Family Law – I (Hindu Law)

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These are notes prepared by a student based on classroom conversation. While it has been vetted, inaccuracies may exist. It is advised that readers perform their own due diligence from official sources. Author is not liable for any loss or damage arising out of using these notes.

Unit-I:

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Sources of Hindu Law

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What is Hinduism?

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• Hinduism is a way of life.
• Dharma refers to the duties one must perform.
• Hinduism has existed since 4000 BC. As of 2024, it is 6024 years old.
• The Vedas were revealed by God himself.
• Greeks referred to Hindus as Indoi, people beyond the Indus Valley.
• The sacred book of Parsis, Zend Avesta, called the region Hapta Hindu.

Features of Hindus

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• Plurality of thoughts
• Tolerance
• Unity
• Religion is not dogma but insight.

Core Concepts of Hinduism

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• Dharma: Duty
• Danda: Punishment
• Equality before Law
• Rule of Law

Historical Texts

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• Sukra Niti: Rule of law prevails over the king.
• Upanishads
• Mahabharata
• Arthashastra
• Manusmriti

Judicial System in Ancient India

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• Local Village Courts:
  • Puga: Assembly of elders
  • Sreni: Trade guilds
  • Kula: Community courts

If relief was not granted by these courts, one could approach the King’s Court.

Scope and Application of Hindu Law

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Who is a Hindu?

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Hindu law applies only to Hindus. Even after codification, it was challenging to define who is considered a Hindu.

• Hindus are those who are not Muslims, Parsis, Jews, or Christians.
  • Sikhs, Jains, and Buddhists are also included under the definition of Hindus.

The ultimate aim in Hindu philosophy is self-realization, Enlightenment, or Moksha.

Categories

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1. By Religion:

   • If both parents are Hindus, the child is considered Hindu.
   • Even if the parents do not follow the tenets of Hinduism, the child is still Hindu.
   • Atheists or those following other religions (e.g., Christianity) can still be considered Hindu.

2. By Birth:

   • If one parent is Hindu and the child is raised as a Hindu, the child is Hindu.

3. Converts and Reconverts:

   • Converts: A person becomes Hindu through:
     • Declaration
     • Ceremony (e.g., Shuddhi at Arya Samaj)
     • Acceptance by the community they intend to join.
   • Reconverts: A person who previously converted to another religion but wishes to return to Hinduism must be accepted by the intended community (e.g., Buddhists, Sikhs).

Negative Definition

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• Christians, Muslims, Parsis, or Jews domiciled in India are not considered Hindu.
• Abandoned children are treated as Hindus unless proven otherwise.

Other Points to Note

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• Legitimate and illegitimate children are considered Hindu.
• Khojas, Cutchi Memons, Bohra Mopals, Halai Memons (converted Muslims) were governed by the Hindu Succession Act until the enactment of the Shariat Act, 1937.
• Scheduled Tribes (STs) are governed by uncodified law:
  • Defined under Section 366(25) of the Constitution.
  • Section 342 specifies that the President notifies which tribes are Scheduled Tribes.
• Tamil Vaniya Christians are subject to Hindu Family Law.
• Before 1850, Hindus who converted to other religions lost property rights. However, the Caste Disabilities Removal Act, 1850, allowed them to retain property rights.
• If a husband converts to another religion, the wife can claim separate residence and maintenance under Hindu Adoption & Maintenance Act, Section 18(2).

Case Laws

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1. Vilayat v. Sunila:

   • Husband converted to Islam and sought a divorce.
   • The court ruled that the law applicable at the time of marriage would prevail.

2. Myna Boyee v. Dotaram (1861):

   • A British man cohabited with a Hindu woman deserted by her husband.
   • The child, raised as Hindu, was considered Hindu despite the father being British and Christian.

3. Rajkumar v. Barbara (1989):

   • A child born to a Hindu father and a Christian mother was declared Hindu, though the child’s upbringing as Hindu was not clearly ascertained.

4. Shastri Yagnapurshdaji v. Muldas Bhundardas Vaishya:

   • Krishna devotees were recognized as Hindus.

5. Perumal v. Ponnuswamy (1971):

• Perumal Nader (Hindu) married Anna (Christian) and they decided to raise the child Hindu.
• After some years, they couple parted ways due to strained relations.
• Ponnuswamy, the child, sued for 50% of the property. Perumal Nader said he was not Hindu as he was not raised Hindu.
• The Court held that he was Hindu as he was raised Hindu.

6. Mohandas v. Devaswam Board:

   • Mohandas, a Christian by birth, sang devotional songs in a Hindu temple.
   • Upon declaring himself Hindu, the Board accepted him.

7. Rajagopal v. Arumugam:

   • He converted to Christianity and wanted to contest an election where he needed to prove he was a Hindu (in this case, Scheduled Caste).
   • For reconverts, they must prove that the community has accepted them.
   • In this case, he could not prove his acceptance back into the community and was, therefore, considered Christian.

Schools of Hindu Law

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Ancient Schools

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1. Shruti

   • Meaning: Whatever is heard (Divine Revelation).
   • Gods tell the sages, who communicate it to others.
   • Key texts:
     • Rig Veda (1300-1200 BC) – 1017 Slokas
     • Yajur Veda (1000 BC)
     • Sama Veda (1000 BC) – 1549 Slokas
     • Atharvana Veda (800 BC)

2. Smriti

   • Pre-Smriti Period:

     • Men turned into Charanas and taught others in groups called Samhita Charanas.
     • Important texts:
       • Dharma Sutras (800-200 BC):
         • Shrauta: Sacrifices and ceremonies
         • Grihya: Marriage ceremonies
         • Samaya Charika: Duties of men
       • Notable sages:
         • Gautama
         • Haristamba
         • Appasambha

   • Post-Smriti Period:

     • Dharma Shastras:

       • Manu Smriti:
         • Contains 18 parts on marriage, debt, gambling, succession, etc.
         • Total: 2964 Slokas
       • Yagnavalkya Smriti
       • Brihaspati Smriti
       • Narada Smriti

     • Focus Areas:

       • Achara: Custom
       • Vyavahara: Civil Law
       • Prayashitha: Punishment

3. Customs

   • Validity of Customs:

     • Ancient
     • Continuous
     • Certain
     • Reasonable
     • Not Immoral
     • Not against public policy or law (but custom prevails over written law if proven).

   • Types of Customs:

     • Local Custom
     • Family Custom
     • Guild Custom
     • Caste Custom

4. Digests and Commentaries

   • On Manu Smriti:

     • Manutika – Govindaraja
     • Manvarthamukthavali – Kulluka Bhatta

   • On Yagnavalkya Smriti:

     • Mitakshara – Vijnaneshwara
     • Balakrida – Visvarupa
     • Aparakara – Aparaditya
     • Viramitrodaya – Mitra Mishra

   • Regional Commentaries:

     • South India:
       • Smritichandrika – Devana Bhatta
       • Parasara Madhaviya – Madhavacharya
     • Western India:
       • Vyavahara Mayukha – Nilakantha Bhatta
       • Samskara Kaustuba – Ananthadeva
     • Mithila Region:
       • Vivada Chintamani – Vachaspati
       • Vivada Ratnakara – Chandeshvara
       • Madana Parilatha – Visheshvara Bhatta
     • North-East India:
       • Dayabhaga – Jimutavahana

   • Pertaining to Adoption:

     • Dattakachandrika
     • Dattaka Mimamsa

Notes

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• During Warren Hastings’ time, ten pandits codified Hindu law, later translated into Persian and English (Halhied Gentoo Code).
• Under Lord Cornwallis, William Jones worked with pandits to write Jaganatha Tharka Panchanana, followed by Colebrooke’s Vivada Bangarnava.
• Ramnad Case (Collector of Madhura v. Mooto Sethupathy): The court held that a widow could adopt a child with her husband’s express consent. This prevented the British state from taking over property in the absence of a son.

Modern Schools

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1. Equity, Justice, and Good Conscience

   • Concepts: Nyaya (Justice) and Yukti (Wisdom).
   • The British implemented English law in India when Hindu law could not be interpreted (post-1864).

2. Precedents

   • Ancient India lacked the concept of stare decisis (precedents).
   • Modern courts follow precedents set by High Courts and Supreme Courts.

3. Legislation

   • Key Acts:
     1. Caste Disabilities Removal Act, 1850 – Protected inheritance rights after conversion.
     2. Hindu Widows’ Remarriage Act, 1856 – Allowed remarriage and defined inheritance rules.
     3. Hindu Inheritance (Removal of Disabilities) Act, 1928 – Removed restrictions on inheritance for disabled individuals.
     4. Hindu Women’s Right to Property Act, 1937 – Gave Hindu widows the right to inherit.
     5. Hindu Code Bill (1950s) – Codified Hindu laws, resulting in:
        • The Hindu Marriage Act, 1955
        • The Hindu Succession Act, 1956
        • The Hindu Minority and Guardianship Act, 1956
        • The Hindu Adoption and Maintenance Act, 1956

Mitakshara School (1100–1200 AD)

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Features

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• Written by Vijnaneshwara.
• Digest and commentary on all Smritis.
• An orthodox school of Bengal.

Sub-Schools of Mitakshara

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1. Benaras School

   • Region: North Bihar, Central and Western India, Punjab.
   • Authorities followed:
     • Viramitrodaya
     • Nirnaya Sindhu
   • Widows can adopt a child with express consent of the husband during his lifetime.

2. Mithila School

   • Region: Province of Mithila, Tirhoot, and adjoining districts (now under Patna High Court jurisdiction).
     • North: Nepal Border
     • South: Ganges River
     • East: River Kosi
     • West: River Gandak
   • Authorities followed:
     • Vivada Chintamani
     • Vivada Ratnakara
   • Widows cannot adopt children, even with the consent of the late husband.

3. Maharashtra or Bombay School

   • Region: Western India, Gujarat, Kanara, and parts where Marathi is spoken.
   • Authorities followed:
     • Viramitrodaya
     • Nirnaya Sindhu
   • Widows can adopt without express consent of the husband.

4. Dravida or Madras School

   • Region: Entire Madras Presidency.
   • Authorities followed:
     • Smriti Chandrika
     • Prasara Madhaviya
     • Saraswati Vilasa
     • Vyavahara Nirnaya
   • Widows can adopt if:
     • Consent of the husband was available, or
     • With consultation of kindred (relatives).

Marriage Prohibitions in Mitakshara School

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• Marriage cannot occur if:
  • Individuals are within 5 generations on the father’s side.
  • Individuals are within 3 generations on the mother’s side.
• Based on the Particles of Same Body Theory.

Dayabhaga School (1090–1130 AD)

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Features

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• Written by Jimutavahana.
• Consists solely of digests, not commentaries.
• A progressive school.

Differences Between Mitakshara and Dayabhaga

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Pious Obligation Under Mitakshara Law

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• Son: Pays principal and interest.
• Grandson: Pays the principal.
• Great Grandson: Pays to the extent of property received.
• Abolishment: Recognized only under Mitakshara law. This was part of Hindu Succession Act 1955 but was abolished on December 20, 2004. This was done through the Hindu Succession (Amendment) Act 2005.

Law for Migrants

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• Local laws apply (lex loci).

Concepts

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Joint Family

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• Any number of generations living together are considered a joint family.
  • Membership: By birth, adoption, or marriage.
  • Character: Patriarchal.
  • Maintenance: The Karta is responsible for maintenance.
  • Corporate Personality: It cannot be called a composite family; the Karta is liable for any activities of the family.
  • Right to Dwell: All persons have a right to reside in the family home.

Coparcenary

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• Includes the father and three lineal descendants.

Property Types

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1. Joint Family Property
2. Coparcenary Property

Heirs

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• Class 1
• Class 2
• Adnates
• Cognates

Blood Relationships

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• Full Blood: Husband, wife, and their children.
• Half Blood: When one man has two wives and each has a child, they are related by half blood.
• Uterine Blood: When one woman has two husbands and each has a child, they are related by uterine blood.

Institution of Karta

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Position

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• Unique and sui generis.
• Karta is the head of the Hindu Undivided Family (HUF).

Liabilities

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• Maintenance of family members, including:
  • Children.
  • Expenses for the wedding of unmarried daughters.
  • Expenses are to be borne by the joint family property.
• On partition, the Karta must disclose all accounts.
• Represents the family in legal and financial matters.
• Responsible for paying taxes.

Powers

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1. Power of Alienation (Transfer of Property):

   • Apat Kale (Legal Necessity).
   • Kutumbarthe (Benefit of the Estate).
     • Case Law:
       • Jagat Narain v. Mathura Das: Karta sold land in a remote location and purchased property nearby. The sale was upheld as it benefited the estate.
       • Balmukund v. Kamalawathi: the plaintiff’s property was 17/20 share and the other coparceners were 3/20 share. Plaintiff has influenced the Karta to sell the property to the plaintiff. The coparceners challenged the sale. The court held that the alienation(transfer) is not valid.
   • Dharmarthe (Indispensable Religious Duties).
     • Case Law:
       • Ramalinga v. Sivachidambara: A portion of property donated to a temple for the father’s funeral was upheld as valid.
       • Guramma v. Mullappa: A small gift of property to a daughter was upheld citing indispensible religious duties.

2. Other Powers:

   • Management of the family property.
   • Right to family income.
   • Representation of the family.
   • Power to compromise disputes.
   • Authority to refer disputes to arbitration.
   • Power to acknowledge debts.
   • Power to enter contracts and borrow loans.

Son’s Pious Obligation

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Nature

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• Religious obligation to repay debts incurred by the father.
• Failure to repay debts results in rebirth as a servant, woman, or quadruped (animal with 4 feet) - (Brihaspati).
• Vyavaharica (Legal Debts): Must be repaid.
• Avyavaharica (Illegal Debts): Not enforceable.

Relevant Case Laws

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1. Darbar v. Khachar: Father erected a dam and obstructed the flow of water for the plaintiff. Plaintiff sued for damages. It was held that since it was a tort, the sons are not liable.
2. Toshan Pal v. District Judge of Agra: Father was a secretary of a school and misappropriated funds. The court held that the son was not liable as it was an illegal act.
3. Jakati v. Borker: Father was a Managing Director of a Bank and the bank went into liability due to his negligence. Negligence was a vyavaharica act and the son was held liable to pay.
4. Logannathan v. Ponnuswami: The father collected some amount from minors. It was a criminal offence. The court held that the son was not liable.

Partition

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• Definition: Bringing the joint status to an end is referred to as partition.
• Nature: It involves the severance of the joint family status and actual division by metes and bounds.

Properties That Cannot Be Partitioned

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1. Apparels
2. Carriage / Vehicles
3. Utensils
4. Horses
5. Cooked Food
6. Water
7. Pastures
8. Female Slaves
9. Dwelling House
10. Garden and Implements for Agriculture
11. Wells, Tanks, Courtyards

Provision for Deductions for Debts

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• In order for partition to take place, the debts must be cleared first.
• Marriage Expenses: Unmarried daughters’ marriage expenses.
• Unmarried Sons: Maintenance provisions.
• Females/Widows: Maintenance.
• Performance of Ceremonies: Certain religious or family ceremonies.

Persons Entitled to a Share in the Property

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• Women’s Property Act, 1937:

  • Allows widows to receive property as limited estate owners, meaning they can use the property during their lifetime but not after their death.
  • Includes:
    • Father’s Widow (Step Mother)
    • Mother
    • Grandmother

• If a new son is born after partition, the son will inherit the father’s share.

• Adopted Son: An adopted son is also entitled to a share.

Debts and Alienation of Property

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• Rule: Neither the Karta nor the coparceners have the right to alienate the joint family property.

Power to Alienate

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1. Father’s Power
2. Karta’s Power
3. Sole Surviving Coparcener Power

Antecedent Debt

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• Case Law: Sahu Ram v. Bhup Singh
  • The father borrowed ₹200 and mortgaged property for personal use.
  • At the time of repayment, the amount with interest became ₹15,000.
  • Coparceners sued, challenging the registration of the mortgage.
  • Judgment: The coparceners were not held liable.

Checked and vetted Unit I on 6th January 2025. Below is yet to be done.

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Unit-II:

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Marriage

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• Historical Background:

  • Early man lived like a barbarian. Invented fire. Sexual relations were within the tribe. Multiple men with one woman, paternity was usually unknown.
  • Some relations were prohibited such as father and daughter, brother and sister etc.
  • Eventually the relations within the tribe were prohibited and only relations outside the tribe were permitted.
  • Eventually, paternity was to be ascertained and men enforced the institution of marriage and forbade adultery. Adultery was punished.

• Marriage as a Sacrament:

  • A permanent union.
  • An eternal union.
  • A holy union.

• Marriage Today:

  • It is considered both a contract and a sacrament.

• Manu’s View:

  • If a better suitor is found, the bride’s father can cancel the marriage.
  • Narada Smriti states that once a marriage is fixed, it cannot be canceled.

Forms of Marriages

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Approved (Prashastha)

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1. Brahma:

   • Father selects a Brahmin groom with good conduct.
   • The bride is adorned and given to the groom with appropriate rituals.

2. Daiva:

   • The bride is given to a priest performing sacrifices (homams).

3. Arsha:

   • A pair of cows or bulls is given to the bride’s family, and the marriage is solemnized.

4. Prajapatya:

   • The father selects a suitable groom, blesses the couple, and performs the marriage.

Unapproved (Aprashastha)

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1. Asura:

   • The groom gives wealth to the bride’s father and relatives in exchange for marriage.

2. Gandharva:

   • Mutual consent between the bride and groom; involves garland exchange and is often performed in a secluded place.

3. Rakshasa:

   • The groom abducts the bride against her will, often with her weeping.

4. Paisacha:

   • The groom takes advantage of a girl who is intoxicated, asleep, or otherwise incapacitated, often after killing her relatives.

Engagement practice was there even in the ancient times.

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Marriage Ceremonies

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Ancient Ceremonies (Grihya Smriti)

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1. Vridhi Sraha: Offerings to ancestors.
2. Sampradana: Washing the groom’s feet as a mark of honor.
3. Kanyadana: Giving the bride in marriage with blessings for her to be part of the groom’s life in Dharma, Artha, Kama, and Moksha.
4. Dakshina: A piece of gold given by the bride’s father to the groom.
5. Vivaha Homa: Ritual offerings in the sacred fire.
6. Mahavayahritu: Offerings to the earth, sky, and heaven.
7. Panigrahana: Offerings to Varuna and Agni.
8. Agni Parinaya: Three rounds around the holy fire.
9. Saptapadi: The seven steps taken by the couple representing:
   • Food
   • Strength
   • Wealth and Prosperity
   • Comfort
   • Progeny
   • Enjoyment of seasons
   • Friendship (Sakhi)

• All the ceremonies are performed by chanting of mantras. The marriage is a sacrament as it has been performed with these ceremonies.

Definitions of Marriage

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• Mark and Yung:

  • “Marriage is an institution or set of norms which determine the particular relation of harmony to each other and to their children.”

• Malinowski:

  • “Marriage is a contract for the production and maintenance of children.”

• Harton and Hunt:

  • “Marriage is the approved social pattern whereby two or more persons establish a family.”

• Alfred McCling Lec:

  • “Marriage is the public joining together under socially specified regulation of man and woman as husband & wife.”

• Manu:

  • “Coming together of man and woman is necessary for the fulfillment of the threefold ideals of life, i.e., Dharma, Artha, and Kama.”

Importance of institution of marriage under Hindu Law

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• Marriage is a permanent union.
• Marriage allows a man to have a son and discharge pious obligations.
• Marriage allows a man to have a wife who is a part of his life (ardhangani)
• Hindu Marriage is eternal and is not dissolved for life and beyond life.
• When codified, it helps get recognition.

Conditions of Hindu Marriage (Section 5 of Hindu Marriage Act 1955)

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• Section 5 | Conditions of Valid Marriage

Section 5

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1. Monogamy (Section 5(i))

   • Either spouse should not have another spouse living, and any such marriage would be bigamous. The second/subsequent marriage would be void.
   • If the marriage is not yet performed:
     • The first wife alone could file an injunction under Section 9 of CPC read with Section 38 of Specific Relief Act.
   • If the marriage is performed:
     • The first wife alone could file a suit under Section 9 of CPC read with Section 34 of Specific Relief Act to declare the second marriage void.
   • The wife can also file under Section 494 of IPC / Section 82(1) of BNS.
   • If X and Y are married and X marries Z whilst being married to Y:
     • X is punishable under Section 495 of IPC or Section 82(2) of BNS.
   • Case Laws:
     • Sarala Mudgal v. Union of India
     • Lilly Thomas v. Union of India
       • In both cases, the Supreme Court held that if a spouse has changed religion and wishes to marry in accordance with the personal law of the new religion, the first spouse must be divorced before new marriages can be performed.
   • This is a mandatory condition.

2. Capacity or Sound Mind (Section 5(ii))

   • Includes conditions like mental disorder, physical incapacity, idiot, insanity, epilepsy, and impotence.
   • This is a recommendatory condition.
   • Case Laws:
     • Laxmi v. Babulal: The woman had no vagina, and after medical intervention, it did not amount to impotence.
     • M v. S, Ganeshji v. Hastuben, Rajendra v. Shanti: Medical interventions were performed and did not result in a declaration of impotence.
     • Prajapati v. Hastubai, Shewanti v. Bhaura: Unable to menstruate and could not have children but was able to have sexual relations; not declared as impotency.
     • Alkasharma v. Avinash Chandra: If both physical and mental conditions are present, and the other spouse is unable to continue the marriage, the court can nullify the marriage.
     • Triveni Singh v. State of UP: The woman had an HIV infection; the court held that it could not nullify the marriage.

3. Marriageable Age (Section 5(iii))

   • The Act specifies:
     • 21 years for men and 18 years for women.
   • This is a recommendatory condition.
   • Doctrine of Factum Valet:
     • Once a marriage is performed, it remains valid even if the age conditions are violated.
     • Child Marriage Penalties:
       • Punishment may be imposed on:
         • Bride
         • Bridegroom
         • Parents of the bride and bridegroom
         • Attendees of the marriage

4. Outside the Prohibited Degrees (Section 5(iv))

   • This is a mandatory condition.
   • Marriages are not allowed unless there is a custom permitting them.

5. Outside the Sapinda Relationship (Section 5(v))

   • This is a mandatory condition.
   • Oblation or Rice Ball Theory (Jimuthavahana) - Dayabhaga:
     • Anyone who will offer pindas cannot marry each other.
   • Particles of Same Body Theory (Vijnaneshwara) - Mitakshara:
     • Mother’s side: Cannot marry within 5 degrees.
     • Father’s side: Cannot marry within 7 degrees.
   • Present Law in Hindu Marriage Act 1955.
   • Samana Gothra or Binna Gothra:
     • Samana Gothra: Same gothra cannot marry:
       • 3 generations from the mother’s side (agnates).
       • 5 generations from the father’s side (cognates).
   • Sa Gotra or Sa Pravara: Prohibited.
   • Hindu Law does not permit Hindus to marry other religions unless the other person converts to Hinduism in India. However, lex loci would apply in other countries.
   • In India, Hindus can marry other religions under the Special Marriage Act.

6. Anuloma or Pratiloma:

   • Anuloma: Superior caste male marries an inferior caste female.
     • Valid in Bombay, Assam, and Bengal.
   • Pratiloma: Superior caste female marries an inferior caste male.
     • Considered invalid in all schools of Hinduism.
   • Britishers passed the Hindu Marriage (Removal of Disabilities Act 1946), permitting inter-varna (caste) marriages.

7. Exogamy and Endogamy:

   • Exogamy: Marriage outside the family.
   • Endogamy: Marriage within the family.

Ceremonies (Section 7 of Hindu Marriage Act 1955)

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• Section 7

  • Customary Ceremonies and Rites

    • Some customs:
      • Jats: Put a red vermillion cloth on the bride.
      • Buddhists: No ceremonies.
      • Kareva: No ceremonies.
      • Nairs: Only tying of the knot is sufficient.
    • If the marriage is performed according to the ceremony, it is considered valid.

  • Customary Ceremonies

    • No ceremonies: Not valid.

    • Mock ceremonies (such as exchange of garlands): Not valid.

      Case Laws:

      • Dr Amar Nath Mukerji v. State: Case of Bigamy. The first wife sued as the first marriage was not performed according to ceremonies.
      • Devianachhi v. Chidambara Chettiar: This was an anti-purohit organisation. They exchanged garlands and announced that they were married. It was held that it was not a valid marriage.
      • Ramchandra v. Majnu: Not a valid marriage as it was a Gandharava marriage and they could not prove that it was a custom.
      • Bhauro Shankar Lokhande v. State of Maharashtra: They could not prove that it was a custom that led to a different type of marriage. The court held that the law prevailed and it was not a valid marriage.
      • Shri Nitin s/o Omprakash v. Smt Rekha v/o Nitin Agarwal: The man applied sindoor on the woman’s forehead and claimed they were married and started living together as husband and wife. The court held that it was not a valid marriage.
      • Surjit Kaur v. Garja Singh: They did not perform any ceremonies and started living as husband and wife for a long time. It was held that this was not a valid marriage.
      • Sumit Suhash Agarwal v. Kamlesh Lalyita Prasad Gupta (2018): Kept a bunch of agarbattis (incense sticks) and took seven steps (sapta padi). The court ruled that it was a valid marriage.
      • S. Nagalingam v. Sivagami: Saptapadi was not performed, but they claimed that customs were followed and proved their customs. It was held that the marriage was valid.

    • Essential ceremonies: Valid.

      • Kanya Dana
      • Panigraha
      • Vivaha Homa
      • Sapta Padi

    • Ceremonies of either party are performed:

      • Example: If a Hindu marries a Jain and either of their ceremonies are performed, it is valid.

  • Shastric Ceremonies:

    • Ganapati Puja
    • Nandi Devatha Aradhana
    • Gowri Puja
    • Snataka Ceremony
    • Kasiyatra
    • Kanya Dana
    • Panigraha
    • Sapta Padi

Registration (Section 8 of Hindu Marriage Act 1955)

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• Section 8 | Registration
  • The Central Government lays down the procedure for registration of a marriage.
  • The AP Compulsory Marriage Registration Act 2002 mandates the registration of marriages. However, only a ₹25 fine is imposed regardless of the delay.

Special Marriage Act (SMA) 1954 and Registration

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• Year of Enactment: The Special Marriage Act was passed in 1954.
• Registration under SMA is mandatory, and the following rules apply:
  • 30 days’ notice is required.
  • Groom must be 21 years and bride must be 18 years old minimum.
  • No bigamy is permitted.
  • Parties must live in the district for at least 30 days before applying to get married under the SMA.
  • Parties must not fall within the prohibited degrees of relationship.

Use Cases of the Special Marriage Act (SMA)

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1. Inter-religious Marriages:

   • The SMA provides a legal framework for marriages between individuals of different religions without requiring either party to convert.
   • Example: A Hindu man from Hyderabad marries a Christian/Muslim woman without converting under the SMA.

2. Marriages Without Traditional Ceremonies:

   • Couples who prefer a simple civil marriage without following traditional rituals can register their marriage under the SMA.
   • Example: A couple from Hyderabad registers their marriage under SMA to avoid societal pressure of performing expensive ceremonies.

3. Protection for Love Marriages:

   • It ensures legal protection for couples who face societal or familial opposition, especially in conservative setups like some Telugu families in Hyderabad.
   • Example: A young Telugu couple from Hyderabad elopes and registers their marriage under the SMA to safeguard their rights.

4. NRI Marriages:

   • If one of the parties resides outside India, the SMA allows the marriage to be registered in India, provided the notice period and other requirements are met.
   • Example: An NRI living in the USA marries his Telugu fiancée in Hyderabad under SMA to facilitate visa processing.

5. Legal Framework for Marriage Validity:

   • It is useful for obtaining valid marriage certificates for visa, immigration, or legal purposes.
   • Example: A Telugu couple moving to Canada registers their marriage under the SMA for immigration documentation.

Monogamy and Polygamy

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Recent Trends in the Institution of Marriage

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1. Live-in Relationships:

   • Live-in partners can claim maintenance under the Domestic Violence Act, 2005.

2. Late Marriages:

   • Individuals are marrying later, focusing on settling down first.

3. Fewer Children:

   • Due to the higher cost of living, couples are having fewer children.

4. Rise in Marriage Counseling:

   • Increased disputes between spouses have led to the rise of counseling.

5. Westernization and Modernization:

   • Disputes often arise due to conflicting ideals influenced by Western culture.

6. Changing Purpose of Marriage:

   • Previously considered a holy union, marriage is now sometimes seen as a contract.

7. Mate Selection:

   • Girls now have the choice of partner, unlike earlier times when families decided.

8. Inter-caste and Inter-religion Marriages:

   • Individuals are increasingly choosing partners across caste or religion based on personal preferences like looks and income.

9. Increase in Divorce and Desertion:

   • A significant rise in divorce petitions post-2010.

10. NRI Marriages:

    • Common issues faced by women include:
      • Being sent back to India after the honeymoon.
      • Facing physical abuse.
      • Discovering the husband is already married abroad.
    • Legal Provisions:
      • Section 44A of CPC: Divorce judgments are valid in reciprocating countries (e.g., the USA is not a reciprocating country).
    • Key Cases:
      • Harmeeta Singh v. Rajat Taneja: High Court restrained US divorce proceedings.
      • Neeraja Sharaph v. Jayant Sharaph: Divorce taken abroad is invalid if marriage was performed in India; adequate alimony must be provided.
    • Legal Remedies:
      • Passport confiscation (Rajiv Dayal v. Union of India).
      • Assistance from the Ministry of External Affairs.

11. LGBTQIA+ Recognition:

    • A third genter has been recognized but marriage is not legally recognized in India.
    • Types:
      • Lesbian: Female-Female.
      • Gay: Male-Male.
      • Bisexual: Attracted to both sexes.
      • Transgender: Interested in sex change.
      • Queer: Complicated identities.
      • Intersex: Neither fully male nor female.
      • Asexual: No interest in sex.
    • Historical References:
      • Narada Smriti and Other Smritis banned marriage between homosexuals.
      • Types of Impotent Men:
        • Narada Smriti:
          • Mukhebahaga: Men having oral sex with other men.
          • Sev Yaka: Men engaging in sexual relations with other men.
          • Irshyaka: Voyeurism.
        • Kamasutra:
          • Svairini
          • Kami
          • Paksha

Unit-III:

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Matrimonial Remedies under the Hindu Marriage Act, 1955

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Section 9: Restitution of Conjugal Rights (RCR)

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• Definition:

  • Conjugal rights are those available to spouses after marriage, including:
    • Cohabitation
    • Comfort and company of the partner
    • Sexual relationship

• Restitution of Conjugal Rights (RCR):

  • Refers to the withdrawal from the conjugal society of the spouse without reasonable cause.
  • Key Points:
    • Only desertion is a valid reason for withdrawal from the marital relationship, and RCR can be claimed for this.
    • Certain actions are not valid reasons for withdrawal, such as:
      • Taking care of the spouse’s parents.
      • Dislike or unwillingness for sexual relations while living together.
    • Actions that are reasonable causes for withdrawal:
      • If one spouse forces the other to eat meat against their will.

• Case Laws:

  1. A.E. Thirumal v. Rajaram:

     • Pre-marriage agreements to live separately after marriage are void.
     • The court held that the agreement was invalid, and RCR was granted.

  2. Mirchumal v. Devi Bhai:

     • The husband did not want his wife to work and live in Bombay.
     • The wife offered to visit whenever possible.
     • The court denied RCR as the wife’s actions were reasonable.

  3. Pravinaben v. Suresh Bhai:

     • The wife worked elsewhere, and the husband sought RCR.
     • The court ruled that working elsewhere is not a reasonable cause for RCR.

  4. Kamuvimarthi v. Prameshwara Iyer:

     • The husband filed RCR, demanding the wife leave her job and join his business.
     • The court held that this was not a valid reason for RCR.

  5. Vuyyuru Pothuraju v. Radha:

     • Pre-marriage agreements to live separately are void.
     • The husband agreed to live at the foster father’s house but later could not adjust and filed for RCR.
     • The court granted RCR, stating that pre-marriage agreements are invalid.

  6. Ramchandra v. Adarsh:

     • The wife went to her parents’ place to give birth.
     • The husband did not visit her or their child.
     • The court denied RCR, citing the wife’s actions were justified.

  7. Ashok v. Shabnam:

     • The wife left due to dowry demands and harassment.
     • RCR was denied as the wife had reasonable cause to leave.

  8. Darshan Ram v. Maya, Gurdeep Singh v. Ranjit Kaur, Charan Singh v. Jaya, and Rajendra Prasad v. State of UP:

     • Husbands filed RCR petitions to counter maintenance claims by wives.
     • The courts denied RCR in all cases.

  9. Veena Handa v. Avinash:

     • The wife sought maintenance after being deserted.
     • The husband filed RCR to frustrate her claim.
     • The trial court granted RCR, but the husband did not comply.
     • On appeal, the High Court reversed the decision.

  10. Bitto v. RamDeo:

      • The husband accused the wife of adultery to frustrate her maintenance claim.
      • The court granted maintenance to the wife.

  11. Satyanarayana v. Veeramani:

      • The husband deserted the wife but later filed RCR.
      • The court dismissed the petition as the husband was the deserter.

• Constitutional Validity of Section 9:

  • Sareetha v. Venkata Subbaiah (AP, 1983):
    • The Andhra Pradesh High Court ruled that Section 9 violates Articles 14 and 21.
  • Havinder Kaur v. Harmandar Singh (Delhi, 1984):
    • The Delhi High Court upheld Section 9, stating it promotes cohabitation and consortium.
  • Saroj Rani v. Sudershan Kumar (SC, 1984):
    • The Supreme Court upheld Section 9 as constitutional, stating it helps maintain marital relationships.

Section 11 & 12 | Void and Voidable Marriage | Nullity of Marriage

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Absolute Impediments (Void Ab Initio) | Section 11

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• Grounds for Void Marriage:
  • Section 5(i), (iv), (v):
    • Bigamy: Marrying while the first spouse is still alive.
    • Prohibited Degrees: Marriage within prohibited degrees of relationship.
    • Sapinda Relationship: Marriage within sapinda relationship.
• Relevant Case Laws:
  • Narinder Pal Kaur Chawla v. Manjeet Singh Chawla
  • Badshah v. Urmila Badshah Godse:
    • In both cases, the husband was already married but failed to inform the second spouse. The court awarded maintenance to the second spouse.
  • Prabhjot Singh v. Prabhjit Kaur:
    • Marriage within sapinda relationship and performed by force. The husband contended Hindu law did not apply to him but failed to prove this. Court held the marriage void ab initio.

Relative Impediments (Voidable Marriage) | Section 12

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• A voidable marriage is valid unless it is annulled.
• These provisions were borrowed from English law, which includes certain mistakes. For example, if a marriage is annulled, the marriage becomes void from the beginning, and children born out of such a marriage become illegitimate.

Grounds for Voidable Marriage

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1. Impotency:

   • Key Case Laws:
     • Shawanti v. Bhawrao: Wife could not menstruate but could have sexual intercourse. Not grounds for nullifying the marriage.
     • Samar Som v. Sadhana Som: Pending details.
     • Beena Cherian v. K.S. Varghese: Uterus removed before marriage; court ruled it was not grounds for nullity as normal sexual relations were possible.
     • Jagannath Mudali v. Nirupam Behra: Wife unable to consummate the marriage. Marriage annulled.
     • Jagdish Lal v. Shyama Madan: Husband impotent towards his wife but not with other women. Marriage annulled.
     • Smt Suvarna v. G.M. Acharya: Husband unable to have sexual relations; marriage annulled.
     • Manjit Kaur v. Surrender: Husband unable to perform; marriage annulled.

2. Insanity, Unsoundness of Mind, Mental Disorder, or Epilepsy (Section 12(i)(b)):

   • Grounds for voidable marriage only if present before marriage. Unsoundness after marriage is grounds for divorce, not annulment.
   • Key Case Laws:
     • Muneshwar Dutt v. Smt Indra Kumari: Unsoundness developed after marriage; grounds for divorce, not annulment.
     • Ram Narain Gupta v. Rameshwari Gupta: Unsoundness must prevent the spouse from living together to be grounds for annulment.
     • Kollam Chandra Sekhar v. Kollam Padmalatha: Wife treated for schizophrenia; valid grounds for annulment.
     • R. Lakshmi Narayan v. Santhi: Husband knew of the mental disorder before marriage but still married; annulment petition dismissed.

3. Force or Fraud:

   • Must be repudiated within 1 year.
   • Key Case Laws:
     • Ford v. Stier: Fraudulent marriage ceremony; annulled.
     • Bimla v. Shankarlal: Concealment of religion or caste; annulled.
     • Harbhajan v. Brijbala: Groom misled by father-in-law; annulled.
     • Som Dutt v. Raj Kumar: Wife’s age misrepresented; annulled.
     • Anurag Anand v. Sunita Anand: Misrepresentation of status, income, and property; annulled.
     • Bawi v. Ram: Groom’s age misrepresented; annulled.

4. Wife Pregnant with Another’s Child:

   • Grounds for annulment if:
     • The husband was ignorant of the pregnancy.
     • Petition filed within 1 year of marriage.
   • Key Case Laws:
     • Mahendra v. Shushila: Child born 171 days after marriage; annulled.
     • Baldeo Miglani v. Smt Urmila Kumari: Child born 157 days after marriage; annulled.
     • Ravena Siddappa v. Mallikarjun & Others: Illegitimate child not entitled to ancestral property; only self-acquired property.
     • Bharatha Matha v. Vijaya Ranganathan: Illegitimate child entitled only to father’s separate property.

Section 10 & 13 | Judicial Separation and Divorce

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The grounds are same for judicial separation and divorce.

Section 10: Judicial Separation

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• Judicial Separation: Conjugal rights are suspended.
• Marriage subsists.

Section 13(1): Divorce

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• Divorce: Marriage is now cancelled.

Grounds for Divorce

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1. Physical and Mental

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• Adultery (i)
• Cruelty (i-a):
  • Case Laws:
    • Shyamalata v. Suresh: Husband filed for divorce as the wife complained against the in-laws and husband. Proceedings dropped; did not amount to cruelty.
    • Kalpana v. Surendra: Wife lodged a complaint under IPC 498A against the husband’s family. Held as cruelty.
    • Sushil v. Usha: Wife terminated pregnancy without informing the husband. Held as cruelty.
    • Madanlal v. Sudesh Kumar: Wife gave birth to an illegitimate child 6 months into marriage. Held as cruelty.
    • Ramesh Chander v. Savitri: Pending details.
    • Bhagwat v. Bhagwat: Husband strangulated brother-in-law and youngest son. Held as cruelty.
    • Kiran v. Surender: Pending details.
    • Shyam Sunder v. Shantadevi: Wife was ill-treated, denied food, and confined to a room. Other family members remained idle. Held as cruelty.
    • Gopal v. Mithilesh: Husband was neutral and did not side with either mother or wife. Not considered cruelty.
    • Deva Kumar v. Thilagavathy: Wife was treated poorly and driven to commit suicide. Held as cruelty.

2. Desertion (Section 13(1)(ib))

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• Definition: Intentional abandonment of marital obligations by one spouse without reasonable cause and without consent.

• Key Elements:

  • Factum of Separation: Physical or mental separation.
  • Animus Deserdendi: Intention to desert permanently.
  • Without Reasonable Cause: No justifiable reason for leaving.
  • Without Consent: Separation without the deserted spouse’s agreement.
  • Statutory Period: Continuous desertion for 2 years prior to filing the divorce petition.

• Case Laws:

  • Bipinchandra v. Prabhavathi: Court ruled that desertion was not proved as the wife had no intention to desert.
  • Lachman v. Meena: Wife went abroad; husband cited cruelty and desertion.
  • Rohini v. Narendra Singh: Wife left matrimonial home after 2 years; court ruled she was cruel.
  • Jagannath v. Krishna: Wife became Bramhakumari; court ruled cruelty.
  • Teerath Ram v. Parvathi: Wife wanted a separate house; not considered desertion.
  • Angalla Padmalatha v. A. Sudershan Rao: Wife left for delivery and never returned; held as cruelty.
  • Sunil Kumar v. Usha: Atmosphere of the matrimonial home was not conducive; not considered cruelty.

• Types of Desertion:

  • Actual Desertion: Deserting the spouse
  • Constructive Desertion: May not be actual desertion but not taking care of the spouse. e.g. living in the same house and not taking care of the other spouse.
  • Willful Neglect: Intentional neglect of marital obligations.

3. Insanity (iii)

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• Mental disorder that makes marital life unmanageable.

4. Venereal Diseases (iv)

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• If the respondent is suffering from a communicable venereal disease.

Time Limit

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• RCR or JS: After one year of judicial separation or restitution of conjugal rights.
• Desertion (Section 13(1)(ib)): Two years of desertion.
• Not Heard for 7 Years (vii):
  • Presumption of Death: Civil death presumed.

Other Factors

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• Religious Conversion (ii): Conversion to another religion is a ground for divorce.
• Renunciation (vi):
  • Sanyasa Ashrama: Renouncing worldly pleasures and performing funeral rites is considered desertion.

Irretrievable Breakdown (Section 13A)

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• If the spouses do not reunite after 1 year of RCR being passed, the petitioner of RCR can file for divorce.
• In case of judicial separation, they can approach the court for divorce after 1 year.

Mutual Consent Divorce (Section 13B)

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• Conditions:
  • Living separately for over 1 year.
  • Unable to live together.
  • Mutually agreed to separate.
• Procedure:
  • File a petition for mutual consent; both parties act as petitioners.
  • Wait for a cooling-off period of 6 months.
  • Within 18 months of filing the intitial petition, they must move the motion to complete the divorce process.

Case Laws:

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1. Amardeep Singh v. Harveen Kaur:

   • Parties lived separately since 2008 but filed the petition in 2017.
   • Conditions for waiving the 6-month cooling-off period:
     • All reconciliation attempts (Family Court Act Sec 9 and Sec 23(2) of HMA) are exhausted.
     • Custody, maintenance, alimony, and other matters are settled.
     • Irretrievable breakdown of marriage is proven.
   • Court waived the waiting period and granted divorce after 7 days.

2. Vaibhav Pancholi v. Priya (2022):

   • Marriage performed in 2020; the couple lived separately for 14 months.
   • Court waived the cooling-off period as the husband had to go abroad for work.

3. Vandana Goal v. Prashant Goal (MP, 2022):

   • Couple stayed together for 12 days; reconciliation attempts failed.
   • Permanent alimony of ₹1 crore was settled.
   • Court waived the remaining 9 days of the cooling-off period.

4. Anil Kumar v. Maya Jain:

   • Waived the 6-month cooling-off period.

5. Poonam v. Sumit Tanwar:

   • Waived the 6-month cooling-off period.

6. Nikhil Kumar v. Rupali Kumar:

   • Married in 2011; divorce petition filed in 2016.
   • Wife had to go to the UK. Family court rejected the waiver, but the Supreme Court granted relief.

Special Grounds for Divorce Available to Wife (Section 13(2))

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1. Husband Having Two Wives:

   • Polygamy was permitted before the 1955 HMA.
   • This provision is now obsolete.

2. Rape, Sodomy, Bestiality:

   • These are unnatural offences under Section 377 of IPC.
   • Though decriminalised, they remain valid grounds for divorce.

3. Maintenance Orders (S.144 BNSS / S.125 CrPC / S.18 HA&M Act):

   • If an order of maintenance is granted, resumption of cohabitation must happen within 1 year.
   • The wife can file for divorce after 1 year.

4. Marriage Under 15 Years of Age:

   • The wife must repudiate the marriage between the ages of 15-18 years.
   • The petition for divorce must be filed between 18-19 years, as she becomes a major at 18.
   • If the petition is not filed by 19, she loses the right to divorce on this ground.

Customary Divorce (Section 29(2))

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• Typically found in matriarchal societies, such as Kerala.
• Bill of divorcement, Tyaga Patra, or Farkatnama:
  • Can be oral or written.
  • Developed under British rule and continue till date.

Case Law:

• Premabai v. Channolal:
  • A girl aged 14 took a divorce. Later, she filed a petition stating she was too young and did not understand her actions.
  • The court held that the divorce stands.

Special Enactments under British Rule

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1. Madras Aliyasantana Act, 1949

   • Defined and amended laws related to marriage, maintenance, guardianship, intestate succession, family management, and partition for Aliyasantana followers.
   • Applied to Hindus in specific regions governed by Aliyasantana law.

2. Travancore Ezhava Act, 1925

   • Governed the Ezhava community in the Travancore region, codifying their traditional inheritance practices.

3. Cochin Nayar Act, 1931

   • Specifically applied to the Nair community in the Cochin region, regulating their inheritance and family property systems.

4. Madras Marumakkattayam Act, 1932

   • Codified the customary law of Marumakkattayam inheritance, where descent is traced in the female line.
   • Provided rules for family management, partition, and succession.

5. Cochin Marumakkathayam Act, 1938

   • Applied to followers of Marumakkattayam law in the Cochin region.
   • Codified and regulated inheritance, family management, and property rights.

Provisions under these Acts:

• Divorce can be filed by mutual consent with an agreement, without needing to go to court.
• These Acts apply only to matrilineal societies.
• HMA provisions such as maintenance, custody of children, and alimony do not apply, as these Acts already contain relevant details.

Section 24: Maintenance Pendente Lite (Interim Maintenance)

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• Provision:
  • Under English Law, only the wife can claim maintenance.
  • Under Indian Law, both husband and wife can claim maintenance.
• Key Points:
  • Pendente Lite: Refers to interim maintenance during the pendency of proceedings.
  • The right to claim maintenance is independent of assets.
  • The petition must be disposed of within 60 days after notice is served.
  • Maintenance is for the spouse without independent income and covers:
    • Food, shelter, clothing, medical expenses, and unmarried daughter’s marriage expenses.
    • For spouse and dependents (children until age 18).
  • Maintenance cannot exceed the income of the other spouse.
  • Court considers the income of both claimant and non-claimant.
• Duration of Maintenance:
  • Paid until:
    • Death of the spouse.
    • Re-marriage of the spouse.
    • Adultery by either spouse.
    • Co-habitation of the spouses.
• Restrictions:
  • No condition can be imposed on the payment of maintenance.

Key Case Laws:

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1. Indra Paul Kaur v. Tejinder Pal Singh:
   • Maintenance must reflect the actual needs of the parties.
2. Remani Menon v. K.G. Omnal Cuttar:
   • Maintenance includes not just food, shelter, and clothing but also basic education.
3. Yashpal Singh Thakur v. Smt Anjana:
   • A husband, an auto driver, stopped working and claimed maintenance. He was denied maintenance.
4. Rani Sethi v. Sethi:
   • Wife paid ₹20,000 in maintenance, ₹10,000 in legal costs, and a Zen car to the husband.

Importance of Conciliation

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• A trusted person between both parties can help settle disputes.
• Faster and cheaper than litigation.
• Promotes welfare of needy women.
• Ensures privacy, avoiding external discussions.
• The conciliator must counsel the spouses effectively.

Role of Family Courts in Resolving Matrimonial Disputes (Family Courts Act 1984)

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• The Family Courts Act 1984 contains 23 Sections divided into 6 Parts.
• Established for speedy trials and quick settlement of disputes.
• The primary intent is to preserve the matrimonial home.

Historical Note:

• Durga Bai Deshmukh observed Family Courts in China and proposed the idea to Jawaharlal Nehru.
• Recommended by the 54th Law Commission.
• The first Family Court was established in Rajasthan.

Jurisdiction:

• Matters under Family Court jurisdiction:
  • Restitution of Conjugal Rights (RCR)
  • Property disputes of married couples
  • Granting injunctions
  • Claims of maintenance
  • Custody of children
  • Access to children (Visiting Rights)

Outside Jurisdiction:

• Declaration of illegitimacy of a child.
• Guardianship of minors.
• Property disputes involving minors.
• Suits relating to mothers, sisters, brothers.
• Suits for declaring that the father must provide funds for the daughter’s marriage.

Appointment of Judges (as per Central Government Rules):

• Qualification:
  • 7 years of practice as an advocate OR
  • 7 years of experience as a judicial officer.
• Selection Process: Exam and interview.

Key Features of Family Courts

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• Jurisdictional Restrictions:

  • Section 8: District Courts cannot entertain family matters if a Family Court exists in that jurisdiction.

• Collaboration with NGOs:

  • Section 9 mandates reconciliation attempts. The court works with certain NGOs to facilitate such attempts.

• Execution of Decrees:

  • As per CPC (Code of Civil Procedure).
  • For maintenance, CrPC provisions are applicable.

• In-Camera Proceedings:

  • Section 11: Proceedings can be conducted in-camera upon the request of the parties.

• Expert Advice:

  • The court may seek advice from medical and other experts.

• Advocate Representation:

  • At the time of filing the petition, parties cannot engage an advocate.
  • Later, they may appoint an advocate with the court’s permission.

• Judgments:

  • Judgments may be concise; they need not be lengthy.

• Evidence:

  • Evidence is typed and the deposition is signed.

Section 14–30 | Other Provisions of Hindu Marriage Act 1955

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Section 14: Fair Trial Rule

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• Rule:

  • No petition for divorce or judicial separation can be filed within 1 year of marriage, except in cases of exceptional hardship or depravity.
  • This 1-year period is intended to allow the couple to adjust to married life.

• Key Case Laws:

  1. Vishnu Das H. v. Nil:

     • Marriage on 07/11/2019. Wife stayed at in-laws’ house for only one night and never returned. Despite mediation attempts, she did not reconcile. Divorce filed on 11/01/2020.
     • Trial court dismissed the case; High Court granted divorce.
     • Nil is a placeholder to protect the privacy of the person.

  2. Akshara v. Rohin S. Raveendran:

     • Petition filed within less than 1 year.
     • Court held that waiting for 1 year would not serve any purpose.

  3. Manish Sirohi v. Smt Meenakshi (2007):

     • Parties voluntarily wanted to withdraw from matrimony.
     • Court ruled that continuation of the marital relationship would cause mental trauma and granted divorce in less than 1 year.

  4. Gijoosh Gopi v. Sruthi:

     • Marriage lasted less than a day.
     • Divorce granted in less than 1 year.

Section 15: When Can Divorcees Marry Again

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• Divorcees may remarry once the decree of divorce becomes final and no appeal is pending.

Section 16: Legitimacy of Children

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• Provision:

  • Children of a void marriage are entitled to the parents’ property share but not the coparcenary.
  • Upon the death of the father, they may receive a portion of coparcenary property.

• Key Case Laws:

  1. Gowri Ammal v. Thulasi Ammal:

     • First marriage void; second marriage valid.
     • Daughter and wife from the first marriage were not entitled to property as the case was before the 1976 Amendment.

  2. Shantaram v. Dagubhai:

     • Man married “C” while married to “B”.
     • Court held that “C’s” son was entitled to property and “C” was entitled to alimony.

  3. Extramarital Child Case:

     • If “A” (husband) and “B” (wife) have a child from “B’s” extramarital relationship with “X”, the child is entitled only to “B’s” property.
     • The child is not entitled to the property of “A” or “X”.
     • “X” is termed as the Putative Father.

Section 17: Conditions of a Valid Marriage

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• Marriage is valid only if it fulfills the conditions under Section 5 of the Hindu Marriage Act.

Section 18: Punishment for Child Marriage, Prohibited Degrees, or Sapinda Relations

#

• Penalizes violations of age, prohibited degrees, or sapinda relationships as per Section 5.

Section 19: Jurisdiction of Disputes

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• Husband’s Jurisdiction:

  • Place of marriage performance.
  • Place where the respondent resides.
  • Place where the couple last resided together.

• Wife’s Jurisdiction:

  • Place where the petitioner (wife) resides.
  • Place where the respondent resides.

• Other Provisions:

  • If one spouse is out of the country, the petition can be filed anywhere in India.
  • If the whereabouts of the respondent are unknown, the petition can still be filed.

Section 20: Contents of the Petition

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• All contents must be verified according to the Code of Civil Procedure (CPC).

Section 21: Procedure

#

• The procedure for matrimonial disputes follows the CPC.

Section 22: In-Camera Proceedings

#

• To ensure privacy, proceedings may be held in-camera, upon request by either party.

Section 23: Bars to Matrimonial Reliefs

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Section 23(1): Doctrine of Strict Proof

#

• Key Points:

  • Burden of proof lies on the petitioner.
  • The respondent may contest the claims.

• Bars to Relief:

  1. Taking Advantage of One’s Own Wrong

  2. Accessory, Connivance, or Condonation:

     • Condonation Case Laws:
       • Topan Kumar v. Jyotsna:
         • Wife withdrew criminal cases. The couple cohabited for 1.5 years after reconciliation. Divorce denied as cohabitation implied condonation.
       • Chandra v. Avinash:
         • Adultery condoned by continued cohabitation.

  3. Collusion

  4. Delay:

     • Delay Case Laws:
       • Kuppa v. Rama:
         • Divorce petition filed after 7 years of separation. Delay explained as attempts to restore the relationship. Divorce granted.
       • Teja Singh v. Surjeet Singh:
         • RCR filed after 7 years of separation. Delay held improper; petition dismissed.

  5. Other Legal Grounds

Section 23(2): Reconciliation

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• Mandatory Process:
  • The court must attempt reconciliation.
  • Exceptions:
    • Cases filed on grounds of insanity, venereal disease, or presumption of death (7 years).

Section 24–30 | Ancillary Reliefs and Other Provisions

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Section 25: Permanent Alimony

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• Provision:
  • Can be granted by the court either at the time of passing the decree or after it is passed.
  • It is a one-time settlement allowance based on the status and assets of the parties.
  • If alimony is paid, maintenance is not required.

Maintenance Enhancement:

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• The court may revise maintenance based on changing circumstances.

Section 26: Custody of Children

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• Provision:
  • The custody of children is decided when the maintenance petition is disposed of.

Section 27: Joint Property

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• Provision:
  • Property purchased during marriage is considered joint property.
  • Options:
    • One spouse must buy out the other spouse’s share.
    • Property can be sold, and the proceeds divided between the spouses.

Key Case Laws:

#

1. Prathibha Rani v. Suraj Kumar:
   • Ornaments and dowry must be returned to the wife.
2. Sunita Shankar Salvi v. Shankar Laxman Salvi:
   • Divorce by mutual consent; property sold after divorce.
   • Court ordered sale proceeds to be divided between the spouses.

Section 28: Appeals

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• Provision:
  • Appeals can be filed within 90 days of the decree.
  • Appeals cannot be filed for costs alone.

Section 29: Customs

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• Provision:
  • All customs that existed prior to 1955 are saved unless specifically overridden by the Hindu Marriage Act.

Section 28A: Enforcement of Decrees

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• Provision:
  • Decrees can be enforced as per the Code of Civil Procedure (CPC).

Section 30: Repealed

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• This section has been repealed and is no longer applicable.

The notes below this are yet to be vetted and fixed.

Unit-IV:

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Concept of Adoption

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Historical perspectives of adoption in India

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• A son is never “filius nullius” i.e. son of no-body.

  • Types of Sons:

    • Heirs and Kinsmen:

      • Aurasa: Natural born son.
      • Kshetreja: A son born through a wife sent to another man if the husband is impotent or dead.
      • Dattaka: Adopted son.
      • Kritma: A smart child taken as an adopted son.
      • Gudhotpanna: A secretly born child.
      • Apavinda: A cast-away son.

    • Kinsmen:

      • Kanina: A son born to an unmarried girl.
      • Sahodhaja: A child born to a girl pregnant at the time of marriage; the husband is considered the father.
      • Kritaka: A son who is bought.
      • Paunnarbhava: A son born to a remarried woman.
      • Svayam Datta: An abandoned child who offers himself for adoption.
      • Shaudra: A son born to a Brahmin from a Shudra wife.
      • Putrikaputra: A daughter’s son taken as a son.

  • Adoption was treated as a sacrament.

    • They did not adopt a sister’s or daughter’s son.
      • They did not adopt a child of a person who’s mother they could not marry when she was a maiden e.g. Sister, daughter etc.
    • If a widow adopted a child, the doctrine of relation back was adopted.
      • Example: If a widow adopted a child on 12-1-1941 but her husband had passed away on 1-10-1940, the doctrine of relation back stated that the date of adoption would be 1-10-1940, i.e., the date of her husband’s death.
    • An illegitimate son or an orphan was not taken into adoption.
    • Dattaka Homam (a sacred ritual) was mandatory.
    • A son-in-law brought into the bride’s house was considered equal to a son.

• In-country and inter-country adoptions

  • Adoption laws in India allow both in-country and inter-country adoptions under the Juvenile Justice Act and the Hague Adoption Convention.
  • Key Case Law:
    • Laxmikant Pandey v. Union of India:
      • The Supreme Court laid down guidelines for inter-country adoptions to prevent child trafficking.
      • It emphasized that adoption should serve the best interests of the child and ensure their future security.
      • Adoption should prioritize Indian parents before allowing foreigners to adopt Indian children.

Law of Maintenance

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• Maintenance refers to financial support provided to dependents, including a spouse, children, or parents, under the Hindu Adoption and Maintenance Act, 1956.
• Key Case Law:
  • Bhuwan Mohan Singh v. Meena:
    • The Supreme Court highlighted that maintenance is a measure to ensure a dignified life for the dependent spouse and children.
    • Maintenance orders must be decided swiftly and executed without delay.
    • The court emphasized the responsibility of the earning spouse to provide for their dependents.

Law of Guardianship

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• Guardianship refers to the legal responsibility to care for a minor or a person incapable of managing their own affairs under the Hindu Minority and Guardianship Act, 1956.
• Types of Guardianship:
  • Natural Guardians: Parents (father or mother).
  • Testamentary Guardians: Appointed through a will.
  • Court-Appointed Guardians: Assigned by the court in cases of necessity.
• Key Case Law:
  • Githa Hariharan v. Reserve Bank of India:
    • The Supreme Court ruled that the mother could also be the natural guardian of a minor child under certain circumstances.
    • It struck down gender biases in Section 6 of the Hindu Minority and Guardianship Act, 1956.
    • The case emphasized the principle of equality in determining guardianship.

The Hindu Adoption and Maintenance Act, 1956 (30 Sections)

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• Enacted on 21st December 1956

Provisions for Adoption

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• Chart for Adoption (Sections 1-17 are for adoption)

  • Sections 1-5: Application, Extent, and Definitions

  • Sections 6-11: Conditions

    • Section 6: Requisites for a valid adoption

      • “Na yekoputra de Yaha” - The only son is not to be given in adoption.
      • “Na Jeshta putra deyaha” - The eldest son is not to be given in adoption.
      • Doctrine of Factum Valet: If an adoption is performed despite these restrictions, it remains valid due to this doctrine.

    • Section 7, 8: Capacity to take in adoption

      • Section 7: Male’s capacity.
      • Section 8: Female’s capacity.

    • Section 9: Capacity to give in adoption

    • Section 10: Persons capable of being given in adoption

      • Hindu.
      • Not already adopted.
      • Unmarried.
      • Under 15 years of age.

    • Section 11: Ceremonies of Adoption

      • The giving and taking of the child is mandatory.
      • The biological father places the child in the lap of the adoptive father, symbolizing the adoption process.

  Legal Effect of Adoption

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  • Section 12: Effect of Adoption

    • Effective from the date of adoption; the doctrine of relation back is abolished.
    • The adopted child becomes the child of the adoptive parents.
    • Ties with the former family are severed, except for individuals the child cannot marry even after adoption (e.g., biological siblings).
    • Property and liabilities vested in the child before adoption remain unaffected.
    • Does not divest property already vested in others.
    • Case Law:
      • Sawan v. Kalawati (1956):
        • A widow adopted her daughter’s son after her husband’s death.
        • The widow had a limited estate ownership. A third party (X) challenged the transfer of property by the widow.
        • The court upheld the widow’s adoption, ruling that the adoption granted the child inheritance rights, and X’s claim was denied.

  • Section 13: Ante-Adoption Agreements

    • Adopted parents can tranfer their property inter vivos or by will unless there is any agreement to the contrary.

  • Section 14: Relationship

  • Section 15: Adoption is a matter of status

    • The adopted child inherits property and must care for adoptive parents.

  • Section 16: Presumption of Registration

    • Registration is not mandatory under the Hindu Adoption and Maintenance Act.

  • Section 17: Prohibition of Certain Payments

    • Natural parents must not receive payments, as it would be considered a sale of the child.

Relevant Case Laws

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• Lakshmi Singh v. Smt Rupkanwar:

  • There was an agreement to adopt a child, and the child was sent to the adoptive family’s house for education.
  • The court ruled that the adoption process was incomplete as the mandatory ceremony of giving and taking the child was not performed.

• Sarad Chandra v. Shanti Bai:

  • A dispute arose regarding the status of adoption based on the ceremonies performed.
  • The court held that the validity of adoption depends on fulfilling the statutory conditions, including giving and taking the child.

• Bhoobun Moyee’s Case:

  • Gour Kishore | Bhowani Kishore v. Chandrabulle -> Ram Kishore
  • This case dealt with the inheritance rights of an adopted child when there were conflicting claims from the biological and adoptive families.
  • The court clarified the status and inheritance rights of the adopted child under Hindu law.

The Hindu Minority and Guardianship Act, 1956 (13 Sections)

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• Effective Date: 25th August 1956

Key Provisions

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• Section 1: Title

• Section 2: Supplemental to Guardians and Wards Act 1890

• Section 3: Application

• Section 4: Definition

• Section 5: Overriding effect

• Kinds of Guardians (Sections 6-9 & 11)

  • Case Laws:
    • Jijiya Bai v. Pathan:
      • The mother took care of the child for 20 years, while the father showed no interest.
      • The court ruled that the father could not claim guardianship after ignoring his parental responsibilities for so long.
    • Amit Bheri v. Sheetal Bai:
      • The mother left her child in a care home in Dubai.
      • When the father and grandfather claimed guardianship, the court rejected their plea, citing their lack of involvement in the child’s welfare.
    • Dr. Vandana Shiva v. Jayanth Bandhopadyaya:
      • The court held that Section 6 was in violation of Article 15 of the Constitution and Section 19B of the Guardians and Wards Act, highlighting gender inequality in guardianship laws.
    • Geetha Hariharan v. RBI:
      • A mother sought relief funds for her son from the RBI.
      • The Supreme Court held that denying her guardianship violated Article 15 and Section 19B of the Guardians and Wards Act.
    • Makemalla Sailoo v. S.P. Nalgonda:
      • A man kidnapped a girl and married her.
      • The court held under Section 6 that the husband became the girl’s guardian post-marriage.
    • Suma Bhasin v. Neeraj Bhasin:
      • After separation, the elder son chose the father, and the younger son chose the mother.
      • The court granted visitation rights for the father concerning the younger son.
    • Adalat v. Baji Rao:
      • The father remarried, and the stepmother did not care well for the child.
      • The court granted custody to the biological mother for the child’s welfare.
    • Hanuman Prasad Pandey v. Baboyee Munraj Koonwaree:
      • This case emphasized the welfare of the child as the paramount consideration in determining guardianship.
    • Waghala Malsudin & Mir Sarwarjan v. Farkuddin:
      • This case discussed the limits of a guardian’s authority, especially regarding property dealings.

• Section 9: Testamentary Guardian

  1. Father can appoint a guardian to the minor through the will.
  2. If the mother is alive, she is the guardian. If she dies intestate, the father-appointed guardian will prevail.
  3. If the mother leaves a testament with a guardian mentioned, her appointed guardian will have precedence.
  4. Guardianship applies to both person and property.
  5. Guardianship of females follows the above rules unless overridden by welfare considerations.

• Certified Guardian (Court-Appointed Guardian)

  • The court appoints a guardian for the minor’s person and property.

  • High Court grants guardianship for joint family property.

  • Case Laws:

    • Queen v. Nesbet:
      • A 12-year-old Brahmin boy converted to Christianity, and his father sought guardianship.
      • The court granted guardianship to the father, emphasizing the minor’s welfare.
    • Reade v. Krishna:
      • A 16-year-old boy converted to Christianity.
      • The court ruled in favor of his parents for guardianship.
    • Balkrishna Pandey v. Sanjeev Bajpee:
      • After the father remarried, the court still awarded guardianship to the father, considering the child’s welfare.
    • V. Meenapushpa v. V. Ananthan Jaya Kumar:
      • The children, raised by their grandparents, opted to stay with them.
      • The court granted guardianship to the grandparents as per the children’s preference.

  • Guardianship by Affinity (Guardianship of a Minor Widow)

    • Paras Ram v. State:
      • The father-in-law took money for the minor widow’s remarriage.
      • The Allahabad High Court held that the father-in-law remained the guardian until proven unfit.
    • Raichand v. Sayer:
      • If the father-in-law acted against the widow’s welfare, her biological parents could claim guardianship.

• Section 10: Can a minor be a guardian?

  • A minor cannot be a guardian of another minor. This includes cases of child marriages.

• Section 11: De Facto Guardian

  • In joint families, relatives often act as de facto guardians.
  • The de facto guardian cannot contract on behalf of the minor.
  • Any such contract would be voidable upon the minor attaining majority.
  • The minor’s property cannot be gifted but can be given in adoption to another family.

• Section 12: Appointment of Guardianship for Joint Family Property

  • Only the High Court can appoint a guardian for joint family property.

• Section 13: Welfare of the Child is Paramount

  • Case Law:
    • Roxana Sharma v. Arun Sharma:
      • The Bombay High Court granted custody to the father for a 2-year-old child, citing the mother’s lack of sustainability.
      • However, the Supreme Court reversed the decision, granting guardianship to the mother in the best interest of the child.

Unit V

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Succession

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Intestate Succession

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Intestate succession refers to the process of inheritance when a person dies without leaving behind a legally valid will. Under Hindu law, the Hindu Succession Act, 1956, governs intestate succession for Hindus, Sikhs, Jains, and Buddhists. This Act aims to codify traditional laws of inheritance and provide clarity and uniformity in the devolution of property.

Intestate succession operates on the principle that property devolves upon the legal heirs immediately upon the death of the propositus (deceased person). The Act distinguishes between the property of a Hindu male and that of a Hindu female, and specific rules apply to each scenario. Additionally, the Act ensures that inheritance is never in abeyance, meaning there is no gap in ownership upon the death of the property holder.

The property of the deceased is distributed among heirs in a hierarchical manner, as outlined in the Act. These heirs are categorized into classes (e.g., Class 1 and Class 2 for males) and further subcategories for females. In the absence of legal heirs, the property escheats to the government under Section 29.

Succession to the Property of Hindu Male and Female

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Property of a Hindu Male

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The inheritance of property owned by a Hindu male is governed by Sections 8 to 13 of the Hindu Succession Act, 1956. These provisions are rooted in the Mitakshara and Dayabhaga schools of Hindu law, with the Mitakshara principles applying to most parts of India.

• Class 1 Heirs:
  These include the deceased’s mother, widow, sons, and daughters, as well as heirs of predeceased sons and daughters. They inherit simultaneously and in equal proportions.

You must draw this chart and explain all the Class I heirs whenever you solve a problem (Part C) or are asked this question in Part A or Part B.

Class I Heirs under the Hindu Succession Act, 1956

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1. Original List of Class I Heirs (Before the 2005 Amendment)

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The original list of Class I heirs, as per the Hindu Succession Act, 1956 (prior to the 2005 Amendment), consisted of the following 12 heirs:

1. Son
2. Daughter
3. Widow (If there are multiple widows, they collectively share one portion)
4. Mother
5. Son of a pre-deceased son
6. Daughter of a pre-deceased son
7. Son of a pre-deceased daughter
8. Daughter of a pre-deceased daughter
9. Widow of a pre-deceased son
10. Son of a pre-deceased son of a pre-deceased son (Great-grandson through the male line)
11. Daughter of a pre-deceased son of a pre-deceased son (Great-granddaughter through the male line)
12. Widow of a pre-deceased son of a pre-deceased son (Widow of the great-grandson through the male line)

2. Additions by the Hindu Succession (Amendment) Act, 2005

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The 2005 Amendment expanded the list of Class I heirs by adding 4 additional heirs, making the total 16 heirs. These additions included the following:

13. Son of a pre-deceased daughter of a pre-deceased daughter
14. Daughter of a pre-deceased daughter of a pre-deceased daughter
15. Daughter of a pre-deceased son of a pre-deceased daughter
16. Daughter of a pre-deceased daughter of a pre-deceased son

These changes were introduced to recognize descendants through the female line, daughter herself was already a Class I heir but was now also a coparcenar.

3. Final List of Class I Heirs (As of Today)

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The current and complete list of Class I heirs, including the original heirs and the additions made by the 2005 Amendment, is as follows:

1. Son
2. Daughter (Includes married and unmarried daughters, with equal rights as sons post-2005)
3. Widow (If there are multiple widows, they collectively share one portion)
4. Mother
5. Son of a pre-deceased son
6. Daughter of a pre-deceased son
7. Son of a pre-deceased daughter
8. Daughter of a pre-deceased daughter
9. Widow of a pre-deceased son
10. Son of a pre-deceased son of a pre-deceased son (Great-grandson through the male line)
11. Daughter of a pre-deceased son of a pre-deceased son (Great-granddaughter through the male line)
12. Widow of a pre-deceased son of a pre-deceased son (Widow of the great-grandson through the male line)
13. Son of a pre-deceased daughter of a pre-deceased daughter (Added by the 2005 Amendment)
14. Daughter of a pre-deceased daughter of a pre-deceased daughter (Added by the 2005 Amendment)
15. Daughter of a pre-deceased son of a pre-deceased daughter (Added by the 2005 Amendment)
16. Daughter of a pre-deceased daughter of a pre-deceased son (Added by the 2005 Amendment)

Key Notes:

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• Original Act (1956): Recognized 12 Class I heirs, primarily focusing on immediate family and descendants through the male line.
• 2005 Amendment: Added 4 heirs to address gaps in inheritance rights for descendants through the female line, ensuring broader inclusion and equitable distribution.
• Today: The list stands at 16 Class I heirs, they inherit all properties and liabilities.
• Daughters were Class I heirs even before the 2005 amendment but they were not coparcenars. They were not entitled to ancestral property and only their father’s self acquired property would devolve to them as part of the heirs. In 2005, they were given coparcenary status and all properties as well as liabilities would devolve to them as they would to sons.

Class II Heirs under the Hindu Succession Act, 1956

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(As per The Schedule to Section 8)

The Class II heirs are divided into nine categories. Each category inherits in the absence of Class I heirs, and heirs within a category share equally. If there are no heirs in one category, the property devolves to the next category in the sequence.

Class II Heirs:

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I.

1. 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’s daughter
3. Daughter’s daughter’s 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.

1. Father’s father
2. Father’s mother

VI.

1. Father’s widow (Stepmother)
2. Brother’s widow

VII.

1. Father’s brother
2. Father’s sister

VIII.

1. Mother’s father
2. Mother’s mother

IX.

1. Mother’s brother
2. Mother’s sister

Explanation:

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1. The property passes category by category, beginning with Category I.
2. If there are no heirs in one category, the property devolves to the next category.
3. Within a category, all heirs inherit simultaneously and equally.
4. Uterine blood restriction: The references to “brother” or “sister” in this schedule exclude siblings related solely through uterine blood (i.e., sharing the same mother but different fathers).

Agnates and Cognates (Section 12 of the Hindu Succession Act, 1956)

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1. Agnates

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Agnates are relatives of the Propositus (P) who are wholly related through males. The following are the categories of agnates:

a. Descendant Agnates

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These are descendants of the Propositus related wholly through males.

• Propositus (P)
  • Son
    • Son’s Son (SS)
      • Son’s Son’s Son (SSS)
        • Son’s Son’s Son’s Daughter (SSSD)
        • Son’s Son’s Son’s Son (SSSS)

b. Ascendant Agnates

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These are ancestors of the Propositus related wholly through males.
(Read this from bottom to top as they are Ascendants)

• Propositus (P)
  • Father (F)
    • Father’s Father (FF)
      • Father’s Father’s Father (FFF)
      • Father’s Father’s Mother (FFM)

c. Collateral Agnates

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These are relatives of the Propositus related wholly through males, who share a common male ancestor but are not in the direct line of ascent or descent.

• Propositus (P)
  • Brother (B)
    • Brother’s Son (BS)
      • Brother’s Son’s Son (BSS)
      • Brother’s Son’s Daughter (BSD)
    • Brother’s Daughter (BD)
  • Sister (S)

2. Cognates

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Cognates are relatives of the Propositus (P) who are not wholly related through males. The following are the categories of cognates:

a. Descendant Cognates

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These are descendants of the Propositus who are not wholly related through males.

• Propositus (P)
  • Son (S)
    • Son’s Son (SS)
      • Son’s Son’s Daughter (SSD)
        • Son’s Son’s Daughter’s Daughter (SSDD)
        • Son’s Son’s Daughter’s Son (SSDS)
  • Daughter (D)
    • Daughter’s Daughter (DD)
      • Daughter’s Daughter’s Daughter (DDDD)
      • Daughter’s Daughter’s Son (DDDS)

b. Ascendant Cognates

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These are ancestors of the Propositus who are not wholly related through males.
(Read this from bottom to top as they are Ascendants)

• Propositus (P)
  • Mother (M)
    • Mother’s Father (MF)
      • Mother’s Father’s Father (MFF)
      • Mother’s Father’s Mother (MFM)
  • Father (F)
    • Father’s Mother (FM)
      • Father’s Mother’s Father (FMF)
      • Father’s Mother’s Mother (FMM)

c. Collateral Cognates

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These are relatives of the Propositus, who are not wholly related through males and share a common ancestor.

• Propositus (P)
  • Mother (M)
    • Mother’s Father (MF)
      • Mother’s Father’s Son (MFS)
        • Mother’s Father’s Son’s Daughter (MFSD)
        • Mother’s Father’s Son’s Son (MFSS)
      • Mother’s Father’s Daughter (MFD)
        • Mother’s Father’s Daughter’s Daughter (MFDD)
        • Mother’s Father’s Daughter’s Son (MFDS)
  • Father (F)
    • Father’s Father (FF)
      • Father’s Father’s Daughter (FFD)
        • Father’s Father’s Daughter’s Daughter (FFDD)
        • Father’s Father’s Daughter’s Son (FFDS)

Key Notes:

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1. Agnates are wholly related through males, while Cognates are not wholly related through males.
2. The distinction between agnates and cognates is significant because agnates inherit before cognates as per Section 12.
3. Ascendants and collaterals must be read in hierarchical order, with ancestors being read from bottom to top.
4. The Propositus (P) is the deceased individual whose property is being inherited.

Escheat

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If no heirs exist, the property escheats to the government under Section 29.

Property of a Hindu Female

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The property of a Hindu female is governed by Sections 14 to 16 of the Act. The rules for the devolution of property for females differ from those for males to accommodate traditional familial structures and societal norms.

• Section 14:
  This section ensures that any property possessed by a Hindu female becomes her absolute property, regardless of whether it was inherited or acquired. Prior to the Act, women often held property as limited owners, meaning their rights were restricted.
• Section 15:
  Specifies the order of succession for a Hindu female’s property:
  1. Firstly, the property devolves upon her sons, daughters, and husband.
  2. If no such heirs exist, it devolves upon the heirs of the husband.
  3. If no heirs of the husband exist, it devolves upon her parental heirs.
• Section 16:
  Establishes the rules for distributing the property among heirs when multiple heirs are entitled.

Dwelling House

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The concept of a dwelling house holds special significance under Hindu law. The Hindu Succession Act, 1956, originally restricted the rights of female heirs in dwelling houses. Section 23 prohibited female heirs (other than unmarried or widowed daughters) from claiming partition of the family dwelling house. However, this restriction was repealed by the 2005 Amendment, granting daughters equal rights to reside in and demand partition of the dwelling house.

The dwelling house is often considered the central property of a joint Hindu family, and its partition or transfer requires careful consideration of all legal heirs’ rights.

Though repealed in 2005, questions in Osmania University question papers were seen as recent as the early 2020s, primarily in Part A

The Hindu Succession Act, 1956

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Definition, Application, Extent (S.1-7)

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Section 3 - Definitions

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• Agnates - Related by blood/adoption through males.
• Cognates - Related by blood/adoption not wholly through males.
• Aliyasanthana Law - A system applicable to persons governed by the Madras Aliyasanthana Act, 1949, for those following the matrilineal system (matriarchal).
• Full Blood - Mother, father, and children of the same mother.
• Half Blood - Same father, different mothers.
• Uterine Blood - Same mother, different fathers.
• Heir - Someone entitled to a share in the property.
• Intestate - A person who dies without leaving a will.
• Marumakkattayam Law - Governed by the Marumakkattayam Act, 1932, and Travancore Act; follows matrilineal inheritance.
• Nambudri Law - Applicable to the Nambudri Brahmin community, where property traditionally passed only to the eldest male.
• Descendants - Offspring or future generations of the deceased.
• Ascendants - Parents or ancestors of the deceased.
• Collaterals - Relatives not in the direct line of ascent or descent.
• Nemo est haeres viventis - No one has an heir while he is alive.
• Inheritance is never in abeyance - At the time of the death of the propositus, heirs receive the property immediately.
• Rule of propinquity - Preference is given to heirs closest in blood, including heirs apparent or presumptive (if no nearer heirs exist).

Section 4 - Overriding Effect

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• Any rule or custom prior to the Act becomes invalid.
• Any law inconsistent with the provisions of this Act ceases to apply.

Section 5 - Impartiable Properties

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• Marriages under the Special Marriage Act, 1954, are governed by the Indian Succession Act, not the Hindu Succession Act, 1956.
• Properties declared as impartible by Maharajas cannot be partitioned.
  • For example, the Valiamma Thampuran Kovilagam Estate, established by the Maharaja of Cochin.

Section 6/7 - Rules of Succession

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Section 6

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• By birth, females acquire rights to property, including liabilities.
• Case laws:
  • Gurupad v. Heerabai - Clarified the doctrine of notional partition, ensuring rightful shares for female heirs.
  • Raj Rani v. Settlement Commissioner Delhi - Established the scope of succession for female heirs in partitioned property.
  • Sundari Dharmanna v. Narsu Bai - Highlighted the importance of equal treatment of heirs during partition.
  • Smt Puttamma & Others v. H.K. Ramagowda - Addressed the issue of property devolution when female heirs were entitled but overlooked.
  • Prakash & Others v. Phulavathi & Others (2016) - The court held that the 2005 amendment applies only prospectively, not retrospectively.
  • Danamma @ Suman Surpur & Anr v. Amar & Ors - Reiterated the equal right of daughters in ancestral property post-2005 amendment.
  • Vineeta Sharma v. Rakesh Sharma (2020) - The Supreme Court held that the 2005 amendment is retrospectively applicable, ensuring daughters’ rights in ancestral property regardless of when their father died.

Section 8 - Rules for a Hindu Male who died Intestate

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The property of a Hindu male dying intestate devolves according to the rules outlined in Sections 8-13 of the Hindu Succession Act, 1956. These rules prioritize heirs based on a well-defined order.

Class 1 Heirs

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Refer to the detailed list of Class 1 heirs here.
Key points:

• Enumerated heirs: Direct heirs defined under Class 1.
• Preferential heirs: Class 1 heirs take precedence over Class 2 heirs and other relatives.
• Simultaneous heirs: All Class 1 heirs inherit simultaneously and equally.
• Step-mother is NOT a Class 1 heir.

Class 2 Heirs

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Refer to the detailed list of Class 2 heirs here.

Agnates (Section 12)

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Agnates inherit in the absence of Class 1 and Class 2 heirs.
For a detailed hierarchy of agnates, refer to Agnates.

Cognates (Section 12)

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Cognates inherit only in the absence of Class 1 heirs, Class 2 heirs, and agnates.
For a detailed hierarchy of cognates, refer to Cognates.

Escheated Property

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If no heirs are found (Class 1, Class 2, agnates, or cognates), the property escheats to the government under Section 29 of the Act.

Section 10

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• The mother of the deceased gets an equal share in the property along with other heirs.
• All four heirs in a given scenario receive equal shares of 1 each.
• Per stirpes rule: If a son of the deceased has passed away, his share passes to his descendants.
• The doctrine of representation allows the children of a predeceased heir to inherit their parent’s share.
• Case Law: Marudai v. Doraisami - Explained the application of the doctrine of representation and the rule of per stirpes in inheritance.

Rules of Succession of Hindu Female (S.14-16)

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Section 14 - Property of Hindu Females

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Section 14 converts a Hindu female’s limited estate into her absolute property if she possessed it on or after the enactment of the Act.

Case Laws:

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• Subba Rao v. Chatlapalli Seethamaratna Ranganayakamma - This case elaborated on the applicability of Section 14 in transforming limited ownership into absolute ownership.
• Santhosh v. Smt Saraswathi Bai - A widow was given property for maintenance with a condition that it would revert to the original heirs after her death. The court upheld the widow’s limited ownership due to the specific terms of the grant.

Section 15 - Rules of Devolution

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The property of a Hindu female devolves as follows:

1. Priority Order:
   • First upon the sons, daughters, and husband.
   • If none, upon the heirs of the husband.
   • If none, upon the heirs of the father.
   • Finally, upon the heirs of the mother.

Refer to the Class 1 heirs here.

Section 16 - Preferential and Per Capita Shares

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• Heirs take their shares in preferential order, as outlined in Section 15.
• Property is distributed per capita, meaning each heir receives an equal share of the property.

Links for Reference:

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• Full List of Class I Heirs
• Class II Heirs
• Agnates and Cognates

Other Provisions (S.17-30)

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Section 17 - Marumakkattayam and Aliyasanthana Law

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• Governs succession in regions where these matrilineal systems were traditionally followed.
• Applicable only to individuals governed by these systems prior to the Act’s commencement.

Section 18 - Rules Regarding Half Blood and Full Blood

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• Half Blood vs Full Blood:
  • Full blood relatives are preferred over half-blood relatives in inheritance.
  • Uterine blood (related only through mothers) is excluded from inheritance.

Section 19 - Two or More Heirs Receiving Property

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• Heirs inherit the property per capita and NOT per stirpes.
• The heirs are treated as tenants in common, not joint tenants, meaning each heir holds an individual, undivided share in the property.

Section 20 - Child in the Womb

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• A child in the womb is treated as born for inheritance purposes, provided the child is born alive.
• Circumstances:
  • If the child is stillborn, no partition is required to hold a portion for them.
  • If the child is born alive but dies later, their share devolves upon Class 1 heirs.
  • If the child is born and survives, inheritance proceeds as normal.

Section 21 - Presumption in the Case of Simultaneous Deaths

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• In cases where two or more persons (e.g., father and son) die simultaneously (e.g., in a calamity), it is presumed the younger survived the elder.
• The elder is presumed to have predeceased the younger.
• Example: If a father and son die together, it is presumed the son inherited the father’s property before his death.

Section 22 - Preferential Right (Right of Pre-emption)

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• If the property of the propositus cannot be divided, heirs are given the opportunity to purchase it.
• If multiple heirs are interested, the property is sold to the highest bidder among them.

Section 23 - Provision of Dwelling House (Repealed by 2005 Amendment)

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• Earlier, female heirs could not claim partition in the dwelling house while male heirs resided in it.
• However, if a portion of the house was let out, female heirs could seek partition.
• This section was repealed by the 2005 Amendment.

Section 24 - Remarriage of Certain Widows (Repealed by 2005 Amendment)

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• A widow who remarried before the partition was not eligible to inherit property.
• This provision was repealed by the 2005 Amendment.

Section 25 - Murderer

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• An heir who murders the propositus or another heir is disqualified from inheriting the property.
• Further details:
  • The murder must be in furtherance of the property.
  • Children of the murderer are also disqualified (refer to Section 27).
  • Abettors who are heirs are similarly disqualified.

Section 26 - Convert

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• A person who converts to another religion is still eligible to inherit property.
• Children born before conversion (who remain Hindus) are also eligible to inherit.

Section 27 - Disqualified Person

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• Any person disqualified under the Act (e.g., murderer or abettor) is not eligible to inherit property.

Section 28 - Diseased or Persons with Defects

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• Individuals with diseases or defects are still eligible to inherit property under Hindu Succession laws.

Section 29 - Escheat and Other Provisions

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• If no heirs are available, the state takes over the property.

• Types of Properties Excluded from Distribution:

  • Res Nullis: Resources such as air, water, and soil.
  • Res Communis: Community property like wells, tanks, etc.
  • Res Extra Commercium: Property not usable or excluded from commerce.

• Modes of State Takeover:

  • Eminent Domain: For public purposes (salus populus suprema lex). (Not part of the Act but relevant)
  • Escheat: Property is escheated to the state if no heirs exist, as per Article 296 of the Constitution of India.
  • Bonovacantia: If no apparent owner exists, the property is taken by the government.

• Case Laws:

  • Escheat and Bonovacantia Act, 1970 provides statutory backing.
  • Subbiah v. Collector of Machlipatnam: The Supreme Court clarified that property of any religion can escheat to the state if no heirs exist.

• Additional Sections:

  • Section 29A: Daughters are coparceners.
  • Section 29B: Property may devolve by will or intestate succession. If no heirs exist, it escheats to the state.
  • Section 29C: Provisions for two or more heirs (refer to Section 22).

Section 30 - Testamentary Succession

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• Property can be disposed of through a will under testamentary succession.
• This provision ensures a Hindu can legally bequeath their property as per their wishes.

The Hindu Succession (Andhra Pradesh Amendment) Act, 1986

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This amendment marked a significant departure from traditional norms by granting daughters equal rights in coparcenary property in Andhra Pradesh. Under this amendment:

• Daughters became coparceners by birth, similar to sons, and could demand partition of joint family property. (Applicable only for women not married as of Sep 5th 1985 or if partition was already done before Sep 5th 1985)
• Survivorship was present. This meant that in case of the death of the female coparcenar, the property would revert to the male coparcenar.

The Hindu Succession (Amendment) Act, 2005

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The 2005 Amendment brought sweeping changes to the Hindu Succession Act, allowing females equality in inheritance. Key provisions include:

1. Daughters as Coparceners:
   Daughters became coparceners by birth, entitled to the same share in ancestral property as sons. Survivorship has been abolished.
2. Repeal of Section 23:
   Section of Dwelling house has been repealed.
3. Applicability:
   The amendment applies retrospectively, benefiting daughters born before and after its enactment. This was clarified by Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors in 2020.

It was applicable with retrospective effect from 9th September 2004.

Notional Partition

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Notional partition is a deemed partition, a fiction of law, introduced to calculate the share of a deceased coparcener in joint family property. It presumes that a partition occurred immediately before the death of the coparcener. It is when

• a female is surviving through a Class I heir.
• a male is surviving through a female.

Enlargement of Estate of Women into Their Absolute Estate

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Section 14 of the Act ensures that any property possessed by a Hindu female becomes her absolute property. This provision abolished the concept of “limited ownership” for women, which had restricted their rights to alienate or fully control their property.

The section applies to property inherited, acquired, or possessed by a woman before or after the commencement of the Act. It represents a significant step toward recognizing the independence and autonomy of women in property matters.

Daughter’s Right to Ancestral Property and Impact of Recent Changes in Law

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The 2005 Amendment ensured that daughters received equal rights to ancestral property. As coparceners, daughters can now:

1. Demand partition of joint family property.
2. Inherit property by birth, just like sons.
3. Share liabilities equally with other coparceners.

The Supreme Court has upheld these rights in Vineeta Sharma v. Rakesh Sharma & Ors, emphasizing that the amendment applies retrospectively and benefits all daughters, regardless of when they were born. This reform aligns with the constitutional guarantee of equality and addresses historical injustices in inheritance laws.