Video Lecture about Hindu Law in Hindi.... Part..1
Question No. 1:- State the categories of persons to whom Hindu Law applies. Explain whether the members of any schedule tribe coming within the clause (25) of Article 366 of the constitution are governed by the codified Hindu Law?
ANSWER:- INTRODUCTION :- The word Hindu is extremely popular and famous term. Generally every person is known to it. But the term of Hindu has not been defined till now. A person may be called as Hindu, but only few knew why they are Hindu?
Sh. Radha Krishnan in his book ‘Hindu View of Life’ at one place said that there was a time when a person was identified as a Hindu on the basis of region i.e. a person who resided in India was called as Hindu, it also represented the nationality.
A time also came in the middle when a person was called Hindu who believed in Hindu religion or followed it. But this identity of Hindu also did not remained for too long, because it was not required for Hindu o believe in Hindu religion. It is said that though several codified Hindu Laws were enacted in 195 and 1956 but the term Hindu was not defined. Today it can be said broadly that a person who is not Muslim, Christain, Parsi or Jew shall be Hindu.
The Supreme Court in the case “Dr. Ramesh Yashwant Prabhu v/s Prabhakar Kashinath Kunta” -1996 and Manohar Joshi v/s Nitia Bhausher Patil-1996 explain the term Hinduism related to Hindu as the life style and mentality of this continent.
Now the term Hindu can be widely defined the person to whom Hindu Law applies shall be Hindu.
PERSON TO WHOM HIDNU LAW APPLIES:-
The following person can be kept in categories mentioned against each :-
1. Those persons who are Hindu, Jain, Buddhist or Sikh by birth:-
i) A person is called Hindu by birth who is the child of Hindu Parents i.e. whose parents are Hindu but such person is also considered Hindu whose either of the parent is Hindu and has been brought up under Hindu traditions.
A case : Maya Devi v/s Uttram -1861, this view was proved. Another case of Sh Devavasan v/s Jaya Kumari -1991, Kerala High Court held that male of Nadar caste of Travancore marry any non-Hindu female and a child born out of such marriage shall be Hindu
Here pertinent to mention that according to ancient Dharamshashtras, a child born between Hindu parents only can be called Hindu, there was no such thing of Hindu conversion of religion. Therefore it was said that, “A Hindu is born not made”
Application of Hindu Law over Schedule tribes :
Several times a question arose that a codified Hindu Law does not apply to those persons which belongs to schedule tribe under article 366 clause (25) of the constitution. Section 2(2) of Hindu Marriage Act 1955 and the case of Dashrath v/s Guru -1972 Orrisa and Kadam v/s Jeetan -1973 of Patna given the answer of this question. According to them a codified Hindu Law shall apply to such persons only when the Central Government notifies in the official Gazette by a notification.
CHILD FROM HINDU FATHER & CHRISTAIN MOTHER
A question also arosed that whether such person shall be considered to be Hindu whose father is Hindu and mother is Christain? A case Commissioner of Income tax v/s Sridharan -1976 : a positive answer was given and said that if either of the parent is Hindu and child born out of them is brought up under Hindu traditions then that child shall be considered as Hindu. Also in our society the religion of father applies over the son
In a case Sapna v/s State of Kerala : 1993: It was held that if a child is brought up as a member of Christain famiy then in that situation the child shall be christain instead of being Hindu.
Those persons who are Hindu, Jain, Buddhist or Sikh by religion:-The Hindu Law also applies to those persons who are not Hindu by birth but have accepted Hindu religion by conversion.
Case: Abrahim v/s Abrahim, 1863, is an important case in this respect. It was held in this case that the Hindu Law applies not only to those who are Hindu by birth but also applies to those persons who have become Hindu by conversion. Another case Morarji vs Administrator General-1929 Madras: It was said that persons becoming Hindu by conversion are also Hindu and the Hindu Law applies over them too. Modern Hindu Law includes both Hindu by birth and Hindu by religion under the term Hindu.
Those persons who are not Mussalman, Chistain, Parsi Or Jew.
In wider sense Hindu Law applies to all those who are not Mussalman, Christain, Parsi or Jew. Case : Rajkumar v/s Warwara-1989: Calcutta: The Calcutta High Court held that this category includes all those person who donot believe in any religion. In other words, it can be said that all persons different from Mussalman, Christain,Parsi or Jew are Hindu and the Hindu Law applies over them, who are i) atheist or ii) believes in all religion, or iii) believes in religion which is maximum of all.
Another case: Yagyapurushdasji v/s Mooldas -1966: The Supreme Court held that the followers of Narayan Swami section as Hindu because though they may be governed by their views or rules but finally are related to the Hindu religion.
APPLICATION OF ENACTED LAWS
The enacted laws applies over the following:-
i) Who are the followers of Veer Shav, Lingayat or Braham samaj. Prathna Samaj or Arya Samaj and are Hindu by religion.
ii) Who are Jain, Buddhist or Sikh by religion.
iii) Who are resident of territory to which enacted law applies and are not mussalman, Christain, Parsi or Jew and has not been proved that in the absence of enactment, they would not have been governed by Hindu Law or a custom or practice of its part.
THE FOLLOWING PERSONS ARE HINDU, BUDDHIST OR SIKH BY RELIGION
(a) Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jain or Sikh by religion.
(b) Any child legitimate of illegitimate whose either of parent is Hindu, Buddhist, Jain or Sikh by religion and has been brought up a member of that tribe community or group to which that parents was or is member.
(c) Any person who has converted or reconverted to Hindu, Buddhist, Jain or Sikh religion : Cases : Perumal v/s Punnuswami-AIR-1971 & Durga Parsad v/s Sudarshan Swami AIR-1940 Madras. This was proved.
Question No.2:- Under the Hindu Law, “Clear proof of usage will outweigh the written text of Law.” Comment and state whether custom is still a source of modern Hindu Law?
What are the various sources of Hindu Law? To what extent custom still continuous to be important source of Hindu Law? Illustrate your answer.
Answer : INTRODUCTION:- The Hindu Law is credited to be the most ancient law system which is approximately 6000 years old. The sources of Hindu Law can be kept under two headings:-
1. Ancient or original sources.
2. Modern Sources.
1. ANCIENT SOURCES :- According to Manu there are four sources of Hindu Law as per following details, in addition to these four there was also that what is agreeable to one’s conscience:-
1. Shruti 2. Smriti 3. Digest and Commentaries 4. Custom and Usages.
2 MODERN SOURCES: - Following are the modern sources of Hindu Law :-
1. Equity, justice and good conscience.
Sources of Hindu Law
Ancient Sources Modern Sources
Shruti Smriti Digest & commentaries Custom and Usage _________________________________________________________
Equity, Justice and Good conscience Precedent Lagislation
1. SHRUTI :- The name “shruti” is derived from the word “sru” which means to hear and it signifies what is heard. Shruties are considered as the primary and paramount source of Hindu Law. The shruti consist of the four Vedas and Upanishads dealing with the religious rites that contain the meaning of attaining true knowledge and moksh as salvation.
Dr. P.V.Kanne in his book, “History of Dharamshashtra” said that,” If we want to see religion(Law) in a proper way, then we should analysis Shruti and Smritis.”
2. SMRITIS :-Means ,”What was remembered” thus smritis were Smritis is known as golden era, because it is era when well organised dependant on the remembrance of saints and the era of creation of and serial wise development of Hindu Law started. It is the second Important source of Hindu Law. It is of two types first is prose style and the other is of poetry style. Smritis are divided into two :
i) Dharam Surtra :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.
ii) Dharam Shashtra :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts and is extremely clear, brief and organised. Narad Smriti being the last smiriti is such first legal code which mentions subjects related to Judicial process, courts and Judiciary.
3. Digest and Commentaries :- These are the third important source of Hindu Law. The commentaries through professing and purporting the rest on the smrities explains modified and enlarged tradition recorded there to bring them into harmony and accordingly to prevent practices of the day. Case : Atmarao v/s Bajirao -1935: It was held that Digest writers and commenter’s has given the statements of Smritis which can fulfil the present requirements & ahead from smrities. The period of the commentaries and digest is between 700 AD -1700Ad. The last commentary was Vajanty written by Nand Pandit.
4. CUSTOMS AND USAGES :- These are considered an important source of Hindu Law. Narad Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla says that, “ Among the three sources of Hindu Law Custom and Usage are the one.”
According to Holland, “ Custom is a step of generally followed conducts As a way is created over gress by repeated walking similarly custom is created in accordance to the conduct of everyday life.”
Case: Collector of Madurai v/s Mottaramlingam -1868: Privy Council held that in Hindu Law the clear proof of customs shall be more relevant then the basic epics of law.”
Case: Harparsad v/s Shiv Daya -1816: It was said that, “ the custom is family or particular class or area owing o a long tradition.”
Although codified law has given place to custom, but it is limited. Codified Hindu Law recognises custom only when it has been expressly given a place. Custom under Hindu Marriage Act 1955 can be applied over two topics :
i) Any Marriage may be solicited by the customary tradition of the parties.
ii) Divorce can be obtained be prevailing custom or usage and a married male of female above the age of 15 years can be adopted as customary rules.
The Judicial Committee explained that, “ Custom is a rule which in a particular family or in particular district has from long usage, obtained the force of law.
Hindu sages have recognised good custom binding on the Hindu. Manu says, “ In memorial is transcendent Law.”
Custom is divided in three parts:-
i) Local custom ii) Class custom iii) Family custom.
5. EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity is traced the Hindu period when jurists explained the old law and gave new rules of interpretation and equitable solutions in cases of conflict between the rules of various law. In case of a conflict between the rules of smrities that should be followed which is based on reasons, justice and principles of equity.
In view of the above observations and its practical application it will not be incorrect to mention equity justice and good conscience as the next source of Hindu Law. Actually Britishers not only established a judicial system in India but also facilitated though the High Court charters that wherever their is lack of lawful rules, their the decision should be on the principles of equity, justice and good conscience.
Case : Gurmukh Singh v/s Kamla Bai -1951: It was held that, “ Where their is lack of rules of Hindu Law over any subject, there court should pronounce their decision on the basis of principle of equity, justice and good conscience.
6. PRECEDENT :- It is an important source of law. It means he Judicial decision over any disputed matter which shall be guideline for the disposition of future similar disputed matters. Generally the decision of Supreme Court, High Court, Privy Council have the effect of precedent over the subordinate court.
The importance of Precedent as a source of Hindu Law can be understood from the example that if we have to look into the importance of custom and Usages in Hindu Law, then we shall have to analyse the case : Collector of Madurai v/s Mottaramlingam, it is pertinent to mention here that there are certain rules for the application of precedent like :-
i) The decision of Supreme Court is binding over all the subordinate courts.
ii) The decision of Supreme Court is binding to its subordinate courts.
iii) The decision of Privy Council is binding over all High Courts provided that it has not be over ruled by the Supreme Court. Case: Pandurang Kalu Patil v/s State of Maharashtra-2002.
7. LEGISLATION :- The last important source of Hindu Law is the legislation. Their source has originated after the establishment of English State in India, when English rulers started enacting several laws. Laws were enacted in accordance to the state, time and circumstances, there were amended too. Today most of the subjects of Hindu Law has been codified. Some of the important Acts in this respect are :-
1. Hindu Widow Remarriage Act 1856.
2. Prevention of Child Widow Act. 1929.
3. Hindu Women’s right to Property Act. 1930.
4. Hindu Women’s right to Seperate Residence and Maintenance Act 1946.
5. Hindu Succession Act 1956
6. Hindu Marriage Act. 1955
7. Hindu Adoption & Maintenance Act. 1956
8. Hindu Minority and Guardianship Act 1956.
Question No.3:- Discuss the main principles on which Mitakshara and Dayabhaga schools of Hindu Law differ from each other.
What are the various schools of Hindu Law? Differentiate between Mitakshara and Dayabhaga Schools.
Answer : INTRODUCION:- As we know that Hindu Law is two types :
1. Codified Hindu Law
2. Un-codified Hindu Law.
1. The codified Hindu law applies to all Hindu equally whereas the un-codified Hindu Law the situation is different. The application of Un-codified Hindu Law depends upon the context of different schools. As per the context of schools, Hindu Law is of two types :-
1. MITAKSHARA SCHOOL
2. DAYABHAGA SCHOOL
The Mitakshara school has further the following sub schools :
a) Banaras or Varanasi sub school.
b) Mithila Sub school.
c) Maharashtra or Mumbai sub school.
d) Dravid or Madras sub school.
e) Punjab sub school.
SCHOOLS OF HINDU LAW
MITAKSHARA SCHOOL DAYABHAGA SCHOOL
Banaras Mithila Maharashtra Dravid Punjab
Case : Collector of Madrai v/s Mottaramlingam 1868: It was said that, “ There is only one remote source among the various schools of Hindu Law, but due to different beliefs of Digest and its commentaries several schools and sub schools of Hindu Law have developed.”There are mainly two causes to differentiate between several schools of Hindu Law :-1 .Different Customs and Usages prevail in different parts of the country.2. These different areas are governed by different Digest and Commentaries.
The name of this school came from the Digest Mitakshara of Vigyaneshwa. The area of its application is whole India excluding the Assam State. Case : Rohan v/s Laksman – 1976. It was held that the effect of mitakshara school is so strong that it also applies to even undescribed subjects in Bengal and Assam.
Sub-Schools of Mitakshara
a) Banaras Sub-School :- The area of Banaras sub school is complete North India, rural area of Punjab, south Bihar, Orissa and few parts of Madhya Pradesh. The important books concerning to this are Mitakshara of Vigyaneshwa, Veer Mitrodaa and Niranaya Sandhu of Mitr Mishra.
b) Mithila sub school : Area= Tirhut and few districts of North Bihar. Books are Vivadh Chintamani and Vivadh Ratnakar.
c) Maharashtra sub school:- It is also called as Mayuk sub school. Area of this sub school is Maharashtra, Saurashtra, Madhya Pradesh and few parts of Andhra Pradesh. Books are Vyavhar Mayuk, Veer Mitradaya and Nirnaya Sandhu.
d) Dravid sub school :- The whole south of India, i.e. Madras, Kerala, Mysore. Books are Smriti Chandrika, Parashar Madhviya, saraswati Vilas, Vyavhar Niranaya.
e) Punjab sub school :- Area of the school is Punjab, Rajasthan, Jammu-Kashmir. This sub school emphasized on Customs and Usages. Books are Digest on Yagyavalkya Smriti written by Aprak, Mitakshara & Veer Mitrodaya.
Its name came from the Digest Dayabhaga of Jimuthvahan. The area of its application is Bengal and Assam. The period of writing of Dayabhaga is considered to be 1090-1130 A.D. Dayabhaga is mainly on essay on partition and succession.
DIFFERENCE BETWEEN MITAKSHARA DAYABHAGA SCHOOLS
The above two schools has the principally differences on two subjects:-
2. JOINT FAMIY & COPARCENARY.
1. MITAKSHARA SCHOOL: i) :- I) Inheritance in Mitakashaara is based on relation by blood. 2. A relative by blood receives succession in property which is the basic principle of Hindu succession law. 3. Women have been excluded in succession. 4. Agnates supersedes the cognates.5.The area of its application is whole India except Assam State. The coparcenary evolves with the birth of a son. Property over which all coparceners have similar ownership. 5. No coparcenary can say before partition that he is the owner of that particular property. Coparcenary has been recognised by this school.
2. DAYABHAGA SCHOOL :- i) 1. The succession of property in Dayabhaga school based on spiritual principles. 2. In this school successor of property is such person who earns maximum peace and religious profit for the soul of deceased by performing ‘Pindadaan’ & religious rituals etc. 3. This law is liberal because few women and cognates can also receive property in succession, but after passing of Hindu Succession Act this has been ceased. 4 The coparcenary evolves after the death of the father. In Dayabhaga school the son has no right during the lifetime of the father.5. On the death of a Hindu Person his property shall devolve among his heirs on the basis of succession.6. Coparcenary has been recognised by this school.
Question :- 4 Discuss the essentials of a valid Hindu Marriage under the Hindu Marriage Act, 1955.
What is the nature of Hindu Marriage? What are the essential conditions of a valid Hindu Marriage?
Answer :- INTRODUCTION : Marriage in Hindu culture is considered to be a sacred ritual. The relation of husband & wife is considered to made far several life times. Once a person enters into marriage it cannot then be easily dissolved. Both have to spend their lives with each other. It is reason that wife is called the second half.
There are several synonyms in Hindu Dharamshashtras far husband-wife, husband is also known as ‘Bhartar’, Swami because he maintains his wife and wife is his responsibility. He is also called the ’Parmeshwar’ because the greatest duty of wife is the service of her husband. Similarly wife is called ‘Jaya’ because child is born through her. Wife is also called ‘Lakshmi’ she is the best friend of husband. Every person is required to marry not only for child birth but also for the performance of religious and spiritual duties and to release the father from his dept.
ESSENTIAL CONDITIONS OF VALID HINDU MARRIAGE
Section 5 of Hindu marriage act 1955 mentions essential conditions of marriage, which are as under :-
i) Either of the parties at the time of marriage shall not have a living husband or wife.
ii) Either of the parties at the time marriage shall not be unsound mind effected or retarded of mental development.
iii) Male shall be of 21 years and female of 18 years of age at the time of marriage.
iv) Unless both the parties are governed by their custom or usage the marriage shall not occur between parties under degrees of prohibited relationship.
v) Unless both the parties are governed by their custom or usage the marriage shall occur between parties related to each other by sapinda.
Section 7 of the Act also mentions another condition for valid marriage. According to it, marriage shall be solemnised according to customary tradition and rituals. Where saptpadi is necessary it required to be performed compulsoryily. Case : Sujeet Kaur v/s Garja Singh 1994, it was proved. But in the case of Nilabba Somnath Tarapur v/s Divisional Controller KSRTC Bijapur -2002, it was held that where saptpadi is not necessary according to tradition and rituals there a marriage solemnised without Saptpadi shall also be valid.
Section 8 of the act is provides for the registration of marriage but it is not necessary although Kangawai v/s Saroj -2002, It was recommended to make the registration of Marriage necessary.
Now there are some slight changes have been made in the Hindu Marriage Act, 1955 and certain conditions has been imposed far a valid marriage which gives it a farm of agreement :
1. The parties of marriage shall be major i.e. male should be above 21 years of age and female should be above l8 years of age.
2. Both parties should be of sound mind.
3. Provision of dissolution of marriage.
4. Saptpadi not necessary.
However there are certain provision of Hindu Marriage Act, 1955 which makes it sacred in its nature :-
1. Marriage of minor shall not be considered to be void or voidable.
2. Unsoundness shall not be the ground of void marriage, rather shall be for voidable marriage.
3. The law & procedure of dissolution of marriage is not simple.
4. Where Saptpadi is necessary it has to be performed.
5. Caste based customs and usage in marriage are recognised.
6. Marriage not allowed among sapinda prohibited relations.
As to the question of marriage when there is already living husband or wife. It was held in the case of Rampyari v/s Dharamdas 1984: “that if any one performs second marriage when there is already living husband or wife, then such marriage shall be void.”
EFFECT OF VOILATION OF CONDITIONS
If the conditions of valid marriage are violated then it shall have the following effects :-
1. i) When at the time of marriage there is living husband or wife of any party.
ii. When parties of marriage fall within Sapinda reation.
iii. When parties of marriage fall within degrees of prohibited relationship.
2. If at the time of marriage if any one is un-sound mind effected or retarded of mental growth then such marriage shall be voidable.
3. If essential condition of age as to marriage has been violated then it shall be punishable under section 18 of the Act, but such marriage shall neither be void nor voidable.
ARYA SAMAJ MARRIGE
Such marriages have been recognised under Arya Samaj Marriage Validification Act 1937.
SECOND MARRIAGE IN CASE OF LOST PARTY
Several times a question arrises that if any party to marriage has been lost then whether second party can enter into second marriage?
Section 13(1)(vii) of Hindu Marriage Act 1955 has to be analyzed in this respect. It provides that it nothing has been heared about the living or non living of any party to the marriage during the period of seven years or more, then a decree of dissolution of marriage could be passed on this ground. Thus a second marriage could be performed after obtaining the decree of dissolution of marriage on above ground. In fact a person unknown far a period of seven years or more is considered to have civil death.
Thus at present circumstances the nature of marriage is neither completely ‘sacred’ nor completely ‘agreement’. It is a mixture of both. It consist of both.
Q. No. 5 Distinguish between void and voidable marriage?
What is meant by Void and Voidable Marriage?
Answer: - INTRODUCTION: - Section 11 & 12 of Hindu Marriage Act, 1955 provides far void and voidable marriage respectively:-
Section 5 of the Hindu Marriage Act 1955 mention about the essential conditions of a valid marriage. It contain certain such conditions which if violated shall result into a void marriage. Section 11 of the Act had considered following marriage to be void:-
1. Where at the time of marriage any party has a living husband or wife.
2. Where parties to the marriage fall within sapinda relationship.
3. Where parties to the marriage come with degrees of prohibited relationship
A case: Rampyari v/s Dharamdas 1984: It was said by Allahabad High Court that an application for declaring a marriage void is not required to be presented by the victim only.
Another case : Leela v/s Lakshmi 1968: It was held that void marriage does not require even the decree of a court.
Section 12 of the Act mention about voidable marriage. According to it, in case of marriage being voidable, the court may decae it Null under following conditions :-
1. Where marital cohabitation has not occurred due to impotency of the respondent.
2. Where at the time of marriage any party failed to give valid consent due to unsoundness or has been effected by mental retardness to such extent that he is incapable to marriage and giving birth to child, or suffers from frequent insanity or is insane.
3. Where the consent of guardian is necessary for the marriage and such consent has been obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to the respondents.
4. Where the respondent is pregnant at the time of marriage from a person other than the applicant.
Here is important that if marriage is voidable on the ground of consent obtained by fraud as force, then such marriage shall be declared null only when:-
(a) The applicant is presented within one year from the date of knowledge of fraud as force used.
(b) The parties have not lived as husband and wife after the knowledge of force used or fraud.
Similarly if the marriage is voidable due to the pregnancy of wife then such marriage shall be declared null only when the court is satisfied that :-
(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.
(b) If the marriage has been solemnised before this Act came into force, then the application shall be presented within one year from the date of enforcement of the Act or if the marriage has been solemnised after the act came into force then the application shall be presented within one year from such marriage.
(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.
(d) Wife had been pregnant from a person other then the applicant.
(e) She was pregnant before the marriage.
Impotency means the incompetency of any party to cohabit due to any physical or mental situation. A case Digvijay v/s Partap Kumai -1970 and Bibi v/s Nath 1970: It was held that nullity of marriage requires the existence of impotency at the time of first cohabitation.
UNSOUNDNESS :- A case of Ratneshwari v/s Bhagwati- 1950: It was said that unsoundness insanity or lunacy for the purpose of marriage means: The incompetency of any party to marriage to understand the rituals of marriage.
FRAUD OR FORCE :- Concealment of caste religion or misrepresenting a mother as a vingin or false praising or concealing prior marriage etc., are good example of fraud.
LEGITIMACY OF CHILD BORN IN VOIDABLE AND VOID MARRIAGE
Section l6 provides for the legitimacy of child born in void and voidable marriages. According to it, it can be said that such children are considered legitimate. Section 16 says : “ Where any decree of nullity has been passed regarding marriage under section 11 & 12 then any child having born or being in mother’s womb before the decree, if the marriage instead by decree of nullity to declare null or void would have been breached shall have been the legitimate child of the parties to marriage, shall be deemed to be legitimate even after passing of decree of nullity. Such children does not obtain any right in the property of persons other than his own parents i.e such children shall not inherit property from any other relative other than the parents. A case : Bansidhar v/s Chabi 1967 : It was held that the children from void and voidable marriage shall be deemed to be the legitimate children of their parents.
VOID MARRIAGE VOIDABE MARRIAGE
It is void ab initio. It is valid marriage until it has not Been declared null by a decree.
No marital rights and obligation arrised between the parties of void marriage. All marital rights and obligation exists till the marriage is valid.
Void marriage does not require the decree of court to declare it null. Voidable marriage can be declared null only by the decree of court.
Parties to void marriage can remarry again. Parties to voidable marriage cannot remarry till the prior the marriage has not been declared null by a decree.
Wife is not entitled to get maintenance under section 125 of CCP in a void marriage. A case of Yamuna Bai Anantrao v. Anantrao Shivram, 1988. Wife can claim maintenance in voidable marriage.
Question No.6 : Discuss the grounds for obtaining a decree of divorce. On what special grounds a Hindu Wife can claim a decree of divorce against her husband under the provision of the Hindu Marriage Act, 1955.
Answer:- INTRODUCTION :-Judicial Separation and dissolution of marriage are two important matrimonial remedies. It means suspension of marriage relation and dissolution means suspension of termination. Any party of the marriage can present an application for judicial separation and dissolution of marriage. Both these have been mentioned in section 10 and 13 of Hindu Marriage Act 1955.
It is pertinent to mention here that although the grounds of Judicial separation and dissolution of marriage may be the same but they are different. Dissolution of Marriage terminates the marriage, no marital relationship exist between husband and wife. Their duties & matrimonial rights also ceased. They can remarry also. Whereas in Judicial Separation neither marriage terminates nor matrimonial relationship ceases only the relations get suspended.
GROUNDS OF JUDICIAL SEPARATION &DISSOLUTION OF MARRIAGE
Section 10 of the Act provides for judicial separation whereas section 13 of act provides for dissolution of marriage (divorce). Earlier grounds for above purposes were different but after the amendment of Hindu Law Act 1976 made the grounds of both as same.
Grounds:- Section 13 of Hindu Marriage Act 1955 mentions the ground for Judicial separation and divorce. These grounds can be divided into three such as :-
1. Grounds available to both husband and wife (Section 13(i).
2. Grounds available to wife only ( sec. 13(2).
3. Ground of mutual consent ( sec. 13B).
GROUNDS TO BOTH HUSBAND & WIFE
Section 13(1) of the Act mentions the following grounds on which both husband and wife can present an application for divorce:-
i) When other party after the solemnisation of the marriage had sexual intercourse voluntarily with person other than husband or wife.
ii) When other party after the solemnisation of the marriage, had behaved with cruelty with husband or wife.
iii) When the other party prior to two or more years from the date of presentation of application had deserted the applicant.
iv) When the other party does not remain Hindu due to conversion.
v) When the other party is of unsound mind or is frequently or regularly and up-to such limit, affected by mental retardness that the applicant cannot reasonable be believed to live with the respondent.
vi) When the other party is suffering from incurable leprosy.
vii) When the other party is suffering from veneral discease.
viii) When the other party has declared Renunciation of world.
ix) When the other party is living or not, has not been heared by those for a period of 7 years or more, who would have heared naturally if that party would have been living.
x) When the cohabitation has not resumed between the parties to marriage after the expiry of one year or more from the date of decree of judicial separation.
xi) When the conjugal rights has not been resituated within one year or more from the date of decree of restitution of conjugal right.
GROUNDS AVAILABLE TO WIFE FOR OBTAINING DIVORCE
Under section 13(2) of Act which provides those grounds on which wife only can present an application for divorce. These are as under :-
1. In case of marriage solemnised prior to the passing of Hindu Marriage Act, the husband had remarried and living second wife with whom he had married prior to such passing provided that in both cases the second wife was living at the time of presentation of application.
2. When after the solemnisation of marriage the husband had been guilty of rape solomy or bestiality.
When in a suit under section 18 of Hindu Adoption & Maintenance Act, 1956, or in a proceeding under section 125 of CPC-1973, a degree or a order had been passed against the husband for the payment of maintenance to the wife even when she lived separately and after the time of issuing such degree or order the cohabitation had not been resumed between the parties with in a period of one year or more.
3. When wife had married at a time when her age was below 15 years and she after attaining the age of 15 years before attaining the age of 18 years, had repudiated the marriage.
DIVORCE BY MUTUAL CONSENT
Hindu Marriage (Amendment) Act 1976 added another section 13A to Hindu Marriage Act 1955 to provide mutual consent as a ground for divorce. According to it both the parties to the marriage can jointly present an application for divorce on the ground of mutual consent in the situations mentioned below :-
a) When husband & wife had been living separately for a period of more than one year.
b) They are incapable of living together.
c) They have accepted divorce by mutual consent.
Question No.7:- Explain the terms ‘Desertion’ & ‘Cruelty’ as ground of divorce?
Ans :- INTRODUCTION :- Section 13 of Hindu Marriage Act 1955 mentions the various grounds of divorce. Out of these grounds Desertion and Cruelty are also the grounds for divorce. The provisions have been made in section 13(1)(ii) for cruelty and section 13(1)(iii) provides desertion.
Means a party to a marriage permanently leaves the other party without any reason and without his consent. This also include ignoring of one party by the other. Thus desertion is not abandonment of place, but is of situation. When situation of desertion continues for more than two years, then it shall be the ground of divorce.
A case of Savtri Pandey and Premchand pandey -2002: The Supreme Court held that, “ the desertion means ignorance from matrimonial duties, instead of leaving any place. Desertion requires existence of cohabitation between the parties earlier.”
Desertion is mainly of two types :-
1. Actual desertion
2. Constructive desertion.
ACTUAL DESERTION: - Actual desertion consist of the following elements:-
a) Fact of desertion.
b) Intention of desertion.
c) Desertion without any reasonable cause.
d) Desertion without the consent of applicant.
e) Desertion continues for two years.
Actual desertion mainly requires two essential things: Respondent abondous matrimonial home and there is intention of desertion. This is also called physical separation and Animus desertion. Case: Vishwanathdas v/s Maya bala Das 1994: the court held that there should be intention of desertion. One of the important thing that desertion requires guilt by one of the parties i.e. desertion shall not be by consent. Case Gurubachan Kaur v/s Pritam Singh-1998. In a case of Vipin Chandra V/s Prabhawati – 1957: is a good example in this context. Wife was ready to live with husband but the husband was not willing to live together. The husband also send a telegram to the father of wife that read : “ Do not send Prabha” court did not held desertion by Prabha because she was willing to return to her husband. Thus in all, desertion requires abandonment of matrimonial home and a permanent intention of such abandonment. Desertion is required to be without reasonable cause.
Another case of Roshan Lal v/s Basant Kumari -1967-68 Punjab: The wife does not agree to live with the husband along-with his parents. She wanted that the husband should live separately leaving the parents for which husband was not ready. Wife went to her parents. It was held desertion. The Court held that It to be desertion by the wife.”
Here it is important that desertion requires guilty by one of the parties i.e. desertion shall not be by consent as stated by the Court in the case of Gurbachan Kaur V/s Pritam Singh- 1998.
As we have seen above, desertion does not mean abandonment of place, rather is abandonment of situation. It is constructive desertion. In other words, it can be said that desertion means not abandoning the place, rather is ignoring the cohabitation. If any party to marriage devoids the other party from cohabitation even with living in one house, it shall be desertion.
Here, it is important that if any party to marriage behaves in such manners with the party that it becomes difficult for the other party to live in matrimonial home or is compelled to leave the matrimonial home, then it shall be considered to be desertion by the first party. (Jyotish Chandra v/s Meera 1977, Anil Kumar v/s Shefali 1977, Omprakash v/s Madhu, 1997)
The desertion may terminate in following three situation :-
1. Resume Marital Life;
2. Resume Cohabitation, or
3. Express willingness to return back to home.
Cruelty:- it is an important ground for judicial separation and divorce. If any party to marriage behaves with cruelty to the other party, then the other party can present an application for divorce against the first party on this ground.
Definition of Cruelty:- Cruelty has not been universally defined till now. It depends upon the circumstances of the case and the country and time. Russel v/s Russel, 1897 Cruelty has been described as such characterial behaviour or conduct which may put life and body under physical or mental form of danger or may arise apprehension of such danger.
If the definition is understood in matrimonial context, it shall show that any party to marriage may behave with other party in such manner that it shall be difficult for other party to live with him, this shall be cruelty.
Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been held that husband along with his parents use to regularly beat the wife. Father-in-law physically misconducted with her. Husband neve went to bring back wife nor made any attempt towards it. Court held this behaviour of husband to be cruelty because such circumstances arose that it became difficult for wife to live with the husband.
Similar case is Yadhister Singh v/s Smt. Sarita, 2002 – wife used to live at ancestral home of husband. Husband was working somewhere else. Husband never wanted to keep wife along with him. He used to come at his ancestral home once a week. He did not used to say his wife that he did not liked her, but he did say that she should live only with the other members of family at the ancestral property. Court held it to cruelty.
There are several cases of cruelty. Actually the definition of cruelty depends upon the circumstances of the case.
Types of Cruelty:-
a. Physical Cruelty.
b. Mental Cruelty.
Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that it includes both physical and mental type of cruelty.
Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that Mental Cruelty is a state of mind and feelings. In this case, wife refused intercourse form the first day after marriage. She also refused to undergo medical examination. She used to misbehave always with her husband. She also left her matrimonial home. Court held it to be cruelty by wife towards husband.
Rakesh Sharma v/s Surbhi Sharma, 2002 - Wife left the matrimonial home without the permission of the husband. She used to charge husband with adultery and making constant demand of dowry. Court held it to be a conduct of mental cruelty towards husband.
Shobha Srinivas v/s Srinivas Veranna, 2002, Court did not considered such a single act of wife as cruelty in which the illiterate wife emotional anger threw the Mangal Sutra.
In all, it means that cruelty is determined by the facts and circumstances of every matter.
Ques:-Valid Adoption under Hindu Adoptions and Maintenance Act, 1956
Introduction:- Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid adoption. The person adopting has the capacity and also the right to take in adoption. The person giving in adoption has the capacity to do so, the person adopted is capable of being taken in adoption and the adoption made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956.
No adoption shall be valid unless:-
1. The person adopting has the capacity and also the right to take in adoption.
2. The person giving in adoption has the capacity to do so.
3. The person adopted is capable of being taken in adoption: and
4. The adoption made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956.
According Section 5 of the Act, an adoption made in contravention of the provisions of Chapter II of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s Shakuntla, 2002 the Supreme Court opined that Section 16 of the Hindu Adoptions and Maintenance Act, 1956envisages a statutory presumption that in the event of there being a registered pertaining adoption, adoption would be presumed to have been made according to law.
1. Capacity of a male Hindu to take in adoption
According Section 7 of Hindu Adoption and Maintenance Act, 1956 any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following three conditions:-
• the wife has completely and finally renounced the world, or
• the wife has ceased to be Hindu, or
• the wife has been declared by a Court of competent jurisdiction to be unsound mind.
If a man has more than one wife living at the time of adoption, the consent of all the wives must be obtained. The Act has given two qualification for a male Hindu to capable to taka a child in adoption i.e. the person must be of sound mind and he must not a minor. The man is required to take consent of the wives or wife, before adoption. Without the consent of wife or wives the adoption will be void.
2. Capacity of a female Hindu to take in adoption
Now a female has also the capacity to adopt any child. Section 8 of the Act provides that any female Hindu who is of sound mind, who is not minor and who is not married or if married, whose married has been dissolved or whose husband is dead has the capacity to take a son or daughter in adoption.
A woman who is of sound mind and is not a minor can take child in adoption. The woman has no right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the right to take in adoption any child.
3. Person capable of giving in adoption
Section 9 of the Act down the capacity of person, who may give the child in adoption to another. No persons except the father or mother or the guardian of the child shall have the capacity to give in adoption.
• Capacity of the father to give in adoption :- If the father is alive, he shall alone have the right to give in adoption but such right shall not be exercise save with the consent of the mother.
• Capacity of the mother to give in adoption :- The mother may give the child in adoption if the father is dead or had completey and finally renounced the world or has ceased to be a Hindu or has been declared by a court jurisdiction to be unsound mind.
• Capacity of the guardian to give in adoption :- Where both the father and mother are dead and to be unsound mind and finally renounced by the world declare by the court then the guardian of a child may give the child in adoption with the following conditions laid down by the courts:-
o That the adoption will be for welfare of the child.
o That the applicant for permission has not received any payment in consideration of the adoption.
o That no person has given any payment to the applicant for consideration of the adoption of child.
The father has preferential right to give the child in adoption. If he is unsound mind or suffering from chronic disease has the right to give a child in adoption. The guardian may give the child in adoption with the prior permission of the court.
4. Who can be adopted:- Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfil the conditions are capable for adoption:-
a) He should be Hindu.
b) He or She not already be adopted any child adopted.
c) He or She has not been married unless there is a custom applicable which permits being can adopt.
d) He or She has not completed the age of fifteen years which is to be considered being taken for adoption.
5. Formalities of Adoption:- (i) The child to be adopted must be actually given and taken in adoption by the parents/guardian.
(ii) Only after the transfer of a boy from one family to another with a ceremony will be valid.
Refer a case of Lakshman Singh Kothari v/s Smt. Rup Kuwar, 1961 the court held that under the Hindu Law there can not be a valid adoption unless the adoptive boy is transferred from one family to another by doing the ceremony of given and taken.
Question: Explain the powers of Karta in a joint Hindu Family? Whether he can mortgage the undivided shares of other coparceners in the property.
Answer : INTRODUCTION:- The position of karta n a joint hindu family is unique. He is that person who takes care of the whole family and its property and admininsters it and all the members of family remained disciplined under him. It has been said regarding the position of karta that no one else is equivalent to him in the family. The position and powers of the karta are more wide than anyone
POWERS OF THE KARTA
1. He has the complete control over the family.
2. No one can claim accounts from him nor can say to him to spend less.
3. There is no binding over him that how much he shall spend over any coparcener.
4. It is within his power to whom he may educate and whom he keeps illiterate.
But this does not mean that he is dictator. His position is extremely sensitive. He has to move along-with all the members. Thus the position of the karta is mixture of rights and duties. He has to maintain the control between rights and duties.
WHO CAN BE A KARTA
1. Hindu Law believes that the seniormost coparcener is the Karta of the family. Refer case of Ram v/s Khera -1971.
2. Any coparcener becomes Karta of family because of his seniority not because of anyone appointed him. Refer a case to this effect Mann V/s Jayani-1918 it was held that such a person till he lives continues as the karta of the family although he may be aged, handicapped, week or ill.
3. However any karata becomes unsound mind then the seniormost coparcener would become the karta.
WHETHER A JUNIOR MOST COPARCENAR BECOMES KARTA.
1. Generally it does not happen but in a case of Narendera Kumar V/s Intcome Tax Commissioner-1976, it was held t hat a junior coparcener can be the karta with the consent or agreement of all the coparceners.
In another case of Harihar Sethi V/s Ladu Kishore Sethi -2002, it was held by the Orisa High Court that junior coparcenar can be the karta when the senior most coparcener waives his right of karta then a junior member can become Karta.
Whether mother can become the Karta.
In case of Pandurang V/s Pandurang -1947 it was held by the Nagpur High Court that the mother can become Karta if their is no other adult coparcener here the Supreme Court does not agree to this view in case of Commissioner of Incometax Vs Seth Govind Ram -1986.
The Karta of Joint Hindu Family at a time can only one not more, but with the consent of other coparcener there can be more than one Karta: refer a case of Mudrit vs Ranglal 1902 and Shankar v/s Shankar 1943.
THE RIGHTS OF KARTA
1. Right of managemnt: He has the right to manage all the duties trade, business industry etc., no one can challenge him.
2. Right over Income :- The income of the family remains under his control. He may spend as per the requirements.
3. Right of Representation : He can represent the family in all types of social,religious, legal and matrimonial matters. The decision of karta is binding over all. He can file suit. Refer a case in this regard: Fatimanisa v/s Raj Gopalacharya -1977.
4. Right to debt. : He can any debt for the requirement of the family. Such debts shall be taken for legal requirements of the family. The karta can mortgage or pledge the property of family for this purpose.
5. Right of settlement:- Karta has the right to make an honest settlement on behalf of family.If any settlement is made not in good faith it can be challenged refer a case of Nayathambi v/s Vijay-1972.
6. Right of arbitration :- He has right to solve the disputes of family through arbitration see a case of Jangan Nath v/s Mannu Lal 1894 of Allahabad.
7. Right of Acknowledgement: Karta has the right to acknowledge the debts and making payment of interest but he cannot acknowledge the time-barred debts.
8. Right of Alienation :- He has the right to alienate the property of family and take debt for the family with the following conditions :-
i) For the benefit of the family.
ii) For the fulfilment of the legal necessaties.
Refer a case in this regard Devi Kishan v/s Ram Kishan -2002 It was held by the Rajasthan High Court that the karta can Mortgage the property of joint family for legal necessities, but the following may not be legal necessaities :-
i) Debt for child marriage violating child marriage prohibition Act.
ii) Debt over property already mortgaged.
Question :- Who can give child in Adoption?
Who can give and take in adoption?
Answer :- Section 7,8,9 and 10 of Hindu Adoption and Maintenance Act 1956 provides the following terms for adoption:-
1. Competency if Hindu Male to adopt.
2. Competency of Hindu Female to adopt.
3. Person competent to give adoption.
4. Person who can be adopted.
All these above can be studied under the following heads:-
1.WHO CAN ADOPT :- Section 7 and 8 mention those person who can adopt. These section has two types of methods of adoption by male and adoption by female.
ADOPTION BY MALE:
Section 7 provides that an adoption by male requires the following three conditions :-
i) Such male shall be of sound mind.
ii) He is major.
iii) Must have the consent of his wife.
Thus such Hindu male can adopt a child who is major, sound mind and has obtained the consent of his wife. If the adoption is performed without the consent of wife then such adoption shall be void. Refer a case of Bhola v/s Ram Lal -1989, It has been held that if any male has more than one wife then the consent of all wives are required. If any wife attend the adoption ceremony it shall be deemed to have given the consent refer a case of Praful Kumar v/s Shashi Bewa -1990.
It is pertinent to mention that the consent of wife is not necessary in all circumstances i.e. the consent of wife is not necessary in the following conditions :-
1. When wife had renounced the world.
2. When she is no more Hindu.
3. When she has been declared unsound by the competent court.
ADOPTION BY FEMALE
Section 8 provides that any female can also adopt a child only when such female fulfil the following conditions :-
1. Is unmarried or widow.
2. Is a major
3. Is of sound mind.
It is clear that a female cannot adopt until the husband is living. Female can adopt a child even when the husband living only when:
i) The husband had renounced the world.
ii) The husband is not more a Hindu.
iii) The husband has been declared unsound mind by a court.
Here are some important things that if male wants to adopt a female or vice-versa then the age difference between the two shall be at-least 21 years.
WHO CAN GIVE ADOPTION
Section 9 mentions those persons who can give a child in adoption. The followings are eligible for giving a child in adoption :-
1. Father 2, Mother 3 Guardian appointed by the court.
If a father gives a child in adoption the consent of mother shall be required. The consent of mother shall not be required in following situations :-
1. When the mother is renounced the world.
2. When the mother is no more Hindu.
3. When the mother has been declared unsound mind by a court.
Generally a mother cannot give a child in adoption till the father is living. A mother can give a child in adoption only when the following occur:-
1. The father had already died.
2. Father is renounced the world.
3. The father is no more Hindu.
4. The father has been declared unsound mind by a competent court.
Mother means only the natural mother not the step mother. Step mother cannot give a child in adoption. Refer a case of Dharamraj Jain v/s Suraj Bai-1973.
A guardian appointed by the permission of court can give a child in the
following conditions :
1. When both father and mother had died.
2. When they have renounced the world.
3. When they do not remain Hindu.
4. When they have been declared unsound mind by a competent court.
It is further to submit that the court will consider the following points while permission for the adoption:-
1. The age of child.
2. Knowledge of the child.
3. Intention of the child.
4. Interest and welfare of the child.
5. No consideration by the guardian etc.
WHO MAY BE ADOPTED.
Section 10 mentions that those persons who may be adopted. According to the provisions such person may be adopted or may be given in adoption :-
1. Who is Hindu.
2. Who has not already been adopted.
3. Who is not married where it has been permitted by the custom or traditions.
4. Who is not above the age of 15 years where it has not been permitted by the custom or traditions.
The case of Balakrishna v/s Sadashive-1977, another case of Mayaram vs Jai Naraian -1989 and Kodippa Rama Papal urf Shirke v/s Kannappam -1990. It was held that where customs or traditions allow there a person above 15 years of age or married can be adopted.
Where as among Maharashtra School and Jains a person of any age can be adopted refer case of Bishan v/s Girish-1986.
Another case of Dev Gonda v/s Sham gonad -1992, the Bombay High Court held that any insane can also be adopted. Further any orphan found child or abandon child may be adopted.
Question : Describe the rules of succession in the case of intestate Hindu female dying intestate?
Explain the various rules regarding the distribution of the property of Hindu female dying intestate.
Answer : INTRODUCTION :- Section 14 of the Hindu succession Act 1956 had brought drastic change in concept of property of a female. Now a female being considered to be complete owner of his property provided that at the time of implementation of this act:-
1. She is Hindu.
2. She is living
3. The property is in her possession. As regard to question of possession is concerned the cases of Mangal Singh v/s Smt Ratnu-1967 and Monomayi v/s Upeshwari-1994, it was held that such possession may be actual or constructive.
SUCCESSION OF PROPERTY OF FEMALE
Section 15 of the Act provides for the succession of Hindu female dying intestate. Section 15(1) distributes the heirs of deceased Hindu female in the following five classes :-
a) Sons and daughters ( which includes the children of predeceased son or daughter) and husband.
b) The heirs of husband.
c) Father and mother.
d) Heirs of Father.
e) Heirs of Mother.
It is pertinent to mention here that son and daughter includes illegitimate sons and daughters refer a case of R.A.Patil v/s AB redekar – 1969. Similarly it includes adopted sons and daughters but does not include step-sons and step-daughters a case may refer in this context Gurbachan v/s Khechar Singh-1971.
When a Hindu female dying intestate does not have any heirs then her property shall devolve with the State refer a case of Punjab v/s Balwant Singh 1991.
However the property of female can be divided into three categories in respect of succession:-
1. Property obtained in succession from father or mother.
2. Property obtained in succession from husband as father in law.
3. Other property.
SUCCESSION OF PROPERTY OBTAINED FROM PARENTS
Section 15(2) says that if any female had received property in succession from her father or mother then such property shall devolve firstly within her sons and daughter, and if the sons and daughters does not exists then it shall devolve among the heirs of father. Refer a case of Mahadevappa v/s Goraaamma-1973
And another case of Bhagat Ram v/s Teja Singh-1999, the Supreme Court held that if any female receive property in succession from her mother then such property shall after her death go to her sister but not to the heirs of her husband.
A very good example in this content a case of Taramani v/s Narender Kumar -2002, the court held that, at the time implementation of the act the unmarried daughter became the absolute owner of the property. Therefore after her death the property shall not devolve among the brothers of father, rather shall devolve to the married sister.
SUCCESSION OF PROPERTY OBTAINED FROM HUSBAND AND FATHER IN LAW.
Section 15(2) (B) of the act provide that if any female receives property in succession from her husband or father-in-law then such property shall firstly devolve among her sons and daughters and in case of non-existence of her sons and daughters it shall devolve among the heirs of husband.
SUCCESSION OF OTHR PROPERTY
Excluding the property received in succession from parents and husband or father-in-law all other properties shall devolve according to the mentioned heirs of section 15(1). The general rule of preference is that prior class shall have preference over the subsequent class.
ILLUSTRATION :- The property received in succession from brother gifts at time of marriage other gifts etc shall dissolve under this category.
METHOD OF DISTRIBUTION
Section 16 of the act mentions the method of distribution of property among the heirs of Hindu female dying intestate. According to it, the following method could be expressed in simpler words in the following way :-
1.Son daughter and husband each shall receive one share.
2.Sons and daughters of predeceased sons and predeceased daughters shall receive that share which the predeceased would have receive if alive.
3.The heirs of the branches of predeceased son or predeceased daughter shall receive share equally among themselves.
Q. On what grounds can a Hindu wife claim maintenance from her husband even while living separate form him. When her right to maintenance is lost?
Ans:- Introduction:- Under the Hindu society and culture its is the duty of husband to maintain his wife. These duty is not legal only but moral also. According to Manu, a person has to maintain his parents, wife and minor children even after doing 100 wrong acts.
Section 18 of HA&M Act, 1956 accept this system and provides that a Hindu wife whether married before or after the enforcement of this act shall be entitled for maintenance from her husband during her lifetime.
A case in this regard of Jayanti v/s Alamellu, 1904, it was held that it is the duty of husband to maintain his wife without any excuse of shortage of funds. Another case Mutyal v/s Mutyal, 1958, it was held that a wife is not entitled for maintenance when she leaves the house without the consent of her husband.
Ground of maintenance while living separately
It is pertinent to mention here that the wife is entitled for maintenance only when she is living with her husband but she is not entitled to maintenance if she is living separately from her husband. Whoever according to Hindu Adoption and Maintenance Act, 1956 also makes a provision that a Hindu wife may also obtain a decree for separate residence and maintenance from her husband under the following grounds:-
1. Desertion:- Desertion as a ground for separate residence and maintenance means the abandoning of the wife without reasonable cause and without her consent or against her wish. Under Section 13 (1) of Hindu Adoption and Maintenance Act, 1956 the duration of the desertion need not be a period of two years. It may be less than two years.
2. Cruelty:- If the husband treated his wife with cruelty and the wife apprehension in her mind that it will be harm full or injurious to live with him. It will be a ground of separate residence and maintenance. The duty has to prove the following facts:
• That the husband treated her with cruelty,
• The cruelty was of such nature which she apprehended in her mind that it will be harm full or injurious to live with him.
3. Leprosy:- If the husband suffering a virulent form of leprosy it will be a ground for wife to claim maintenance and separate residence. The duration of leprosy is not material.
4. Keeping a concubine:- If the husband keeps the concubine in the same house in which his wife living with a concubine then the wife may claim separate residence and maintenance.
5. Conversion:- If the husband has ceased to be a Hindu and conversion to another religion also a good ground for the wife to live separate and claim maintenance form his husband. However, a Jain converted to Sikh it is not a ground for wife to claim separate residence and maintenance.
6. Another Wife:- Under prior Hindu Law polygamy was allowed. A man might marry more than one wife. But in Hindu Adoption and Maintenance Act, 1956 makes monogamy compulsory and abolished bigamy once for all.
7. Any other cause:- If the wife is of immature age and is living with her parents she will claim maintenance form her husband.
In a case Siraj Mohammad Khan v/s Hafizunnis, 1981, it was held by the Court that the impotence of the husband amounts to mental cruelty for the wife. It was, therefore, just ground under section 125 of CR. P. C. to claim separate residence and maintenance.
Who are coparceners and what are there rights. Whether a daughter who wants to remain unmarried can claim partition in the coparcenary property?
Ans:- Introduction:- In Hindu Law joint Hindu family and coparcenay are two different subject. Joint Hindu family is a wide concept. Whereas coparcenary is limited. Joint Hindu Family is created by successors, of one ancestor their mother, wives, unmarried daughter etc. Whereas coparcenary is created by father, son, Grandson, grandson’s son. Thus the following persons are coparcener:-
iii. Grand Son
iv. Grandson’s son.
After the amendment of Hindu Succession Act, 2005 it is now considered that daughter as coparceners and they shall have the right in coparcenay property by birth. Coparcenary may exists even with Grandfather, grandson or grandfather’s father and grandson’s son.
In a case Dashrath Rao v/s Ram Chandra Rao, 1961, the Court held that the last member of coparcener should not be more than 4 degree away form the ancestor.
B (Son) C (Son)
M (Grandson) N (Grandson) P (Grandson) Q (Grandson) R (Grandson)
X (Grandson’s son) Y (Grandson’s son)
Right of Coparcenars:- The Coparcenars following rights:-
a. Coparcenars have right by birth in the property of coparcenay.
b. Coparcenars can demand partition of the coparcenary property.
c. Coparcenars have joint ownership and possession over the coparcenary property.
d. No coparcener can transfer the coparcenary property.
e. Coparcenar is entitled to maintenance from the coparcenary property.
f. The right of coparcener is base on survivorship, not on succession.
g. Coparcenar has the right to see accounts of the property form the Karta.
Right of unmarried Daughter:- Whether any woman who decides to live unmarried can claim partition of coparcnary property?
No woman can be the member of coparcenary but she can be a member of joint family in such situation it is clear that
a. any woman does not have right by birth in the property.
b. no woman can claim the partition of such property.
c. unmarried daughter entitled to maintenance form the joint family property.
d. the expenses of unmarried daughter is also charged on the property of joint property.
Q. Who are the natural guardian of Hindu minor? What are the powers of such guardian?
Answer:- Introduction:- Hindu Minority and Guardianship Act, 1956 is for such person who minor that is below the age of Eighteen years and a guardian has been appointed for the care of his body and his property. This act lays down four types of guardian:-
(i) Natural guardian
(ii) Testamantary Guardian
(iii) De-fects Guardian
(iv) Guardian appointed by court.
Who are the natural guardian:- Under Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the meaning of natural guardian is the father of and after him the mother. The natural guardian of minor wife is her husband. Section 6 of Act provides that the natural guardian consists of the three types of person:-
Thus the natural guardian can only be father, mother and husband and according to it:-
In case of a boy or unmarried girl firstly the father and later mother is the guardian of a minor upto age of five year is generally mother. The guardian of illegitimate boy or illegitimate unmarried girl shall be firstly the mother and later the father. The guardian of married of girl is husband but here in the case of minor the step-mother and step-father can not be guardian. The guardianship can be terminates in the following situations:-
(i) When such person that is guardian is no more Hindu.
(ii) When he has renounced the world.
In case of E.M. Nadar v/s Shri Haran, 1992, it was held by the court that the father is guardian of minor even if living separately.
In case of Vijaylakshmi v/s Police Inspector, 1991, it was held that when father converts to be non Hindu then mother shall be natural guardian.
In case of Chandra v/s Prem Nath, 1969, it was held that the guardian below the age of 5 years is mother.
But several decision with the time it has been considered that if the father is unable and do not have sufficient fund then the natural guardian shall be mother as described by the court in the following cases:-
(i) R. Venkat Subaiya v/s M. Kamalamma, 1992
(ii) Smt. Geeta Hariharan v/s Reserve Bank of India, 1999.
The power of Natural Guardian
The power of Natural Guardian can be kept under two heading:-
1. Right regarding the body of Minor
2. Right regarding the property of Minor.
Keeping in the view of the importance of above lines the body of minor under Section 8 (i) that the natural guardian can perform all the function regarding care of the minor which are in his benefits.
The Power of Natural Guardian Property of Minor are as under:-
1. Transfer of property:- Section 8(2) of Act says that the mortgage, sale, gift, exchange of immovable property of the minor shall be made only prior permission of the court. If the permission is not obtained it will be voidable. As said by the Court in the case of Narindra Singh v/s Devendra Singh, 1982 and Vishwan Nath v/s Damodar , 1982.
2. Lease of Propert:- Section 8 (2) (b) of the Act lays down that any natural guardian cannot lease the immovable property of minor for more than 5 years or not more than one year after the minor attains the majority.
3. Right to Contract:- The guardian may contract for the minor, but cannot enter into a contract which makes the minor personally liable held by the court in case Waghla v/s Shiekh Masaluddin and Mir Sarwae v/s Fakruddin, 1912.
Minor cannot the guardian of another minor:- As described in Section 10 of the Act that no minor can not be guardian of another minor. In the case of Ibrahim v/s Ibrahim, 1916, it was held the minor can be the guardian of his wife but cannot be guardian of her property.
Shruti:- It is most ancient source of Hindu Law. It is such level that they came in direct contact with the God. The God gave birth to Hindu Law and whatever was heard by the saints, was provided as Shruti. Shruti is the synonym used for ‘Veda’ and it means what was heard from God.
Source of Hindu Law
Ancient or Original Source Modern Sources
Smriti Precedents or Judicial Decisions
Commentaries and Digests
Definition of Shruti:- According to Manu, the whole Veda or Shruti is the first and paramount source of Hindu Law. The Veda here means that not only the direct texts themselves are authoritative but also those rules are deducible from them. Vedas are of four types:-
1. Rigveda, 2. Yujurveda, 3. Samveda, 4. Artarveda
These are the concept of life, living style, traditions, religious belief etc. of our ancestors.
In a case of Balusu v/s Balusu, 1899 it was held by the Privy Council that the adoption of only son is valid with reference to the story of Atri-Aurva.
Smritis:- It is the second important source of Hindu Law. The literal meaning of Smriti is whatever was remembered. Thus, smritis were dependent on the remembrance of saints. The era of creation of Smriti is also known as Golder era because it is era when well organised and serial wise development of Hindu Law started.
Smritis are divided into two parts:-
a. Dharam Sutras
Dharam Sutras are famous of Gautam, Budhyan, Aapstamb, Harit, Vishnu and Vasisth and Dharam Shastras are famous of Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu Smiriti made of 12 chapters and 2694 Shlokas fulfilled the requirement of substantive epic of law. Yagyavalkya Smriti is divided into 3 parts and is extremely clear, brief and organised. Narad Smriti being the last smriti, is such first legal code which mentions subjects related to judicial process, courts and judiciary.
Commentaries and Digests:- Commentaries are the third important sources of Hindu Law. Smrities are many. But all the laws are not mentioned in every smriti. Sometimes there are inconsistencies between the provisions of one smritie and the provision of other smriti. DharmaShastra writers tried to reconcile these conflicting texts of Smritis or laws contained in those Smritis. These learned commentators and digest writers either commented on particular Smritis or made digests of the entire body of Smriti material. These writers modified and supplemented the rules in the Smritis, in part by mean of their own reasoning and in part in the light of usages that had grown up. These Commentators and Digest-writers purport to expound the law almost exlusively with reference to texts of the Smrities which are supposed to be only interpreted by them. These commentators while professing to interpret the law as laid down in the Smritis introduced changes in order to bring into harmony with the usage followed by the people governed by that law. The Commentators and Digest writers of Southern India support the validity of the marriage of maternal sister.
case Atmaram v/s Bajirao, the Privy Council emphatically laid down that in the case of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted.
The principal commentaries are:-
1. Dayabhaga by Jimutavahana 2. Mitakshara a commentary of Yajnavalkya by Vijaneshwara 3. Smriti Chandrika by Devananda Bhatta 4. Vivada Ratnakara by Chandeshwara.
Agnates and Cagnates :- Section 12 of the Hindu Succession Act, 1956 determines the series of succession among Agnates and cognates in following way-
a. That their shall receive the property whose degree of ascending order is less or do not exist.
b. Where the degrees of ascending order are same or do not exist, their that heir shall receive property whose degrees of descending order is less or do not exist.
c. Where are heir is not entitled to receive property in comparison to others as pert the Rule (1) and (2), their they shall share the property equally.
Child in womb:- Section 20 of the Hindu Succession Act. 1956, recognizes posthumous child as an heir. The Section lays down, “ A Child who was in the womb at the time of death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she has been born before the death of the intestate and the inheritance shall be deemed to vest in such a case with effect form the date of death of the intestate.
A child in womb is presumed to be born before the death of the intestate although born subsequently. It is by fiction of law that the rights of a child born in justo martrimonio are regarded by reference to the moment of conception and not of the birth. An unborn child in the womb, if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. This rule recognises old Hindu Law.
A male dies on 1st July, 1992, leaving his widow W and his daughter D. On 1, 1992 widow W gave birth to a normal son. The son dies next day. What will be the share of W and D? At the first the property will be distributed in three equal shares, i.e. W=1/3, D=1/3, Son=1/3 because the son was heir of the intestate male Hindu. On the death of the newly-born son his share would devolve on his nearest heir. His heir will be his mother W.
Disabilities of a murderer for succession
Murderer :- Section 25 of the Hindu Succession Act provides that A person who commits murder or abets the commission of murder shall be disqualified form inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
In Kenchova v/s Gilimallappa, 1924 the Privy Council held, even apart from Hindu Law, principles of justice, equity and good conscience exclude a murdered from succeeding to the murdered person and that it must be regarded as a paramount rule of public policy.
In Chaman Lal v/s Mohan Lal, 1977, a widow was prosecuted for the charge of murder of her husband and finally acquitted of the charge by the court. The brother of the deceased raised the objection that she was not entitled to inherit the property as she was charged with the murder of her husband. The Delhi High court held that as the widow had been acquitted so she would not be disqualified from inheriting. The Court observed that it was not the scheme of Hindu Succession Act, 1956 that the Civil Court should again examine the charge of murder and hold an enquiry or trial independently after acquittal from the criminal Court.