possession of joint family property among its
coparceners. Both the ownership and possession of the coparcenary property is in the whole
body of the coparceners. According to the true notion of a joint family under the Mitakshara
Law, no individual member of the undivided family can predicate that he has a definite share
(say, one-third or one-fourth) of the joint undivided family. His interest is a fluctuating one,
which is liable to be enlarged by deaths in the family, and diminished by births in the family. It is
only on a partition that a member becomes entitled to a definite share of the property. His interest
in the coparcenary property before a partition can best be described as his "undivided
coparcenary interest". As observed by the Privy Council in Katama Natchair v. The Rajah of
Shivagunga (1893 9 M.I.A. 539), "there is community of interest and unity of possession
between all the members of the family".
(vi) Coparcenary between Collaterals: Prior to the passing of the Hindu Succession Act in
1956, sons and grandsons whose father was dead, and great-grandsons whose father and grand-
father were both dead, succeeded simultaneously as a single heir to the separate or self-acquired
property of the deceased with the right of survivorship, and such property would become
ancestral property in their hands. However, after the passing of the said Act, the position is
different, because S. 19 of that Act expressly provides that if two or more heirs succeed together
to the property of an intestate, they take such property as tenants-in-common, and not as joint
tenants. In other words, such heirs take the property without a right of survivorship, and they
would not constitute a coparcenary.
(vii) Unity of juristic existence: Another salient feature of a Mitakshara coparcenary is unity of
juristic existence. The internal constitution of a coparcenary may change on account of births,
deaths or adoptions, but as regards outsiders, it is always deemed to be a separate legal entity. It
is a distinct juristic person on whose behalf contracts can be entered into and enforced. (Shankar

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Lal v. Toshan Pal Singh, A.I.R. 1934 All. 533) In State Bank of India v. Ghamandi Ram (A.I.R.
1969 S.C. 1330) the Supreme Court observed that coparcenary property is held by the
coparceners in a quasi-corporate personality.
In the same case, the Court has listed the following as the incidents of a Mitakshara coparcenary:
(i) Firstly, the lineal male descendants of a person upto the third generation acquire, on birth,
ownership in the ancestral properties of such a person. (Now, i.e., after the 2005 Amendment,
even females acquire such an interest.)
(ii) Secondly, such descendants can, at any time, work out their rights, by asking for a partition.
(iii) Thirdly, till such a partition, each member has got ownership extending over the entire
property, jointly with the other coparceners.
(iv) Fourthly, as a result of such co-ownership, the possession and enjoyment of the properties is
common.
(v) Fifthly, no alienation of the property is possible without the concurrence of the coparceners,
unless it is for a necessity.
(vi) Lastly, the interest of a deceased member passes, on his death, to the surviving coparceners.

46. Difference Between Joint Tenancy And Hindu Coparcenary.?

It is interesting to note the points of difference between the concept of joint tenancy of English
Law and a Hindu coparcenary under the Mitakshara Law. The former resembles a Hindu
coparcenary in as much as the existence of the right of survivorship and the right to obtain a
partition are the common features of both. However, there are several important points of
distinction between the two, viz.:
(i) A Hindu coparcenary is a creation of the law, and can never be created by an act of parties. A
joint tenancy, on the other hand, can be created by an agreement between two persons.
(ii) Members of a coparcenary have a common ancestor, whereas a joint tenancy may be created
even between two strangers.
(iii) A coparcenary could (until 2005) consist only of males, whereas there is no such restriction
in the case of joint tenancy.
(iv) The interest of a coparcener fluctuates from time to time, whenever there are births or deaths
in the family; a joint tenant continues to hold his specified share all the time.
(v) In a coparcenary, the coparceners' interest comes into existence at different times, namely,
from the time each coparcener is born, whereas the title of all the joint tenants arises
simultaneously, namely, from the date of the agreement.

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(vi) The children of coparceners take an interest in the coparcenary property by birth; the
children of a joint tenant do not acquire any such interest.
(vii) The widow of a deceased coparcener is entitled to maintenance; a widow of a joint tenant
has no such right.
(viii) A coparcenary can be put to an end by partition, whereas a joint tenancy can be destroyed
either by partition or by an alienation of the interest of a joint tenant.

47. Note on COPARCENARY PROPERTY?

The Mitakshara School divides property into two classes, viz.: (i) Unobstructed heritage
(apratibandha daya), and (ii) Obstructed heritage (sapratibandha daya).
Property in which a person acquires an interest by birth is called unobstructed heritage
(apratibandha daya). It is so called because, the accrual of the right to such property has no
obstruction. Thus, property inherited by a Hindu from his father, father's father, or father's
father's father is unobstructed heritage, as regards his own children, grandchildren great
grandchildren. Their right to such property arises from the mere fact of their birth in the family,
and as soon as they are born they become coparceners of such property, along with their
paternal ancestor. Ancestral property, therefore, is unobstructed heritage
Thus, if X inherits property from his father, and a son, Y, is afterwards born to him, Y becomes a
coparcener with his fatherx from the moment of his birth, and becomes entitled to an equal
undivided half share in such property. The property in the hands of X is unobstructed heritage,
because the existence of X is no obstruction to Y acquiring an interest in the property.
If, however, the right to property accrues, not by birth, but on the death of the last owner
(without leaving any issue), such property is called obstructed heritage (sapratibandha daya). It
is so called, because the accrual of the right to such property is obstructed by the existence of
the owner of such property. Thus, property which devolves upon parents, brothers, nephews,
uncles, etc., upon the death of the last owner, is obstructed heritage. These relatives do not take
any vested interest in the property by birth. Their right to such property arises, for the first time,
when the owner of the property dies. Until that time, they have a mere spec successionis (a bare
chance of succession) to such property, which would be realised only if they live longer than the
owner of the property.
Thus, if A inherits certain property from his brother, and afterwards has a son, B, the property is
obstructed in the hands of A. This is so because B does not get any interest in the property during
A's lifetime. It is only after the death of A, that B will get the property as A's heir (by
succession). It will be seen that, in his case, the existence of A is an obstruction to the accrual of
any rights in the property in favour of B.
The most important distinction between obstructed and unobstructed heritage is that
unobstructed heritage devolves by survivorship, whereas obstructed heritage devolves by

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succession However, there are four cases in which obstructed heritage also passes by
survivorship, viz.-
(a) Two or more children, grandchildren or great-grandchildren who are living as members of a
joint family, succeeding as heirs to the separate (or self-acquired) property of their paternal
ancestor, take the property as joint tenants with the right of survivorship.
(b) Two or more grandchildren by a daughter, who are living members of a joint family,
succeeding as heirs to their maternal grand-father, take the property as joint tenants with the right
of survivorship.
(c) Two or more widows succeeding as heirs to their father also take the property as joint tenants
with the right of survivorship.
(d) Two or more daughters, succeeding as heirs to their father take the property as joint tenants
with the rights of survivorship, except in the areas covered by the former State of Bombay,
where they take an absolute interest in the property.
It may, however, be noted that the distinction between obstructed and unobstructed heritage is
recognised only by the mitakshara School. According to the Dayabhaga School, all heritage is
obstructed, and no person takes an interest by birth in the property of another person. The
Dayabhaga School does not recognise the principle of survivorship. It recognises only the right
of succession, and this right naturally accrues, for the first time, upon the death of the owner of
the property.

48. Note Joint Family Property Under Hindu Law? Distinction between coparcenary
and separate property?
According to Hindu Law, property can be divided into two main classes, namely, -
(a) joint family property, and
(b) separate property.
In turn, joint family property can be divided, according to the source from which it comes, into
two classes, namely, -
(i) ancestral property, and
(ii) separate property of coparceners thrown into the common coparcenary stock.
It may be noted that property which is jointly acquired by the members of the joint family with
the aid of ancestral property is also joint family property. However, property acquired without
the aid of ancestral property may or may not be joint family property, depending on the facts and
circumstances of the case. joint property or coparcenary property is that property in which every
coparcener has a joint interest and over which he has joint possession.

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The seven main points of distinction between property and separate property may be laid down
as follows:
Coparcenary Property Separate Property
1. Devolves by survivorship. 1. Devolves by succession.
2.All coparceners have community of interest 2. Other members of the family have no interest
and unity of possession in coparcenary property. in separate property.
3.After the 2005 Amendment, children, 3.No person can acquire interest in separate
grandchildren and great-grandchildren acquire property by birth.
Interest in coparcenary property by birth.
4. Even prior to 1956, separate property could
4.Prior to 1956, a coparcener Could not dispose be disposed of by will.
of his undivided interest in coparcenary property
by will
5. A coparcener cannot gift his undivided
interest in coparcenary property, without 5.The owner property can gift such proper to
consent of other coparceners. any person, to any extent
6.Subject to certain exceptions, a coparcener
cannot sell or mortgage his undivided interest in
coparcenary property, without the consent of 6.The owner can freely sell or mortgage
other Coparceners property.

7. Coparcenary property CAN BE partitioned.

7. No question of partitioning separate

properties arises.

WHAT IS ANCESTRAL PROPERTY? Ancestral property means any undivided property

which has been present through four generations. Such property should belong to the great
grandfather and pass on to your grandfather. Maintaining the hierarchy, it will pass to your
father, then to you in an undivided form. In India, ancestral property is defined under the Hindu
Succession Act, 1956, an act that applies to Hindus, Sikhs, Jains, and Buddhists. According to
the Act, ancestral property refers to any property that is inherited from four generations of male
ancestors.
The various types of ancestral property differ from one another as regards the source from
which such property is obtained, and may be classified under the following six heads: A.
Property inherited from a paternal ancestor, B. Property inherited from a maternal grand-father,
C. Property inherited from collaterals or from females, D. Share allotted on partition, E. Property
obtained by gift or will from a paternal ancestor, F. Accretions.

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Accretions: Accumulations and accretions of income of ancestral property are ancestral property.
(Ramanna v. Venkata, 1888 11 Mad. 248) So also, property purchased or acquired out of the
income or with the assistance of ancestral property, would be ancestral property. (Lal Bahadur v.
Kanhia Lal, 1907 29 All. 244). The same can be said as regards property purchased out of the
sale proceeds of ancestral property or obtained in lieu of such property. It may also be noted that
children, grandchildren and great grandchildren acquire a vested interest, not only in the income
and accretions of ancestral property which accrued after their birth, but also in that which
accrued before their birth.

PROPERTY THROWN INTO COMMON STOCK (DOCTRINE OF BLENDING): It

sometimes happens that property which was originally the separate or self-acquired property of a
member of a joint family is voluntarily thrown by him into the common stock with the intention
of abandoning all claims of such property. If this is done, such property becomes joint family
property by operation of the doctrine of blending. The act by which the coparcener throws his
separate property into the common stock is a unilateral act and a matter of individual volition. As
soon as he declares his intention to do so, the property assumes the character of joint family
property. (Goli Eswariah v. The Commissioner of Gift-Tax, 1970 A.S.C. 1722)

CIRCUMSTANCES IN WHICH A COPARCENER DOES NOT TAKE BY

SURVIVORSHIP
As seen earlier, the general rule is that, on the death of a coparcener, his interest in the
coparcenary property passes by survivorship to the other coparceners. However, this rule is
subject to five exceptions, and in the following cases, the right of the surviving coparceners to
take the interest of a deceased coparcener by survivorship will be defeated:
(i) Where the deceased coparcener has left any issues, they represent his right to a share on
partition.
(ii) Where the deceased coparcener has disposed of his or her interest in the coparcenary
property by will. (S. 30 of the Hindu Succession Act)
(iii) Where the deceased coparcener has sold or mortgaged his interest in the coparcenary
property with the consent of the other coparceners (and in the States of Madhya Pradesh, Tamil
Nadu, Maharashtra and Gujarat, even without such consent.)
(iv) Where the interest of the deceased coparcener has been attached in execution of a decree
against him during his life-time.
(v) Where the interest of a deceased coparcener has vested in the Official Assignee or the
Official Receiver on the insolvency of such coparcener.

49. Note on SEPARATE PROPERTY?

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Separate or self-acquired property is that property which is not joint property. The term separate
implies that property which was formally joint has now become separate. If a coparcenary
consists of three brothers, X, Y, Z, and X separates from his brothers, the portion of the
coparcenary property allotted to him will be his separate property as far as Y and Z are
concerned. As regards X's own sons, however, the property will be joint. The term self-acquired
indicates that the property has been acquired by a coparcener by his own exertions (and without
the assistance of family funds) and that no other coparceners, not even his own sons, have any
interest in such property. It is to be remembered that a Hindu may own separate or self-acquired
property, even whilst he continues to be a member of a joint family.
Property acquired by a Hindu in any of the following twelve ways is deemed to be his separate or
self-acquired property:
(1) Property inherited as an obstructed heritage, i.e., property inherited by a Hindu from any
person other than his father, father's father, or father's father's father.
(2) Property acquired by a Hindu by his own exertions and without the aid of the joint family
property.
(3) Property obtained by a Hindu as his share on a partition of a joint family.
(4) Property devolving on a sole surviving coparcener, provided there does not exist a widow
having a child in her womb or having the power to adopt.
(5) Property obtained by a Hindu under a will, or by way of a gift, unless given by his father,
father's father or father's father's father, for the benefit of the family, and not exclusively for
himself.
(6) Property comprising ancestral movables obtained as a gift from the father (out of affection),
provided such gift is within reasonable limits.
(7) Property obtained by a Hindu under a grant from the Govern-ment, unless it appears that the
grant was made for the benefit of the family, and not exclusively to him.
(8) Ancestral property which has been lost to the family and which has passed into the
possession of strangers, and is recovered by a coparcener without the aid of any other coparcener
and without using the funds of the coparcenary If such property is movable, the coparcener who
recovers it takes it exclusively. In the case of immovable property, the person recovering it is the
father, he takes it exclusively in the case of other coparceners, the person recovering it takes one-
fourth of it as a reward, the remainder being shared by all the members, including the person
recovering it. (Bajada v. Trimbak, 36 Bom. 106)
(9) Property which was formerly ancestral, but was alienated by the family, and later purchased
by a member out of his self- acquired funds.
(10) Gains of learning.
(11) Impartible property and savings from such property.

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(12) Income of separate property, purchases made from such property, or from its income, or
from the sale proceeds of such property.
It has been held that on a partition of joint family property, if certain property is allotted to a
member to discharge the family debts, it does not become his separate property on that ground.
Such property retains its ancestral character, and will be joint family property vis-a-vis his son.
(M. Shanmugha Udayar v. Sivanandam, A.I.R. 1994 Mad. 123)

GAINS OF LEARNING (GAINS OF SCIENCE): An important species of self-acquired

property in Hindu Law is what is known as gains of learning or gains of science, also known as
vidhyadhana in the ancient texts. The term learning signifies education, whether elementary,
technical, scientific, special or general, and training of every kind which is usually intended to
enable a person to pursue any trade, industry, profession or a vocation in life. The term gains of
learning mean all acquisitions of property made substantially by means of learning.

50. distinction between an ordinary partnership and a joint Hindu family firm as
follows:
Ordinary Partnership Joint Hindu family firm
1. It is created by an act of parties. 1. It is a creature of the law.
2. An issue of a partner does not acquire any 2. An issue of a coparcener acquires an interest
interest in the partnership property by birth. therein by birth.
3. It is dissolved by the death of a partner (in the 3. It is not dissolved by the death of a
absence of a contract to the contrary.) coparcener.
4. It can be dissolved only in the circumstances 4. It may be dissolved at ary time if a manifests
mentioned in the Indian Partnership Act. his coparcener intention to separate himself.
5. A retiring partner has a right to ask for 5. A separating coparcener has no right to ask
accounts. for accounts
6. A partner has a definite share in the business. 6. The share of a coparcener in a fluctuating
one.
7. There is no right of survivorship.
7. There is a right of survivorship.
8. A coparcener who is not the manager cannot
contract debts for the purposes of the family 8. Any partner can bind his co- partners by debts
business. incurred for the purposes of the partnership
business.
9. The separate property of a coparcener, who is
not the manager, is not liable for the payment of 9. A partner's share in the firm, as well as his
debts of the family business. separate property, is liable for the payment of
partnership debts.

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 51. Note on Power of Karta to start new Business?
If the managing member of a joint family starts a new business with the aid of the joint family
funds, such a business will be considered to be joint family business in the following five cases,
viz.:
(i) Where such new business has been started by the manager with the consent (express or
implied) of all the coparceners, all of them being adults, and no minor coparcener is in existence
at the time when such business was started. (Angney Lal Narian Das v. Angeny Lal Munni Lal,
A.I.R. 1951 All. 400)
(ii) Where the new business, though started by the manager alone, has been subsequently
adopted as a joint family business by all the coparceners, who continue to enjoy the benefits
therefrom, all of them being adults, and no minor coparcener is in existence at the time such
business was adopted as a joint family business. (Devendra Ayyar v. Ranga Ayyar, 1935
M.W.N. 480)
(iii) Where the karta (manager) started the new business during the minority of a coparcener,
who having enjoyed the benefit thereof, has, on attaining majority, accepted and adopted such
business as a joint family business. (Venkatachalam v. Venkateshwara, A.I.R. 1944 Mad. 33)
(iv) Where the new business has been started by the father, the grandfather, or the great
grandfather, and he has no issue born to him or in existence at the time when it is started.
v) When the new business has been started by a sole surviving coparcener, and the other
coparceners are born only subsequently.
It is to be remembered that in (i), (iv) and (v) above, the business becomes joint family business
from the very start, whereas in (ii) and (iii), it becomes joint family business only when it has
been adopted as such by the other coparceners. It may also be noted that when a business has
been started by a sole surviving coparcener or by the manager with the consent by all the
coparceners (all of them being adults), the business of all the family business, and minor
members of the family born after the business has started cannot say that risk and liabilities of
new business cannot be imposed upon them. The karta (manager) of a joint family cannot start a
new business or trade, so as to impose upon the other members the risk and liabilities of such
new business, unless, of course, it was started or carried on with their consent, express or
implied. Such consent may be presumed if the family is being maintained out of the profits of
such business or trade.

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 52. Note on Rights of Coparceners?
The following are the fourteen main rights of a coparcener:
1. Community of interest and unity of possession. - No coparcener is entitled to exclusive
possession of any part of the coparcenary property; nor is any coparcener entitled to any special
interest in such property. As observed by the Privy Council in Katama Natchair v. Rajah of
Shivagunga (18939 M.I.A. 539), "there is community of interest and unity of possession between
all the members of the family".
2. Share of Income. - A member of a joint family cannot, at any given moment, predicate what
his share in the joint family property is. Such a share becomes defined only when a partition
takes place. The reason is that his share is a fluctuating one, which is liable to be increased by
deaths, and diminished by births, in the family. It follows from this that no member is also
entitled to any definite share of the income of the property. According to the principles
governing a Hindu undivided family, the whole income of the joint family property must be
brought to the common purse of the family, and then dealt with as per the rights of the members
to enjoy such property.
3. Joint possession and enjoyment. - Each coparcener is entitled to joint possession and
enjoyment of the family property. If he is excluded from doing so, he can enforce this right by
way of a Suit. He is not, however, bound to sue for partition. In a suit for joint possession, the
Court would declare his right to joint possession, and further direct that he should be put into
such joint possession.
4. Right against exclusion from joint family property. - If a coparcener is excluded by other
coparceners from the use or enjoyment of the joint property, the Court may, by an injunction,
restrain such coparceners from obstructing him in the enjoyment of the property.
In one case, A and B were members of a joint family. A prevented B from using a door which
was the only means of access to the rooms which were in B's occupation. It was held that, in the
circumstances, the Court could, by injunction, restrain A from disturbing B in the use of the
door. (Anani v. Gopal, 1895, 19 Bom. 269) In another case, A and B were members of a joint
family, which owned a shop in Poona. A prevented B from entering the shop, inspecting the
account books, and taking part in the general management of the shop. B sued A for an
injunction, restraining A from excluding B from the joint possession and management of the
shop, and the Bombay High Court held that B was entitled to succeed. (Ganpat v. Annaji, 1899
23 Bom. 144)
5. Right of maintenance and other necessary expenses. - Every coparcener is entitled to be
maintained out of the estate of the family. For this purpose, he is entitled to receive, from the
coparcenary property, maintenance for himself, his wife and children, as also for those whom he
is bound to maintain. Besides such maintenance, a coparcener is also entitled to get money from
the coparcenary property for the purpose of the marriage of his children and for the performance
of the sradha and upanayana ceremonies.

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6. Right to restrain improper acts. - Every coparcener right to restrain improper acts on the part
of other coparceners where such acts cause substantial injury to his rights as a member of the
family. Thus, if a coparcener erects a building on land belonging the joint family, so as to
materially alter the condition of the property he may be restrained by an injunction from doing
so.
7. Right to enforce partition. - Every adult coparcener is entitled to enforce a partition of a
coparcenary property. He cannot however, file a suit for a declaration of the amount of his share
as he has no definite share, until partition. In case (Appaji v. Ramchandra 18 Rom. 29), the
Bombay High Court held that there is one important exception, namely, that where the father is
joint with his own father or other collateral members, a son cannot enforce a partition against the
will of the father. This exception is also recognised the State of Punjab also, but not in other parts
of India.
8. Right to account. - A coparcener has no right to ask for accounts from the manager as regards
to his dealing with the coparcenary property and the income thereof, unless of course, such
coparcener is suing for a partition, in which case, he would have such a right.
9. Right of alienation. - No coparcener can dispose of his undivided interest in coparcenary
property by gift. Nor can he alienate such interest for value, except in the State of Tamil Nadu
Madhya Pradesh, Maharashtra and Gujarat. An unauthorized alienation is not however,
absolutely void; it is merely voidable at the option of the other coparceners.
However, it is open to a creditor, who has obtained a decree against the coparcener personally, to
attach and sell his undivided interest, and if this is done, the purchaser can have his interest
separated by a suit for partition.
10. Right to impeach unauthorized alienations. - Every coparcener has the right to impeach an
alienation by the manager, or any other coparcener, in excess of their powers. Such an alienation
can be impeached only by a coparcener or by a transferee who has acquired the entire interest of
a joint family in the property alienated.
11. Right to renounce. - A coparcener has the right to renounce his interest in the coparcenary
property. He can do so by expressing his intention to that effect, and if he does so, no other
formalities would be necessary. Such a renunciation must, however, be in favour of the whole
body of coparceners. Even if he renounces in favour of one individual member, the renunciation
will operate for the benefit of all the coparceners.
12. Right of survivorship. - All the coparceners of a joint Hindu family have a right of
survivorship in respect of the joint family property. Thus, if one coparcener dies, his undivided
interest in such family passes by survivorship to the remaining coparceners, and not to his heirs
by succession. (The circumstances in which this right of a coparcener does not exist have already
been considered earlier.)
13. Right to make self-acquisition. - A coparcener has the right to acquire property of his own,
and keep it as his self-acquired property. The other coparceners would have no claim on such
property.

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14. Right to manage. - A coparcener, who is the senior-most member of the family, is entitled to
manage the coparcenary property and business, and to look after the interests of the family on
behalf of the other coparceners, unless he is incapacitated from doing so by illness or other like
and sufficient cause.

53. Note on MANAGER (Karta)? Powers//Rights and Liabilities?

Property belonging to a joint family is ordinarily managed by the father or another senior male
member of the family. Under Hindu Law, the manager of a joint family is called the Karta.
The father or other senior male member of the joint family is presumed to be its karta or
manager, until the contrary is proved. But such a member may give up his right of management,
and a junior male member of the family may be appointed as the Karta with the consent of the
other members. But a minor member of the family cannot act as the karta of the family. If all the
members of a family are minors, the Court may appoint a guardian for the whole of the joint
family property.
The Nagpur High Court had held that, in the absence of an adult male member, even the mother
can act as the manager of a joint Hindu family. The ruling of the Supreme Court that only a
coparcener can be a Karta or manager, and since a widow or a mother is not a coparcener, she
cannot be the manager of a joint Hindu family (Commissioner of Income-Tax v. Govindram
Sugar Mills, A.I.R. 1966 S.C. 24) is no longer good law in view of the 2005 Amendment of the
Hindu Succession Act (referred to above).
Position of the Manager: The manager or karta of a joint family property is not the agent of the
other members of the family, so as to make them liable as principals. It has been held that the
true relationship between the parties is neither that of a principal and agent, nor that subsisting
between partners; rather, it is analogous to that existing between a trustee and a beneficiary.
(Annamalai Chetty v. Murugesa Chetty, 30 Ι.Α. 220)
Strictly speaking, however, there is no trust relationship between such parties, and expressions
such as trustee and breach of trust are best avoided when speaking of the legal position of the
father or other manager of a joint family. Although some of the duties of a manager are similar to
those of a trustee, it would be a fallacy to apply the law applicable to trustees to such a person
without any qualification. Thus, a manager cannot be called upon to account for acts of alleged
negligence. Then again, in the distribution of the family income among the family members, a
Karta is not to be guided by the quantum of the shares of the individual members, but by their
actual needs, as conceived by him. Such being his position, he is far from being a trustee in the
strict sense of the term.
Special powers of the manager: Just because a member of a joint family is the Manager or Karta
of the family, he has no larger proprietary interests in the family property than any other
coparcener. Nevertheless, he occupies a position superior to that of the other coparceners, in as
much as he manages the family property and looks after the interests of the family on behalf of
the other members. As long as the family remains joint, his authority cannot be revoked.

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However, as seen earlier, he has some special powers of disposition (under certain
circumstances) over the whole of the coparcenary property, including the interest therein of the
minor coparceners. His special powers can be classified as follows: 1. Powers over the income
and expenditure of the family, 2. Power of alienation of joint family property for legal necessity
or for the benefit of the estate, 3. Power to contract debts, 4. Power to acknowledge debts, 5.
Power to start a new business, 6. Power to give a valid discharge, 7. Power to refer disputes to
arbitration, 8. Power to represent the joint family in suits and other proceedings, 9. Power to
compromise
Manager's power over income and expenditure of Family - The manager or Karta of a joint
Hindu family has complete control over its income and expenditure. Strictly speaking, he is not a
trustee for the other members of the family, within the meaning of that term as used in the Indian
Trusts Act, although some of his duties and functions are similar to those of a trustee. Nor is he
an agent of the other members of the family, within the meaning of that term as used in the
Indian Contract Act.
As long as he spends the income of the family for of the purpose of the family he is not under
any legal obligation to economize or to make savings. The family purposes for which he is
authorized to spend the family income are maintenance, residence, education, marriage, sradha
and other religious ceremonies of the coparceners and their families. if the manager spends more
on such items than what the other coparceners approve, their only remedy would be to ask for a
partition. Even at such a partition, the accounts will be taken on the basis of what has actually
been spent, and not what would have been spent, had he exercised more skill and had he been
more frugal. A Karta cannot, however, misappropriate the family funds or misapply them to
purposes other than those of the family. If he does so, he is liable to make good all such sums to
the other members of the family.
2. Manager's power to alienate coparcenary property: According to the Mitakshara, the power
of a manager to make a valid alienation is confined to three purposes, viz.-
a) in times of distress, i.e., distress which affects the whole family:
b) for the sake of the benefit of the family, i.e., for its maintenance, and
c) for pious (spiritual) purposes, as for instance, for obsequies (funeral rites) for the ancestors.
it has been held that the power of a manager of a Hindu joint family to alienate joint family
property is analogous to that of a manager of an infant heir, as defined by the Privy Council in
Hanooman Persaud v. Musummat Babooee (1856 6. M.I.A. 393). To validate an alienation, it is
not necessary that the express consent of the other adult members should have been obtained.
The manager has an implied authority to do whatever is best for all concerned, and no
coparcener can deprive him of this power by withholding his consent.
The Karta of a joint family can alienate joint family property for value, so as to bind not only his
own interest, but also that other coparceners, including minors, provided such an alienation is
made-

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(i) with the consent of all the coparceners, all of them being adults; or
(ii) for a legal necessity; or
(iii) for the benefit of the estate.
From the above, it will be seen that when the sale of joint family property is clearly beneficial to
the interests of the family, there need not be any legal necessity for such a sale; nor is the consent
of the other coparceners necessary to validate such a sale. Conversely, even where there is no
legal necessity or benefit to the estate, the sale will still be valid if it is made with the consent of
all the coparceners, all of them being adults. If an alienation is made without the consent of all
the coparceners, it would, in the State of Tamil Nadu, Maharashtra and Gujarat, bind the shares
of the consenting members. In West Bengal and U.P., however, the alienation would not bind the
shares of either the person purporting to alienate or of the consenting members.
An alienation of the Karta which is neither for a legal necessity nor for the benefit of the estate,
and which is made without the consent of the other coparceners is not, however, void ab initio; it
is merely voidable at the option of the other coparceners. Until they avoid it, such an alienation
remains valid and binding.
The Supreme Court has held that a coparcener cannot file a suit against his father, the karta, for a
permanent injunction to restrain him from alienating joint family property for a legal necessity.
This is so because the coparcener has a remedy to challenge a particular sale and have it set side
after the sale is completed. (Sunil Kumar v. Ram Parkash, A.I.R. 1988 S.C. 576)
It is not possible to lay down all the circumstances which would amount to a legal necessity.
From the decided cases, however, one can give the following as examples of legal necessity or
family necessity, viz.:-
(i) Payment of Government revenue.
(ii) Payment of debts which are payable out of the family property.
(iii) Payment of debts due to the landlord or payment under a decree for arrears of rent passed in
favour of the landlord.
(iv) Costs of necessary litigation in recovering or preserving the estate of the family.
(v) Costs of defending the head of the joint family (or any other member) against a serious
criminal charge.
(vi) Maintenance of coparceners and their daughters.
(vii) Marriage expenses of coparceners and their daughters
(viii) Performance of funeral and other ceremonies
(ix) Costs of building a residential house for the family
(x) Sale of family property for conveniently adjusting the shares of members of the family.

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(xi) Expenses for augmenting the means of livelihood of the family unless risky or speculative.
(xii) Similar purposes provided that these purposes cannot be met out of the income of the family
or the cash on hand.
The following are illustrative examples of Transactions have been held to be for the benefit of
the estate, justifying alienation of joint family property:
(i) an advantageous acquisition of property made in the interests of the family:
(ii) a sale of small shares in inferior lands in different villages for the purpose of acquiring a
compact share in fertile land in one village;
(iii) a sale of joint family property, which is unproductive and inconveniently situated for the
purpose of investing the sale proceeds in a better piece of property;
(iv) a sale of a house in a dilapidated condition, in respect which a notice had been received from
the Municipality pulling it down;
(v) a mortgage for making additions to, and improvement upon, the family house; and
(vi) a gift to a stranger of a small portion of land with a view to defeat a claim of pre-emption.
It is also to be noted that when the Manager of a joint family happens to be a father, he has two
additional powers, viz.-
(a) He can make a gift out of affection within reasonable limits
(b) He can sell or mortgage the joint family property to discharge a debt contracted by him for
his own personal benefit- provided (i) the debt was an antecedent debt, and (ii) it was not
contracted for illegal or immoral purposes.
3. Power of the manager to contract debts: The manager of a joint family has an implied
authority to contract debts and pledge the property of the family for this purpose. Such debts
would be binding on the other members of the family to the extent of their interest in such
property. However, the manage himself would be liable personally also, and not only to the
extent of his interest in the property, he being a party to the contract.
4. Power of the manager to acknowledge debts: A manager of a joint family has the power to
acknowledge debt, but he has no power to relinquish a debt due to the family. Nor can he pass a
promissory note to revive a debt which is already time-barred. However, the burden of proving
that promissory note was executed by the manager in respect of a time barred debts is on the
member who alleges the same.
5. Power of the manager to start a new business: If the managing member of a joint family
starts a new business with the aid of the joint family funds, such a business will be considered to
be joint family business in the following five cases, viz.:
(i) Where such new business has been started by the manager with the consent (express or
implied) of all the coparceners, all of them being adults, and no minor coparcener is in existence

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at the time when such business was started. (Angney Lal Narian Das v. Angeny Lal Munni Lal,
A.I.R. 1951 All. 400)
(ii) Where the new business, though started by the manager alone, has been subsequently
adopted as a joint family business by all the coparceners, who continue to enjoy the benefits
therefrom, all of them being adults, and no minor coparcener is in existence at the time such
business was adopted as a joint family business. (Devendra Ayyar v. Ranga Ayyar, 1935
M.W.N. 480)
(iii) Where the karta (manager) started the new business during the minority of a coparcener,
who having enjoyed the benefit thereof, has, on attaining majority, accepted and adopted such
business as a joint family business. (Venkatachalam v. Venkateshwara, A.I.R. 1944 Mad. 33)
(iv) Where the new business has been started by the father, the grandfather, or the great
grandfather, and he has no issue born to him or in existence at the time when it is started.
v) When the new business has been started by a sole surviving coparcener, and the other
coparceners are born only subsequently.
It is to be remembered that in (i), (iv) and (v) above, the business becomes joint family business
from the very start, whereas in (ii) and (iii), it becomes joint family business only when it has
been adopted as such by the other coparceners. It may also be noted that when a business has
been started by a sole surviving coparcener or by the manager with the consent by all the
coparceners (all of them being adults), the business of all the family business, and minor
members of the family born after the business has started cannot say that risk and liabilities of
new business cannot be imposed upon them. The karta (manager) of a joint family cannot start a
new business or trade, so as to impose upon the other members the risk and liabilities of such
new business, unless, of course, it was started or carried on with their consent, express or
implied. Such consent may be presumed if the family is being maintained out of the profits of
such business or trade.
6. Power to give a valid discharge: The Karta has the full power to give a valid discharge for all
debts due to family. this power is absolute and can be exercised even when there are dissentions
in the family.
7. Power of the manager to refer a dispute to arbitration: A manager has also the power to refer
disputes (relating to joint family property) to arbitration, provided he does so bona fide, without
any fraud or collusion, and for the benefit of the family. In such a case, the other members of the
family, including the minor are bound by the award made at such an arbitration. The subject
matter of the arbitration may be disputes between the family (as a whole) and an outsider or
between the members of the family inter se (i.e. amongst themselves).
8. Power of the manager to represent the joint family in suits and other proceedings: In a suit
by or against a Hindu joint family, the Karta fully represents the whole family, and other
members of the family are not necessary parties to such a suit. This would mean that the manager
of a joint family may sue or be sued in respect of any transaction entered into by him as the
manager of the family, and if a decree is passed against him in such a suit, it would be binding on

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all the members of the family. If a member of the joint family contends that what the manager
did was beyond his power, such a person is not properly represented by the manager and ought to
be joined as a party to the suit.
9. Power of the manager to compromise: If a manager of a joint Hindu family enters into a
bonafide compromise for the benefit of the family, such a compromise binds all the other
members of the family, including minors. But, if in a suit relating to joint family property, a
father and his minor sons are parties, and the father himself is the guardian of the minor, his
powers are subject to the provisions of the Civil Procedure Code, and he cannot enter into any
compromise relating to the joint family property without the leave of the Court.
DUTIES AND LIABILITIES OF THE MANAGER:
The following are the five main duties and liabilities of a manager: a) Duty to render accounts,
(b) Duty to recover debts due to the family, c) Duty to spend reasonably, d) Duty not to start a
new busines without the necessary consent, (e) Duty not to alienate coparcenary property.
(a) Duty to render accounts: The manager of a joint Hindu family is not supposed to keep
accounts as long as the family remains a joint family. The only exception to this rule is when the
nature of the family property and dealings is such that it becomes necessary to keep accounts.
Thus, no separate account need be kept of what each coparcener contributes to the family or of
what he receives from it. Although the expenditure on behalf of the various coparceners is
usually unequal, this does create any debts between the coparceners inter se. If a coparcener is
dissatisfied with the Karta's management, his only remedy is to ask for a partition.
Even when a coparcener asks for a partition, he is not ordinarily entitled to require the manager
to account for his past dealings. All that such a separating coparcener is entitled to is to an
account of the family property as it exists at the time he demands the partition. In other words,
accounts are to be given on the basis of what has actually been spent, and not on what ought to
have been spent, had the manager been more prudent and frugal. It is, however, open to a
coparcener to show that the expenditure alleged to have been incurred by the manager has not in
fact been incurred or that he has not disclosed some joint family properties which are also liable
for partition.
however, in exceptional cases, a manager can be called upon by the Court to give an account of
past dealings. This can happen mainly in the following four cases:
(i) where one member of the family has been entirely excluded from the enjoyment of the family
property;
(ii) where it is shown that the manager has been guilty of fraudulently converting the family
income to his own private purposes;
(iii) where there is a special agreement between the coparceners and the manager, under which
the manager is liable to give past accounts;
(iv) where a division of status is effected, but the actual partition by metes and bounds takes
place later on. (In such a case, he is liable to account for the intervening period also.)

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Under the law as interpreted in the State of West Bengal, a coparcener may, without bringing a
suit for partition, call upon the manager to account for the past dealings and income of the
coparcenary property. If the manager refuses to do so, he can be compelled by a Court to do so.
(Abhaychandra v. Pyari Mohan, 5 Beng. L.R. 347)
(b) Duty to recover debts due to the family: It is the duty of the Karta to realize and recover all
the debts due to the family. He has no power to give up a debt due to the joint family or give up a
valuable claim of the joint family without any consideration for the same. He may however in
interest of the family, make a reasonable reduction in the amount of interest (or even the
principal amount) due to the joint family.
(c)Duty to spend reasonably: The Karta is bound to spend the joint family funds in a reasonable
manner and for the purpose of the family only. His duty, however, is to spend reasonably, and
not economically. He is under no obligation to economize or save as a paid agent or trustee
would be. If a coparcener feels that the Karta is spending more than what that coparcener
approves of, his remedy is to ask for a partition.
(d) Duty not to start a new business without the necessary consent: A Karta, even if he is a
father, has no authority to start a new business, so as to impose upon the minor members, the risk
of a new business; nor can the Karta impose such a risk upon the adult members, unless they
have expressly or impliedly consented to it.
(e) Duty not to alienate coparcenary property: it is the duty of the Karta not to alienate joint
family property without the consent of all the coparceners, unless he is doing so for legal
necessity or for the benefit of the estate.

54. NOTE ON ALIENATION OF COPARCENARY PROPERTY OTHER THAN

KARTA?
It is to be noted that under Hindu Law, only the following persons have the power to alienate
coparcenary property, so as to pass a good title to the transferee:
(1) The whole body of coparceners, if all of them are adults.
(2) The manager, to the extent mentioned below.
(3) The father, to the extent mentioned below.
(4) A sole surviving coparcener, in the circumstances given below.
It is to be remembered that no other coparcener can alienate coparcenary property, unless he is
authorized to do so.
(1) The whole body of coparceners. If all the coparceners are adults, the whole body of
coparceners can alienate the coparcenary property for any purpose. if a manager alienates joint
family property with the consent of all the coparceners, all of them being adults, such an
alienation would be valid, even if it is not for a legal necessity. If such an alienation is made

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without the consent of all the coparceners, it would bind the shares of the consenting members,
in Tamil Nadu, Maharashtra or Gujarat. In West Bengal and U.P., however, such an alienation
would not bind the share of the person alienating or of the other consenting members.
(2) The manager: The manager can alienate joint family property (even without the consent of
all the coparceners) if such alienation is made for a legal necessity or for the benefit of the estate.
(3) The father: A Hindu father, as such, has special powers of alienating coparcenary property,
which no other coparcener enjoys. In the exercise of this power-
(a) he can make a gift of ancestral movable property, within reasonable limits, for the purpose of
indispensable acts of duty, as also for gifts through affection, gifts for support of the family and
relief from distress.
(b) he can make a gift of ancestral immovable property, within reasonable limits for pious
purposes;
(c) he may also sell or mortgage ancestral property, whether movable or immovable, including
the interest therein of his children, grandchildren or great-grandchildren, for the payment of his
debts, provided such a debt is an antecedent debt and was not incurred for immoral or illegal
purposes.
(4) Sole surviving coparcener: A sole surviving coparcener is entitled to dispose of the
coparcenary property as if it was his separate property. He may sell or mortgage the property
without any legal necessity. Likewise, he may make a gift of such property. If a son is born to
such a coparcener after the alienation, such a son cannot object to such an alienation. Similarly, a
sole surviving coparcener can dispose of the property by will. However, as the will operates from
the date of the death of the testator, if a coparcener comes into existence before his death, the
will would not take effect, and the property would survivorship It will be seen that, in such a
case, the coparcener (who makes the will) cannot be said to be the sole pass by s surviving
coparcener.

55. NOTE ON DAYABHAGA COPARCENARY?

The concept of a coparcenary under the Dayabhaga system is entirely different from the one
under the Mitakshara law. Hence, the distinguishing features of a Dayabhaga joint family will
now be considered, whilst considering briefly the points of distinction between the two.
1. Sons do not acquire any right by birth. - As seen earlier, under the Mitakshara law as it
existed prior to the 2005 Amendment of the Hindu Succession Act, each son acquired, at his
birth, an interest equal with his father, in all ancestral property held by the father, and on the
death of the father, the son got this property, not as his right, but by survivorship.
However, under the Dayabhaga law, the sons do not acquire any interest in the ancestral property
by birth. Their rights arise, for the first time, on the death of the father. Even on his death, they
take the father's property, whether separate or ancestral, as heirs, and not by survivorship. Since

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the sons do not take any interest in the ancestral property as long as the father is alive, there can
be no coparcenary, in the strict sense of that term, between the father and his sons under the
Dayabhaga law.
2. Absolute power of the father to dispose of ancestral property. - Since under the Dayabhaga
law, the sons do not acquire any interest by birth in the ancestral property, the father can dispose
of such property (whether movable or immovable) by sale, gift, will or otherwise, in the same
way as he can dispose of his separate property.
under the Mitakshara law, the powers of a father to dispose of ancestral property are limited.
However, Section 30 of the Hindu Succession Act, 1956, enables a male Hindu in a Mitakshara
coparcenary to dispose of his interest in a coparcenary property by will. This act also recognize
the right of a male Hindu governed by the Dayabhaga law to dispose of his interest in
coparcenary property by will.
3. No right of partition or accounts against the father. - Under the Dayabhaga law, the sons
cannot demand a partition of ancestral property from the father (which they can do under
Mitakshara law) Nor can they call for accounts of the management from the father. Under the
Dayabhaga system, the father is the absolute owner of all the property, and he can manage it in
any way he likes
4. Concept of ancestral property under the Dayabhaga law: Just as under the Mitakshara law,
so also under the Dayabhaga Just ancestral property is that property which is inherited from
father, father's father, or father's father's father. However, under the Dayabhaga law, the children
of a Hindu do not acquire any interest in such property by birth, as they do under the Mitakshara
law.
5. Coparceners according to the Dayabhaga law: under the Mitakshara law as it prevailed
before the 2005 Amendment, the foundation of a coparcenary first laid on the birth of a son in
the family. Thus, if a Hindu was governed by the Mitakshara law, and a son was born to him,
immediately the father and son became coparceners. On the other hand, according to the
Dayabhaga law, the foundation of a coparcenary is laid on the death of the father. As long as the
father is alive, there is no coparcenary in the strict sense of that term, between the father and his
male issues. It is only when he dies, leaving two or more male issues. that the coparcenary is first
formed.
6. Coparcenary property: Just as under the Mitakshara law, so also under the Dayabhaga law
coparcenary property may consist of ancestral property or of joint acquisition or of property
thrown into the common stock, or property which represents accretions to such property.
However, under the Dayabhaga law, every coparcener takes a definite share in the coparcenary
property. Like his separate property, it passes by succession to his heirs, and not by survivorship
to the remaining coparceners. Unlike under the Mitakshara law, the children of the coparceners
do not take any Interest by birth in the coparcenary property.
7. Each coparcener takes a defined share: The essence of a coparcenary under the Mitakshara
law is unity of ownership. On the other hand, the essence of a coparcenary under the Dayabhaga

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law is unity of possession, and there is no unity of ownership at all. under the Dayabhaga system,
is not in the whole body of coparceners. Rather, every coparcener takes a defined share in the
property, and he is the owner of that share. Unlike the Mitakshara system, he does not have a
fluctuating share, which fluctuates with births and deaths in the family. Even before a partition of
the property, a coparcener under the Dayabhaga system can say with certainty that he is entitled
to a particular share (say, for example, 1/3 or 1/4) of the property.
8. No right of survivorship: As every coparcener under the -Dayabhaga law takes a defined
share of the coparcenary property on his death, his share will pass to the heirs, and not to the
other coparceners by survivorship.
9. Absolute power of coparcener to dispose of his share: Since every coparcener under the
Dayabhaga law takes a defined share of the coparcenary property, it follows that a coparcener
can alienate his share by sale or mortgage or dispose it of by gift or by will, in the same manner
as he can dispose of his separate property.
10. Enjoyment power of coparcenary property: Since every coparcener under the Dayabhaga
law takes a definite share in the coparcenary property, he is entitled to make any use he likes of
the portion of the coparcenary property in his possession. It has been held that he can even lease
out his share and put the lessee in possession thereof.
11. Right to enforce partition. As under the Mitakshara law, so also under the Dayabhaga law,
every adult coparcener has a right to call for and enforce a partition of the joint family.
12. Powers of Manager. From the several judicial decisions on the point, it can be concluded
that the powers of a manager under the Dayabhaga law are the same as those of a manager under
the Mitakshara law. He can contract a debt for a joint family purpose, and a decree passed
against him for such a debt will bind the other members, although they are not parties to the suit.
He can also mortgage the family property for the purposes of the family business.
13. Presumption as to coparcenary property. it may be noted that there is no presumption under
the Dayabhaga law that property purchased by a son in his name in the father's lifetime, and
which has been in the possession of the son ever since the purchase, is joint family property. The
burden of proof in such a case lies on those who deny the ownership of the son.

56. Note on What is partition?

Partition is the intentional severance of coparcenary property by members of a joint family.
According to the Mitakshara Law, partition is "the adjustment into specific portions, of diverse
rights of different members accruing to the whole of the family property".
"The true test of partition of property, according to Hindu Law, is the intention of members of
the family to become separate owners." [Approvier v. Rama Subha, 11 M.I.A. 75]. In other
words, partition is a matter of individual volition, and reduces the members to the position of
tenants-in-common, requiring only a definite, unequivocal intention on the part of a member to
separate and enjoy his share in absolute severalty. (Girja Bai v. Sadashiv, 43 Ι.Α. 151)

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The partition of a joint estate, under the Mitakshara law, consists in defining the shares of the
coparceners in the joint property. It is not necessary that there should be an actual division of the
property by metes and bounds. (Anurago v. Darshan, 40 B.L.R. 758). Once the shares are
defined, there is a severance of the joint status. The parties may then make a physical division of
the property, or they may decide to live together and enjoy the property in common. But the
property ceases to be joint as soon as the shares are defined, and hence onwards, the parties hold
it as tenants-in-common. In other words, the right to take by survivorship is extinguished. No
consent of the other members, nor a decree of a Court, or any other writing is necessary for
partition. A member of a joint family may effect a separation in status by giving a clear and
unmistakable intimation, by his acts or declarations, of his intention to become separate, even
though he continues to live jointly with the other members of the family and there is no actual
division of property. Partition thus consists in the mere ascertainment of the interest of each
member, even without actual physical separation or division by metes and bounds of the family
property.
According to the Mayukha, partition is only a particular condition of the mind, and mere
intention to separate constitutes partition. it is a process whereby members of a joint or reunited
family become separate, and cease to be coparceners and become tenants-in common.
Reviewing the case law on this subject, the Supreme Court has reiterated that a disruption of
joint family status by a definite and unequivocal indication to separate implies a separation in
interest and right although not immediately followed by a de facto or actual division of the
property. (Kalyani v. Narayanan, AIR S.C. 1173) The following observations of the Supreme
Court in Kalyani v. Narayanan, (referred to above) may be noted:
The severance of status of joint family may be effected by the exercise of individual volition,
indicating a clear and unambiguous intention to separate from the other members of the family. It
may be established either by explicit declaration, or from a uniform and consistent course of
conduct of the party concerned or of other members of the family. It may be declared orally or in
writing and may manifest itself from -
(i) an application for mutation of names in the Record of Rights, with a view to separate
enjoyment; or
(ii) the filing of a plaint for partition; or
(iii) a written notice or communication to the members of the family demanding a partition; or
(iv) an agreement executed by the various members of the family, whereby the shares of the
individual members are defined, with the object of securing separate enjoyment of the properties;
or
(v) an agreement of reference or arbitration for partition of the property; or
(vi) defining or ascertainment of shares, with a view to separate enjoyment of the property.
But circumstances like (1) separate food, dwelling or worship, (2) separate enjoyment of
property (3) separate income or expenditure, (4) business transactions with each other among the

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coparceners inter se, - by themselves, do not establish partition, unless they are coupled with the
intention to effect partition. If the division has in fact taken place, then the mere fact that some of
the members are living together after the division is not necessarily inconsistent with their being
divided. (Ramasray Prasad v. Radhika Debi, 38 Bom. L.R. 120 (P.C)].
An agreement between coparceners not to partition coparcenary property does not bind even the
parties thereto, according to the Bombay High Court, and any party may, notwithstanding the
agreement, sue the other parties for partition. (Ramalinga v Virupakshi, 7 Bom. 538).
All coparcenary property is liable to partition, except the following:
1. Impartible property, i.e., property which descends to one member only, either by custom or
under any provisions of law or by the terms of its grant.
2. Property indivisible by nature, such as animals, furniture, etc., and property which cannot be
divided without destroying its intrinsic value. In such a case, the property may be sold and its
value distributed, or a money compensation may be paid to coparceners other than those to
whom it is given.
3. Family idols and places of worship.
4. Separate property of a member.

57. Difference between partition and family arrangement?

(i) A family arrangement is concluded with the object of settling a bona fide dispute arising out
of conflicting claims property. Partition is not necessarily a compromise of conflicting claims.
(ii) A widow or other limited owner or a manager can enter into a family arrangement with
persons who are not coparceners whereas coparceners alone can effect a partition.
(iii) A family arrangement can never be a unilateral declaration whereas partition may be
effected by a unilateral declaration Agreement not to partition

57. Modes of how PARTITION is EFFECTED?

A partition may be effected in any of the following eleven ways:
1. By agreement: Execution of an agreement in writing to hold the property separately operates
as a partition. The agreement to separate may even be oral. As observed by the Privy Council in
Approvier v. Rama Subha Aiyan, (11 M.I.A. 75), the true test of partition of property is the
intention of the members of the family to become separate owners. Intention being the real test, it
follows that an agreement between members to hold and enjoy the property in defined shares as
separate owners constitutes a partition, although there has been no physical division of the
property.

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2. By conduct: Separation of a family can be inferred from the conduct of the parties coupled
with attendant circumstances. When the members of the family actually divide the family
property by metes and bounds, and each member is in separate possession and enjoyment of the
share allotted to him, a partition is said to take place by conduct.
3. By arbitration: A claim for partition and an agreement appointing arbitrators to divide the
property effects a severance to the joint status, although the reference to arbitration may
subsequently prove infructuous.
4. By notice: A partition merely requires an intention to separate; it can therefore be effected
even by a notice, whether followed by a suit or not.
5. By will: Partition may be effected by a coparcener making a will containing a clear and
unequivocal intimation to his coparceners of his desire to sever himself from the joint family or
containing an assertion to his right to separate. But the head of a family cannot effect a partition
by will amongst the various members of the family inter se.
6. By apostasy: The conversion of a member of a joint family to another religion, such as
Mohamedanism or Christianity, effects his severance from the joint family, but not of the other
members inter se.
7. Marriage of a coparcener under the Special Marriage Act: A "civil marriage" of a coparcener
(i.e., a marriage under the Special Marriage Act) also effects his severance from the joint family.
8. By institution of a suit: The institution of a suit for partition by a member is an unequivocal
indication of his intention to separate, and therefore there is a severance of the joint status from
the date of the institution of the suit. A decree may be necessary for working out the result of
severance and for allotting definite shares, but the status of the plaintiff as separate in estate is
brought about by the assertion of his right to separate, whether he obtains consequential
judgment or not.
Kerala High Court has reiterated that the institution of a suit for partition is an unequivocal
intimation of a member of the family for his intention to separate, and there is severance of the
joint status of the family from the date on which the suit is filed. (P.G Hariharan v. Padaril,
A.I.R. 1994, Ker. 36)
However, if the suit is withdrawn before the Court tries it, it indicates that the plaintiff does not
desire separation, and there will therefore be no severance of the joint status. Likewise, if the
defendant dies, and the suit is withdrawn on that ground, no partition will take place. Similarly, if
the suit is shown to be a sham transaction, resorted to only for creating false evidence of
separation, no severance of joint status will take place.
9. By renunciation of share: Separation of a coparcener may be effected by his renunciation of
his interest in the coparcenary. Such a renunciation must be in favour of all the other coparcener
and it must relate to the whole joint estate. Tulsi v. Haji, A.I R. (1938) Lah. 478). However, a
coparcener renunciation merely extinguishes his interest in the estate. It does not affect the status

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of the remaining members, who continue to be coparceners as before. (Alluri v. Dantauluri, 63
I.A. 397)
10. By sale by one coparcener to another: In States where a coparcener may sell his undivided
interest (as in Tamil Nadu, Maharashtra and Gujarat), when a coparcener sells his interest in the
coparcenary property, he becomes divided from the other coparceners in respect of such
property.
11. By any other conduct: A severance of joint status may result from any other act or transaction
having the effect of defining the shares of the coparceners in the estate. Thus, an entry in the
Record of Rights showing the share of each member separately is evidence of division of shares
of coparceners in the joint family, and constitutes partition. [Anurago Kuer v. Darshan Raut, 40
Bom. L.R. 785 (P.C.)]
Effect of the Hindu Succession Act, 1956: Under section 30 of the Hindu Succession Act, a
Hindu has been inter alia given a right to dispose of his interest in a Mitakshara coparcenary
property by a will. Hence if a Hindu dies leaving such a will, there will be a severance of the
joint family and a partition between the other coparcenary members and the legatees under the
will, if such legatees are not the other coparceners.

58. Note on SUIT FOR PARTITION?

1. Who can sue for partition: Although the general rule (both under the Mitakshara and the
Dayabhaga schools) is that every coparcener is entitled to share on partition, the right to enforce
or sue for a partition is enjoy only by the following persons:
a. Every adult coparcener can sue for a partition. In Maharashtra and Gujarat, a son is not
entitled to sue his father for partition against his will, if the father is joint with his own father,
brother other coparceners (Appaji v. Ramchandra, 16 Bom. 29). So also in Punjab, according
to custom, a son cannot enforce a during his father's life-time.
b. A purchaser of the undivided coparcenary interest of a coparcener at a sale in execution of
a decree can demand partition as also, according to the Bombay and Madras Schools, a
purchaser of an interest of a coparcener by a private sale.
Suit for partition on behalf of a minor: In the case of a suit for partition by a minor
coparcener, a Court will not pass a decree for partition, unless the partition is likely to benefit
the minor, by advancing his interests or protecting him from danger. Thus, it would be in the
minor's interest that family property be partitioned if an adult coparcener, who is in
possession of the property, is wasting it, or sets up an exclusive title, or refuses provide for
the minor's maintenance.
2. Parties to a suit for partition: The plaintiff in a partition suit should implead (i.e. join) the
following persons as necessary defendants:
(1) the heads of all the branches;

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 (2) females who are entitled to a share on partition, viz., the wife, mother and
grandmother;
(3) the purchaser of a coparcener's interest if any;
(4) if the plaintiff himself is a purchaser from a coparcener - his alienor.
In other words, all persons, who are entitled (i) to demand partition, or (ii) to have a share on
partition, or (iii) to have a partition made for maintenance and marriage, and (iv) alienees of the
undivided interest, are necessary parties to a suit for partition and non-joinder of any of the
necessary defendants renders the suit liable to be dismissed.
3. Son's right to sue his father for partition: according to the majority of full bench of Bombay
high court a son is not entitled, in the life-time of his father and uncles for a partition if father
does not assent thereto. Appaji v. Ramchandra, 16. Bom. 29 (F.B.) Likewise, as stated above, in
Punjab also, according to custom, son cannot enforce a partition during his father's lifetime.
Thus, a joint family consists of A, B and C. A being C's father and B Being C’s uncle. Can C sue
A and B for partition? According to Bombay and Punjab High Courts, C cannot sue A and B for
partition, unless A, his father, consents to the partition. According to the other High Courts, he
can.
4. Special power of a Hindu father to effect partition: The father possesses a special power to
effect a partition between himself and his sons, and also of the sons inter se, even without their
consent. This right is peculiar only to the father and a grandfather has no power to bring about a
separation among his grandsons. It may be noted that the father can exercise this power only in
his life-time; he cannot direct a partition among his sons in his will.
Who cannot sue for partition
1. In Bombay, a son is not entitled to sue for partition in the lifetime of his father, without his
consent, when father is not separated from his father or brothers and nephews. (Appaji v.
Ramchandra 16 BOM 29. Likewise, in Punjab a son cannot enforce partition during father's life-
time.
2. A suit on behalf of a minor coparcener will not lie, unless the interests of the minor are likely
to be prejudiced by the property being left in the hands of the other coparcener.
3. Coparceners suffering from congenital lunacy or idiocy are excluded from partition. They
have a right maintenance only.
Who are entitled to a share on partition
All coparceners, except those who are disqualified, are entitled to a share on partition. However,
this does not mean that every coparcener has an unqualified right to enforce or sue for partition.
All adult coparceners can demand and sue for partition. However, according to the Bombay High
Court, if a son sues his father for partition, the father's assent is necessary, if the father is himself
joint with his own father, brothers, etc. The other High Courts, however, do not recognize any
such exception. Minor Sons
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When a suit is filed on behalf of a minor coparcener, the Court will pass a decree only if the
partition is likely to be for the benefit of the minor, by advancing his interests, or protecting his
interests from danger. As pointed out by the Supreme Court, when the Court exercises its
jurisdiction over minors, it needs to be satisfied that the next friend of the minor has instituted
the suit for partition in the interests of the minor. [Pedasubhaya v. Akkamma, A.I.R. 1958 S.C.
1042]
Adopted Sons: An adopted son is entitled to a share on partition just like a natural son, even if
there is a natural son born after the adoption. However, when a son is born to the adoptive father
after the adoption, and there is a partition between him and the after-born natural son the adopted
son does not get a share equal to that of the natural son; rather, he gets-
(a) one-third of the adoptive father's estate-in Bengal;
(b) one-fourth of the adoptive father's estate-in Benares; and
(c) one-fifth of the adoptive father's estate-in Madras Maharashtra and Gujarat.
Illegitimate Sons (Dasiputras): An illegitimate son of a male Hindu may be a son by a concubine
who either is or is not a dasi. A dasi is a concubine who is in the exclusive and continuous
keeping of a male Hindu. An illegitimate son of a Hindu by a dasi is called a dasiputra. The
rights of a dasiputra in the property of his Sudra father can be summed up as follows:
i) Since an illegitimate son does not acquire by birth any interest in the father's estate, he cannot
enforce a partition in the life-time of the father. On the father's death, he succeeds to his father's
estate as a coparcener with the legitimate son of his father, and he is entitled to enforce a
partition against the legitimate son.
(ii) On a partition between an illegitimate son and a legitimate son, the illegitimate son takes
only a half of what he would have taken if he was legitimate. Thus, for instance, on a partition
between a legitimate son and an illegitimate son, as the illegitimate son would have taken 1/2, if
he had been legitimate, he would take being illegitimate, a half of this 1/ 2; so the legitimate son
is entitled to 3/4, and the illegitimate son to 1/4. (Kamulammal v. Visvanathswami, 50 1.A. 32)
(iii) If at the time of his death, the father was joint with his collaterals, e.g., his brother or their
sons, the illegitimate son is not entitled to demand a partition of the joint family property, but he
is entitled, as a member of the family, to maintenance out of such property.
3. Female Shares. Earlier, the females who were entitled to a share on partition were the wife
and the widowed mother or step- mother. Now after the 2005 Amendment of the Hindu
Succession Act, a female is a coparcener in her own right, just like a male.
4. Absent or missing coparceners. An absent or missing coparcener will be represented by his
issues. He stands on the same footing as a minor, and his right to receive a share extends to his
descendants.

58. Note on PARTIAL PARTITION?

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A general partition is a partition in which all the family members get separated from each other
and divided their share of their joint family property. They will get separated of their partitioned
share of their property of their family.

But in a partial partition, it is done by mutual or private agreement between the parties is called
a partial partition. Sometimes parties came into an agreement and make a partition that
partition is known as partial partition. For example- when any family has 2 different properties
at 2 different places and they make a partition of one of them and left the other one as joint
family property then such partition is called a partial partition.

There are many times circumstances occurred in which a general partition will not be possible so
we need to do a partial partition like the property which is given for lease or mortgage that
cannot be applied for partition then that property will be left without partition and the rest will be
used for the partition that is called a partial partition.

Two type of partial partition-

1. Partial as to property: When any joint family has 2 different properties at 2 different places
and make the partition of 1 of them and left the other one as joint family property then that is
called as partial as to property.

2. Partial as to the person separating: When in a joint family where more than to coparcener
and anyone of them want to partition and other coparcener did not want it then that will be called
a partial partition as to the person separating.

Though a partition may be partial by mutual agreement of the parties, no coparceners, can
enforce a partial partition against the other coparceners. In K.T. Prasad v. C.I.T. [(1982) 1 S.C.C.
447)], the Supreme Court reiterated following basic principles of partition and partial partition:
(i) When there is a partition, it is presumed that it was a total partition, both as to parties and
property.
(ii) When there is a partition between brothers, there is no presumption that there has been a
partition between one of them and his descendants.
(iii) However, it is open to any person who alleges that a partition has been partial (either as to
persons and as to property), to establish that fact.
(iv) Hindu law does not require that, in every case of partition. the property must be partitioned
by metes and bounds. A declaration of intention by a coparcener to become divided brings about
a severance of status, and it is open to the parties to thenceforth enjoy their respective shares of
the property as tenants-in-common.

59. Note on RE-OPENING OF PARTITION?

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The general rule is that a partition once made cannot be re-opened. However, there are nine
exceptions to the rule, as under:
1. A son begotten, though not born before partition, can re-open it, if a share has not been
reserved for him.
2. A son begotten as well as born after partition, can demand a reopening of partition, if his
father though entitled to take a share has not reserved a share for himself.
3. a disqualified coparcener can, on removal of the disqualification reopen the partition.
4. A partition can be reopened by a minor on attaining majority, if the partition made during his
minority was unfair or prejudicial to his interest. (This was does not apply to partition by decree
to Court, if the minor was properly represented before the court)
5. If a coparcener has fraudulently obtained an unfair advantage in the division, or if the property
allotted to a coparcener was a stranger's property, or was subject to a change, and such a
coparcener cannot be compensated otherwise, the partition may be re-opened for re-adjustment
of the shares.
6. A son adopted by a widow of a deceased coparcener is entitled to re-open a partition effected
by the surviving coparceners after his adoptive father's death and before his own adoption.
7. Property of which an unequal distribution has been made contrary to law must be
redistributed, and for this purpose, a partition may be re-opened.
8. If, through mistake, some property is wrongly allotted to a coparcener, which did not actually
belong to the family, the partition can be re-opened.
9. An absent or missing coparcener can, on his return, re-open the partition, if his share was not
reserved for him or made over to his wife or issue. It may be noted that mere re-adjustment of
property does not amount to re-opening of a partition

60. Note on RE-UNION?

Re-union is a process by which two or more members of a Hindu family, after having become
separate, re-unite in such a way as to constitute a joint family. "He who, being once separated,
dwells again through affection with his father, brother or paternal uncle is termed re-united."
Any person can only be reunited with those people only in a partition who were the parties in a
partition. A new person cannot be Reunite in a partition. This text of Brihaspati is taken literally
by the Mitakshara, and therefore, under that school, a re-union can take place only between a
member and his (i) father, (ii) brother or (iii) paternal uncle, - but not with any other relative.

Is there are 2 conditions for all valid reunion under mitakshara law:-

1. The parties to the reunion must be the parties of partition. no new member cannot be a
part of the reunion of partition.

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 2. Any person who gets separated from partition can only be reunited with his father,
brother and paternal uncle, not with any other relative.

How to effect a reunion?

1. There must be an intention or interest for the party to reunite, to constitute a reunion of
property. In a concept of reunion, it is given that there must be an agreement between the
parties that they want to be reunited in estate with an intention to revert to their previous
status.
2. If any partition in registered then also there can be reunion by an oral agreement.
3. A minor cannot come into reunion because he was not a party to the partition contract
and contract or agreement of reunion, and a minor cannot enter into a contract.
4. Mere living or carrying business together does not mean that there is a reunion it is not in
evidence of reunion.

Effects of reunion

1. There will be no difference between coparcenary by birth and coparcenary by the

reunion.
2. If Any reuniting members having a separate property then some special rules will be
applicable to get self-acquired property. But the rules which are applicable to the
coparcenary property those rules will remain the same as in coparcenary by birth and
coparcenary by the union.
3. The effect of reunion that the family will revert back to their former status of Hindu joint
family.

61. Note on STRIDHANA / Vidhyadhana?

Prior to the passing of the Hindu Succession Act in 1956, property owned by a woman could be
classified into two categories, viz., (1) property of which she was an absolute owner (stridhana),
and (2) property of which she was only a limited owner (woman's estate).
Property which was owned by a woman as stridhana passed on her death to her heirs. She could
also dispose of such property at her pleasure, if not in all cases during marriage, at least in all
cases during widowhood.
Broadly speaking, whether a particular kind of property could be called stridhana would depend
on the following three factors, viz.:
(a) the source from which the property was acquired;
(b) the status of the woman at the time of acquisition (i.e., whether she was unmarried, married
or a widow); and
(c) the school of Hindu law to which she belonged.

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The ancient Smritis enumerate various types of stridhana. Thus, Manu gave a list of six kinds of
property which fall under the term, viz.:
(i) Adhyagni - i.e., gifts made before the nuptial fire:
(ii) Adhyavahanika i.e., gifts made at the bridal procession;
(iii) Pritidatta - i.e., gifts made by the father-in-law and mother- in-law out of affection. (This
would also include padavandanika, i.e., gifts made at the time of making obeisance at the
feet of elders just after marriage);
(iv) Gifts made by the father;
(v) Gifts made by the mother; and
(vi) Gifts made by the brother.
To this list, later Smriti-writers have added the following six more categories, viz.:
(i) Adhivedanika, i.e., gifts made on supersession;
(ii) Anwadheyaka, i.e. gifts by the husband's relatives after marriage;
(iii) Sulka, i.e., gratuity or marriage fee;
(iv) Gifts from sons and relatives;
(v) Food and vesture; and
(vi) Ornaments given by the husband.
The different types of property enumerated by the Smriti-writers constitute what is known as
technical stridhana, - as distinguished from stridhana in its literal or etymological sense.
It would also be relevant to quote Yajnavalkya, who defines stridhana in the following words:
"What was given (to a woman) by the father, the mother, the husband, or a brother, or received
by her before the nuptial fire or presented to her at her husband's marriage, to another wife and
the rest (adya) is denominated stridhana. So also, that which is given by kindred, as well as her
marriage-fee (sulka) and anything bestowed after marriage."
The Privy Council has held that property inherited by a woman, whether from a male or a
female, is not her stridhana. This rule was well-settled in the Benares, Madras and Bengal
schools. However, the Bombay school was of the view that such inherited property is not
stridhana, only if it is inherited from a male by a widow, mother or other female entering into the
gotra of the propositus by marriage.
Property obtained by a woman by adverse possession has also been held to be stridhana. (Sham
Koer v. Dath Koer, 29 Ι.Α. 1321 Likewise, unrealised rents and profits accruing from property
given or bequeathed to a female during her widowhood has been held to be stridhana. (Mohinee

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Mohan Basu v. Rash Biharee Ghosh, Cal. 97). So also, property purchased from stridhana is also
stridhana. (Venkata v. Venkata, 2 Mad. 333 P.C.)
SALIENT FEATURES OF STRIDHANA: salient features of stridhana may be considered from
the 2 important angles, viz., succession and power of disposition. As far as succession is
concerned, the woman forms a fresh stock of descent, and the stridhana devolves on her heirs.
The lines of succesion vary with the different schools of law. and general speaking, female
children are preferred to the male ones. The Succession also depends upon whether the woman
was unmarried or married, and if married, whether her marriage was of an approved or
unapproved form. Succession to the property is thus the distinct feature that distinguishes
stridhana from property which is not stridhana (i.e. woman's estate). In the case of the latter
species of property, after the woman's death, such property reverts to the heirs of the fast full
owner, and the woman never constitutes a fresh stock of decent, as in the case of stridhana.
The second feature of stridhana is that the woman can dispose of such property at her pleasure, if
not always during marriage, in all cases during her widowhood. This is so because she is the
absolute owner of the property. In the case of property which is not stridhana the woman is not
its absolute owner and cannot therefore dispose it at pleasure, even during widowhood. She takes
only a limited Interest in such property, the extent of such interest depending interest nature of
the property.
SOURCES OF STRIDHANA: The principal sources from which property can be acquired by a
Hindu female are inheritance, partition, gifts, bequests, adverse possession and property given in
lieu of maintenance. As regards property acquired by a Hindu female from other sources, the
question whether such property is stridhana or not is to be determined by the status of such
woman and the school to which she belongs. According to the Dayabhaga and Mithila schools,
gifts or bequests from strangers during coverture are not stridhana. But, according to the
Dayabhaga, if the woman survives her husband, such property becomes stridhana after the
husband's death.
SUCCESSION TO STRIDHANA: Succession to stridhana of an unmarried woman: All the
schools of Hindu Law are agreed on the question of succession to the stridhana of an unmarried
woman. The same can well be summarised in the words of Baudhyayana, who observed: "The
wealth of a deceased damsel, let the uterine brothers themselves take. On their failure, it shall
belong to her mother, or if she be dead, to her father." To this, Viramitrodaya has added: "On the
failure of her mother and father, it goes to their nearest relations." The expression nearest
relations has been interpreted by the Bombay Court to mean the father's sapindas, if any, failing
which, it would cover the mother's sapindas also. (Janglubai v Jetha, 32 Bom. 409)
Succession to stridhana of a married woman according to the Mitakshara School: For the
purposes of succession, the Mitakshara School divides stridhana into two broad groups sulka and
property other than sulka. Sulka may be defined as a gratuity or marriage fee which a girl is
given in marriage. As far as sulka is concerned, it passes in the following order, viz., (1) uterine
brother, (2) mother, (3) father, and (4) heirs of the father.

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As regards a woman's stridhana other than sulka, the same passes to her issues in the following
order, viz. (1) unmarried daughter; (2) married daughter who is unprovided for; (3) married
daughter who is provided for; (4) daughter's daughter; (5) daughter's son; (6) son; (7) son's son.
If the woman was married in an approved form, she is deemed to have become a part of her
husband's family, and in the absence of her own heirs (mentioned above), her stridhana goes to
her husband, and after him, to the husband's heirs. If however, she was married in an unapproved
form, she is deemed to have remained a part of her father's family, and in the absence of her
heirs, her stridhana goes to her mother, then to her father, then to the father's heirs, and only after
that, to her husband and his heirs.
Succession to stridhana of a married woman according to the Dayabhaga School: For the
purposes of succession, the Dayabhaga School divides stridhana into four main groups, viz.
(a) Sulka, i.e present to induce the bride to go to her husband's house;
(b) Yautaka, i.e, gifts made at the time of marriage;
(c) Anwadheyaka, i.e., gifts and bequests from the father after marriage; and
(d) Ayautaka, ie, gifts and bequests from relatives before or after marriage.
Sulka passes to the heirs in the following order, viz. (1) brother, (2) mother, (3) father, and (4)
husband.
As regards Yautaka, the same passes in the following order viz.: (1) Unbetrothed daughters, (2)
betrothed daughters, (3) married daughters having sons, (4) barren married daughters and
childless widowed daughters (in equal shares), (5) sons, (6) daughter's sons, (7) son's sons, (8)
son's son's sons, (9) step-sons, (10) step-son's sons, and (11) step-son's son's sons.
Anwadheyaka passes in the same order as Yautaka (above), with the difference that sons take
before the married daughter. If, however, the woman dies without any issues, it passes in the
following order viz. - (1) brother, (2) mother, (3) father, and (4) husband.
Succession to Ayautaka takes place in the following order viz.- (1) sons and maiden daughters
(in equal shares); (2) married daughters having sons, (3) son's sons, (4) daughter's sons, and (5)
barren married daughters and childless widowed daughters.
Successions to property of dancing girls: Dancing girls (naikins) are regarded as prostitutes.
However, prostitution does not sever the blood relationship of such a girl with the relatives by
blood or by marriage. On her death, therefore, her property devolves as if it was stridhana, and
her heirs rank in the following order, viz. (1) legitimate and illegitimate daughters; (2) legitimate
and illegitimate sons; (3) brother; (4) sister; (5) sister's son; (6) husband; and (7) step-son.

62. What is IMPARTIBLE ESTATES? Examples?

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Impartible estates refer to properties or estates that cannot be divided among heirs and must be
inherited as a whole by a single individual. This is often due to legal or customary restrictions
that prevent the partition of the estate.

Examples of impartible estates include:

1. Traditional feudal estates where the eldest son inherits the entire estate, such as in
some noble families.
2. Religious endowments or trusts where the property is dedicated to religious or
charitable purposes and cannot be divided among heirs.
3. 3. Some royal or aristocratic families where the entire estate is inherited by
the eldest male heir to maintain the family’s lineage and power structure.

Note on gift?
"Gift" defined: According to the Mitakshara, a gift consists in the relinquishment, without
consideration, of one's own right in property, and the creation of the right of another. The
creation of another man's right is completed on that other's acceptance of the gift, but not
otherwise.
According to Hindu law, an acceptance of a gift can be made in three ways mental acceptance,
verbal acceptance and corporeal acceptance. In the case of land, there can be no corporeal
acceptance without enjoyment of the produce of such land. Such a gift must be accompanied by
some possession, however little it may be; if not, the gift will be incomplete.
The following species of property can be disposed of by gift under Hindu Law:
1. A Hindu is entitled to dispose of his separate or self-acquired property by gift. This is, in
certain cases, subject to the claims for maintenance of those members of his family, whom he is
legally bound to maintain.
2. As regards a gift of coparcenary property, there is a difference of opinion prevailing amongst
the two Schools of Hindu law. According to the Dayabhaga School, a coparcener can gift away
his coparcenary interest, subject to the claims for maintenance of those who are entitled to be
maintained by him. However, according to the Mitakshara school, a coparcener cannot do so,
except when he is the sole surviving coparcener. The Mitakshara school, however, does
recognize the right of a father to dispose of by gift a small portion of the joint family property.
3. Under the Dayabhaga law, a father is entitled to dispose of even the whole of his property
(whether ancestral or self-acquired), subject to the claims of those who are entitled to be
maintained by him.

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4. Before 1956, a female Hindu was entitled to dispose of only her stridhana property by gift.
Today, she can dispose of all her property by gift, whether it be stridhana, or whether it is
obtained by her by inheritance from her husband or obtained by whatsoever manner.
5. Earlier, a widow could dispose of a part of her widow's estate by gift to her daughter on the
occasion of the daughter's marriage, or to her son-in-law on such an occasion. This, however,
could not be done by a will. However, her rights have now been considerably enlarged by S. 14
of the Hindu Succession Act, 1956.
6. A widow governed by the Mayukha law is entitled to alienate by gift, movable property which
she has inherited from her husband, although she cannot dispose it of by will. (Her rights have
now been considerably enlarged by S. 14 of the Hindu Succession Act, 1956.)
7. The owner of an impartible estate can dispose it of by gift (or by will), unless there is a special
custom prohibiting such alienation or the tenure is of such a nature that the estate cannot be
alienated.
REVOCATION of GIFT: once a gift is complete, it is binding on the donor, and it cannot be
revoked by him, unless it has been obtained by fraud or undue influence. (Ganga Bakash v. Jagat
Bahadur, 23 Cal. 15, and Manigavri Narandas, 15 Bom. 549)

4. Define Debutter property?

'Debutter property' defined as - A religious endowment, is a dedication of property, which has
for its object, the establishment, maintenance or worship of an idol, deity or any other object or
purpose subservient to religion. Such an endowment may be public or private. Any property
which a Hindu may validly dispose of by gift or will may be dedicated by him to charitable or
religious uses. Property dedicated to religious uses is called Debutter property.
The following are a few examples of religious and charitable uses: 1. Feeding the poor or the
Brahmins., 2. Performance of religious ceremonies like sraddha., 3. Founding a hospital., 4.
Endowment of a university., 5. Gift for founding a sadavrat at a specified place., 6. Devise of an
estate to executors, to distribute the same among the testator's poor relatives and servants.
PUBLIC AND PRIVATE ENDOWMENTS
Religious endowments may be public or private. In the first case, the dedication is for the benefit
of the public, while in the second, it is for the benefit of a small group of individuals, as opposed
to the public at large, e.g., a family. The essential distinction between a private and a public
endowment is that, in the former, the beneficiaries are definite and ascertained individuals, but in
the latter, the beneficial interest is vested in an uncertain and fluctuating body of persons either
the public at large, or some considerable part of the public answering a particular description.
Secondly, in a public religious endowment, the heirs of the founder cannot put an end to the
dedication, whereas in a private endowment, the consensus of the whole family may convert the
debutter property into secular property.

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Religious endowments are of two kinds, devasthanam, i.e. a temple, and math, which is a
monastery whose main purpose is to spread religious knowledge, mainly through instruction to
disciples and followers.
In Shri Krishna Singh Mathura Ahir (1981, 3 S.C.C. 689), the Supreme Court described a math
in the following words:"A math is an institutional sanctum presided over by a superior who
combines in himself the dual office of being the religious or spiritual head of the particular cult
or religious fraternity, and of the manager of the secular properties of the institution of the math.
Distinction between
Devasthanam (Temple) Math
1. Manager is called Shebait. 1. Manager is called Mahant.

2. Shebait is in the position of a trustee as 2. Property may vest in trustees other than
regards temple property. Mahants.

3. By virtue of his office, the shebait is the 3. A Mahant's functions and duties are
administrator of temple property. regulated by custom.

4. Devolution of the office of the shebait 4. Succession of the office of the Mahant
depends upon the terms of the deed or will depends upon the rules of the math. In
by which the endowment is created; failing some, the holder may nominate his
that, successor, or he may be elected by all the
succession follows the line of inheritance members of the math.
from the founder.

5. Note on SHEBAIT? His position, rights and liabilities?

The Shebait or manager of a temple is the administrator of the properties attached to it, as regards
which he is in the position of the trustee. As regard the service of the temple and the duties
appertaining to it, his position is that of the holder of an office of dignity.

Shebaitship involves two ideas: (i) the ministrant of the deity, and (ii) its manager. It is an office to which
certain rights are attached. A Shebait has no legal property in the debutter; it vests in the idol. He has
only the title of the manager, and as such, he is entitled to the custody of the idol and its property.
Offerings made to an idol belong to (i) the temple, where they are of a permanent character, and (ii) the
Shebait, where they are of a perishable character.

The Shebait is bound to do whatever is necessary for the benefit or preservation of the debutter
property. Being in the position of a trustee, he cannot purchase any part of the debutter property, even
if he pays a good price for it. Thus, it has been held that a sale of debutter property with a view to
"realise a fancy price" is void. If in the management of the property, he incurs any out-of-pocket
expenses, he is entitled to be reimbursed from the property.

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 6. Note on MAHANT? His position, rights and liabilities?

The mahant is neither is trustee nor a corporate sole. He is just the manager of the
math, with wider powers than those possessed by a manager, trustee or dharmakarta
of a temple. He has a dual capacity as he is the manager of the properties, and the
spiritual head of the math. In Ram Prakash v Anand Das [6] , the Privy
Councilobserved “The Mahant is the head of the institution. He sits upon Gaddi, he
initiates candidates into the mysteries of the cult; he suprintends the worship of the
idol and the accustomed spiritual rites; he manages the properties of theinstitution;
he administers its affairs.”

The following functions are attributed to the mahant of a Math

1.Management of the Math and its Properties-

2. Right of Representation
3. Power to borrow Money
4 Mahant’s Power of Alienation
5. Liability to Account

7. Note on Devolution (Succession) to post of mahant?

In the case of a mahant, the succession to the office of the Mahant will be governed by the rules of
devolution laid down by the founder of the endowment, as long as such rules do not violate the
provisions of any law. However, if no such rules exist, succession to his office will be governed by the
usage of each particular Math. As observed by the Privy Council, "the only law as to mahants and their
office, functions and duties is to be found in custom and practice, which is to be proved by testimony".

Generally, the mahant has the right to nominate his successor in his life-time or by will. If he does not
exercise such a right, the custom in some Maths is to elect the mahant by all the members of the Math.

The Supreme Court has held that the office of a mahant is hereditary, and the right to such an office is in
the nature of "property." (Commissioner, Hindu Religious Endowments, Madras v. Sri L. T. Swamiar,

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A.I.R. 1954 S.C. 282) The general rule is that the appointment of a new mahant is to be made from
amongst the disciples of the deceased mahant, and failing them, from amongst his spiritual kindered. If
a mahant has the power to appoint his own successor, he cannot delegate that power to a mahant of a
neighbouring math or to any other person. (Mahanath Ramji v. Lachhu, (1902) 7. C. W. N. 145)

However, even when a mahant has a power to nominate, his nominee cannot be a disqualified person
and the appointment of such a disqualified person will be invalid. Likewise, if the appointment of a
successor is not made bona fide in the interests of the math, but in furtherance of the interests of the
person appointing, the appointment is invalid. (Ramalingam v. Vythilingam, 16 Mad. 490)

In some places a custom prevails that the Mahant's nominee should also be approved or confirmed by
the members of the religious fraternity. In a panchayati math, the succession to mahantship is by
election, and the mode of election is determined by the custom and usage of the math.

66. Note on BENAMI TRANSACTIONS?

The word "Benami" is of Persian origin and literally means "without a name. The term is used to
denote the transaction of a person when such a person has not used his own name, but that of
another. Thus, if A buys property in the name of B, it would be a benami transaction, because the
money is advanced by A whereas the property stands in the name of B. This is a very common
practice in India amongst the Hindus. The benami system is not, however, a speciality of Hindu
Law Such transactions are also common among Muslims, and under Mahomedan Law, they are
known as furzee.
The reasons for entering into Benami transaction are manifold. This practice has arisen partly
from superstition, because some names were considered lucky and others unlucky. Another
reason was that this was a convenient mode of concealing family affairs from the public eye. Yet
other transactions of this nature originated in fraud or were entered into with fraudulent motives.
Thus, for instance, if X was heavily indebted, he would purchase property in the name of Y, so
that his creditors would not be able to attach such property. X could also do so to evade payment
of tax.
Thus, in all cases where A advances the purchase price of property, which is registered in B's
name, it being plainly understood between A and B that, in fact, though not in law, the property
is to belong to A, it would be a case of a Benami transaction, and B would be called a benamidar.
It may be noted that benami transactions are not confined to purchases only. Thus, a person may
take a lease of immovable property in the name of another. Or, he may create a mortgage of his
property for a fictitious consideration. Such transactions would also be benami.

SCHEDULE [See section 8] HEIRS IN CLASS I AND CLASS II

Class I

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Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-
deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; [son of a pre-
deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased
daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son] of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased
son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
Class II
I. Father.
II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.
III. (1) Daughter's son's son, (2) daughter's son' daughter, (3) daughter's daughters' son, (4) daughter's
daughter's daughter.
IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; father's sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother; mother's sister.
Explanation: In this Schedule, references to a brother or sister do not include references to a brother or
sister by uterine blood.

Difference between Dayabhaga Coparcenary and Mitakshara Coparcenary

There are two main school of Hindu Law - Dayabhaga and Mitakshara

Difference between Dayabhaga Coparcenary and Mitakshara Coparcenary

No Mitakshara Coparcenary Dayabhaga Coparcenary

1 As to how the Coparcenary arises - As to how the Coparcenary arises -

The Mitakshara Coparcenary arises Under the Dayabhaga school of Hindu
during the lifetime of the father itself law there is no right by birth. So during
and his sons have right birth. the father's lifetime between the father and
the sons, there is no Coparcenary. When
the father dies, his sons constitute a
Coparcenary.

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 2 Nature of interest of coparceners - Nature of interest of coparceners - In
In the Mitakshara births and deaths of the Dayabhaga school of Hindu law, each
coparceners. It passes by survivorship. coparcener has a defined interest. It can be
So the power of alienation either does alienated. It does not pass by survivorship.
not exist or is recognized only to a
limited extent (as in Bombay and
Madras).

3 Expansion of Coparcenary - Under Expansion of Coparcenary - Under the

the Mitakshara system only males can Dayabhaga system, on the death of one
be coparceners. On the birth of a son coparcener his heirs become coparceners.
to a coparcener, the son also becomes So even females may in this way become
a coparcener under the Mitakshara coparceners.
system.

4 Alienee's right to ask for partition - Alienee's right to ask for partition -
Under Mitakshara since there is no Under the Dayabhaga law, the alienee can
defined share, a suit for partition is the ask for joint possession along with the
only appropriate remedy of the coparceners. This is because he has a
alienee. defined share.

Persons entitled to partition - Under Persons entitled to partition - The

5 the Mitakshara as administered today Dayabhaga law does not confer on the son
the son can institute a suit for partition a right by birth and so he has no right of
even against their father. partition as against the father.

The powers of the manager are the same under both systems. But under the Dayabhaga
the coparceners can call upon the manager to account while Under the Mitakshara the manager is
not liable to account for past management. In the absence of fraud, under the Mitakshara the
liability of the manager is only to account for the assets existing at the date of the partition.

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