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Hindu Law- Question Bank including case laws

Hindu law (Maharishi Dayanand University)

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HINDU LAW

Question Bank

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

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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

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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.

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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.

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(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?
OR
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

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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.
2. Precedents
3. Legislation.
Sources of Hindu Law
_____________________________________________
_____________
Ancient
Sources Mo
dern 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

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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.”

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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

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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.

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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.
OR
What are the various schools of Hindu Law?
Differentiate between Mitakshara and Dayabhaga
Schools.

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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 Dra
vid 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.

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MIKAKSHARA SCHOOL
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.
DAYALBHAGA SCHOOL
Its name came from the Digest Dayabhaga of
Jimuthvahan. The area of its application is Bengal and

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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:-
1. INHERITANCE
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

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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.
OR
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

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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 :

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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.

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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?
OR
What is meant by Void and Voidable Marriage?

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Answer: - INTRODUCTION: - Section 11 & 12 of Hindu

Marriage Act, 1955 provides far void and voidable
marriage respectively:-
VOID MARRIAGE
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.
VOIDABLE MARRIAGE
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

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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

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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.

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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

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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:-

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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

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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.

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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.
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.”

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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

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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.
CONSTRUCTIVE DESERTION
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.

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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.

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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:-

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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.

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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

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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.

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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

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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.

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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 :-

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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?

Or
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.

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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.

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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.

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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.
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Question : Describe the rules of succession in the case

of intestate Hindu female dying intestate?
OR
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-

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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.

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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.
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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

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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.

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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:-
i. Father
ii. Son
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.
A
B (Son) C (Son)

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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.

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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:-
(i) Father
(ii) Mother
(iii) Husband
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.

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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.

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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
Shruti Legislations
Smriti Precedents or Judicial Decisions
Commentaries and Digests
Customs
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

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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
b. DharamaShastras
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.

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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-

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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.
Illustration
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

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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.

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