Family Law – I (Hindu Law)

Ans: A Joint Hindu Family (also called a Hindu Undivided Family) is a family made up of a common male ancestor and all his lineal descendants, their wives and their unmarried daughters. They normally live together, or are treated as living together, with a common mess, worship and estate.

Nature

• A joint family is a status, not a contract. A Hindu is born into it. No agreement is needed to create it, and no member can leave it except by demanding partition.
• The law presumes that every Hindu family is joint in food, worship and estate until the contrary is proved. The person who claims separation must prove it.
• A joint family does not need to own any joint property. In Surjit Lal Chhabda v. Commissioner of Income Tax (1975) the Supreme Court held that a joint family can consist of even one male member with his wife and unmarried daughter.

Joint family and coparcenary

A coparcenary is a narrower body inside the joint family. It consists of the common ancestor and his lineal descendants up to three generations below him (sons and, since the Hindu Succession (Amendment) Act, 2005, daughters). All members of the joint family are not coparceners, but every coparcener belongs to the joint family. In State Bank of India v. Ghamandi Ram (1969) the Supreme Court called a Mitakshara coparcenary a creature of law that cannot be created by agreement.

Joint family property

• Ancestral property inherited from the father, grandfather or great-grandfather.
• Property bought with the help of joint family funds or by joint labour.
• Separate property that a coparcener voluntarily throws into the common stock (blending).
• Property bought with the income of joint family property.

Property a person earns by his own skill and effort without the help of joint funds is separate (self-acquired) property and passes to his own heirs.

Ans: Maintenance means the support a person is legally entitled to receive from another. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 says that it includes, in all cases, provision for food, clothing, residence, education and medical attendance and treatment. For an unmarried daughter it also includes the reasonable expenses of her marriage.

Main provisions under Hindu law

• Section 18 (HAMA) – a Hindu wife is entitled to be maintained by her husband for her lifetime. She can live separately and still claim if he deserts her, treats her with cruelty, has another wife living, keeps a concubine, or has ceased to be a Hindu. She loses the claim if she is unchaste or ceases to be a Hindu.
• Section 20 (HAMA) – a Hindu must maintain his legitimate and illegitimate children (while they are minors) and his aged or infirm parents (so far as they cannot maintain themselves).
• Sections 21 and 22 (HAMA) – the heirs of a deceased Hindu must maintain his dependants out of the estate they inherit.
• Section 24 (HMA) – maintenance pendente lite (during the case) and expenses of the proceeding, to either spouse who has no sufficient independent income.
• Section 25 (HMA) – permanent alimony at the time of any decree or later, as a lump sum or periodical payment, which can be secured on immovable property.

The amount is not fixed by a formula. Under Section 23(2) HAMA the court considers the position and status of the parties, the reasonable wants of the claimant, whether a claimant living separately is justified in doing so, the claimant’s own property and income, and the number of persons entitled to maintenance.

Sections: HAMA 3(b)HAMA 18HAMA 20HAMA 23HMA 24HMA 25

Ans: A voidable marriage is a valid and subsisting marriage that remains valid until a competent court annuls it by a decree of nullity. Until the decree is passed, it has full legal effect. Section 12(1) of the Hindu Marriage Act, 1955 gives the grounds.

Grounds (Section 12(1))

• The marriage has not been consummated because of the impotence of the respondent.
• The marriage breaks the mental-capacity condition of Section 5(ii): a party was incapable of giving valid consent because of unsoundness of mind, or had a mental disorder that made the party unfit for marriage and for having children, or had recurrent attacks of insanity.
• The consent of the petitioner (or of the guardian, where the guardian’s consent was needed) was obtained by force, or by fraud as to the nature of the ceremony or as to any material fact or circumstance about the respondent.
• The respondent was pregnant by some other person at the time of the marriage.

Time limits (Section 12(2))

• For force or fraud: the petition must be filed within one year after the force stopped or the fraud was discovered. It is not allowed if the petitioner, with full consent, lived with the other party as husband and wife after that.
• For pregnancy by another person: the petitioner must have been ignorant of the fact at the time of marriage, must file within one year of the marriage, and no marital intercourse with consent must have taken place after the discovery.

The marriage is not voidable merely because a party was below the age fixed in Section 5(iii). The Act does not make a breach of the age condition either void or voidable; Section 18 only punishes it.

Sections: 125(ii)5(iii)

Ans: The Karta is the manager of the joint family. He is usually the senior-most male coparcener, though a junior coparcener can act as Karta with the consent of the other coparceners. Since Sujata Sharma v. Manu Gupta (2016) the senior-most female coparcener can also be Karta. He is not an agent, a partner or a trustee. His position is unique.

His main duties

• To maintain the family. Every member of the joint family has a right to maintenance, and the Karta must see that it is met.
• To arrange marriages. Marriage of the family’s members, especially of daughters, is a family duty met from the joint funds.
• To manage the property in good faith for the benefit of the family, and to spend the family funds for family purposes.
• To represent the family in dealings with outsiders, including litigation, and to pay the dues and taxes of the family.
• To alienate joint property only on the three recognised grounds: legal necessity, benefit of the estate, or indispensable duties (Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree, 1856).

Accounts

While the family stays joint, the Karta is not required to keep formal accounts of income and expenditure, and he cannot be made to explain every rupee unless fraud or gross misconduct is alleged.

Ans: The Karta has wide powers over the joint family property, but he also has liabilities towards the other members.

• Liability to maintain. He must provide maintenance for all members of the joint family. A member who is neglected can sue for it.
• Liability to alienate only for a valid reason. A sale or mortgage of joint family property binds the other coparceners only if it is for legal necessity, benefit of the estate or an indispensable duty. Otherwise it is voidable, not void, and a coparcener can challenge it in court. The burden of proving the necessity or benefit is on the person who relies on the sale, usually the buyer.
• Liability not to make improper gifts. A gift of ancestral immovable property is valid only if it is small and for a genuinely pious purpose (Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, 1964).
• Liability for fraud or misappropriation. He can be called to account if fraud or gross misconduct is alleged.
• Liability to account at partition. He need not keep accounts while the family is joint, but he must explain the dealings with the family property when a coparcener sues for partition.

Ans: Judicial separation is a decree under Section 10 of the Hindu Marriage Act, 1955 that relieves the spouses of the duty to live together. It does not end the marriage.

Who and on what grounds

Either party can petition, whether the marriage was solemnised before or after the Act. The grounds are the same as for divorce: Section 13(1) for both spouses, and Section 13(2) in addition for the wife. The only difference is the relief claimed.

Effects

• The petitioner is no longer bound to cohabit with the respondent.
• The marriage continues. Neither party can remarry.
• Other rights, such as maintenance, continue.
• Under Section 10(2) the court can rescind the decree if it is just and reasonable, on the petition of either party.

If cohabitation is not resumed for one year or more after the decree, either spouse can petition for divorce under Section 13(1A)(i). Judicial separation gives the spouses time to reconcile.

Sections: 1013(1)13(2)13(1A)(i)

Ans: Divorce is the dissolution of a valid marriage by a court decree. Under Section 13 of the Hindu Marriage Act, 1955 it ends the marriage, and the parties are free to marry again. Nullity is different: it declares that a marriage was void, or annuls a voidable one.

Grounds available to both spouses (Section 13(1))

• Adultery: the other party has had voluntary sexual intercourse with any person other than the spouse after marriage.
• Cruelty.
• Desertion for a continuous period of not less than two years immediately before the petition.
• Conversion: the other party has ceased to be a Hindu by converting to another religion.
• Incurable unsoundness of mind, or mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form.
• Renunciation of the world by entering a religious order.
• Not heard of as being alive for seven years or more by those who would naturally have heard of the person.

Special grounds for the wife (Section 13(2))

• The husband married again before the Act and another wife of his is alive when the petition is filed.
• The husband has been guilty of rape, sodomy or bestiality.
• A maintenance decree or order under Section 18 HAMA (or the criminal procedure provision) was passed against the husband, and cohabitation has not been resumed for one year or more.
• Her marriage took place before she was fifteen and she repudiated it after fifteen but before eighteen.

Other routes

• Section 13(1A): no resumption of cohabitation for one year or more after a judicial separation decree, or no restitution of conjugal rights for one year or more after a Section 9 decree.
• Section 13-B: divorce by mutual consent.

Leprosy was a ground earlier. The Personal Laws (Amendment) Act, 2019 removed it.

Sections: 13(1)13(1A)13(2)13-B

Ans: A coparcener has the following rights in coparcenary property. Since the Hindu Succession (Amendment) Act, 2005, a daughter is a coparcener by birth in the same manner as a son (Section 6(1)).

• Right by birth. The right to coparcenary property arises on birth, not on the death of the owner.
• Right to demand partition. Any adult coparcener can demand partition at any time. He does not need the consent of the others.
• Common ownership and possession. Until partition, each coparcener owns the whole property jointly with the others. No one can point to a defined share, and possession and enjoyment are common.
• Restricted alienation. No coparcener can alienate the property except for legal necessity, and then only with the concurrence of the others. An alienation without a valid ground is voidable at the instance of the other coparceners.
• Survivorship (traditional rule). A deceased coparcener’s interest passed to the surviving coparceners. After the 2005 Amendment, under Section 6(3), the interest of a coparcener who dies is dealt with under succession, by treating the property as if a partition had taken place just before his death.
• Right to will his interest. The Explanation to Section 30 of the Hindu Succession Act makes the interest of a male Hindu in coparcenary property capable of being disposed of by will.
• Right to separate property. A coparcener keeps the property he earns by his own skill and effort without the help of joint funds.

Sections: HSA 6HSA 30

Ans: Divorce is the legal ending of a valid marriage by a decree of the court. After the decree the parties are no longer husband and wife and are free to marry again. Under the Hindu Marriage Act, 1955 it is available in two ways.

• Fault theory (Section 13). The petitioner must prove that the other party committed a specific matrimonial offence, such as adultery, cruelty or desertion. The petitioner should be the innocent party. Cruelty and other offences are proved on the ordinary civil standard of preponderance of probabilities (Dastane v. Dastane, 1975).
• Mutual consent (Section 13-B). Both spouses petition together, having lived separately for one year or more, being unable to live together and having agreed that the marriage should be dissolved. This was added in 1976.

A divorce petition cannot ordinarily be presented within one year of the marriage (Section 14), unless the court allows it for exceptional hardship to the petitioner or exceptional depravity of the respondent. The court must also try to reconcile the parties before granting relief (Section 23(2)).

The breakdown theory (divorce because the marriage has irretrievably broken down, regardless of fault) is not an independent statutory ground under the Act.

Sections: 1313-B1423(2)

Ans: Hindu law does not define the word “Hindu” in one positive sentence. Section 2 of the Hindu Marriage Act, 1955 (and the same section of the other Hindu Code Acts) says to whom the Act applies. A person is governed by it if he or she is:

• a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj;
• a Buddhist, Jaina or Sikh by religion; or
• any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that the person would not have been governed by Hindu law or custom if the Act had not been passed.

Persons who are Hindus by religion (Explanation to Section 2)

• Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.
• Any child, legitimate or illegitimate, one of whose parents is such a person and who is brought up as a member of the tribe, community, group or family to which that parent belongs or belonged.
• Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

Members of a Scheduled Tribe are outside the Act unless the Central Government directs otherwise by notification (Section 2(2)).

Sections: HMA 2

Ans: Adultery means voluntary sexual intercourse of a married person with someone who is not his or her spouse. Under the Hindu Marriage Act, 1955 it is a ground for divorce for either spouse (Section 13(1)(i)) and, since the grounds are identical, for judicial separation (Section 10).

Adultery is no longer a crime

Section 497 of the Indian Penal Code made adultery an offence by a man who had intercourse with the wife of another man without that man’s consent or connivance. It carried imprisonment of up to five years, or fine, or both, and the wife was not punishable as an abettor. A complaint could be made only by the husband, under Section 198(2) of the Code of Criminal Procedure.

Adultery therefore remains a ground for divorce and judicial separation, but it is not an offence.

Sections: HMA 13(1)(i)HMA 10

Ans: Under the Mitakshara school, a son (and, historically, a grandson and great-grandson) has a religious duty, a pious obligation, to pay his father’s personal debts out of the joint family property. This is so even if he received no benefit from the debt and never consented to it. The idea comes from the belief that non-payment of a father’s debt has spiritual consequences for the son.

Limits

• It applies only to vyavaharika debts, which are debts for lawful and morally acceptable purposes. It does not apply to avyavaharika debts, which are tainted by illegality or immorality, such as money borrowed for gambling.
• Whether a debt is avyavaharika is judged when it was incurred. If the father borrowed for a proper purpose and misused the money later, the son remains liable.
• It is a Mitakshara doctrine. It has no place in the Dayabhaga school.
• Antecedent debt. A father can sell or mortgage joint family property to pay his own antecedent debt (a debt prior in time and independent in fact), which is not for an immoral purpose (Brij Narain v. Mangla Prasad, 1924).

Position after 2005

Under Section 6(4) of the Hindu Succession Act, 1956 (added in 2005), no court will recognise a right to proceed against a son, grandson or great-grandson for the father’s debt solely on the ground of pious obligation. For a debt contracted before the 2005 Amendment, the creditor’s right and any alienation made for that debt are not affected (the Section refers to the commencement of the Amendment Act; the notes on this site give the date as 20 December 2004).

Sections: HSA 6(4)

Ans: Registration is a record of a marriage that has already been solemnised. It is not a condition of validity.

• Section 8(1), HMA. The State Government may make rules for entering the particulars of a Hindu marriage in a Hindu Marriage Register, to facilitate the proof of Hindu marriages.
• Section 8(2). The State may make the entry compulsory, and a person who breaks the rule is punishable with a fine that may extend to twenty-five rupees.
• Section 8(5). The validity of any Hindu marriage is in no way affected by the omission to make the entry.

A marriage must still be solemnised by customary rites under Section 7. The marriage certificate is strong evidence of the marriage, for example for a passport or a visa. Under the Special Marriage Act, 1954, by contrast, registration is itself the mode of solemnisation.

Sections: HMA 7HMA 8

Ans: Under the old Hindu law, a Hindu woman who inherited property, most commonly a widow inheriting from her husband, did not become its full owner. She held a limited estate (the woman’s estate) for her own lifetime. She could not sell or mortgage it beyond genuine legal necessity. On her death it did not pass to her own heirs. It went back to the heirs of the last full owner. Stridhana was different: it was her absolute property.

Position after the Hindu Succession Act, 1956 (Section 14)

• Section 14(1). Any property possessed by a female Hindu, whether acquired before or after the Act, is held by her as full owner and not as a limited owner. This happens automatically, by force of the section.
• The Explanation gives “property” the widest meaning: property got by inheritance, devise, partition, in lieu of maintenance, by gift, by her own skill or exertion, by purchase, by prescription, or in any other manner, and stridhana held before the Act.
• “Possessed” includes constructive possession, but she must have some existing right or claim to the property.
• Section 14(2). Section 14(1) does not apply where a gift, will, other instrument, decree, order or award gives her only a restricted estate by its own terms.

Sections: HSA 14(1)HSA 14(2)

Ans: A notional partition is an imaginary partition. It is assumed to have taken place immediately before the death of a coparcener, only to find out the share of that coparcener. It does not actually divide the property or break up the coparcenary.

Section 6(3), Hindu Succession Act (as amended in 2005)

Where a Hindu dies after the 2005 Amendment, his interest in the property of a Mitakshara joint family devolves by testamentary or intestate succession, and not by survivorship. The coparcenary property is deemed to have been divided as if a partition had taken place. The daughter is allotted the same share as a son. The share of a pre-deceased son or pre-deceased daughter goes to that person’s surviving child, and, if that child has also died, to the child of that pre-deceased child.

The Explanation to Section 6(3) says that the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death, whether or not he was entitled to claim partition.

Sections: HSA 6(3)

Ans: Conciliation in family matters means an effort to settle the dispute between the spouses by agreement, with the help of a neutral person, before the court decides it. It is based on the view that a marriage should not be dissolved merely because the parties are in court if there is a real chance that it can be saved.

Hindu Marriage Act, 1955

• Section 23(2). Before granting any relief, the court must, in every case where it is possible consistently with the nature and circumstances of the case, make every endeavour to bring about a reconciliation between the parties.
• Section 23(3). To aid reconciliation, the court may, if the parties desire or the court thinks it proper, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to a person named by the parties, or nominated by the court, who must report whether reconciliation can be or has been effected.

Family Courts Act, 1984

This Act was passed to promote conciliation and secure speedy settlement of disputes about marriage and family affairs. Family Courts have exclusive jurisdiction over matrimonial relief, maintenance and guardianship. Under Section 9 the court must, in the first instance, assist and persuade the parties to arrive at a settlement, and may adjourn the case and refer the parties to counsellors or welfare organisations. The court can follow a simple procedure, may hold proceedings in camera, and a party is not entitled as of right to be represented by a lawyer (Section 13).

Failure to make any real attempt at reconciliation, where one was possible, can be raised as a defect in how a decree was obtained.

Sections: HMA 23(2)HMA 23(3)

Ans: Factum valet quod fieri non debuit is a Latin maxim. It means that what ought not to have been done becomes valid when it has been done. It was used in the old Hindu law to cure a breach of a rule that the texts only recommended (a directory rule).

• If the rule is directory (only recommendatory), a breach does not make the act invalid. The maxim saves the act.
• If the rule is mandatory, the maxim does not apply, and the act is invalid.

An example from the old law: the text said that the father should consent to the marriage of his minor daughter. If the mother consented instead, the defect could be cured by this maxim.

The codified Hindu law (the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956) sets out its own conditions. Section 5(1) of the Adoptions Act, for instance, makes an adoption in contravention of the Act void, and Section 4 of that Act says that any older text, rule or custom ceases to have effect on matters it covers. The maxim has little scope where a codifying Act applies.

Sections: HAMA 4HAMA 5

Ans: This is the special rule for a dwelling-house in old Section 23 of the Hindu Succession Act, 1956. It no longer exists. The Hindu Succession (Amendment) Act, 2005 omitted Section 23.

Old rule

Where a Hindu intestate left both male and female Class I heirs, and his property included a dwelling-house wholly occupied by members of his family, the right of a female heir to claim partition of the dwelling-house did not arise until the male heirs chose to divide their shares in it. She had a right of residence in it. If the female heir was a daughter, she had the right of residence only if she was unmarried, or had been deserted by or had separated from her husband, or was a widow.

Present position

After the 2005 Amendment the daughter may seek partition of the dwelling-house on the same footing as a son. The restriction on her right no longer exists.

Ans: A widow can adopt in her own right under Section 8 of the Hindu Adoptions and Maintenance Act, 1956. Any female Hindu has the capacity to take a son or a daughter in adoption if she:

• is of sound mind;
• is not a minor; and
• is not married, or, if married, her marriage has been dissolved, or her husband is dead, or has completely and finally renounced the world, or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

A widow therefore does not need anyone’s consent. She must also meet the other conditions of a valid adoption: the child must be capable of being adopted (Section 10), and Section 11 must be complied with. If she adopts a son she must not have a Hindu son, son’s son or son’s son’s son living at that time. If the adoption is of a male by a female, she must be at least twenty-one years older than the child.

Effect

The adopted child is the child of the adoptive mother for all purposes from the date of adoption (Section 12). The adopted child cannot take away any estate that vested in another person before the adoption (Section 12, proviso (c)).

Before the Personal Laws (Amendment) Act, 2010, a married woman had no independent capacity to adopt. The 2010 amendment gave Hindu women an independent right to adopt.

Sections: HAMA 8HAMA 10HAMA 11HAMA 12

Ans: Under the Hindu Marriage Act, 1955 a marriage that breaks a condition of Section 5 is either void or voidable. The consequences differ sharply.

Void marriage (Section 11)

• A marriage solemnised after the Act is null and void if it breaks the condition of Section 5(i) (a party has a spouse living), Section 5(iv) (parties within the degrees of prohibited relationship) or Section 5(v) (parties are sapindas), unless custom permits in the last two cases.
• It is void from the beginning. In law there never was a marriage, so no divorce is needed.
• Either party may present a petition for a decree of nullity declaring it void.
• The parties cannot validate it by consent or by passing of time.

Voidable marriage (Section 12)

• It is valid until a court annuls it by a decree of nullity.
• Grounds: (a) the marriage was not consummated because of the impotence of the respondent; (b) breach of Section 5(ii), that is, unsoundness of mind or mental disorder of the kind described there; (c) the petitioner’s consent was obtained by force, or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; (d) the respondent was pregnant by another person at the time of marriage.
• Only a party can seek annulment. A petition on ground (c) is barred after one year from when the force ceased or the fraud was discovered, or if the petitioner has lived with the other spouse with full consent after that.

Children (Section 16)

Children of a void marriage and of an annulled voidable marriage are legitimate. They have rights only in the property of their parents, not in the property of other relatives.

Main differences

• Status: void from the start (void marriage) or valid until annulled (voidable marriage).
• Decree: not needed for a void marriage, though a declaration may be sought. Needed for a voidable marriage.
• Who can act: either party for a void marriage. The aggrieved party for a voidable marriage.
• Effect of delay: none on a void marriage. Time limits apply to some grounds of a voidable marriage.

Sections: HMA 5HMA 11HMA 12HMA 16

Ans: Section 5(iv) of the Hindu Marriage Act, 1955 says a Hindu marriage may be solemnised only if the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits a marriage between the two.

Meaning (Section 3(g))

Two persons are within the degrees of prohibited relationship in any of these cases:

• one is a lineal ascendant of the other (for example, father and daughter, grandfather and granddaughter);
• one was the wife or husband of a lineal ascendant or descendant of the other (for example, step-mother and step-son);
• one was the wife of the brother, or of the father’s or mother’s brother, or of the grandfather’s or grandmother’s brother, of the other;
• the two are brother and sister, uncle and niece, aunt and nephew, or children of a brother and sister, or of two brothers, or of two sisters.

Relationship includes (Explanation to Section 3)

• half or uterine blood as well as full blood;
• illegitimate as well as legitimate blood relationship;
• relationship by adoption as well as by blood.

Sapinda relationship (Section 3(f))

It extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) through the father. The line is traced upwards from the person concerned, who is counted as the first generation. Marriage between sapindas is barred by Section 5(v), unless custom permits.

Consequences

• A marriage within the prohibited degrees, without a permitting custom, is void under Section 11.
• It is punishable with simple imprisonment up to one month, or fine up to Rs 1,000, or both (Section 18(b)).
• Custom must be certain, reasonable, not opposed to public policy and continuously followed (Section 3(a)). For example, in some South Indian communities a marriage between a man and his maternal uncle’s daughter is permitted by custom.

Sections: HMA 3(a)HMA 3(f)HMA 3(g)HMA 5HMA 11HMA 18

Ans: In the old Hindu law of adoption, the doctrine of relation back meant that an adoption, when completed, was treated as if it had taken place at the time of the death of the adoptive father. The adopted son was deemed to have been alive and a member of the family on that date.

Where it applied

• A widow adopting a son to her deceased husband. The adopted son was deemed the son of the husband from the husband’s death.
• Because of this fiction, the adopted son could claim the husband’s property, even from persons in whom it had already vested, such as the widow herself or other heirs. The adoption divested those persons.
• The doctrine protected the adoptive father’s line of descent and his spiritual benefit.

Position after the Hindu Adoptions and Maintenance Act, 1956

• Section 12 says an adopted child is deemed the child of the adoptive parents with effect from the date of the adoption, not from an earlier date.
• Proviso (c) says the adopted child shall not divest any person of any estate which vested in him or her before the adoption. This removes the effect of relation back on property that has already vested.
• Proviso (b) says property that vested in the child before adoption continues to vest in the child.
• Under Section 8 of the 1956 Act a Hindu female of sound mind who is not a minor may adopt a son or daughter. If she has a husband living, she needs his consent, unless he has renounced the world, has ceased to be a Hindu or has been declared of unsound mind. The adoption takes effect from its date.

The doctrine therefore survives mainly as part of the history of Hindu law. The 1956 Act came into force on 21 December 1956, and adoptions made under it do not relate back.

Sections: HAMA 8HAMA 12

Ans: Parens patriae is Latin for “parent of the nation”. It is the power and duty of the State to protect persons who cannot protect themselves, such as minors, persons of unsound mind and others under disability.

Origin and meaning

• It began in English law as the Crown’s role as guardian of those who had no one to look after their interests.
• In India the courts, as the State’s representatives, act as the guardian of children and others who cannot look after themselves.

Application in family law

• Welfare of the child. Section 13 of the Hindu Minority and Guardianship Act, 1956 says the welfare of the minor is the paramount consideration in appointing or declaring a guardian. Section 17 of the Guardians and Wards Act, 1890 gives the same direction.
• Custody disputes. The court is not bound by the parents’ wishes. It decides what is best for the child. In Githa Hariharan v. Reserve Bank of India (1999) the Supreme Court said that the welfare of the child is paramount and read the words “after the father” in Section 6(a) of the 1956 Act to mean in the absence of the father.
• Constitutional duties. Article 15(3) lets the State make special provision for children. Articles 39(e) and (f) require it to protect children from abuse and give them opportunities to develop.

Limits

The doctrine does not let the State override the choice of an adult who has capacity. In Shafin Jahan v. Asokan K.M. (2018) the Supreme Court held that parens patriae does not apply to an adult with capacity.

Sections: HMGA 13GWA 17Art. 15(3)Art. 39

Ans: Inter-country adoption means the adoption of a child living in India by a person who lives outside India, or by a person of foreign nationality. The Hindu Adoptions and Maintenance Act, 1956 does not provide for it. It governs only Hindus, and under Section 10 only a Hindu child can be adopted.

Development of the law

• Before a specific law, foreigners adopted through the Guardians and Wards Act, 1890, which only makes them guardians, not adoptive parents.
• In Laxmi Kant Pandey v. Union of India (1984) the Supreme Court, in a public interest case about malpractices in giving Indian children in adoption to foreigners, laid down guidelines. The child should be placed with a family in India first. Foreign placement should be only if no Indian family is available. Only recognised agencies should handle it. Courts should check each placement for the child’s welfare.
• The Central Adoption Resource Agency (CARA) was set up to regulate adoption. It is now the statutory authority under the Juvenile Justice (Care and Protection of Children) Act, 2015.
• India ratified the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993 in 2003. CARA is India’s Central Authority under that Convention.

Present law

• The Juvenile Justice (Care and Protection of Children) Act, 2015 (Chapter VIII, Sections 56 to 73) governs adoption of orphaned, abandoned and surrendered children, including inter-country adoption.
• Indian prospective adoptive parents get priority. A child is eligible for inter-country adoption only if no Indian family has taken the child within the prescribed period.
• Adoption is made through CARA and the Adoption Regulations, 2022, made under the Act.
• Since the 2021 amendment, the adoption order is issued by the District Magistrate and not by the civil court.

Sections: JJ Act 2015, 56 to 73HAMA 10

Ans: Hindu law is not one single system. Two commentaries (the Mitakshara and the Dayabhaga) were so influential that they became two schools of law, each dominant in a different part of India.

1. Mitakshara school

It takes its name from the Mitakshara, an 11th-century running commentary by Vijnaneshwara on the Yajnavalkya Smriti. It prevails in the whole of India except Bengal and Assam. Its central doctrine is coparcenary by birth: a son, and since the 2005 Amendment a daughter, acquires an interest in ancestral joint family property at birth. The interest is undivided and fluctuating until partition. Traditionally, on the death of a coparcener his interest passed by survivorship. Because of local custom, it has four sub-schools:

• Benares – the most orthodox; most of Northern India.
• Mithila – Tirhut and northern Bihar; more restrictive on a widowed or barren mother’s right to succeed to her son’s separate property.
• Maharashtra (Bombay) – Western India; more liberal. A widow can adopt a son with the consent of her husband’s sapindas, without his prior express consent.
• Dravida (Madras) – Southern India; its own doctrines on inheritance and a mother’s rights.

Some writers add a fifth, the Punjab school, shaped largely by local custom. The four above are the ones consistently tested.

2. Dayabhaga school

It takes its name from the Dayabhaga, a digest by Jimutavahana, and prevails only in Bengal and Assam. Under it no one acquires a right in family property by birth. The father is the absolute owner during his lifetime. His sons acquire a right only on his death, by inheritance and not by survivorship. Each co-owner holds a definite share as a tenant-in-common, so he can sell it even before partition. It has no sub-schools.

Difference at a glance

Ans: Section 9 of the Hindu Marriage Act, 1955 allows a husband or wife whose spouse has, without reasonable excuse, withdrawn from the society of the other, to petition the district court for restitution of conjugal rights. If the court is satisfied that the statements in the petition are true and that there is no legal ground why the application should not be granted, it may decree restitution of conjugal rights.

Conditions

• The respondent has withdrawn from the society of the petitioner. This means withdrawal from the whole of married life, not just sleeping in another room.
• The withdrawal is without reasonable excuse.
• The court is satisfied that the statements in the petition are true.
• There is no legal ground to refuse the decree.

Burden of proof

The petitioner must first prove the withdrawal. Under the Explanation to Section 9, the burden of proving a reasonable excuse is then on the person who has withdrawn. A reasonable excuse can be the petitioner’s own cruelty, or a ground on which the respondent could have sought divorce or judicial separation.

Constitutional validity

• T. Sareetha v. T. Venkata Subbaiah (1983): the Andhra Pradesh High Court struck Section 9 down under Articles 21 and 14.
• Saroj Rani v. Sudarshan Kumar Chadha (1984): the Supreme Court rejected that view and upheld Section 9. It held that the decree does not compel physical cohabitation by force, since its only sanction for disobedience is attachment of property, meant to induce voluntary reconciliation. This is the binding law.

Effect of the decree

The decree is never enforced by force. If cohabitation is not resumed for one year or more after the decree, either spouse can petition for divorce under Section 13(1A)(ii).

Sections: 913(1A)(ii)

Ans: Section 13-B of the Hindu Marriage Act, 1955 allows both spouses to present a petition together to the district court for dissolution of the marriage by a decree of divorce. No fault has to be proved. The petition must state that the parties:

• have been living separately for a period of one year or more;
• have not been able to live together; and
• have mutually agreed that the marriage should be dissolved.

Procedure (two motions)

• First motion: both spouses present the joint petition.
• Second motion: on a motion of both parties made not earlier than six months and not later than eighteen months after the date of presentation, if the petition has not been withdrawn, the court hears the parties, makes such inquiry as it thinks fit, and if satisfied that the marriage was solemnised and the averments are true, passes a decree dissolving the marriage from the date of the decree.

Two different waiting periods

• Section 14: no divorce petition, under Section 13 or Section 13-B, may ordinarily be presented within one year of the marriage. The court can allow it earlier only for exceptional hardship to the petitioner or exceptional depravity of the respondent.
• Section 13-B(2): the six to eighteen months between the two motions.

Cases

• Sureshta Devi v. Om Prakash (1991): consent must continue until the decree is passed. If either spouse withdraws it before then, the court cannot pass a decree on the strength of the other spouse’s wish alone.
• Amardeep Singh v. Harveen Kaur (2017): the six-month period is directory and not mandatory. Where the other issues are settled, there is no chance of reconciliation and the statutory separation period is over, the court can waive it.

Sections: 13-B14

Ans: Polygamy means having more than one spouse at the same time. Among Hindus it is now prohibited. The Hindu Marriage Act, 1955 made Hindu marriage monogamous.

The law

• Section 5(i): a marriage may be solemnised between two Hindus only if neither party has a spouse living at the time of the marriage.
• Section 11: a marriage that breaks this condition is null and void from the beginning, whether or not a court declares it so. Either party can petition for a declaration.
• Section 494, Indian Penal Code: the second marriage during the life of the first spouse is the offence of bigamy. The Supreme Court has dealt with it under that section in the cases below.
• Section 13(2)(i): the wife has a special ground for divorce if the husband had married again before the Act and another wife of his is alive at the time of her petition.
• Section 16: children of a void marriage are legitimate, but they can inherit only the property of their parents (Jinia Keotin v. Kumar Sitaram Manjhi, 2003).

Cases

• Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988): a second marriage during the subsistence of a valid first marriage is void under Sections 5(i) and 11. The second wife cannot claim the status of a wife for maintenance under Section 125 of the Code of Criminal Procedure.
• Sarla Mudgal v. Union of India (1995): conversion to Islam does not dissolve a Hindu marriage. The second marriage of a Hindu husband after converting is void under Section 494 IPC, and he is guilty of that offence.
• Lily Thomas v. Union of India (2000): the Court clarified that mere conversion does not end the marital ties unless a decree of divorce is obtained on that ground.
• Bhaurao Shankar Lokhande v. State of Maharashtra (1965): for bigamy the second marriage must be proved to have been solemnised with the proper ceremonies.

The Hindu Marriage Act does not apply to persons governed by another personal law, so the position of other communities is not dealt with here.

Sections: HMA 5(i)HMA 11HMA 13(2)(i)HMA 16

Ans: A person who dies without a valid will dies intestate. The property of a Hindu male who dies intestate devolves under Sections 8 to 13 of the Hindu Succession Act, 1956 (Section 30 lets a Hindu dispose of property by will; the intestate rules apply only where there is no valid will).

Order of heirs (Section 8)

• Firstly, the relatives in Class I of the Schedule.
• Secondly, if there is no Class I heir, the relatives in Class II.
• Thirdly, if there is no heir in either class, the agnates (relatives connected wholly through males, by blood or adoption).
• Lastly, if there is no agnate, the cognates (relatives connected through one or more females).

A later class is reached only if the earlier class has no heir at all. Class I heirs take simultaneously and to the exclusion of all others (Section 9).

Class I heirs

• Son, daughter, widow, mother.
• Son, daughter and widow of a predeceased son.
• Son and daughter of a predeceased daughter.
• Son, daughter and widow of a predeceased son of a predeceased son.
• Four entries added by the 2005 Amendment: son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son.

Sharing among Class I heirs (Section 10)

• Rule 1: the widow, or all widows together, take one share.
• Rule 2: each surviving son, each surviving daughter and the mother take one share each.
• Rule 3: the heirs in the branch of each predeceased son or predeceased daughter take between them one share.
• Rule 4: within the branch of a predeceased son, his widow (or widows together) and his surviving sons and daughters take equal portions, and the branch of his predeceased sons takes the same portion. Within the branch of a predeceased daughter, her surviving sons and daughters take equal portions.

Class II heirs (Section 11)

Class II applies only when there is no Class I heir. It has nine entries. An earlier entry excludes a later one, and heirs within one entry share equally. The entries are: (I) father; (II) son’s daughter’s son, son’s daughter’s daughter, brother, sister; (III) daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter; (IV) brother’s son, sister’s son, brother’s daughter, sister’s daughter; (V) father’s father, father’s mother; (VI) father’s widow, brother’s widow; (VII) father’s brother, father’s sister; (VIII) mother’s father, mother’s mother; (IX) mother’s brother, mother’s sister. There is no representation in Class II: a dead entry-holder is simply absent.

Agnates and cognates (Sections 12 and 13)

Among agnates, or among cognates, the heir with fewer degrees of ascent is preferred. If the ascent is equal, the heir with fewer degrees of descent is preferred. If both are equal, they take together. Degrees are counted from the intestate, inclusive of him.

Coparcenary property

If the deceased was a member of a Mitakshara joint family, a notional partition is first worked out immediately before his death. Only his share on that partition passes to his Class I heirs under Section 8 (Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978). What a Class I heir takes under Section 8 becomes his separate property (Commissioner of Wealth Tax v. Chander Sen, 1986).

Female Hindu

The property of a Hindu woman who dies intestate goes under Section 15 in this order: (a) sons and daughters (including children of a predeceased son or daughter) and the husband together; (b) the heirs of the husband; (c) her mother and father; (d) the heirs of her father; (e) the heirs of her mother. If she leaves no child, property she inherited from her father or mother goes to the heirs of her father, and property inherited from her husband or father-in-law goes to the heirs of her husband (Section 15(2)).

Sections: HSA 8HSA 9HSA 10HSA 11HSA 12HSA 13HSA 15HSA 16

Ans: A testamentary guardian is a guardian appointed by the will of a parent. Section 4 of the Hindu Minority and Guardianship Act, 1956 includes such a guardian in the definition of “guardian”. Section 9 says who can appoint one.

Who can appoint (Section 9)

• A Hindu father entitled to act as natural guardian can appoint a guardian by will for his minor legitimate children. The appointment has no effect if the father dies before the mother, because her right as natural guardian takes priority. It revives only if she later dies without herself appointing a guardian by will.
• A Hindu widow, or a mother who has become entitled to act as natural guardian because the father is disqualified, can appoint a testamentary guardian for her minor legitimate children.
• A Hindu mother entitled to act as natural guardian of her minor illegitimate children can do the same for them.

Only a father or a mother can appoint. A grandparent or any other person cannot.

When he acts and his powers

The testamentary guardian steps into the shoes of the natural guardian after the death of the appointing parent. He can exercise the rights of a natural guardian, subject to the restrictions in the Act and to anything the will itself specifies.

Under Section 8 the natural guardian may do all acts that are necessary, reasonable and proper for the benefit of the minor or the minor’s estate, but can never bind the minor by a personal covenant. He needs the previous permission of the court to mortgage, charge, sell, gift or exchange any immovable property of the minor, or to lease it for more than five years or beyond one year after the minor attains majority. A disposal without that permission is voidable at the instance of the minor. The court grants permission only in case of necessity or for an evident advantage to the minor.

Sections: HMGA 4HMGA 8HMGA 9

Ans: A custom is a rule that has been followed continuously and uniformly for a long time and has obtained the force of law among Hindus in a local area, tribe, community, group or family. Section 3(a) of the Hindu Adoptions and Maintenance Act, 1956 defines it in this way. Section 3(a) of the Hindu Marriage Act, 1955 is to the same effect.

Requisites of a valid custom

• It must be observed continuously and uniformly for a long time (ancient).
• It must be certain.
• It must be reasonable.
• It must not be opposed to public policy (or morality).
• If it applies only to a family, the family must not have discontinued it.

Custom and the written text

Custom is strong enough to override the written text. In Collector of Madura v. Moottoo Ramalinga Sathupathy (1868), the Privy Council said that under the Hindu system of law clear proof of usage will outweigh the written text of the law.

Proof

A custom must be proved by definite evidence of continuous and uniform observance. In Bhaurao Shankar Lokhande v. State of Maharashtra (1965), the Supreme Court held that a recent departure of a few years from an old practice does not make a valid custom.

Where custom still matters in the codified law

• Marriage can be solemnised by the customary rites of either party (HMA Section 7).
• Prohibited relationship and sapinda relationship do not bar a marriage if a custom governing both parties permits it (HMA Section 5(iv), (v)).
• A married person, or one over fifteen, can be adopted if a custom permits (HAMA Section 10(iii), (iv)).

Sections: HAMA 3(a)HMA 7

Ans: Hindu law draws on ancient sources and on modern sources. Where a codifying Act applies, the Act is the controlling source. The older sources fill gaps or are expressly preserved.

Ancient sources

• Shruti (“that which is heard”): the four Vedas, with the Brahmanas and Upanishads. It is the most authoritative source in theory but of limited use in courts today.
• Smriti (“that which is remembered”): texts of sages. The earlier Dharmasutras (Gautama, Baudhayana, Apastamba, Vasishtha) are in prose. The later Dharmashastras (Manusmriti, Yajnavalkya Smriti) are in verse.
• Commentaries and Digests (Nibandhas): written roughly between 700 and 1700 CE. The most important are the Mitakshara (Vijnaneshwara) and the Dayabhaga (Jimutavahana). They gave rise to the two schools of Hindu law.
• Custom: long-established practice with the force of law. It can override the written text (Collector of Madura v. Moottoo Ramalinga Sathupathy, 1868).

Modern sources

• Legislation: Parliament codified most Hindu personal law in the 1950s: the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. For matters they cover, the statute is the first and controlling source.
• Judicial precedent: decisions of the Supreme Court bind all courts in India (Article 141 of the Constitution). High Court decisions bind courts within their jurisdiction.
• Justice, equity and good conscience: a residuary source, used where statute, custom and precedent do not cover a situation.

Ans: Section 13 of the Hindu Marriage Act, 1955 gives the grounds for divorce. Section 13(1) is for both spouses. Section 13(2) gives special grounds to the wife. Section 13-B allows divorce by mutual consent.

Grounds for either spouse – Section 13(1)

• Adultery: the other party has, after the marriage, had voluntary sexual intercourse with any person other than the spouse.
• Cruelty: the other party has treated the petitioner with cruelty. Cruelty is proved on a preponderance of probabilities, and the test is whether the petitioner’s apprehension that living with the respondent would be harmful or injurious is reasonable in the facts of that marriage (Dastane v. Dastane, 1975).
• Desertion: for a continuous period of not less than two years immediately before the petition.
• Conversion: the other party has ceased to be a Hindu by conversion to another religion.
• Mental disorder: the other party is incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form.
• Renunciation: the other party has renounced the world by entering a religious order.
• Presumption of death: not heard of as being alive for seven years or more by those who would naturally have heard of the party.

Special grounds for the wife – Section 13(2)

• The husband had married again before the Act and another wife of his, married before the Act, is alive at the time of her petition.
• The husband has, since the marriage, been guilty of rape, sodomy or bestiality.
• A decree or order for maintenance has been passed against the husband in her favour (under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or the criminal procedure provision), even though she was living apart, and cohabitation has not been resumed for one year or more since that decree or order.
• Her marriage (whether consummated or not) took place before she was fifteen years old, and she repudiated it after fifteen but before eighteen.

Other grounds

• Section 13(1A): no resumption of cohabitation for one year or more after a decree of judicial separation (clause (i)), or no restitution of conjugal rights for one year or more after a Section 9 decree (clause (ii)).
• Section 13-B: mutual consent, after living separately for one year or more.

Leprosy was a ground in the older text. The Personal Laws (Amendment) Act, 2019 removed it. Impotence is a ground for annulling a voidable marriage under Section 12(1)(a), not a ground for divorce. Section 14 bars a divorce petition within one year of the marriage, unless the court allows it for exceptional hardship or exceptional depravity.

Sections: 13(1)13(1A)13(2)13-B14

Ans: Ceremonies (Section 7). A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party to it (Section 7(1)). There is no single fixed ritual for all Hindus. The ceremonies that are essential are those that the parties’ own custom requires. Where those rites include the Saptapadi, that is, the seven steps taken by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken (Section 7(2)). This special rule applies only where Saptapadi is part of the custom.

• Kanyadaan: the bride is given away by her father or guardian.
• Vivaha Homa: the sacred fire is kindled and invoked as witness.
• Panigrahana: the groom takes the bride’s hand before the fire.
• Saptapadi: seven steps jointly before the sacred fire.

Is registration compulsory?

• Section 8(1), HMA: the State may make rules for entering marriage particulars in a Hindu Marriage Register, to facilitate proof.
• Section 8(2): the State may make registration compulsory, with a fine of up to twenty-five rupees for breaking the rule.
• Section 8(5): the validity of a marriage is in no way affected by the omission to register it.
• Seema v. Ashwani Kumar (2006): the Supreme Court directed the Central and State Governments to frame rules making registration of marriages of all religions compulsory.

So registration may be compulsory by State rule and by the Supreme Court’s direction, but failure to register never makes a properly solemnised marriage invalid.

Sections: 78

Ans: The Hindu Adoptions and Maintenance Act, 1956 codified the law of adoption among Hindus. It changed the old law in these ways.

• Old law replaced (Section 4). Any text, rule, interpretation, custom or usage of Hindu law in force before the Act ceased to have effect on any matter the Act provides for.
• Adoptions must follow the Act (Section 5). An adoption in contravention of Chapter II is void. A void adoption creates no rights in the adoptive family and does not destroy the rights of the child in the family of birth.
• Sons and daughters. A Hindu can adopt a son or a daughter (Sections 7 and 8, 11).
• Wife’s consent (Section 7). A male Hindu with a wife living cannot adopt without her consent. Exceptions are where she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared of unsound mind by a court. If he has more than one wife, all must consent.
• Capacity of a woman (Section 8). Any female Hindu of sound mind and not a minor can adopt if she is unmarried, or her marriage is dissolved, or her husband is dead, has renounced the world, has ceased to be a Hindu or has been declared of unsound mind. Since the Personal Laws (Amendment) Act, 2010 this is her independent right.
• Who can give (Section 9). Only the father or mother or the guardian can give a child. The father cannot give without the mother’s consent (with the usual exceptions). A guardian can give only with the previous permission of the court.
• Who can be adopted (Section 10). The child must be a Hindu, not already adopted, not married, and under fifteen, unless custom permits the last two.
• Other conditions (Section 11). No living Hindu son, son’s son or son’s son’s son if adopting a son; no living Hindu daughter or son’s daughter if adopting a daughter; a gap of at least twenty-one years where the adopter and the child are of different sexes; no simultaneous adoption by two persons; actual giving and taking.
• Datta homam is not essential (proviso to Section 11(vi)). The giving and taking is what the law requires.
• Effect (Section 12). The child becomes the child of the adoptive parents for all purposes and the ties with the birth family are severed. Three exceptions: the child cannot marry anyone he could not have married in the birth family; property already vested in the child before the adoption stays with him; the adopted child cannot divest any person of an estate that vested in that person before the adoption.
• Disposal of property (Section 13). Adoption does not deprive the adoptive parent of the power to dispose of his or her property, subject to any contrary agreement.
• No cancellation (Section 15). A valid adoption cannot be cancelled and the child cannot renounce it.
• Presumption (Section 16). A registered document recording an adoption, signed by the giver and the taker, raises a presumption of compliance with the Act.
• Earlier adoptions (Section 30). Adoptions made before the Act are not affected.

Sections: HAMA 4HAMA 5HAMA 7HAMA 8HAMA 9HAMA 10HAMA 11HAMA 12HAMA 15HAMA 16

Ans: Under the old Hindu law a woman could not inherit as a coparcener and usually held inherited property only as a limited owner. The codified law has improved her position in several ways.

1. Full ownership – Section 14, Hindu Succession Act, 1956

Any property possessed by a female Hindu, whether acquired before or after the Act, is held by her as full owner and not as a limited owner (Section 14(1)). The Explanation covers property got by inheritance, devise, partition, in lieu of maintenance, gift, her own skill or exertion, purchase or prescription, and stridhana. Section 14(2) excepts property given by a gift, will, instrument, decree, order or award that prescribes a restricted estate by its own terms. In V. Tulasamma v. Sesha Reddy (1977) the Supreme Court held that where a document only gives effect to a right she already had, such as maintenance, Section 14(1) applies despite restrictive words.

2. Coparcenary rights – Section 6 (2005 Amendment)

A daughter is a coparcener by birth in the same manner as a son, with the same rights and liabilities, in a Mitakshara joint family (Section 6(1)). Vineeta Sharma v. Rakesh Sharma (2020) held that the right arises by birth and does not depend on her father being alive on 9 September 2005. An earlier partition protects only if made before 20 December 2004 by a registered deed or a court decree. She also takes an equal share on the notional partition when a coparcener dies (Section 6(3)), and the 2005 Amendment omitted the dwelling-house restriction (old Section 23) and the remarriage disqualification (old Section 24).

3. Succession as an heir

The widow, the mother and the daughter are Class I heirs of a Hindu male and take equal shares with the sons (Sections 8 and 10). A woman’s own property devolves under Section 15, with a source-based rule in Section 15(2) when she leaves no child.

4. Maintenance

The Hindu Adoptions and Maintenance Act, 1956 gives a wife maintenance from her husband (Section 18), a widowed daughter-in-law and other dependants a claim on the estate (Sections 21 and 22), and an unmarried daughter maintenance including marriage expenses (Sections 3(b) and 20).

5. Power to make a will

A Hindu woman can dispose of property by will (Section 30).

Sections: HSA 6HSA 14HSA 15HSA 30

Ans: Under Section 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardians of a Hindu minor, in respect of the minor’s person and property (excluding his undivided interest in joint family property, which Section 12 deals with), are:

• Boy or unmarried girl: the father, and after him, the mother. The custody of a child under five years ordinarily remains with the mother.
• Illegitimate boy or unmarried girl: the mother, and after her, the father.
• Married girl: the husband.

A person who has ceased to be a Hindu, or who has completely and finally renounced the world as a hermit or ascetic, cannot act as natural guardian. “Father” and “mother” do not include a step-father or step-mother. For an adopted minor son, the natural guardian becomes the adoptive father and after him the adoptive mother (Section 7).

Powers of the natural guardian (Section 8)

• He may do all acts that are necessary, reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate.
• He can in no case bind the minor by a personal covenant.
• He needs the previous permission of the court to mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the minor’s immovable property, or to lease it for more than five years or for a term extending more than one year beyond the date on which the minor attains majority.
• A disposal of immovable property in contravention of these rules is voidable at the instance of the minor (or anyone claiming under him).
• The court grants permission only in case of necessity or for an evident advantage to the minor.

Sections: HMGA 6HMGA 7HMGA 8

Ans: Neither the Hindu Marriage Act, 1955 nor the older texts define marriage in one sentence. In Hindu law marriage is the sacred union of a man and a woman, meant to be permanent. Classical texts give it three purposes: Dharma (religious duty), Praja (progeny, to continue the family line and perform the last rites) and Rati (lawful companionship).

Nature of Hindu marriage

In Tikait Monmohini Jemadai v. Basanta Kumar Singh (1901) the Calcutta High Court described Hindu marriage as a sacrament (a samskara), not a mere civil contract. After 1955 the Act added contract-like features: conditions for validity (Section 5), void and voidable marriages (Sections 11 and 12) and divorce (Section 13). Marriage today is a sacrament that is statutorily regulated, with some contractual features.

Essentials of a valid Hindu marriage

Section 5. A marriage may be solemnised between any two Hindus if:

• neither party has a spouse living at the time of the marriage (monogamy);
• neither party is incapable of giving valid consent because of unsoundness of mind, nor suffers from a mental disorder making the party unfit for marriage and for having children, nor has recurrent attacks of insanity;
• the bridegroom has completed twenty-one years and the bride eighteen years;
• the parties are not within the degrees of prohibited relationship, unless custom permits;
• the parties are not sapindas of each other, unless custom permits.

Section 7. The marriage must be solemnised in accordance with the customary rites and ceremonies of either party. If the rites include Saptapadi, the marriage is complete and binding at the seventh step.

Effect of breach

• Breach of Section 5(i), (iv) or (v): the marriage is void (Section 11).
• Breach of Section 5(ii): the marriage is voidable (Section 12(1)(b)).
• Breach of Section 5(iii) (age): the marriage remains valid. Section 18 only punishes it.

Registration under Section 8 is a record of the marriage and is not a condition of validity.

Sections: 5781112

Ans: Both are matrimonial reliefs under the Hindu Marriage Act, 1955. Since the Marriage Laws (Amendment) Act, 1976 the grounds are the same. The difference lies in the relief and its effect.

The one-year bar in Section 14 is stated for divorce petitions. Maintenance continues after judicial separation and can be adjusted by the court.

Sections: 101313(1A)(i)14

Ans: Partition in Hindu law has two stages that are often confused.

1. Severance of status

This is a change in legal relationship only. As far as that member is concerned, the coparcenary ends. No physical division of the property is needed. In Addagada Raghavamma v. Addagada Chenchamma (1964) the Supreme Court held that severance of status is a matter of individual volition. A coparcener brings it about by a clear and unequivocal declaration of his intention to separate, communicated to the other coparceners. No registered deed or court order is needed. Even filing a partition suit is treated as such a declaration. So severance can be made by:

• a declaration of intention communicated to the other coparceners (for example, by a notice);
• the filing of a suit for partition.

2. Division by metes and bounds

This is the actual physical division of the property into specific shares. It can happen long after severance of status, by mutual agreement, by arbitration or by a court decree. Until it is done, the separated members hold their shares as tenants-in-common.

Who can demand partition and who gets a share

• Any adult coparcener of sound mind can demand partition at any time. Since 2005 a daughter has the same right as a son.
• A minor coparcener has a right to a share, exercised through a guardian or next friend, and the court scrutinises such a partition.
• A son conceived at the time of partition is treated as already in existence. Partition should be postponed until his birth, or a share equal to a son’s share must be reserved for him.
• The father can impose a partition among the sons without their consent, but must act honestly and fairly.
• An adopted son is entitled to a share like a natural-born son.

Reopening a partition

A completed partition is generally final. It can be reopened for fraud (which must be specifically pleaded and proved), for a son in the womb for whom no share was reserved, where a minor’s interests were not protected, for a coparcener wrongly excluded or absent, and for an adopted son in certain circumstances. Reopening is different from reunion, which needs the genuine mutual consent of all the parties.

Partitions before 20 December 2004

A partition made before 20 December 2004 protects against a daughter’s claim only if it was made by a registered instrument or by a court decree. An oral or unregistered arrangement does not count (Vineeta Sharma v. Rakesh Sharma, 2020).

Ans: The Hindu Succession (Amendment) Act, 2005 is the most significant change made to the Hindu Succession Act, 1956 since it was passed. It came into force on 9 September 2005. Before 1956, and under the 1956 Act as first passed, a woman had no birthright in joint family property. The Amendment removed gender discrimination in these matters.

The four main changes

• Section 6: in a Mitakshara joint family, a daughter becomes a coparcener by birth in her own right in the same manner as a son. She has the same rights and is subject to the same liabilities (Section 6(1)). Any disposition, alienation, partition or testamentary disposition made before 20 December 2004 is not affected.
• Section 4(2) omitted: agricultural land, earlier left to State tenancy laws, now devolves under the Act like any other property.
• Section 23 omitted: a daughter can seek partition of the family dwelling-house on the same footing as a son.
• Section 24 omitted: remarriage is no longer, by itself, a ground of disqualification for a widow.

Other provisions

• Section 6(3): on the death of a coparcener after the Amendment, his interest devolves by succession, not by survivorship, and the property is treated as divided as if there had been a partition. The daughter is allotted the same share as a son.
• Section 6(4): no court will recognise a right to proceed against a son, grandson or great-grandson for the father’s debt solely on the ground of pious obligation.
• Four new Class I heirs, all in a predeceased daughter’s line, were added to the Schedule.

Case law

• Prakash v. Phulavati (2015) held that the father-coparcener must have been alive on 9 September 2005 for the daughter to claim.
• Danamma @ Suman Surpur v. Amar (2018) allowed the claim of a daughter whose father had died earlier.
• Vineeta Sharma v. Rakesh Sharma (2020) settled the conflict: the daughter’s right is by birth, whether she was born before or after the Amendment and whether or not her father was alive on 9 September 2005. A partition made before 20 December 2004 is saved only if it was by a registered deed or a court decree.

Sections: HSA 6HSA 6(3)HSA 6(4)

Ans: The Hindu Adoptions and Maintenance Act, 1956 (Act No. 78 of 1956) is one of the four Hindu Code statutes. It came into force on 21 December 1956 and extends to the whole of India. It deals with two subjects: adoption and maintenance.

Application (Section 2) and overriding effect (Section 4)

It applies to Hindus, Buddhists, Jainas and Sikhs by religion, and to anyone domiciled in India who is not a Muslim, Christian, Parsi or Jew, unless shown not to be governed by Hindu law. Scheduled Tribes are excluded unless the Central Government directs otherwise. For matters it covers, older Hindu texts and customs cease to have effect, and inconsistent earlier laws cease to apply to Hindus.

Effects on adoption (Chapter II)

• An adoption must comply with the Act, or it is void (Section 5).
• The adopter, the giver and the child must each have the capacity (Sections 6 to 10), and the other conditions in Section 11 must be met.
• From the date of adoption the child is the child of the adoptive parents for all purposes, and the ties with the birth family are severed. Prohibited-marriage rules of the birth family continue, property already vested in the child stays vested, and the adoption cannot divest anyone of an estate already vested in that person (Section 12).
• A valid adoption cannot be cancelled and the child cannot go back to the birth family (Section 15).
• A registered document signed by the giver and the taker raises a presumption that the adoption complied with the Act (Section 16).
• Adoptions made before the Act are not affected (Section 30).

Effects on maintenance (Chapter III)

• A Hindu wife is entitled to maintenance from her husband for her lifetime and can live separately for the causes in Section 18(2) (desertion, cruelty, another wife living, a concubine, his conversion, any other justifying cause).
• A Hindu must maintain his legitimate and illegitimate children while minors and his aged or infirm parents so far as they cannot maintain themselves (Section 20).
• The heirs of a deceased Hindu must maintain his dependants out of the estate they take (Sections 21 and 22).
• The court decides the amount, with regard to the matters in Section 23.

Sections: HAMA 2HAMA 4HAMA 5HAMA 12HAMA 18HAMA 20

Ans: A de facto guardian is a person who has taken over the care of a minor and the minor’s property without any legal appointment. He is not a natural guardian, a testamentary guardian or a guardian appointed by a court. The old Hindu law gave such a person some recognition in practice. The Hindu Minority and Guardianship Act, 1956 does not.

Section 11

No person is entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of being a de facto guardian. A person who has simply acted as guardian therefore cannot deal with the minor’s property on that basis alone.

Other points in the Act on who may and may not act

• A minor cannot act as guardian of the property of another minor (Section 10).
• If a minor has an undivided interest in joint family property under the management of an adult member of the family, no separate guardian is needed for that interest, though the High Court can appoint one if needed (Section 12).
• Only a natural guardian, a testamentary guardian or a guardian appointed by a court can deal with the minor’s property, and then subject to Section 8 (court permission for immovable property).

Sections: HMGA 10HMGA 11HMGA 12

Ans: Under the fault (guilt) theory, a marriage is dissolved only if the petitioner proves that the respondent has committed a specific matrimonial offence recognised by the statute. The petitioner should be the innocent party. The Hindu Marriage Act, 1955 is built mainly on this theory. The consent theory (Section 13-B) was added in 1976. The breakdown theory (dissolution because the marriage has irretrievably broken down, whoever is at fault) is not an independent statutory ground.

Grounds under the fault theory – Section 13(1)

• Adultery: voluntary sexual intercourse with a person other than the spouse after the marriage.
• Cruelty: physical or mental. The test is whether the petitioner’s apprehension that living with the respondent would be harmful or injurious is reasonable. It is proved on a preponderance of probabilities (Dastane v. Dastane, 1975).
• Desertion: for a continuous period of not less than two years immediately before the petition.
• Conversion: the other party has ceased to be a Hindu by converting to another religion.
• Mental disorder: incurable unsoundness of mind, or mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form.
• Renunciation of the world by entering a religious order.
• Presumption of death: not heard of as alive for seven years or more by those who would naturally have heard of the person.

Special grounds for the wife – Section 13(2)

• The husband’s bigamy before the Act, with another wife alive.
• Rape, sodomy or bestiality by the husband.
• No resumption of cohabitation for one year or more after a maintenance decree or order against the husband.
• Repudiation, after fifteen and before eighteen, of a marriage solemnised before she was fifteen.

Condonation (forgiveness coupled with restoration of the offender to marital life) bars relief on the condoned offence. In Dastane the husband proved cruelty but lost because he had condoned it by continuing normal marital relations.

Sections: 13(1)13(2)13-B

Ans: Under Section 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardians of a Hindu minor, in respect of the minor’s person and property (excluding his undivided interest in joint family property, which Section 12 deals with), are:

• Boy or unmarried girl: the father, and after him, the mother. The custody of a child under five years ordinarily remains with the mother.
• Illegitimate boy or unmarried girl: the mother, and after her, the father.
• Married girl: the husband.

A person who has ceased to be a Hindu, or who has completely and finally renounced the world as a hermit or ascetic, cannot act as natural guardian. “Father” and “mother” do not include a step-father or step-mother. For an adopted minor son, the natural guardian becomes the adoptive father and after him the adoptive mother (Section 7).

Powers of the natural guardian (Section 8)

• He may do all acts that are necessary, reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate.
• He can in no case bind the minor by a personal covenant.
• He needs the previous permission of the court to mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the minor’s immovable property, or to lease it for more than five years or for a term extending more than one year beyond the date on which the minor attains majority.
• A disposal of immovable property in contravention of these rules is voidable at the instance of the minor (or anyone claiming under him).
• The court grants permission only in case of necessity or for an evident advantage to the minor.

Sections: HMGA 6HMGA 7HMGA 8

Ans: The Karta is the manager of the joint family. He is, by default, the senior-most male coparcener, but a junior coparcener can act as Karta with the consent of the other coparceners. In Sujata Sharma v. Manu Gupta (2016) the Delhi High Court held that once daughters became coparceners the senior-most female coparcener can be Karta. His legal position is unique. He is not quite an agent, a partner or a trustee. He is not required to keep accounts of family income and expenditure, and cannot be made to explain each rupee unless fraud or gross misconduct is alleged.

Powers

• Management. He manages the family property and affairs, as he would his own, for the benefit of the family.
• Representation. The family acts through him in dealings with outsiders, including litigation.
• Debts. He can contract debts for family purposes, and these bind the shares of all coparceners.
• Alienation. No single coparcener, not even the Karta, can sell joint family property outright, because no one has a defined share. The Karta can alienate it, binding the other coparceners, only on three grounds laid down in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856).
• Gift. He can make only a small gift of ancestral immovable property for a genuinely pious purpose (Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, 1964).

The three grounds of alienation

• Legal necessity: a genuine need connected with the family or its property, such as paying government revenue or taxes, maintaining family members, a marriage in the family, or litigation expenses. It does not mean absolute crisis. It is enough that a prudent person in the Karta’s position would regard the expense as necessary.
• Benefit of the estate: a transaction that improves the family’s property, defensively or prudentially, that a prudent owner would take.
• Indispensable duties: religious or charitable obligations the family cannot skip, most importantly the funeral rites of the father.

An alienation without any of these grounds is voidable, not void. A coparcener must have it set aside by the court. The burden of proving the necessity or benefit is on the person who relies on the sale, usually the buyer. A buyer who made honest and reasonable inquiries is protected even if the necessity proves only partly genuine.

Father’s separate power

A father, though not any other Karta, can also bind the joint family estate by a mortgage to discharge his own antecedent debt (a debt prior in time and independent in fact, not for an immoral purpose), as laid down in Brij Narain v. Mangla Prasad (1924).

Ans: Pendente lite is a Latin phrase meaning “pending the litigation”. In matrimonial law it refers to the interim maintenance and litigation expenses that the court orders while a case is pending.

Section 24, Hindu Marriage Act, 1955

Where in any proceeding under the Act it appears to the court that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, the court may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding a sum that is reasonable having regard to the petitioner’s own income and the income of the respondent.

• It is available to either spouse.
• It applies to any proceeding under the Act, not only divorce (Jagraj Singh v. Birpal Kaur, 2007).
• The court is expected to decide the application within sixty days of service of notice on the respondent.
• Mere capacity to earn is not the same as having sufficient independent income. A spouse who is capable of earning but is not actually earning is not automatically disqualified.

Difference from permanent alimony (Section 25)

Section 24 operates while the case is pending and ends when the proceeding ends. Section 25 operates at the time of the decree or later, as a gross sum or periodical sum, and can be secured on the respondent’s immovable property. A Section 25 order can be varied for a change of circumstances. It can be varied or rescinded if the recipient remarries, or, in the case of a wife, has not remained chaste, or, in the case of a husband, has had intercourse with a woman outside wedlock (Section 25(3)). In Vinny Parmvir Parmar v. Parmvir Parmar (2011) the Supreme Court listed the relevant factors: status of the parties, reasonable wants of the claimant, persons the claimant must maintain, and the claimant’s own income and property.

Sections: 2425

Ans: Section 2 of the Hindu Marriage Act, 1955 says to whom the Act applies. It does not give one positive definition.

Hindu by religion

A person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj. A Buddhist, Jaina or Sikh by religion is also covered.

Hindu by birth (Explanation to Section 2)

• A child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.
• A child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh and who is brought up as a member of the tribe, community, group or family to which that parent belongs or belonged.

Convert or re-convert

Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion is a Hindu by religion.

Residuary test

Any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion is governed by the Act, unless it is proved that the person would not have been governed by Hindu law or custom if the Act had not been passed.

Members of a Scheduled Tribe are excluded unless the Central Government directs otherwise (Section 2(2)). Under Section 2(3) the word “Hindu” in the Act includes a person who is not a Hindu by religion but to whom the Act applies by virtue of Section 2.

Sections: 2

Ans: A void marriage is one that never existed in law. It is void from the moment it was performed, whether or not any court declares it so. Under Section 11 of the Hindu Marriage Act, 1955, a marriage solemnised after the commencement of the Act is null and void, and either party can petition for a decree of nullity, if it contravenes any of the conditions in clauses (i), (iv) or (v) of Section 5.

• Bigamy – Section 5(i): either party has a spouse living at the time of the marriage.
• Prohibited relationship – Section 5(iv): the parties are within the degrees of prohibited relationship, unless a custom governing both of them permits the marriage.
• Sapinda relationship – Section 5(v): the parties are sapindas of each other, unless a custom governing both of them permits the marriage.

Consequences

• The parties are not husband and wife.
• A decree is not essential. The invalidity can even be raised as a defence in another proceeding, for example a succession dispute.
• Under Section 16, a child of a void marriage is legitimate whether or not a decree is granted, but it can inherit only the property of its parents, and not that of any other relative (Jinia Keotin v. Kumar Sitaram Manjhi, 2003).

A void marriage cannot be made valid by conduct. A voidable marriage (Section 12), by contrast, is valid until a court annuls it.

Sections: 51116

Ans: Cruelty is a ground for divorce (Section 13(1)(i-a)) and for judicial separation under the Hindu Marriage Act, 1955. The Act does not define it. It covers both physical violence and mental cruelty, such as persistent humiliation, false accusations, threats, or conduct causing a reasonable apprehension of harm.

Condonation bars relief on the same cruelty. It is revived only by later conduct of comparable gravity.

Sections: 13(1)(i-a)10

Ans: A guardian is a person having the care of a minor’s person or property or both. Section 4 of the Hindu Minority and Guardianship Act, 1956 defines a minor as a person who has not completed eighteen years, and says that a “guardian” includes:

• a natural guardian (the guardians listed in Section 6: father, then mother; mother, then father for an illegitimate child; husband of a married girl);
• a testamentary guardian, appointed by the will of the minor’s father or mother (Section 9);
• a guardian appointed or declared by a court, under the Guardians and Wards Act, 1890, which continues to apply alongside the Act (Section 2);
• a person empowered to act as guardian under any law relating to a Court of Wards.

A de facto guardian, someone who has simply taken over the care of the minor without any appointment, has no authority to deal with the minor’s property merely because of that position (Section 11).

In Githa Hariharan v. Reserve Bank of India (1999) the Supreme Court held that the welfare of the child is the paramount consideration.

Sections: HMGA 2HMGA 4HMGA 6HMGA 9HMGA 11

Ans: Section 13-B of the Hindu Marriage Act, 1955 allows both spouses to present a petition together to the district court for dissolution of the marriage by a decree of divorce. No fault has to be proved. The petition must state that the parties:

• have been living separately for a period of one year or more;
• have not been able to live together; and
• have mutually agreed that the marriage should be dissolved.

Procedure (two motions)

• First motion: both spouses present the joint petition.
• Second motion: on a motion of both parties made not earlier than six months and not later than eighteen months after the date of presentation, if the petition has not been withdrawn, the court hears the parties, makes such inquiry as it thinks fit, and if satisfied that the marriage was solemnised and the averments are true, passes a decree dissolving the marriage from the date of the decree.

Two different waiting periods

• Section 14: no divorce petition, under Section 13 or Section 13-B, may ordinarily be presented within one year of the marriage. The court can allow it earlier only for exceptional hardship to the petitioner or exceptional depravity of the respondent.
• Section 13-B(2): the six to eighteen months between the two motions.

Cases

• Sureshta Devi v. Om Prakash (1991): consent must continue until the decree is passed. If either spouse withdraws it before then, the court cannot pass a decree on the strength of the other spouse’s wish alone.
• Amardeep Singh v. Harveen Kaur (2017): the six-month period is directory and not mandatory. Where the other issues are settled, there is no chance of reconciliation and the statutory separation period is over, the court can waive it.

Sections: 13-B14

Ans: Neither the Hindu Marriage Act, 1955 nor the older texts define marriage in one sentence. In Hindu law marriage is the sacred union of a man and a woman, meant to be permanent. Classical texts give it three purposes: Dharma (religious duty), Praja (progeny, to continue the family line and perform the last rites) and Rati (lawful companionship).

Nature of Hindu marriage

In Tikait Monmohini Jemadai v. Basanta Kumar Singh (1901) the Calcutta High Court described Hindu marriage as a sacrament (a samskara), not a mere civil contract. After 1955 the Act added contract-like features: conditions for validity (Section 5), void and voidable marriages (Sections 11 and 12) and divorce (Section 13). Marriage today is a sacrament that is statutorily regulated, with some contractual features.

Essentials of a valid Hindu marriage

Section 5. A marriage may be solemnised between any two Hindus if:

• neither party has a spouse living at the time of the marriage (monogamy);
• neither party is incapable of giving valid consent because of unsoundness of mind, nor suffers from a mental disorder making the party unfit for marriage and for having children, nor has recurrent attacks of insanity;
• the bridegroom has completed twenty-one years and the bride eighteen years;
• the parties are not within the degrees of prohibited relationship, unless custom permits;
• the parties are not sapindas of each other, unless custom permits.

Section 7. The marriage must be solemnised in accordance with the customary rites and ceremonies of either party. If the rites include Saptapadi, the marriage is complete and binding at the seventh step.

Effect of breach

• Breach of Section 5(i), (iv) or (v): the marriage is void (Section 11).
• Breach of Section 5(ii): the marriage is voidable (Section 12(1)(b)).
• Breach of Section 5(iii) (age): the marriage remains valid. Section 18 only punishes it.

Registration under Section 8 is a record of the marriage and is not a condition of validity.

Sections: 5781112

Ans: Classical Hindu law recognised eight forms of marriage. Four were approved (prashasta) and four were unapproved (aprashasta). None of them survives today as a separate legal category. Every Hindu marriage is now tested only against Sections 5 and 7 of the Hindu Marriage Act, 1955.

Approved forms

• Brahma: the father gives his daughter to a man of learning and good conduct, whom he himself invites, without seeking anything in return.
• Daiva: the father gives his daughter to a priest officiating at a sacrifice, as part of the priest’s fee.
• Arsha: the father gives his daughter after symbolically receiving a cow and a bull from the bridegroom, not as a bride-price.
• Prajapatya: the father gives his daughter with the blessing that the couple jointly perform their duties together.

Unapproved forms

• Asura: the bridegroom pays money or property to the bride’s family or to the bride to secure the marriage.
• Gandharva: a marriage out of mutual love and consent, without ceremony or parental involvement.
• Rakshasa: forcible abduction of the woman.
• Paishacha: a man has intercourse with a woman while she is asleep, intoxicated or mentally deranged, and then marries her. It is the most condemned form.

The approved forms rest on free giving without payment, force or deception. The unapproved forms involve payment, elopement without ceremony, abduction or deception. The same moral logic remains in the Act. Mutual consent alone, as in the Gandharva form, is still not enough: a valid ceremony under Section 7 is needed. Consent obtained by force or fraud makes a marriage voidable under Section 12(1)(c).

Sections: 5712(1)(c)

Ans: A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party (Section 7(1), Hindu Marriage Act, 1955). The essential ceremonies are those required by the parties’ own custom. Where the rites include the Saptapadi (seven steps taken jointly by the bridegroom and the bride before the sacred fire), the marriage becomes complete and binding when the seventh step is taken (Section 7(2)).

• Kanyadaan: the bride is given away by her father or guardian.
• Vivaha Homa: the sacred fire is kindled and invoked as witness.
• Panigrahana: the groom clasps the bride’s hand before the fire.
• Saptapadi: seven steps jointly around the sacred fire.

Saptapadi is not compulsory for every Hindu marriage. It decides the exact moment of completion only for communities whose custom includes it. A bigamy conviction requires proof that the essential ceremonies were actually performed (Bhaurao Shankar Lokhande v. State of Maharashtra, 1965; Kanwal Ram v. Himachal Pradesh Administration, 1966).

Sections: 7

Ans: Judicial separation (Section 10, Hindu Marriage Act, 1955) is a decree that relieves the petitioner of the duty to cohabit with the respondent. Either party, whether married before or after the Act, may petition. The grounds are the same as those for divorce:

• Section 13(1): adultery; cruelty; desertion for two years; conversion; incurable unsoundness of mind or mental disorder of the required degree; venereal disease in a communicable form; renunciation of the world; not heard of as alive for seven years.
• Section 13(2), for the wife in addition: the husband’s bigamy before the Act with another wife alive; rape, sodomy or bestiality by the husband; non-resumption of cohabitation for one year or more after a maintenance decree or order against him; repudiation of a marriage solemnised before she was fifteen.

Effects

• It is no longer obligatory for the petitioner to cohabit with the respondent.
• The marriage continues, and neither party can remarry.
• The court may rescind the decree on the petition of either party if it is just and reasonable (Section 10(2)).
• If cohabitation is not resumed for one year or more after the decree, either spouse can seek divorce under Section 13(1A)(i).

Leprosy was a ground in the older text but was removed in 2019. The purpose of judicial separation is to give the spouses time to reconcile before the step of divorce.

Sections: 1013(1)13(2)13(1A)(i)

Ans: Under Section 8 of the Hindu Succession Act, 1956 the property of a Hindu male who dies intestate devolves first upon the heirs in Class I of the Schedule. They take simultaneously and to the exclusion of all other heirs (Section 9). The Class I heirs are:

• son, daughter, widow, mother;
• son, daughter and widow of a predeceased son;
• son and daughter of a predeceased daughter;
• son, daughter and widow of a predeceased son of a predeceased son;
• and the four entries added in 2005: son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son.

Sharing (Section 10)

• The widow (or all widows together) takes one share.
• Each surviving son, each surviving daughter and the mother take one share each.
• The heirs in the branch of each predeceased son or predeceased daughter take between them one share.

Sections: HSA 8HSA 9HSA 10

Ans: Class II. Class II heirs inherit only if there is no Class I heir (Section 8(b)). They are arranged in nine entries. An earlier entry excludes a later one entirely, and heirs in the same entry share equally (Sections 9 and 11). There is no representation in Class II.

• I: father.
• II: son’s daughter’s son, son’s daughter’s daughter, brother, sister.
• III: daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter.
• IV: brother’s son, sister’s son, brother’s daughter, sister’s daughter.
• V: father’s father, father’s mother.
• VI: father’s widow, brother’s widow.
• VII: father’s brother, father’s sister.
• VIII: mother’s father, mother’s mother.
• IX: mother’s brother, mother’s sister.

Agnates. If there is no heir in Class I or Class II, the property goes to the agnates, the relatives connected with the deceased wholly through males, by blood or adoption.

Cognates. If there is no agnate, the property goes to the cognates, the relatives connected through one or more females. A relative with even one female link is a cognate, however close.

Among several agnates, or several cognates, the heir with fewer degrees of ascent is preferred. If ascent is equal, the heir with fewer degrees of descent is preferred. If both are equal they take together (Section 12). Degrees are counted from the intestate, inclusive of him (Section 13).

Sections: HSA 8HSA 9HSA 11HSA 12HSA 13

Ans: Section 9 of the Hindu Marriage Act, 1955 allows a husband or wife whose spouse has, without reasonable excuse, withdrawn from the society of the other, to petition the district court for restitution of conjugal rights. If the court is satisfied that the statements in the petition are true and that there is no legal ground why the application should not be granted, it may decree restitution of conjugal rights.

Conditions

• The respondent has withdrawn from the society of the petitioner. This means withdrawal from the whole of married life, not just sleeping in another room.
• The withdrawal is without reasonable excuse.
• The court is satisfied that the statements in the petition are true.
• There is no legal ground to refuse the decree.

Burden of proof

The petitioner must first prove the withdrawal. Under the Explanation to Section 9, the burden of proving a reasonable excuse is then on the person who has withdrawn. A reasonable excuse can be the petitioner’s own cruelty, or a ground on which the respondent could have sought divorce or judicial separation.

Constitutional validity

• T. Sareetha v. T. Venkata Subbaiah (1983): the Andhra Pradesh High Court struck Section 9 down under Articles 21 and 14.
• Saroj Rani v. Sudarshan Kumar Chadha (1984): the Supreme Court rejected that view and upheld Section 9. It held that the decree does not compel physical cohabitation by force, since its only sanction for disobedience is attachment of property, meant to induce voluntary reconciliation. This is the binding law.

Effect of the decree

The decree is never enforced by force. If cohabitation is not resumed for one year or more after the decree, either spouse can petition for divorce under Section 13(1A)(ii).

Sections: 913(1A)(ii)

Ans: Maintenance is the financial support that a person is legally bound to give to certain relatives. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 says it includes food, clothing, residence, education and medical attendance and treatment. For an unmarried daughter it also includes the reasonable expenses of her marriage.

Who may claim

• Wife (Section 18): for her lifetime. She may live apart and claim if her husband deserts her, treats her with cruelty, has another wife living, keeps a concubine, has ceased to be a Hindu by conversion, or for any other justifying cause. She loses the right to separate maintenance if she is unchaste or converts (Section 18(3)).
• Widowed daughter-in-law (Section 19): from her father-in-law, to the extent she cannot maintain herself out of her own earnings or property or obtain maintenance from the estate of her husband, parents, son or daughter. The duty ends on her remarriage and is enforceable only out of coparcenary property in the father-in-law’s hands.
• Children and aged parents (Section 20): a Hindu must maintain his or her legitimate and illegitimate children while they are minors, and aged or infirm parents (including a childless step-mother) and an unmarried daughter so long as they cannot maintain themselves.
• Dependants (Sections 21 and 22): the heirs of a deceased Hindu must maintain his dependants out of the estate.
• Spouses under the Hindu Marriage Act: interim maintenance and litigation expenses (Section 24) and permanent alimony (Section 25).
• Under criminal law: a wife, child or parent unable to maintain himself may claim under Section 125 of the Code of Criminal Procedure, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Principles for fixing the amount

Under Section 23(1), the court has discretion whether to award maintenance and how much. Section 23(2), for a wife, children or aged or infirm parents, requires regard to:

• the position and status of the parties;
• the reasonable wants of the claimant;
• if the claimant is living separately, whether the claimant is justified in doing so;
• the value of the claimant’s property and any income from it or from the claimant’s own earnings or other sources;
• the number of persons entitled to maintenance under the Act.

For a dependant of a deceased (Section 23(3)), the court considers the net value of the estate after debts, any provision in the will, the degree of relationship, the dependant’s reasonable wants, the past relations between them, the dependant’s own property and income and the number of dependants.

Permanent alimony (Section 25, Hindu Marriage Act)

• The court may order a gross sum or monthly or periodical payment for a term not exceeding the life of the applicant.
• It considers the respondent’s own income and other property, the applicant’s income and property, the conduct of the parties and other circumstances.
• The order may be varied or rescinded if circumstances change (Section 25(2)).
• It may be cancelled if the party who received it remarries, or, if a wife, is not chaste, or, if a husband, has had sexual intercourse with another woman.

Guidelines of the Supreme Court

In Rajnesh v. Neha (2021) the Supreme Court laid down guidelines to avoid conflicting orders and delay. Each party must file an affidavit disclosing assets and liabilities. The court should consider the parties’ status, the needs of the wife and children, their qualifications and employment, independent income and property, the standard of living in the matrimonial home, financial commitments and the cost of litigation. Maintenance is usually payable from the date of the application.

Key points

• The amount is flexible and depends on the facts of each case.
• A claimant’s own earning capacity is considered but does not by itself bar a claim.
• The amount may be changed when circumstances change (HAMA Section 25).

Sections: HAMA 3(b)HAMA 18-23HAMA 25HMA 24HMA 25

Ans: Under the old Mitakshara law, only sons, grandsons and great-grandsons were coparceners and took a share in ancestral property by birth. A daughter had no such right. The Hindu Succession (Amendment) Act, 2005 changed this by substituting Section 6 of the Hindu Succession Act, 1956.

Section 6 as substituted (from 9 September 2005)

• Section 6(1): in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener (a) becomes a coparcener by birth in her own right in the same manner as a son; (b) has the same rights in the coparcenary property as if she had been a son; and (c) is subject to the same liabilities.
• Section 6(2): property she gets under sub-section (1) is held with the incidents of coparcenary ownership and she may dispose of it by will.
• Section 6(3): when a Hindu dies after the Amendment, his interest in coparcenary property passes by testamentary or intestate succession and not by survivorship. The property is deemed partitioned, and the daughter gets the same share as a son. The share of a pre-deceased son or daughter goes to his or her surviving children.
• Section 6(4): the pious obligation of a son, grandson or great-grandson to pay the father’s debts is abolished for the future, with a saving for debts contracted before the Amendment.
• Section 6(5): the section does not apply to a partition effected before 20 December 2004, by a registered deed of partition or by a court decree.

Judicial interpretation

• Prakash v. Phulavati (2016): the Supreme Court held that the right applied only if both the daughter and the father were alive on 9 September 2005.
• Danamma @ Suman Surpur v. Amar (2018): the Court took a different view and gave daughters a share even though the father had died before 2005.
• Vineeta Sharma v. Rakesh Sharma (2020): a larger Bench settled the conflict. A daughter is a coparcener by birth, whether born before or after the Amendment, with the same rights and liabilities as a son. The father need not have been alive on 9 September 2005. Section 6(5) saves only partitions made before 20 December 2004 by a registered deed or a court decree. An oral partition is accepted only in exceptional cases, where it is supported by public documents and has actually been acted on.

Earlier State amendments

Before 2005, some States, including Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra, had made daughters coparceners by State amendments. The 2005 Amendment extended the rule to the whole country.

Impact

• Daughters now have equal coparcenary rights, including the right to demand partition and the same liabilities as sons.
• Marriage does not take away the right, because it arises by birth.
• Ancestral property and self-acquired property remain different. A person may dispose of self-acquired property by will, and if the owner dies intestate, a daughter takes a Class I share under Section 8.

Sections: HSA 6HSA 8

Facts of the case

• A and B are a Hindu husband and wife.
• They mutually agreed to take a divorce within six months from the date of the marriage.

Issues in the case

• Can a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 be obtained at this stage?

Principle

Section 13-B(1) allows both parties to present a joint petition to the district court for divorce on the ground that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. The second motion can be made not earlier than six months and not later than eighteen months after the petition.

Section 14 separately bars any divorce petition, under Section 13 or 13-B, within one year of the date of the marriage, unless the court allows it on an application showing exceptional hardship to the petitioner or exceptional depravity of the respondent.

Judgement

A and B are within six months of their marriage. They cannot have lived separately for one year or more, so Section 13-B(1) is not satisfied. Section 14 also bars the petition, because one year has not passed since the marriage. Their mutual agreement is not exceptional hardship or exceptional depravity. The six-month waiting period that Amardeep Singh held to be directory is the gap between the two motions. It is a different period and does not remove the one-year requirements.

Answer: A divorce by mutual consent is not possible at this stage. They must wait until the marriage is one year old and they have lived separately for a year.

Sections: 13-B14

Facts of the case

• A has murdered his maternal grandfather, his mother’s father.
• He did so to inherit the property.
• A’s mother is alive.

Issues in the case

• Can A inherit his maternal grandfather’s property?
• Does the murder disqualify him?

Principle

Who inherits. A male Hindu’s property goes first to the Class I heirs (Section 8). Under Section 10, each surviving daughter takes a share. The children of a daughter take only the share of a daughter who died before the intestate, as a branch (Rules 3 and 4(ii)). A son of a daughter who is alive is therefore not an heir in his own right.

Murder. Section 25 disqualifies a person who commits or abets murder from inheriting the property of the person murdered, and any other property in furtherance of the succession to which he committed or abetted the murder. Section 27 says that the disqualified person is treated as having died before the intestate.

Judgement

A’s mother is alive and takes her share as a Class I heir. A has no claim to his grandfather’s property as an heir while she is alive. Even if the position were otherwise, Section 25 disqualifies him from the property of the person he murdered, and under Section 27 he is treated as dead before the grandfather. As in Vellikannu, nobody can claim anything through him that he could not claim himself.

Section 25 also bars him from other property taken in furtherance of the succession to which the murder was committed. Whether this reaches his mother’s estate later, if she leaves any property that came from the grandfather, is not decided in the judgments and notes on this site.

Answer: A cannot inherit his maternal grandfather’s property.

Sections: HSA 8HSA 10HSA 25HSA 27

Facts of the case

• A is a Hindu.
• He married a Muslim girl.
• The marriage was performed according to Hindu custom.

Issues in the case

• Is this a valid marriage under the Hindu Marriage Act, 1955?

Principle

Section 5 says that a marriage may be solemnised under the Act “between any two Hindus” if its conditions are met. Section 2(1) says who is a Hindu: a Hindu by religion, a Buddhist, Jaina or Sikh, and a person who is not a Muslim, Christian, Parsi or Jew. A Muslim is outside the third category. A convert or re-convert to the Hindu religion is a Hindu by religion (Explanation to Section 2(1)).

Section 7 requires solemnisation by the customary rites of either party.

Judgement

A is a Hindu, but the girl is a Muslim by religion. The facts do not say that she converted to the Hindu religion before the marriage. The marriage is therefore not between two Hindus and does not satisfy Section 5, even though Hindu rites were followed.

The couple can marry validly under the Special Marriage Act, 1954, where registration is itself the mode of solemnisation and no religious ceremony is needed. If the girl truly converts to the Hindu religion before the marriage, she is a Hindu under the Explanation to Section 2(1), and a marriage solemnised under Section 7 would then be between two Hindus.

Answer: It is not a valid Hindu marriage under the Act, because the girl is not a Hindu.

Sections: 257

Facts of the case

• A filed a petition for restitution of conjugal rights against his wife, B.
• The petition was dismissed, because B had sufficient reason to stay away: A had taken another wife.
• B claims maintenance under Section 25 of the Hindu Marriage Act.

Issues in the case

• Is B entitled to maintenance?
• Under which provision can she claim it?

Principle

Section 25, HMA. Any court exercising jurisdiction under the Act may, at the time of passing any decree or at any time afterwards, on the application of the wife or the husband, order the respondent to pay a gross sum or a monthly or periodical sum for the applicant’s maintenance and support, for a term not exceeding the life of the applicant.

Section 18, HAMA. A Hindu wife is entitled to be maintained by her husband for her lifetime (Section 18(1)). She is entitled to live separately without losing her claim if he has any other wife living (Section 18(2)(d)), or if he has treated her with cruelty, has deserted her, or keeps a concubine. She loses the right only if she is unchaste or ceases to be a Hindu (Section 18(3)).

Judgement

B has stayed away from A because he has another wife living. The court has already accepted this as a sufficient reason by dismissing his petition. This is exactly the ground in Section 18(2)(d) of the Hindu Adoptions and Maintenance Act. B can therefore live separately and claim maintenance from A under Section 18 without proving any other fault.

Section 25 applies when the court passes a decree under the Act. The question whether the dismissal of A’s petition is itself a decree for Section 25 is not settled in the judgments and notes on this site. B does not need Section 25, since Section 18 gives her the claim.

Answer: B can claim maintenance from A under Section 18 of the Hindu Adoptions and Maintenance Act, because A has another wife living.

Sections: HMA 25HAMA 18

Facts of the case

• A is the Karta of a joint family.
• He sold some of the family land.
• He sold it for the medical expenses of his son.

Issues in the case

• Is the alienation of the family property valid?

Principle

No single coparcener, not even the Karta, can sell joint family property outright, because no one has a defined share. The Karta can alienate it, binding the other coparceners, only on one of three grounds: legal necessity, benefit of the estate, or indispensable duties. Legal necessity means a genuine need connected with the family or its property, such as maintaining family members. It is enough that a prudent person in the Karta’s position would regard the expense as necessary.

Section 3(b) of the Hindu Adoptions and Maintenance Act defines maintenance to include provision for food, clothing, residence, education and medical attendance and treatment.

An alienation without one of these grounds is voidable and not void. The burden of proving necessity is on the person who relies on the sale, usually the buyer.

Judgement

Medical treatment of a member of the family is part of the maintenance the family must provide (Section 3(b) HAMA). A prudent manager would regard it as a genuine need. The sale is therefore for legal necessity, as the guardian’s mortgage in Hunoomanpersaud was for the preservation of the estate.

The sale binds the other coparceners if the buyer shows that the sale was needed and made in good faith, and the amount raised is not more than the need required. If the buyer cannot show this, the sale can be set aside by a coparcener.

Answer: The alienation is valid if it was made for the son’s genuine medical needs, as legal necessity, and the buyer proves this.

Sections: HAMA 3(b)

Facts of the case

• A Hindu male dies intestate.
• He leaves his mother, brother, son and daughter-in-law.

Issues in the case

• Who are his heirs, and in what shares do they take?

Principle

Under Section 8 the property goes first to the Class I heirs. They take together and to the exclusion of all other heirs (Section 9). Under Section 10, the widow, each surviving son, each surviving daughter and the mother each take one share. Class II heirs (including a brother) inherit only if there is no Class I heir.

Judgement

The mother and the son are Class I heirs. The brother is a Class II heir and takes nothing while a Class I heir exists. The daughter-in-law is not herself a heir. A widow of a predeceased son is a Class I heir, but the son here is alive, so the daughter-in-law has no claim.

There are two shares: one for the mother and one for the son.

Answer: The mother and the son take one-half each. The brother and the daughter-in-law get nothing.

Sections: HSA 8HSA 9HSA 10

Facts of the case

• A Hindu husband has a wife and children.
• He married again.
• He concealed the first marriage from the second wife.

Issues in the case

• What is the status of the second marriage?
• What remedies and rights does the second wife have?

Principle

Section 5(i) of the Hindu Marriage Act requires that neither party has a spouse living at the time of the marriage. Under Section 11 a marriage that breaks this condition is null and void, and either party can petition for a decree of nullity. It is void from the beginning even without a decree.

Section 494 of the Indian Penal Code (as quoted in Sarla Mudgal): whoever, having a husband or wife living, marries in any case in which the marriage is void by reason of its taking place during the life of that husband or wife, is punishable with imprisonment of either description for up to seven years and is also liable to fine.

Under Section 16 a child of a void marriage is legitimate, whether or not a decree of nullity is granted, but can inherit only the property of its parents (Jinia Keotin).

Judgement

The husband had a living wife, so his second marriage broke Section 5(i) and is void under Section 11. The concealment does not change this. The second wife does not need a court decree to treat the marriage as void, though she can petition under Section 11 for a declaration, which is useful before she remarries or if a question of maintenance or legitimacy arises.

She can complain of the offence of bigamy under Section 494 IPC, and the husband can be punished with up to seven years and fine. As in Yamunabai, she cannot claim the status of a legally wedded wife, so she cannot claim maintenance as a wife under Section 125 of the Code of Criminal Procedure. Her children from the second marriage are legitimate under Section 16, but can inherit only from their own parents.

Answer: The second marriage is void. The second wife can seek a declaration of nullity and prosecute the husband for bigamy, but she has no right as a legally wedded wife.

Sections: HMA 5(i)HMA 11HMA 16IPC 494

Facts of the case

• A and B are a Hindu husband and wife.
• They mutually agreed to take a divorce within six months from the date of the marriage.

Issues in the case

• Can a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 be obtained at this stage?

Principle

Section 13-B(1) allows both parties to present a joint petition to the district court for divorce on the ground that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. The second motion can be made not earlier than six months and not later than eighteen months after the petition.

Section 14 separately bars any divorce petition, under Section 13 or 13-B, within one year of the date of the marriage, unless the court allows it on an application showing exceptional hardship to the petitioner or exceptional depravity of the respondent.

Judgement

A and B are within six months of their marriage. They cannot have lived separately for one year or more, so Section 13-B(1) is not satisfied. Section 14 also bars the petition, because one year has not passed since the marriage. Their mutual agreement is not exceptional hardship or exceptional depravity. The six-month waiting period that Amardeep Singh held to be directory is the gap between the two motions. It is a different period and does not remove the one-year requirements.

Answer: A divorce by mutual consent is not possible at this stage. They must wait until the marriage is one year old and they have lived separately for a year.

Sections: 13-B14

Facts of the case

• A marriage between two Hindus was solemnised in a temple.
• Elders of both sides were present.
• No ceremony was followed except the exchange of flower garlands.

Issues in the case

• What is the legal status of the marriage?

Principle

Section 7(1) says that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. There is no single fixed ritual. The essential ceremonies are those that the custom of the parties requires. If the rites include the Saptapadi, the marriage becomes complete and binding at the seventh step (Section 7(2)). A custom that dispenses with an otherwise essential ceremony must be proved by definite evidence of continuous and uniform observance.

Registration under Section 8 does not decide validity. Non-registration never affects the validity of a marriage.

Judgement

Both parties are Hindus, so the first condition is met. Whether the marriage is valid depends on the custom of the bride’s or the bridegroom’s community. If the custom of either party accepts the exchange of garlands before the elders as sufficient to solemnise a marriage, the marriage is valid under Section 7(1), because the custom of either party is enough. If the custom requires other rites such as Saptapadi and no custom dispensing with them is proved, the marriage has not been solemnised and is not valid. In Bhaurao a recent departure of a few years was not accepted as a custom.

Answer: The marriage is valid only if the custom of either party treats the exchange of garlands as a sufficient ceremony. Otherwise it is not a valid Hindu marriage.

Sections: HMA 7HMA 8

Facts of the case

• A girl of twenty years consented to a marriage.
• Her consent was given under force and misrepresentation by her parents.

Issues in the case

• What remedy is available to her?

Principle

A marriage is voidable, and may be annulled by a decree of nullity, on the ground that the consent of the petitioner (or of the guardian, where the guardian’s consent was required) was obtained by force, or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent (Section 12(1)(c)).

Section 12(2)(a) limits the remedy. The petition cannot be entertained if it is presented more than one year after the force had ceased to operate or the fraud had been discovered. It also cannot be entertained if the petitioner has, with full consent, lived with the other party as husband and wife after the force had ceased or the fraud was discovered.

Judgement

The girl is an adult, so the choice of spouse is hers. Her consent was obtained by force and by misrepresentation, so her marriage is voidable under Section 12(1)(c). She should present a petition for a decree of nullity to the district court within one year after the force ceased or the misrepresentation was discovered. She must not live with the husband as his wife by her own free consent after that point, or the remedy is lost.

Answer: She can petition for annulment of the marriage under Section 12(1)(c), within one year of the end of the force or the discovery of the fraud.

Sections: HMA 12(1)(c)HMA 12(2)(a)

Facts of the case

• A, a Hindu, dies intestate.
• He leaves his wife (U), mother (M), a married daughter (D1) and an unmarried daughter (D2).
• His property is Rs 40,00,000.

Issues in the case

• How is the Rs 40,00,000 divided?

Principle

Under Sections 8 and 9 the Class I heirs take together. Section 10 gives one share to the widow, and one share each to every surviving son, every surviving daughter and the mother. Nothing in Section 10 depends on whether a daughter is married or unmarried.

Judgement

U (widow), M (mother), D1 and D2 are all Class I heirs. There are four shares. Each gets Rs 40,00,000 ÷ 4 = Rs 10,00,000. The marriage of D1 does not reduce her share.

Answer: U, M, D1 and D2 each receive Rs 10,00,000.

Sections: HSA 8HSA 10

Facts of the case

• A, a Hindu male, adopted a girl child.
• He did so without the consent of his wife.

Issues in the case

• Is the adoption valid?

Principle

Section 7, HAMA. A male Hindu of sound mind who is not a minor can adopt a son or a daughter. If he has a wife living, he cannot adopt except with her consent, unless she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared of unsound mind by a court. If he has more than one wife living, the consent of all of them is needed.

Section 5. An adoption made in contravention of Chapter II is void. A void adoption creates no rights in the adoptive family and does not destroy the rights of the child in the family of birth.

Judgement

A had a wife living. The facts do not say that any of the three exceptions applies to her. Her consent was therefore needed under the proviso to Section 7, and A did not have it. The adoption was made in contravention of Section 7, so it is void under Section 5(1). The girl acquires no rights in A’s family and keeps her rights in her birth family.

Answer: The adoption is void, because A did not have his wife’s consent.

Sections: HAMA 5HAMA 7

Facts of the case

• A, a Hindu male, married B in 1958.
• A became a convert to Christianity.
• In 1959 B sued A for divorce.

Issues in the case

• Can B get a divorce on the ground of A’s conversion?

Principle

Under Section 13(1)(ii) of the Hindu Marriage Act, a marriage may be dissolved on a petition by either the husband or the wife on the ground that the other party has ceased to be a Hindu by conversion to another religion.

Conversion does not itself dissolve the marriage. It gives the other spouse a ground. A decree of divorce must be obtained from the court.

Section 14 bars a divorce petition within one year of the date of the marriage, unless the court allows it on an application showing exceptional hardship to the petitioner or exceptional depravity of the respondent.

Judgement

A was a Hindu when he married B. He has ceased to be a Hindu by converting to Christianity, which is the ground in Section 13(1)(ii). The marriage was not dissolved by his conversion, so B has to petition for it, and she has done so. Only the other spouse, here B, can use this ground. The facts give only the years 1958 and 1959. If one year had not passed from the date of the marriage when she petitioned, Section 14 would require the court’s leave on the ground of exceptional hardship or exceptional depravity.

Answer: B succeeds. She can obtain a divorce on the ground of A’s conversion, subject to the one-year bar in Section 14.

Sections: HMA 13(1)(ii)HMA 14

Facts of the case

• A and B are wife and husband.
• After six months of marriage the husband met with an accident and died.
• B became a widow.

Issues in the case

• What rights does the widow have in her husband’s property?

Principle

As heir. A widow is a Class I heir of her husband (Sections 8 and 9). Under Section 10 she takes one share, together with the mother and any children of the deceased, each of whom also takes one share.

Coparcenary property. If the husband held an interest in Mitakshara joint family property, a notional partition is first worked out immediately before his death. His share on that partition passes to his Class I heirs (Section 6(3); Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978).

Full ownership. Property possessed by a female Hindu is held by her as full owner (Section 14(1)).

Remarriage. The old Section 24, which disqualified certain widows who had remarried, was omitted in 2005. Remarriage is not by itself a ground of disqualification.

Judgement

B is a Class I heir of her husband. The facts mention no children, so his Class I heirs are B and, if she is alive, his mother. They take one share each. If he left a child, the child also takes one share. B holds what she inherits as full owner and can dispose of it freely. If he had an interest in joint family property, B takes her share of his notional-partition share in the same way. If he left a valid will, the property goes under the will (Section 30) and the intestate rules do not apply.

Answer: B inherits as a Class I heir, taking one share with his mother (and with any child), and holds it as full owner.

Sections: HSA 8HSA 10HSA 14(1)HSA 6(3)

Facts of the case

• A girl of eighteen years was taken away from the lawful custody of her parents by force.
• She was married to her maternal uncle’s son.
• The marriage took place in a temple near their village.

Issues in the case

• What remedy does the girl have?

Principle

Force. A marriage is voidable on the ground that the petitioner’s consent was obtained by force or by fraud (Section 12(1)(c)). The petition must be presented within one year after the force had ceased to operate, and it fails if the petitioner, with full consent, lived with the other party as husband and wife after the force had ceased (Section 12(2)(a)). Until annulled the marriage is valid.

Relationship. A marriage is void if the parties are within the degrees of prohibited relationship, or are sapindas of each other, unless a custom governing both of them permits it (Sections 5(iv), 5(v) and 11). A sapinda relationship extends through the mother’s line up to the third generation and through the father’s line up to the fifth, counting the person as the first generation.

Judgement

The girl was forced into the marriage, so she has the remedy of annulment under Section 12(1)(c). She should present a petition for a decree of nullity within one year after the force ceased, and she should not live with the man as his wife by her free consent in the meantime.

The man is her mother’s brother’s son. The common ancestor is her mother’s father, who is within the third generation through her mother’s line and within the fifth generation through the man’s father’s line. They are therefore sapindas, unless a custom governing both of them permits such a marriage. If no such custom is proved, the marriage is also void under Sections 5(v) and 11, and she can ask for a declaration to that effect. The facts do not say whether such a custom exists.

Answer: She can petition for annulment under Section 12(1)(c) within one year. The marriage may also be void under Section 11 as a sapinda marriage if no custom permits it.

Sections: HMA 12(1)(c)HMA 12(2)(a)HMA 5(v)HMA 11

Facts of the case

• A Hindu male dies intestate.
• He leaves his father, mother, two sons and two daughters.
• He had self-acquired property of Rs 30 lakhs.

Issues in the case

• Who are the heirs, and what does each receive?

Principle

The property of a Hindu male dying intestate goes first to the Class I heirs (Section 8). They take together and to the exclusion of all others (Section 9). Under Section 10, the widow (or all widows together) take one share, and each surviving son, each surviving daughter and the mother take one share each. The heirs in the branch of a predeceased son or predeceased daughter together take one share. Class II heirs, including the father, take only if there is no Class I heir.

Judgement

The mother, the two sons and the two daughters are Class I heirs. The father is a Class II heir (entry I) and takes nothing while a Class I heir exists. The facts mention no widow, so no share is set aside for one. There are five shares: Rs 30,00,000 ÷ 5 = Rs 6,00,000 each.

If the man also left a widow, she would take one more share, making six shares of Rs 5,00,000 each.

Answer: The mother, the two sons and the two daughters take Rs 6,00,000 each. The father gets nothing.

Sections: HSA 8HSA 9HSA 10

Facts of the case

• X, a Hindu, married Z during the lifetime of his wife Y.
• All the relatives of X, Y and Z consented to the second marriage.

Issues in the case

• Can a Hindu marry a second time during the life of his wife?
• What is the status of the second marriage under the Hindu Marriage Act, 1955?

Principle

Section 5(i) allows a Hindu marriage only if neither party has a spouse living at the time of the marriage. Under Section 11 a marriage that breaks this condition is null and void. The consent of the first wife or of the relatives does not change this, because the condition is not one that can be waived by consent.

Section 494 of the Indian Penal Code (as quoted in Sarla Mudgal): whoever, having a husband or wife living, marries in any case in which the marriage is void by reason of its taking place during the life of that husband or wife, is punishable with imprisonment of either description for up to seven years and is also liable to fine.

Judgement

X had a living wife, Y, when he married Z. The second marriage breaks Section 5(i), so it is void under Section 11, though all the relatives agreed. As in Yamunabai, Z cannot claim the status of a legally wedded wife. X is also guilty of bigamy under Section 494 IPC. For a valid second marriage X must first obtain a decree of divorce from Y.

Answer: The second marriage is void under Section 11, and X is liable for bigamy.

Sections: HMA 5(i)HMA 11IPC 494

Facts of the case

• A Hindu male married a Christian female.
• No ceremonies were solemnised.

Issues in the case

• Is it a valid marriage under the Hindu Marriage Act, 1955?

Principle

Parties. Section 5 permits a marriage between “any two Hindus”. A Christian is outside Section 2(1)(c), unless she is a convert or re-convert to the Hindu religion (Explanation to Section 2(1)).

Ceremonies. Section 7(1) requires that the marriage be solemnised in accordance with the customary rites and ceremonies of either party. A marriage without the rites that the custom of the parties requires is not solemnised (Bhaurao Shankar Lokhande v. State of Maharashtra, 1965).

Judgement

The marriage fails on two counts. The bride is a Christian, so the marriage is not between two Hindus. No ceremonies were performed, so it was not solemnised under Section 7. It is not a valid Hindu marriage. The couple can marry under the Special Marriage Act, 1954, which needs no religious ceremony.

Answer: It is not a valid marriage under the Hindu Marriage Act, 1955.

Sections: HMA 2HMA 5HMA 7

Facts of the case

• A Hindu female dies intestate.
• She leaves her husband, a daughter and her parents.

Issues in the case

• Who inherits her property, and in what shares?

Principle

Section 15(1) sets five entries in order: (a) sons and daughters (including children of a predeceased son or daughter) and the husband; (b) the heirs of the husband; (c) her mother and father; (d) the heirs of her father; (e) the heirs of her mother. An entry is reached only if the earlier one is empty, and heirs in one entry take simultaneously (Section 16, Rule 1).

Section 15(2) changes the order only when she leaves no child, for property inherited from her parents or from her husband or father-in-law.

Judgement

Her husband and her daughter are both in entry (a), so they take together. Her parents are in entry (c) and take nothing. Section 15(2) does not apply, because she leaves a daughter. The husband and the daughter take equal shares.

Answer: Her husband and her daughter take one-half each. Her parents get nothing.

Sections: HSA 15(1)HSA 15(2)HSA 16

Facts of the case

• The Karta of a Hindu joint family sold certain immovable property of the family.
• He sold it for the medical treatment of one of the members of the family.

Issues in the case

• Is the sale valid?

Principle

The Karta can alienate joint family property, binding all coparceners, only for legal necessity, benefit of the estate or indispensable duties. Legal necessity covers a genuine need connected with the family, such as maintaining its members. The test is whether a prudent person in the Karta’s position would regard the expense as necessary. A sale without such a ground is voidable. The buyer must prove the necessity, though a buyer who made honest and reasonable inquiries is protected even if the necessity proves only partly genuine.

Section 3(b) of the Hindu Adoptions and Maintenance Act includes medical attendance and treatment in the meaning of maintenance.

Judgement

Medical treatment of a family member is part of the support the family must provide, so the need is a legal necessity. The sale binds the coparceners if it was made in good faith and was not larger than the need required. The Karta cannot spend the proceeds on unlawful or immoral purposes.

Answer: The sale is valid as a sale for legal necessity, if the need is shown and the buyer acted in good faith.

Sections: HAMA 3(b)

Facts of the case

• A Hindu wife is subjected to cruelty by her husband.
• She wants to live apart from him without a divorce.
• She also wants to claim maintenance from him.

Issues in the case

• Can she live apart and still claim maintenance without a divorce?

Principle

Section 18(1) of the Hindu Adoptions and Maintenance Act gives a Hindu wife the right to be maintained by her husband for her lifetime. Under Section 18(2)(b) she may live separately without losing her claim if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with him. She loses the right only if she is unchaste or ceases to be a Hindu (Section 18(3)).

In deciding the amount, the court considers the position and status of the parties, her reasonable wants, whether she is justified in living separately, the value of her property and income, and the number of persons entitled to maintenance (Section 23(2)).

She can also petition for judicial separation on the ground of cruelty (Sections 10 and 13(1)(i-a)), and ask for maintenance pendente lite (Section 24) and permanent alimony (Section 25).

Judgement

No divorce is needed. Her husband’s cruelty is a ground that lets her live separately and still claim maintenance under Section 18(2)(b). She must show that his conduct caused a reasonable apprehension that living with him would be harmful or injurious. If she wants a formal legal separation, she can seek judicial separation, which ends the duty to cohabit but not the marriage.

Answer: She can live apart and claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, without a divorce.

Sections: HAMA 18HAMA 23HMA 10HMA 24HMA 25

Facts of the case

• A Hindu male, aged forty, adopts a daughter aged twenty.
• He has a daughter living at the time of the adoption.

Issues in the case

• Is the adoption valid?

Principle

Section 11(ii). If the adoption is of a daughter, the adoptive father or mother must not have a Hindu daughter or son’s daughter living at the time of adoption.

Section 11(iii). If the adoption is by a male and the person adopted is a female, the adoptive father must be at least twenty-one years older than the person adopted.

Section 10(iv). A person who has completed fifteen years cannot be taken in adoption, unless a custom or usage applicable to the parties permits it.

Section 5(1). An adoption made in contravention of these provisions is void.

Judgement

The adoption breaks three conditions. He already has a living daughter (Section 11(ii)). The age gap is 40 − 20 = 20 years, which is less than twenty-one (Section 11(iii)). The girl is twenty, and has completed fifteen years, and no custom permitting this is stated (Section 10(iv)). The adoption is void under Section 5(1).

Answer: The adoption is not valid.

Sections: HAMA 5HAMA 10HAMA 11

Facts of the case

• A died in 1933.
• His daughter B became his heir.
• B died in 1969 without issue.
• A’s sister and B’s husband both claim the property.

Issues in the case

• Did B hold the property as a limited owner or as a full owner?
• Who inherits it from B: her husband or the heirs of her father A?

Principle

Section 14(1). Any property possessed by a female Hindu, whether acquired before or after the Act, is held by her as full owner and not as a limited owner. The Explanation covers property got by inheritance.

Section 15(1)(a). The property of a female Hindu dying intestate goes first to her sons and daughters and the husband. Section 15(2)(a): property she inherited from her father or mother goes, if she leaves no son or daughter (including the children of a predeceased child), not to the heirs in sub-section (1), but to the heirs of the father.

Section 16, Rule 3. The heirs of the father are worked out as if the father had died intestate immediately after the woman’s death.

Judgement

B inherited from her father A in 1933, when a woman took only a limited estate. B died in 1969, so she was alive when the Act came into force. Presuming that she was in possession, Section 14(1) made her the full owner. On her death in 1969 without issue, the property was property inherited from her father. Under Section 15(2)(a), and on the reasoning of Bhagat Ram (which applied the same rule to property inherited from a husband), it goes to the heirs of her father and not to her husband.

On Section 16 Rule 3, the heirs of A are found as if A had died intestate just after B’s death. A’s sister is a Class II heir (entry II), and she takes if A left no Class I heir and no living father.

Answer: B’s husband does not take. The property goes to the heirs of her father A, which on these facts means A’s sister.

Sections: HSA 14(1)HSA 15(1)HSA 15(2)(a)HSA 16

Facts of the case

• The wife and the husband are both employees.
• The wife has been divorced.
• She wants custody of her minor children against the husband.

Issues in the case

• Is she entitled to the custody of the minor children?

Principle

Natural guardian. For a boy or an unmarried girl, the natural guardian is the father, and after him, the mother. The proviso to Section 6(a) of the Hindu Minority and Guardianship Act says that the custody of a minor who has not completed five years ordinarily remains with the mother. The Guardians and Wards Act, 1890 continues to apply alongside the Act (Section 2).

Welfare. The welfare of the child is the paramount consideration, taken in its widest sense, including moral and physical well-being.

Judgement

No rule gives custody to the parent who earns more, and both parents here are employees, so their incomes do not decide the matter. If a child is under five, custody ordinarily remains with the mother under the proviso to Section 6(a). For older children the court decides what is best for each child. The wife should apply to the court for custody and rely on the welfare of the children, the age of each child and her ability to care for them. As Githa Hariharan shows, the word “after” in Section 6(a) means in the absence of the father, so the mother can act as guardian where the father is absent or unable to act.

Answer: She can claim custody. The court decides on the welfare of the children, and a child under five ordinarily stays with the mother.

Sections: HMGA 2HMGA 6(a)

Facts of the case

• X, a Hindu husband, converted to Islam solely to marry again.
• He married Z without dissolving his first marriage with his wife Y.
• Y filed a case against X for bigamy and sought a direction that the second marriage is null and void.

Issues in the case

• Is the second marriage void?
• Is X guilty of bigamy?

Principle

A Hindu marriage under the Hindu Marriage Act can be dissolved only on a ground in Section 13. Conversion does not dissolve it. Section 5(i) forbids a marriage while a spouse is living, and Section 11 makes such a marriage void. Section 494 of the Indian Penal Code (as quoted in Sarla Mudgal): whoever, having a husband or wife living, marries in any case in which the marriage is void by reason of its taking place during the life of that husband or wife, is punishable with imprisonment of either description for up to seven years and is also liable to fine.

Judgement

X’s first marriage with Y was not dissolved by his conversion. The second marriage with Z was made during Y’s life. As in Sarla Mudgal, it is void and X is guilty of the offence under Section 494 IPC. Y’s prayer succeeds. The conversion does not help X, even if it was made only to marry again.

Answer: The second marriage is void and X is guilty of bigamy under Section 494 IPC.

Sections: HMA 5(i)HMA 11HMA 13IPC 494

Facts of the case

• F is the father of minor children and is alive.
• The grandmother made a will appointing M, the mother of the children, as their guardian.
• M proposed to transfer the properties left to the minor children by the will.
• F objected and sued for an injunction, saying that he is the natural guardian.

Issues in the case

• Can the grandmother appoint a guardian by will?
• Can M, while F is alive, transfer the minor children’s property?

Principle

Natural guardian (Section 6). For a boy or an unmarried girl, the father, and after him, the mother. Under Githa Hariharan, “after” means in the absence of the father, which can include his temporary absence, total apathy or inability.

Testamentary guardian (Section 9). Only the father (entitled to act as natural guardian), a widow, or a mother entitled to act as natural guardian can appoint a guardian by will for the minor’s legitimate children.

Powers (Section 8). A natural guardian needs the previous permission of the court to mortgage, sell, gift, exchange or otherwise transfer the minor’s immovable property, and a disposal without it is voidable at the instance of the minor.

Judgement

The grandmother is neither the father nor the mother, so Section 9 gave her no power to appoint a guardian by will. Her will does not make M a guardian. F is alive and nothing shows that he is absent from the children’s affairs, so he is the natural guardian under Section 6(a). The position in Githa Hariharan helps a mother only where the father is absent or unable to act, which is not the case here.

Even F, as natural guardian, could not transfer the immovable property without the previous permission of the court (Section 8). M has no authority to do so.

Answer: F’s objection is correct. The grandmother’s will does not make M a guardian, and M cannot transfer the property.

Sections: HMGA 6(a)HMGA 8HMGA 9

Facts of the case

• A filed a petition for restitution of conjugal rights against his wife, B.
• The petition was dismissed, because B had sufficient reason to stay away: A had taken another wife.
• B claims maintenance under Section 25 of the Hindu Marriage Act.

Issues in the case

• Is B entitled to maintenance?
• Under which provision can she claim it?

Principle

Section 25, HMA. Any court exercising jurisdiction under the Act may, at the time of passing any decree or at any time afterwards, on the application of the wife or the husband, order the respondent to pay a gross sum or a monthly or periodical sum for the applicant’s maintenance and support, for a term not exceeding the life of the applicant.

Section 18, HAMA. A Hindu wife is entitled to be maintained by her husband for her lifetime (Section 18(1)). She is entitled to live separately without losing her claim if he has any other wife living (Section 18(2)(d)), or if he has treated her with cruelty, has deserted her, or keeps a concubine. She loses the right only if she is unchaste or ceases to be a Hindu (Section 18(3)).

Judgement

B has stayed away from A because he has another wife living. The court has already accepted this as a sufficient reason by dismissing his petition. This is exactly the ground in Section 18(2)(d) of the Hindu Adoptions and Maintenance Act. B can therefore live separately and claim maintenance from A under Section 18 without proving any other fault.

Section 25 applies when the court passes a decree under the Act. The question whether the dismissal of A’s petition is itself a decree for Section 25 is not settled in the judgments and notes on this site. B does not need Section 25, since Section 18 gives her the claim.

Answer: B can claim maintenance from A under Section 18 of the Hindu Adoptions and Maintenance Act, because A has another wife living.

Sections: HMA 25HAMA 18

Facts of the case

• A Hindu male dies intestate.
• He leaves his mother, father, widow and son.

Issues in the case

• How is the property divided?

Principle

The property of a Hindu male dying intestate goes first to the Class I heirs (Section 8). They take together and to the exclusion of all others (Section 9). Under Section 10, the widow (or all widows together) take one share, and each surviving son, each surviving daughter and the mother take one share each. The heirs in the branch of a predeceased son or predeceased daughter together take one share. Class II heirs, including the father, take only if there is no Class I heir.

Judgement

The mother, the widow and the son are Class I heirs. The father is a Class II heir and takes nothing while a Class I heir exists. There are three shares, one each.

Answer: The mother, the widow and the son take one-third each. The father gets nothing.

Sections: HSA 8HSA 9HSA 10

Facts of the case

• X, a Hindu, married Z during the lifetime of his wife Y.
• All the relatives of X, Y and Z consented to the second marriage.

Issues in the case

• Can a Hindu marry a second time during the life of his wife?
• What is the status of the second marriage under the Hindu Marriage Act, 1955?

Principle

Section 5(i) allows a Hindu marriage only if neither party has a spouse living at the time of the marriage. Under Section 11 a marriage that breaks this condition is null and void. The consent of the first wife or of the relatives does not change this, because the condition is not one that can be waived by consent.

Section 494 of the Indian Penal Code (as quoted in Sarla Mudgal): whoever, having a husband or wife living, marries in any case in which the marriage is void by reason of its taking place during the life of that husband or wife, is punishable with imprisonment of either description for up to seven years and is also liable to fine.

Judgement

X had a living wife, Y, when he married Z. The second marriage breaks Section 5(i), so it is void under Section 11, though all the relatives agreed. As in Yamunabai, Z cannot claim the status of a legally wedded wife. X is also guilty of bigamy under Section 494 IPC. For a valid second marriage X must first obtain a decree of divorce from Y.

Answer: The second marriage is void under Section 11, and X is liable for bigamy.

Sections: HMA 5(i)HMA 11IPC 494

Facts of the case

• The immovable property of a Hindu minor was sold by his father.
• The father sold it for the benefit of the minor.
• He did not take the permission of the court.

Issues in the case

• Can the natural guardian sell the minor’s immovable property without the court’s permission?
• Is the sale valid, and can the minor avoid it?

Principle

Section 8, Hindu Minority and Guardianship Act, 1956. The natural guardian may do all acts that are necessary, reasonable and proper for the benefit of the minor or the minor’s estate, but can never bind the minor by a personal covenant. He shall not, without the previous permission of the court, mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the minor’s immovable property, or lease it for more than five years or beyond one year after the minor attains majority.

A disposal in contravention of this rule is voidable at the instance of the minor or anyone claiming under him. The court gives permission only in case of necessity or for an evident advantage to the minor.

A suit by the ward, after attaining majority, to set aside a transfer made by his guardian must be filed within three years from attaining majority (Article 60, Limitation Act, 1963).

Judgement

The father is the natural guardian, but Section 8 requires the previous permission of the court for a sale of the minor’s immovable property. He did not obtain it. The benefit to the minor is a matter the court looks at when deciding whether to give permission. It does not replace the permission.

The sale is voidable, not void. The minor can have it set aside by a suit filed within three years after attaining majority. If he does not, the sale stands.

Answer: The sale made without the court’s permission is voidable at the minor’s option. A good purpose does not by itself make it valid.

Sections: HMGA 8

Facts of the case

• X, a Hindu male, dies intestate.
• He leaves his father, two sons and a son of a predeceased daughter.

Issues in the case

• Who can succeed to X’s property?
• What is the share of each?

Principle

The property of a Hindu male dying intestate goes first to the Class I heirs (Section 8). They take together, to the exclusion of all other heirs (Section 9). Under Section 10 the widow, each surviving son, each surviving daughter and the mother each take one share, and the heirs in the branch of each predeceased son or predeceased daughter together take one share. Class II heirs, including the father, take only if there is no Class I heir.

Judgement

The two sons are Class I heirs. The son of a predeceased daughter is also a Class I heir. The father is a Class II heir and takes nothing. The branch of the predeceased daughter takes one share between its members (Section 10, Rule 3). It has one member here, so he takes that one share. There are three shares.

Answer: The two sons and the daughter’s son take one-third each. The father gets nothing.

Sections: HSA 8HSA 9HSA 10

Facts of the case

• A, a Hindu, died in 2007.
• He left his daughter, son, father and mother.
• The property in question is joint family property.

Issues in the case

• How does A’s interest in joint family property devolve?

Principle

After the 2005 Amendment. Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Mitakshara joint family devolves by testamentary or intestate succession and not by survivorship. The coparcenary property is deemed to have been divided as if a partition had taken place. The Explanation to Section 6(3) says that his interest is the share that would have been allotted to him if a partition had taken place immediately before his death.

Succession. That interest then goes to his Class I heirs under Sections 8 to 10: each son, each daughter and the mother take one share each. The father is a Class II heir and takes nothing while a Class I heir exists.

Judgement

A died in 2007, after the Amendment came into force. A’s interest in the joint family property is his notional-partition share. It goes to his Class I heirs: the daughter, the son and the mother, who take one share each, one-third of that interest each. The father takes nothing from this interest as an heir.

The daughter is in any case a coparcener by birth, in the same manner as the son (Section 6(1)). The size of A’s notional share depends on who the coparceners were, which the question does not state.

Answer: The daughter, the son and the mother each take one-third of A’s interest in the joint family property. The father takes nothing as an heir.

Sections: HSA 6(1)HSA 6(3)HSA 8HSA 10

Facts of the case

• Kalpana, aged sixteen, married Seenu, aged twenty-five, by Hindu rites and customs.
• The parents of both parties solemnised the marriage.
• After one year of marriage Kalpana applied to the family court for nullification on the ground that she was a minor when she married.

Issues in the case

• Does the Hindu Marriage Act, 1955 allow annulment on the ground of age?
• Is there any other remedy?

Principle

Hindu Marriage Act. Section 5(iii) requires that the bridegroom has completed twenty-one years and the bride eighteen years. A breach does not make the marriage void under Section 11 (which lists only clauses (i), (iv) and (v) of Section 5). It does not make it voidable under Section 12 either. The Act only punishes the offence, under Section 18, and the marriage remains valid.

Section 13(2)(iv) gives the wife a ground for divorce only if her marriage was solemnised before she attained fifteen years, and she repudiated it after fifteen but before eighteen.

Prohibition of Child Marriage Act, 2006, Section 3. Every child marriage is voidable at the option of the contracting party who was a child at the time of the marriage. Only that party can petition the district court for a decree of nullity. The petition may be filed at any time before the petitioner completes two years after attaining majority. If the petitioner is a minor, it may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer.

Judgement

Under the Hindu Marriage Act, Kalpana’s age at marriage is not a ground for nullity. Section 13(2)(iv) does not help her, because she was sixteen, not under fifteen, when she married.

Under the Prohibition of Child Marriage Act, 2006, her marriage is a child marriage, because she was under eighteen. It is voidable at her option. She can petition the district court for a decree of nullity before she completes two years after attaining majority. As she is still a minor, she can file through her guardian or next friend with the Child Marriage Prohibition Officer. Seenu was an adult and cannot use this remedy.

Answer: The Hindu Marriage Act does not allow annulment on the ground of her age. She can seek annulment under Section 3 of the Prohibition of Child Marriage Act, 2006.

Sections: HMA 5(iii)HMA 11HMA 12HMA 13(2)(iv)PCMA 3

Facts of the case

• Sekhar works in a factory.
• He returns home late at night in a drunken condition and creates a nuisance for his wife Rani.
• Rani wants a divorce.

Issues in the case

• Is Sekhar’s conduct cruelty under Section 13(1)(i-a)?
• Can Rani get a divorce on that ground?

Principle

Cruelty is a ground for divorce (Section 13(1)(i-a)). It is proved on a preponderance of probabilities. There is no fixed definition. The test is whether the petitioner’s apprehension that it will be harmful or injurious to live with the respondent is reasonable in the circumstances of that marriage. Sustained public humiliation, threats and persistent abuse have been treated as mental cruelty.

Condonation of the conduct, by forgiveness and continued normal marital relations, bars relief on that conduct.

The court must also try to reconcile the parties before granting relief (Section 23(2)).

Judgement

The facts state only that Sekhar returns late, drunk, and creates a nuisance. Rani will have to prove that this conduct makes it harmful or injurious for her to live with him, and that her apprehension is reasonable in the circumstances of her marriage. Occasional nuisance is not enough, but a pattern of abuse or violence that is proved would be. If she continued normal married life after the conduct, he can argue condonation, as in Dastane.

If she is not sure she wants to end the marriage, she can ask for judicial separation under Section 10 on the same ground, or try conciliation under Section 23.

Answer: She can petition on the ground of cruelty, but she must prove that his conduct makes living with him harmful or injurious. The bare facts given do not prove it.

Sections: HMA 13(1)(i-a)HMA 10HMA 23(2)

Facts of the case

• An old man aged about ninety has no means of his own.
• He asked his only son for maintenance.
• The son refused, saying that he has no obligation to maintain his father.

Issues in the case

• Can a parent claim maintenance from his son?
• Can the son refuse?

Principle

Section 20, Hindu Adoptions and Maintenance Act. A Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents (Section 20(1)). The obligation to maintain an aged or infirm parent extends so far as the parent is unable to maintain himself out of his own earnings or other property (Section 20(3)).

In deciding the amount, the court considers the position and status of the parties, the reasonable wants of the claimant, the claimant’s own property and income, and the number of persons entitled to maintenance (Section 23(2)).

Judgement

The claimant is an aged parent. He has no means of his own, so he cannot maintain himself. The son is bound under Section 20(1) and (3) to maintain him. The son’s refusal has no legal basis.

Answer: The son must maintain his father. The amount is fixed by the court under Section 23.

Sections: HAMA 20HAMA 23

Facts of the case

• A filed a petition for restitution of conjugal rights against his wife B, a cine artist.
• B objected that it violates her right to life and personal liberty.
• She also filed a divorce petition.

Issues in the case

• Does Section 9 violate her right to life and personal liberty under Article 21?
• What happens to her divorce petition?

Principle

Section 9 of the Hindu Marriage Act allows a spouse whose partner has withdrawn from his or her society without reasonable excuse to petition for restitution of conjugal rights. The burden of proving a reasonable excuse is on the person who has withdrawn.

The Andhra Pradesh High Court struck Section 9 down in T. Sareetha, but the Supreme Court upheld it in Saroj Rani (1984). The Supreme Court’s view is the binding law. A Section 9 decree is not enforced by force. If cohabitation is not resumed for one year or more after it, that is a ground for divorce under Section 13(1A)(ii).

Judgement

This case looks like Sareetha, where the wife was also in the film world, but Sareetha is not the law, because the Supreme Court did not accept its reasoning in Saroj Rani. B cannot say that Section 9 is unconstitutional. She can still defend A’s petition by proving a reasonable excuse for staying away, for example cruelty by A. A decree would not compel her to cohabit by force.

Her divorce petition stands on its own. She must prove one of the grounds in Section 13. The court must first try to reconcile the parties (Section 23(2)).

Answer: B cannot rely on Sareetha. Section 9 is valid under Saroj Rani. Her divorce petition succeeds only if she proves a ground under Section 13.

Sections: HMA 9HMA 13(1A)(ii)HMA 23(2)

Facts of the case

• A, a Hindu, converted to Islam to marry X, a Muslim woman.
• B is A’s wife, and she was married to him under Hindu law.
• B wants to prevent A from marrying X.

Issues in the case

• Does A’s conversion dissolve his marriage with B?
• What can B do?

Principle

A Hindu marriage under the Hindu Marriage Act is dissolved only by a decree on a ground in Section 13. Conversion by one spouse gives the other a ground (Section 13(1)(ii)) but does not itself dissolve the marriage. A second marriage by the convert during the life of the first spouse is void and is an offence under Section 494 IPC.

Judgement

A’s marriage with B has not been dissolved by his conversion. If A goes through with a marriage with X, it will be void and A will be guilty of bigamy, as in Sarla Mudgal. B can lodge a complaint of that offence. She can also advise X, and A, of that position.

B also has remedies for herself. A’s conversion is a ground for divorce for her (Section 13(1)(ii)) and for judicial separation (Section 10). It also entitles her to live separately and claim maintenance (Section 18(2)(f) of the Hindu Adoptions and Maintenance Act).

The judgments and notes on this site do not describe any court order that stops a marriage from taking place beforehand.

Answer: A cannot marry X validly without first dissolving his marriage with B. If he does, the marriage is void and he commits bigamy under Section 494 IPC.

Sections: HMA 13(1)(ii)HAMA 18(2)(f)IPC 494

Facts of the case

• A Hindu husband has two sons.
• With the consent of his wife he adopted a girl child.
• Some time after the adoption his wife gave birth to a daughter.

Issues in the case

• Is the adoption valid?
• Does the later birth of a daughter affect it?

Principle

Section 11(ii). If the adoption is of a daughter, the adoptive father or mother must not have a Hindu daughter or son’s daughter living at the time of adoption. The living sons are not a bar to adopting a daughter. Section 11(i) bars only the adoption of a son where a Hindu son, son’s son or son’s son’s son is living.

Section 7. He needs his wife’s consent. Section 15. A valid adoption cannot be cancelled.

Judgement

When he adopted the girl he had two sons and no daughter living. His wife consented. Section 11(ii) is therefore satisfied, and the other conditions are not shown to be broken. The birth of his own daughter afterwards does not affect the validity, because the condition is tested at the time of adoption. Under Section 15 the adoption cannot be cancelled, and under Section 12 the adopted girl is his child for all purposes from the date of adoption.

Answer: The adoption is valid. The later birth of a natural daughter does not affect it.

Sections: HAMA 7HAMA 11(ii)HAMA 12HAMA 15

Facts of the case

• C is the natural guardian of his minor son.
• He sold the minor’s immovable property to meet the minor’s educational needs.
• After attaining majority the minor wants to avoid the transaction.

Issues in the case

• Can the natural guardian sell the minor’s immovable property without the court’s permission?
• Is the sale valid, and can the minor avoid it?

Principle

Section 8, Hindu Minority and Guardianship Act, 1956. The natural guardian may do all acts that are necessary, reasonable and proper for the benefit of the minor or the minor’s estate, but can never bind the minor by a personal covenant. He shall not, without the previous permission of the court, mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the minor’s immovable property, or lease it for more than five years or beyond one year after the minor attains majority.

A disposal in contravention of this rule is voidable at the instance of the minor or anyone claiming under him. The court gives permission only in case of necessity or for an evident advantage to the minor.

A suit by the ward, after attaining majority, to set aside a transfer made by his guardian must be filed within three years from attaining majority (Article 60, Limitation Act, 1963).

Judgement

If C took the previous permission of the court, the sale is valid, and the minor cannot avoid it. The court gives permission only for necessity or evident advantage, and education is a need of the minor. If C did not take the permission, the sale is voidable at the minor’s instance, even though the money went for his education. The facts do not say whether permission was taken.

The sale is voidable, not void. The minor can have it set aside by a suit filed within three years after attaining majority. If he does not, the sale stands.

Answer: The sale made without the court’s permission is voidable at the minor’s option. A good purpose does not by itself make it valid.

Sections: HMGA 8

Facts of the case

• A filed a petition for restitution of conjugal rights against his wife B, a cine artist.
• B objected that it violates her right to life and personal liberty.
• She also filed a divorce petition.

Issues in the case

• Does Section 9 violate her right to life and personal liberty under Article 21?
• What happens to her divorce petition?

Principle

Section 9 of the Hindu Marriage Act allows a spouse whose partner has withdrawn from his or her society without reasonable excuse to petition for restitution of conjugal rights. The burden of proving a reasonable excuse is on the person who has withdrawn.

The Andhra Pradesh High Court struck Section 9 down in T. Sareetha, but the Supreme Court upheld it in Saroj Rani (1984). The Supreme Court’s view is the binding law. A Section 9 decree is not enforced by force. If cohabitation is not resumed for one year or more after it, that is a ground for divorce under Section 13(1A)(ii).

Judgement

This case looks like Sareetha, where the wife was also in the film world, but Sareetha is not the law, because the Supreme Court did not accept its reasoning in Saroj Rani. B cannot say that Section 9 is unconstitutional. She can still defend A’s petition by proving a reasonable excuse for staying away, for example cruelty by A. A decree would not compel her to cohabit by force.

Her divorce petition stands on its own. She must prove one of the grounds in Section 13. The court must first try to reconcile the parties (Section 23(2)).

Answer: B cannot rely on Sareetha. Section 9 is valid under Saroj Rani. Her divorce petition succeeds only if she proves a ground under Section 13.

Sections: HMA 9HMA 13(1A)(ii)HMA 23(2)

Facts of the case

• A, a Hindu male aged twenty-one, married B, a Hindu female aged seventeen, in 2018.
• In 2020 B wants to get rid of the marriage because it was a child marriage.

Issues in the case

• Is there a remedy for B?
• What is the time limit?

Principle

Under Section 5(iii) of the Hindu Marriage Act the bride must have completed eighteen years. A breach does not make the marriage void or voidable under the Act, and Section 18 only punishes it. Section 13(2)(iv) is available only if the marriage took place before she was fifteen.

Prohibition of Child Marriage Act, 2006, Section 3. Every child marriage is voidable at the option of the contracting party who was a child at the time of the marriage. Only that party can petition the district court for a decree of nullity. The petition may be filed at any time before the petitioner completes two years after attaining majority. If the petitioner is a minor, it may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer.

Judgement

B was seventeen when she married, so she was a child, and the marriage is a child marriage. She cannot rely on the Hindu Marriage Act, because Section 5(iii) does not give a ground for nullity and Section 13(2)(iv) needs the marriage to have been before fifteen.

She can use Section 3 of the Prohibition of Child Marriage Act, 2006. She reached eighteen in 2019. She can file a petition for a decree of nullity in the district court before she completes two years after attaining majority, which is in 2021. Filing in 2020 is within time. A, who was twenty-one when he married, was not a child, so only B can use this remedy.

Answer: B can petition the district court under Section 3 of the Prohibition of Child Marriage Act, 2006 before she is twenty.

Sections: HMA 5(iii)HMA 13(2)(iv)PCMA 3

Facts of the case

• X, a Hindu male aged thirty, intends to adopt a Hindu girl aged fourteen.

Issues in the case

• Will X succeed?
• What are the conditions of a valid adoption?

Principle

Section 6 requires four things: the adopter has the capacity and the right to adopt; the giver has the capacity to give; the child is capable of being adopted; and the other conditions are complied with.

• Adopter (Section 7). A male Hindu of sound mind and not a minor can adopt a son or daughter. If he has a wife living, he needs her consent, unless she has renounced the world, ceased to be a Hindu or been declared of unsound mind.
• Giver (Section 9). Only the father, mother or guardian can give a child. The father needs the mother’s consent. A guardian needs the previous permission of the court.
• Child (Section 10). The child must be a Hindu, not already adopted, not married, and not have completed fifteen years, unless custom permits the last two.
• Other conditions (Section 11). No living Hindu daughter or son’s daughter if a daughter is adopted. If a male adopts a female, he must be at least twenty-one years older than the child. No simultaneous adoption by two persons. The child must actually be given and taken, and datta homam is not essential.

An adoption in contravention of these provisions is void (Section 5(1)).

Judgement

The girl is under fifteen, so Section 10(iv) is satisfied if she is a Hindu, unmarried and not already adopted. But X is thirty and she is fourteen. The gap is 30 − 14 = 16 years, which is less than the twenty-one years that Section 11(iii) requires when a male adopts a female. The adoption would be void under Section 5(1). The other conditions (wife’s consent, no living daughter, a proper giver) are not stated in the question.

Answer: X cannot validly adopt the girl, because he is only sixteen years older than she is.

Sections: HAMA 5HAMA 6HAMA 7HAMA 9HAMA 10HAMA 11

Facts of the case

• P is the Karta of a joint family in the State of Telangana, with three sons A, B, C and a daughter D.
• P and his sons jointly cultivate the agricultural land, which is joint family property.
• D married in 1984.
• In 2012 D filed a suit for partition of her share.

Issues in the case

• Is D a coparcener?
• Does her marriage take away her right?
• Does the right extend to agricultural land?

Principle

Section 6(1) of the Hindu Succession Act, as substituted in 2005, makes the daughter of a coparcener in a Mitakshara joint family a coparcener by birth in her own right in the same manner as a son, with the same rights and the same liabilities. Nothing in it depends on the daughter’s marriage. The proviso saves only a disposition, alienation, partition or will made before 20 December 2004. Section 4(2) of the Act, which kept agricultural land outside it, was omitted in 2005.

Judgement

D is a daughter of a coparcener, so she is a coparcener by birth. Her marriage in 1984 does not affect this. The land is joint family property, and the Act no longer excludes agricultural land. It is not enough for her father to be alive: the right does not depend on whether he was alive on 9 September 2005. D can claim a share equal to that of a son, unless there was a partition before 20 December 2004 by a registered deed or a court decree. No such partition is mentioned, and P and his sons are still cultivating the land jointly.

Answer: D will succeed in her suit. She is a coparcener by birth, and her share is equal to that of a son.

Sections: HSA 6(1)HSA 4(2)

Facts of the case

• A Hindu boy aged twenty-four married a Christian girl aged twenty-two.
• The marriage took place in a temple according to Hindu rites.

Issues in the case

• Is the marriage valid?
• How can it be made valid and enforceable?

Principle

Section 5 allows a marriage under the Hindu Marriage Act only between two Hindus. A Christian is not covered by Section 2(1) unless she is a convert or re-convert to the Hindu religion (Explanation to Section 2(1)). Under the Special Marriage Act, 1954, marriage is a civil procedure of notice and registration, and no religious ceremony is needed. Registration is the mode of solemnisation itself.

Judgement

The groom (24) and the bride (22) are both above the ages in Section 5(iii). But the bride is a Christian, so the marriage is not between two Hindus and is not a valid marriage under the Hindu Marriage Act, though Hindu rites were performed.

The couple has two ways. They can marry under the Special Marriage Act, 1954 by registration, each keeping his or her own religion. Or the girl can become a Hindu by conversion before the marriage, after which a marriage by Hindu rites under Section 7 would be between two Hindus.

Answer: The marriage is not valid under the Hindu Marriage Act. They can register their marriage under the Special Marriage Act, 1954.

Sections: HMA 2HMA 5HMA 7