Model Q Ans For Hindu Law

Model Q. & Ans. for Judicial Service Main Exams On Hindu Law Q.
1 Critically examine the concept of matrimonial bars and bring out their relevance in deciding the matrimonial disputes. Ans Matrimonial Bars and Their Relevance S -5 of the H.M. Act 1955 Says A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) (ii) (a) (b) neither party has a spouce living at the time of the marriage; at the time of marriage, neither party is incapable of giving a valid consent to it inconsequence of unsoundness of mind; or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity. the bride groom has completed the age of 21 years and the bride the age of 18 years at the time of marriage; the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two. the parties are not Sapindas of each-other, unless the custom or usage governing each of them permits of a marriage between the two. All these conditions are actually matrimonial bars. On perusal of S -11 of the Act, we find that any marriage solemnized after the commencement of this Act shall be null and void, and may on a petition be so declared by a decree of nullity, if it contrvences any one of the conditions specified in
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(c) (iii) (iv)
(v)
clauses (i), (iv) and (v) of section 5. Marriage which does not fulfill these three conditions is actually no marriage in the eye of law. It is open to the parties to consider such a marriage as a nullity, same being void from the very beginning. Clause (i) introduces monogamy and prohibits bigamy and at the same time in case of violation this rule the Act declares the later marriage, as no marriage at all. So far as conditions regarding age of the parties is concerned, a marriage solemnized in violation of this condition is neither void nor voidable, but punishable U/S -18 of this Act for contravention of this stipulation. S -3 (f) defines Sapinda relationship so as to prohibit marriage between the persons who are so related to each-other or fall within the limits of sapinda relationship. S -3 (g) defines Degree of prohibited relationship. These degrees are between persons who are very closely related to each other. S -12 Says Any marriage solemnized, whether before or after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the grounds stipulated therein, which include that the marriage is in contravention of the condition specified in clause (ii) of section (5) of the Act. It may be mentioned here that a voidable marriage is valid and binding between the parties. But such a marriage can be got annulled by filing a petition for decree of divorce at the instance of one of the parties to the marriage. Q. 2 Critically examine the concept of irretrievable break down of marriage. Can the courts invoke this concept for granting divorce under the provisions of the H.M. Act, 1955? Ans. The concept of Irretrievable Breakdown of Marriage: Foundation of a sound marriage is tolerance, adjustment and respecting one-another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
heaven. A too technical and hyper-sensitive approach would be counterproductive to the institution of marriage. Reference in this respect may be made to observations made in Dastane Vs Dastane, AIR 1975 SC 1534. In Chetal Dass Vs Kamala Devi, AIR 2001 SC 1709 , Apex Court observed that matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustment with the spouse. The relationship has to conform the social norms as well. Now the matrimonial conduct has come to be governed by statute framed, keeping in view such norms and change social order. It is sought to be controlled in the interest of the individual as well as in broader perspective, for regulating matrimonial norms for making a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. In Shyam Sunder Kohli Vs Sushma Kohli AIR 2004 SC 511 Apex Court held that on the ground of irretrievable breakdown of marriage, the court must not lightly dissolve a marriage. It is only in extreme circumstances that the court may use this ground for dissolving a marriage. In this case, the respondent at all stages and even before Apex Court, has been ready to go back to the Appellant. It is the Appellant who refused to take the respondent back. The Appellant made baseless allegations against the respondent. He even went to extent of filing a complaint of bigamy U/S -494 IPC, against the Respondent that complaint came to be dismissed. Evidence revealed that the Respondent was forced to leave the matrimonial home. It was the Appellant who has been at fault. Apex Court observed It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable break down. In G.V.N. Kameswara Rao Vs G. Jabilli, AIR 2002 SC 576 various incidents brought out in the evidence showed that the relationship between the parties was irretrievably broken and because of non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious
traumatic experience, which could safely be termed as cruelty U/S -13(1) of the H.M. Act 1955. Therefore, Apex Court held that the appellant was entitled to the decree for dissolution of marriage. In view of all this, Apex Court observed that it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jaket formula for grant of relief of divorce and that this aspect has be considered in the background of the other facts and circumstances of the case. It may be mentioned here that trend of various judicial pronouncements has been that if any of the grounds for dissolution of a marriage does exist, court lean in favour of severance of matrimonial ties. But at the same time it has been observed that there irretrievable breakdown of marriage cannot lead to disruption of marital ties. Q. 3 Who are disqualified from inheriting the property of their Hindu relatives? Ans. Ss -24 to 26 of H.S. Act 1956 deal with disqualification of heirs. S -24 says Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date of succession opens, she has remarried, so the disqualification covers the case of any widow, who claims to succeed as the widow of predeceased son or widow of predeceased son of a predeceased son, or the widow of a brother of the husband, or father of the female intestate U/S -15(1) or by operation of provisions of S -15(2) or section 17. It is significant to note that disqualification would not be attracted where widow re-marriage after the succession has opened. Therefore, once a property vests in such a widow, immediately on opening of succession, she cannot be divested of the property, if she re-marries afterwards. S -25 provides that A person who commits murder or abets commission of murder shall be disqualified from inheriting the property of the person murdered or any other property in furtherance of the succession to which he
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or she committed or abeted the commission of the murder. Although a person prosecuted for murder but acquitted of the charge, cannot be disqualified, yet Civil Court has jurisdiction to hold fresh inquiry in such a case. Reference may be made to decision in Chamal Lal Vs Mohan Lal AIR 1977 Del 97. It is not necessary that one murders the person whose property is to be inherited. If he murders any other person through whom or after whose death he may in future acquire property. Such a case being in furtherance of succession to the owner of the property or a case of acceleration of succession, the accused would stand disqualified from inheritance. It is significant to note that only murderer is disqualified from inheritance, not his son or daughter. S -26 says Where before or after the commencement of the Act, a Hindu has ceased to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendents are Hindus at the time of the succession opens. Significantly, children of the apostate born before his conversion are not affected by this provision of law. General rule of disqualification is that of disqualification from inheritance is personal and same does not extend to the issue of disqualified heir, unless there is any provision to the contrary. Under this provision of S 26, children born to the convert, after his conversion and the descendants of such marriage do not inherite the property of any of their Hindu relatives, unless they are themselves Hindus at the time of opening of succession. Q. 4 - What do you mean by adoption? What are requisite of valid adoption. Who may give the child in adoption. Who may take the child in adoption. Who may be taken in adoption. Ans Meaning of Adoption
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Generally Adoption is a transplantation of a child from the family in which it is born to another family where it is given by the natural parents by way of gift. The adopted child is deemed as born in the new family. In Amerendra Vs Sanatan AIR 1933 the P.C. has held that The foundation of the doctrine of adoption is the duty which every one owes to his ancestor to provide for the continuance of the line and the solemnization of the necessary rites. Section 6 to 12 of Hindu adoption and maintenance act 1956 deal with adoption. (1) S -6 of the HAMA 1956 provides the requisites of a valid adoption as follows No adoption shall be valid unless (i) (ii) (iii) (iv) (2) the person adopting has the capacity and right to taken in adoption. the person given in adoption has capacity to give in adoption. the person adopted is capable of being taken in adoption. the adoption is made in the compliance with the other conditions mentioned in chapter II of the Act S -7 of the HAMA 1956 deals with capacity of a male Hindu to take in adoption. It says Any male Hindu, who is of sound mind and not minor has the capacity to take a son or a daughter in adoption provided that, if he has a wife living, he shall not adopt except with the consent of wife, unless the wife 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. Explanation: If a person has more than one wife living at the tme of adoption the consent of all wives is necessary unless the consent of any one
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of them is unnecessary for any reasons specied in proviso to section 7 of HAMA 1956. In Krishna Chandra Sahu Vs Pradeep Das AIR 2009 P & H High Court held that Where the three disabilities of wife have not be established, the consent of such wife/wives would be mandatory for a valid adoption. If the consent of the wife is not established, the court will declare adoption null and void. (3) S -8 of the HAMA 1956 deals with the capacity of a female Hindu to take in adoption. It says Any female Hindu has capacity to take in adoption a son or a daughter (i) (ii) (iii) Who is of sound mind. Who is not a minor and Who is not married, Or if married (1) Whose marriage has been dissolved or (2) Whose husband is dead or has completely and finally renounced the world or has ceased to be Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. In Rama Chandraiah Vs Narayan AIR 2009 the Kerla High Court held that if a Hindu male dies leaving behind two widows and two natural sons. The adoption by widow to herself is invalid, because widow has no right to adopt a son for herself, if natural sons are present. In case of void marriage, wife can adopt a child, even without consent of husband, but where during the continuance of a void marriage a child is born, wife cannot adopt a child of same sex. (4) S -9 of HAMA 1956 deals with the persons capable of giving a child in adoption. It says
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(i) (ii)
No person except the father or mother or the guardian of child shall have capacity to give the child in adoption. Subject to provisions of sub-section (iii) & (iv), the father, if alive, shall alone have right to give in adoption, with the consent of mother. But such consent is not necessary if (1) the mother has completely and finally renounced the world or (2) has ceased to Hindu or (3) has been declared by a court of competent jurisdiction to be of unsound mind. Mother may give the child in adoption if (1) the f ather is dead or (2) has completely and finally renounced the world or (3) has ceased to be Hindu or (4) has been declared by a court of competent jurisdiction to be of unsound mind. (1) Where both the father and mother are dead or (2) have completely and finally renounced the world or (3) have abandoned the child or (4) have been declared by a court of competent jurisdiction to be of unsound mind or (5) where parentage of child is not known, The guardian of a child may give the child in adoption with the prior permission of the court to any person including the guardian himself. Here it is relevant to mention that (1) adoptive father or mother (2) step father or mother (3) putative father cannot give a child in adoption. Similarly a remarried woman has no right to give in adoption her child born to her from her deceased husband. In Dhanraj Vs Suraj 1981 Patna High Court held that The term guardian includes both de-facto and de-jure guardian. Thus manager, secretary and person in charge of an orphanage or the person who has brought, up child or under whose care the child is, can give the child in adoption with prior permission of court. But court will grant permission for giving the child in adoption after comprehensive consideration of the welfare of child. The court will consider the physical and moral well being of child. The court will also consider the character, qualification financial position and social status of the proposed
(iii)
(iv)
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adopter. In such consideration the welfare of child shall be paramount consideration. (5) S -10 of the HAMA 1956 deals with persons who may be adopted . It says No person shall be capable of being taken in adoption unless: (i) (ii) (iii) (iv) He or she is Hindu. He or she has not been already adopted. He or she has not been married, unless their custom provides. He or she has not been completed the age of 15 years, unless their custom provides. It is here relevant to mention that a boy or a girl of unsound mind could also be validly taken in adoption, because there is no prohibition with respect to adoption of such persons. [D.Patil Vs S.G. Patil AIR 1992 Bom H.C.] (6) S -11 deals with other conditions for a valid adoption . In every adoption, following conditions must be complied with:(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made, must not have a Hindu son, sons son or sons son, whether by legitimate blood relationship or by adoption living at the time of adoption. If the adoption is of a daughter, the adoptive parents must not have a legitimate or adopted daughter or sons daughter. When a child of opposite sex is proposed to be adopted the adopter must be at least 21 years older than the adoptive child. The same child may not be adopted simultaneously by two or more persons.
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(ii) (iii) (iv)
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(v)
The child to be adopted must be actually given and taken in adoption, but dattak homam is not necessary.
Q. 5 Who is Hindu? What are the persons to whom Hindu Law applies? Ans The word Hindu has been explained in the Hindu marriage Act 1955, Hindu Succession Act 1956, Hindu Adoption and Maintenance Act 1956 and The Minority and Guardianship Act 1956 as follows: (a) Any 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, Prathana or Arya Samaj; Any person who is a Buddhist, Jaina or Sikh by religion; and Any person domiciled in the territories to which this Act extends, who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by Hindu law or by any custom or usage as part of Hindu law in respect of any of the matters dealt with herein if this act had not been passed. Explanation: The following persons are Hindus, Buddhists Jains or Sikhs by religion, as the case may be (a) (b) any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhas by religion. any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. Case Law
(b) (c)
(c)
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(1)
In K. Devabalan Vs M. Vijya Kumari AIR 1991 the S.C held Where a person is a son of Hindu father and a Christian mother who were married under the special Marriage Act 1954 and the father had unequivocally declared that he and his son formed a Hindu undivided family, then his son is Hindu. In Dhanuragya Vs Sukra AIR 1987 Oriss H.C held it would seem to be accepted position that Hindu Law applies to tribal people living in the interior parts of the country, whose way of life, habits and culture have been influenced by Hindu generally called so and who profess Hinduism. In Ishwari Prasad Vs Rai Hari Prasad 1927 it has been held that A person who is born Hindu and has not renounced the Hindu religion, does not cease to be Hindu merely because he departs from the standard of orthodoxy in matters of diety and ceremonial observances. Applicability of Hindu Law: It was the old belief that Hindu Law applies only to those who are the followers of the rigid orthodox traditions of Hindu religion, but the case of Ram Bhawan Koer Vs F.C Bose 1903 has settled a rule that a Hindu does not cease to be governed by Hindu Law because of lapse from orthodox Hindu practices or by deviation from its central doctrines. In Abraham Vs Abraham 1863 it was held that Hindu Law is applicable to those persons who are born as Hindus and have continued to be so. Those Hindus who have converted to another religion will not be governed by Hindu Law. Today the applicability of Hindu Law is not restricted or confined to those persons who are Hindus by birth. Its application has been extended to those persons also who have accepted the Hindu religion by convert to Hinduism. Thus following are the persons to whom Hindu Law applies:
(2)
(3)
(1)
Hindus by birth and also to Hindus by conversion in any of its forms or developments including Brahmos, Arya Samajists etc.
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(2) (3) (4) (5)
Illegitimate children whose parents are Hindus. Illegitimate children born of a Christian father and a Hindu mother and brought up as Hindus. Buddhist, Jains and Sikhs and Nambudry Brahmans except so far such law is varied by custom and to Lingayats who are considered as Shudras. Sons of Hindu dancing girl of the Naik caste converted to Mohammedenism, where the sons are taken into family of Hindu grandparents and are brought up as Hindus. Brahmos and Arya Samajists and to Santhals of Chhota Nagpur and Manbhum except so far as it is not varied by custom. A Hindu who has made a declaration that he is not Hindu for the purpose of the Special Marriage Act. Hindu Law, as administered by courts in India and as amended by codification of certain branches is applicable to Hindus not in all their matters, but in certain respects Viz Succession, marriage, adoption and maintence etc. There are other matters where Hindu Law is applied by virtue of express legislation or on the principle of equity, justice and good conscience. Such matters are wills, gifts, partition, family relations etc. as regards general matters such as of criminal, tortuous or contractual liability etc, the Hindus are governed by Common Law of the land.
(6) (7)
Q. 6 What do you mean by Stridhan and Womens estate. Distinguish between both. What are the sources of Stridhan? Ans Stridhan: The term Stridhan that property over which a woman has an absolute ownership. Under modern Hindu law stridhan does not represent any specific property, but it includes all those properties of a Hindu woman over which she has absolute ownership and which is in herited by her successors. Womens estate: Womens estate are those properties, which are inherited by women after death of her husband and over which her right of alienation
are limited and after her death the property does not pass to her heirs rather to heirs of the last owner thereof. Difference between Stridhan & Womens estate Two important differences between the term womens estate and stridhan are (1) A woman has a limited right of alienation with respect to the womens estate. The right of alienation can be exercised by her only in dire necessity, legal necessity or in the interest of the estate itself, while in respect of stridhan woman has an absolute right of voluntary alienation of property. In case of womans estate, the property after the death of the woman is inherited by the descendants of the male known as reversioners, but in case of stridhan the property is inherited by the descendants of the woman herself. But the Hindu Succession Act 1956 has dispensed with the distinction with respect to the order of succession between stridhan and womens estate and a general rule of succession has been laid down under it. Now all properties acquired prior to or after the passes of the Act has become the absolute and unrestricted estate of a Hindu female. The word womans estate has lost its meaning today. Sources of Stridhan Yet there is difference in opinions of different schools of Hindu law and many Smritikars and Commentators of Hindu religion regarding source of Stridhan. But conclusively the following are main sources of stridhan. (1) Property given or bequested to a Hindu female whether during maidenhood, coverture or widowhood by her parents and their relations or by husband and his relatives. Property given or bequeathed to a Hindu female by strangers during maidenhood, before nuptial fire or at the bridal procession.
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(2)
(2)
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(3)
Money paid to a Hindu female periodically for her maintenance and as arrears of such maintenance or a lump-sum of money given to her in lieu of maintenance. Property acquired by a Hindu female by her mechanical arts or otherwise by her own exertions. Property acquired by adverse possession Property purchased by a woman with her stridhan or by savings of stridhan. Property acquired by compromise. Property obtained in partition of family property. Property acquired by inheritance. Property lawfully acquired by other means.
(4) (5) (6) (7) (8) (9) (10)
Q. 7 Who are Natural Guardian of a Hindu Minor. Discuss his powers. Ans. Natural Guardian of a Hindu Minor S -6 of HMG Act 1956 deals with Natural guardian of a Hindu Minor . It says: (1) (a) (b) (c) The natural guardian of a Hindu minor, in respect of minors person as well as in respect of the minors property his are in case of a boy or an unmarried girl the father, and after him the mother. in case of an illegitimate boy or an illegitimate unmarried girl the mother and after her the father. in the case of a married girl the husband Provided that no person shall be entitled to act as the natural guardian of a minor under the provision of this section
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(a) (b)
If he has ceased to be a Hindu, or If he has completely and finally renounced the world by becoming a Vana prastha or Sanyasi. Expln: In this section, the expression father and mother do not include a step father and a step mother.
Case Law (i) In G. Hariharan Vs RBI, AIR 1999 the S.C held The expression the father and after him the mother in sec -6 (a) does not give an impression that the mother can be considered to be natural guardian of the minor only after the lifetime of the father. In context in which it appears in S -6 (a), it means in the fathers absence from the care of the minors property or person for any reasons whatever. In K. Venugopalan Vs K.V. Beena AIR 2007 DB of Kerala High Court held that Daughter aged about 10 years was residing with her father, in view of separation having regard to age and gender, father continued to be legal guardian, mother was entitled to only custody of daughter. S -7 of HMGA 1956 deals with Natural guardianship of adopted son. It says The natural guardianship of an adopted son who is a minor, on adoption passes to adoptive father and after him to the adoptive mother. In N. Nirmala Vs N. Jayakumar 1999 the S.C held The natural mother should not be denied visiting rights in relation to minor daughter in custody of father without adequate justification. Powers of Natural Guardian: S -8 says (1) The natural guardian of a Hindu minor has power, subject to provision of this section, to do all acts, which are necessary, or reasonable, and proper for
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(ii)
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the benefit of minor or for the realization, protection or benefit of the minors estate, but the guardian can in no case bind the minor by a personal covenant. (2) (a) (b) The natural guardian shall not, without the previous permission of court mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or lease any part of such property for a term exceeding 5 years or for a term extending more than one year beyond the date on which the minor will attain majority Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under him. No court shall grant permission to the natural guardian to do any of acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. Case Law (1) In Manik Chand Vs Ramchandra AIR 1981 the S.C held Where a mother in her capacity as a natural guardian of a minor entered into a contract for the benefit of minor for purchase of a house property. It is held that the contract is valid and binding on minor and it is not a personal covenant. Consequently liability to pay purchase price is liability of minor for whose benefit the contract was entered into. So contract is enforceable. (2) In Divya Dip Singh Vs Ram Bachan Mishra AIR 1997 the S.C held Where natural guardian disposed of certain property of minor and prior permission of court was not taken. In such circumstances natural guardian had no power to create encumbrance or sale the immovable property of minor.
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(3)
(4)
Q. 8 Who may appoint a testamentary guardian? What are powers of testamentary guardian? Whether de-facto guardian may deal with minors property? What shall be paramount consideration in appointment of guardian by court? Ans Appointment of testamentary Guardian Clause (1) to (4) of S -9 of HMGA 1956 deal with appointment of testamentary guardian. A testamentary guardian is one, who is appointed by a will of the natural guardian. U/S -9 clause (1) to (4) say that the following persons can exercise the right to appoint a testamentary guardian in respect of minors person or property or both: (1) (2) (3) (1) father, natural or adoptive. mother, natural or adoptive the widowed mother natural or adoptive. Father: A Hindu father, who is entitled to act as a natural guardian and who has not become disqualified to act as such, may by will appoint a testamentary guardian in respect of minors person or his property or both, but not of undivided interest of the minor in the joint family property. Mother: Where the father, predecease & the mother after appointing testamentary guardian, the mother may appoint another person of her choice, as new testamentary guardian for any of her children. In such case the appointment will of deceased father, will become infractuase. But when mother did not appoint any other person as new testamentary guardian, and she dies, then the testamentary guardian appointed by deceased father, will act as testamentary guardian. A Hindu mother entitled to act as the natural guardian of minor legitimate children could appoint a guardian in respect of minor is person or separate property or body or both for any of them by will, during life time of her husband provided he has ceased to be a Hindu or has become a Sanyasi by renouncing the world or has been declared unsound mind by competent court.
(2)
Similarly where the mother entitled to act as a natural guardian of her illegitimate children, may appoint a guardian by will for any of them either in respect of minors person or property or both. In such cases the presence of her husband is no bar. Power of Testamentary Guardian Clause (5) & (6) of section 9 of HMGA 1956 deal with power of testamentary guardian. The testamentary guardian becomes entitled to act as the guardian of the minor after the death of natural guardian. He can exercise all the rights and power of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. Since the powers of the testamentary guardian are similar to that of natural guardian. So a testamentary guardian may deal with powers provided to natural guardian U/S -8 of HMGA 1956 i.e. he shall have every power to do any act, subject to provisions of law if necessary or found to be beneficial to the estate of the minor. The testamentary guardian shall also be subject to restrictions provided U/S -8(2) & (3) of HMGA 1956 vide clause (6) of S -9 the right of testamentary guardian shall cease on marriage of minor girl. Power of De-facto Guardian A de-facto guardian is one, who takes the management of the property of a minor, when he has no legal guardian. The HMGA 1956 does not recognize a de-facto guardian. Its S -11 expressly negates the power of de-facto guardian, to alienate or deal with the property of a Hindu minor. Section 11 provides: After the commencement of the Act, no person shall be entitled to dispose of or deal with the property of Hindu miner merely on the ground of his or her being the de-facto guardian. Thus after the enforcement of the HMGA 1956 A de -facto guardian cannot deal with the property of a minor.
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Courts Consideration in Appointing Guardian S -13 of HMGA 1956 deals with appointment of guardian by court. It says (1) (2) In appointing or declaring any person as a guardian of a Hindu minor by a court, the welfare of the minor shall be paramount consideration. No person shall be entitled to guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindu, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor. As per verdicts of apex court and different High Courts It is the bounden duty of court to consider the age and sex of minor, the character and capacity of the proposed guardian, his nearness to minor in appointing or declaring a guardian. The court should also keep in view the wishes, if any of the deceased parents and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the court may consider that preference. The welfare of minor is the Supreme consideration for the court. It would always prevail when it conflicted with other considerations U/S -13(2) of the HMGA 1956. In considering the welfare of child, the welfare of the minor children is not to be measured only in terms of money and physical comport. The word welfare must be taken in its widest sense. The moral and ethical welfare of the child must also weigh, with its physical well being by courts. Q. 9 Who may be a Karta of Joint Hindu Family. What is the position and power of Karta? Ans meaning of Karta: A person who manages the property of joint Hindu family and looks after the affairs of the family regarding income, expenditure, marriage, family business etc is called the Karta of joint Hindu family. Who may act as Karta or manager: Normally the father is the Karta, when he is live and able to manage the affairs of family. In his absence or when he
is unable to work as Karta, then any senior adult coparcener, competent to manage the affairs of the joint family, may act, as Karta, with consent of other adult members of his family. But in some cases with the consent of other adult coparceners a junior competent & adult member may also act as the Karta of Joint Hindu Family. Position of Karta: The position of Karta cannot be compared with a trustee or an agent or a partner in a firm. He is a kind of representative owner. In Jugal Kishore Vs Commissioner of Income tax AIR 1967 the S.C held that Whatever service a Karta renders or the joint family is without any remuneration, although for his strenuous and hard service the other members of the joint family can mutually agree to pay some remuneration to him. But whatever remuneration is paid to him will become his separate property. Power of Karta: The powers of Karta in joint family property is not larger than a coparcener in the family nor he has larger right to enjoy the same, than any other coprcener. He does not get any remuneration for the services he renders in family. The following are the general powers of Karta of a joint Hindu family: (1) Power over income and expenditure: The Karta exercises extensive control over the income and expenditure of the joint Hindu family. Since his position is not like the trustee or agent, he is not bound to economic or save like a trustee or agent provided he spends the income of the family for benefit of the members of family. e.g. for maintenance, education, marriage or sradha etc. Power to manage joint family business: The Karta has the power to manage the joint family business. In this respect he can take all such steps which are just and necessary for the promotion of business. Power to contract debt for family purpose: The Karta has implied authority to contract debts for family purposes and family business, so as to
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(2)
(3)
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bind the coparcenors to the extent only of their interest in the joint family property and to bind adult coparcenors . (4) Power to enter into contract: The Karta has power of making contracts, giving receipts, entering into compromises, discharging contracts, or dinarily incidental to the business of the family. Power to refer to arbitration: The Karta may refer to arbitration any dispute relating to joint family property provided such reference is for the benefit of the family. Power to give discharge: The Karta has power to give a valid discharge to the debt due to joint family. Power to enter into compromise: The Karta can enter into a compromise in any matter relating to joint family property. However he has no power to give up a debt due to joint family and give up valuable item without any return or consideration. Power to a knowledge debt: The Karta has power to acknowledge a debt or make a part payment of it, execute a fresh promissory note or a bond so as to revive a time barred debt. Power to represent in suit: The Karta may sue or be sued as representative of a joint family in respect of a transaction entered into by him as a manager of the family or in respect of joint property. Power of alienation: The Karta can alienate for value the joint family property, so as to bind the interest of the other coparceners, provided it is made with the consent of all adult coparceners (i) for legal necessity or (ii) for the benefit of estate or (iii) for legitimate and proper purposes of family.
(5)
(6) (7)
(8)
(9)
(10)
Q. 10- How do you distinguish between divorce and judicial separation? How does the Hindu Marriage Act provide for the legitimacy of the children of void and voidable marriage? Ans Differences between Divorce & Judicial separations are as follows:
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Divorce (1) Divorce is the dissolution of the (1) marriage and it brings to an end the marital rights and obligations between the parties In case of divorce, the parties can remarry. (2)
Judicial Separation In judicial separation the rights and obligations of the parties to marriage are suspended temporarily. In case of judicial separation, the parties cannot marry. If the parties resort to cohabitation during the course of judicial separation, the effect of decree would Be nutralised. Judicial separation is granted U/S -10 of the H.M. Act 1955 Judicial separation suspends Marital life for some period the
(2) (3)
If the parties resort to (3) cohabitation after divorce, there would have no effect on a decree of divorce. Divorce is granted U/S -13 of H.M. Act 1955 (4)
(4) (5) (6)
Divorce completely breaks the (5) marriage tie for ever. No petition for divorce shall be (6) presented within one year of marriage. Sexual inter course between the (7) parties is not permissible S -16 of H.M. Act 1955 deals with
For judicial separation there is no such minimum time limit. Sexual inter course between spouce may be established.
(7)
Legitimacy of children of void and voidable marriage. It says: (1) Children of void and voidable marriage shall be legitimate, whether such child is born before or after the commencement of the marriage law
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(Amendment) Act 1976 and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage U/S 12 any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to marriage, if at the date of decree, it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not with standing the decree of nullity. Where a marriage is void or declared void U/S -11 and 12 of H.M. Act 1955, the children of such marriage shall have right only in property of their parents i.e. they have no right in ancestral property of their parents.
(3)
Q. 11- Hindu womens life estate has been enlarged into full ownership under Hindu Succession Act 1956. Explain the statement in the light of S -14 of the Hindu Succession Act 1956. Ans Hindu Womens Right to Property The Hindu Succession Act, 1956, by section 14 has replaced the narrower and restrictive connotations of the term Stridhan. It has abolished the distinction between Stridhan and womens estate. The Act also makes no distinction with respect to the order of Succession between Stridhan and womens estate and a common rule of succession has been provided under S -15 & 16 of Hindu Succession Act 1956. S -14 of the Act provides that (1) Any property possessed by a female Hindu whether acquired before or after the commencement of this act, shall be held by her as full owner thereof and not as a limited owner. Explanation: In this Sub-section property includes both movable and immovable property acquired by a female Hindu by inheritance or device or at a partition or in lieu of maintenance or arrears of maintenance or by gift from any person or by her own skill or exertion or by purchase or in
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any other manner and also any such property held by her as Stridhan immediately before the commencement of this Act. (2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award, where the terms of gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. Thus section 14(1) along with the Explanation has given widest possible extention to the property possessed by a female Hindu. It has overridden the prevalent law of Stridhan and declares that all such property shall be held by her as full owner. It also dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit property. It has the effect of abrogating the cruel provisions of law, which denied her proprietory right for a long time. A qualification to the rule is laid down in Sub-section (2), but it does not relate to the incidents of womans property. Thus now the estate acquired by a female Hindu is an absolute one and is not defeasible under any circumstances. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The possession may be actual or constructive or in any form recognized by law. But only such property becomes absolute which has been in her possession at the date of the commencement of the Act. In Eramma Vs Veerupana AIR 1970 the S.C examining the scope of S 14 observed that The object of the section 14 is to extinguish the estate called limited estate or widows estate in Hindu law and to make a Hindu woman a full owner of property, which has been successfully obtained by S 14. Thus we can say that Hindu womans life estate has been enlarged into full ownership under Hindu Succession Act 1956.
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Q. 12- What are the main differences between Mitakshra School and Dayabha School? Ans Difference between Mitkshra & Dayabha ga School: The main points of differences between the Mitakshra and Dayabhaga School are as follows: (1) Under the Mitakshra the right to property of the coparcener arises by brith, hence the off-springs are co owner with the father in ancestral property whereas under the Dayabhaga School the right to property arises after the death of the last owner. Hence the off-springs have no right to ancestral property during fathers life time. Under the Mitakshra the father has the restricted power of alienation of ancestral property, whereas the father has the absolute power of alienation of ancestral property under the Dayabhyaga School. Under the Mitakshra, the off spring can ask for partition of the joint family property even against father, whereas under the Dayabhaga the off spring cannot demand partition against the father. The interest of a member of joint family under the Mitakshra, on his death would pass to other members by survivorship, while a under the Dayabhaga, the interest of a member, on his death, would pass by inheritance to his heirs namely-widow, son and daughters. Under the Mitakshra, member of joint family cannot dispose of their undivided shares, while under Dayabhaga any member of joint family may sell or give away his undivided share. Under the Mitakshra, inheritance is governed by the rule of consanguinity i.e. blood relationship, whereas under the Dayabhaga inheritance is governed by the rule of religious efficacy i.e. offering of Pindas.
(2)
(3)
(4)
(5)
(6)
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(7) (8)
Under the Mitakshra cognates are postponed to agnates, but under the Dayabhaga, some cognates like sisters son are preferred to many agnates. Under the Mitakshra-Doctrine of factum valet is recognized toa very limited extent while under the Dayabhaga the Doctrine of factum valet is fully recognized. The Mitakshra is an orthodox school, while the Dayabhaga is a reformed school. The Mitakshra School is based on commentaries whereas Dayabhaga is based on Digests.
(9) (10)
Q. 13- What are the requisites of a valid gift in Hindu Law? State the nature and extent of right of the father to dispose of his separate property by way of gift. Whether a gift may be made in favour of unborn person? Ans The provision of gift under Hindu Law is governed by provisions of T.P.Act 1882 in this regard. S -122 of T.P. Act defines Gift as follows: Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor, to another called donee and accepted by or on behalf of donee. Acceptance when to be made: Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. Thus requisites of valid gift are (i) Donor (ii) Donee (iii) Subject matter of gift (iv) Transfer of any kind of property without consideration (v) Acceptance of property (vi) Formalities. (i) (ii) Donor: Donor must be a major and sound minded person having absolute ownership on subject matter of gift. Donee: Donee may be any person i.e. minor, mentally or physically disabled person or in some circumstances even an unborn person.
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(iii) (1) (2) (3) (4) (5) (6) (7) (iv) (v)
Subject matter of gift: The following property may validly be disposed of by gift Separate or self acquired property of a Hindu whether governed by Mitakshara or Dayabhaga law. Stridhana i.e. womans absolute property. Impartible property, unless prohibited by custom or term of the tenure. Interest of a coparcener under Dayabhaga School The whole of the ancestral property, by father under Dayabhaga law. A small portion of the property inherited by a Hindu widow, may be gifted to her daughter or her son-in-law at the time of marriage. Movable property inherited by a widow governed by Mayukha Law. No consideration: The transfer of title in property must be made by one person to another, without any kind of consideration for the same. Acceptance: Subject matter of gift must be accepted by donee himself or by any person on his behalf during the lifetime of the donor and while he is still capable of giving the property by way of gift. Formalities: Under S -123 of T.P. Act for the purpose of making gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. In R.N. Dawar Vs M.G. Ram Savan it was held that U/S -123 of T.P. Act, a gift of immovable property cannot pass any title to the donee, if it is not registered. Any oral gift of immovable property cannot be made in view
(vi)
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of the provision of S -123 of the Act, mere delivery of possession without written & registered instrument cannot confer any title. When gift may be suspended or revoked? The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be nevocable wholly or in part, at the mere will of the donor is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (Save for want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cant be revoked: A Hindu, even if he is member of joint family may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary even his male issue, acquire any interest in it by birth. He can dispose of such property in any manner he likes. Thus a Hindu, whether governed by Mitakshara or Dayabhag School, may dispose of by gift his separate or self acquired property, subject to contain cases to the claim for maintenance of those whom he is legally bound to maintain. There is no other restriction on the power of a Hindu to make gift of his separate property. Gift to unborn person: Under Hindu Law a gift could not be made in favour of an unborn person who was not in existence at the date of the gift but under the provisions of S 13 of T.P. Act, a gift can be made in favour of unborn person by satisfying some conditions laid U/S -13 of T.P. Act 1882. Q. 14 Make distinction between (1) (2) Joint Hindu family and coparcenary. Mitakshra coparcenary & Dayabhaga coparcenary.
Ans Joint Hindu Family and coparcenary

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The points of differences are as follows: (1) The joint Hindu family is unlimited both as to number of persons and vemotness of their descendants from the common ancestor, whereas coparcenary is open to only certain members of joint Hindu Family. Coparceary comes to an end with the death of the last surviving coparcenor, whereas the joint family continues even after his death. Every coparcenary is joint family or a part of it but every joint family is not a coparcenary neccessrly. A joint family is a bigger institution covering in its fold all the members descended from a common ancestor, but a coparcenary is a narrow body which consists of persons who acquire by birth an interest in joint family property.
(2) (3) (4)
(2)
Difference between Mitakshra Coparcenary & Dayabhaga C oparcenary: The coparcenary under the Dayabhaga is totally different from the Mitakshra coparcenary. Some main are:
(1) (2)
Under the Mitakshra law off-springs acquire an interest by birth, whereas in Dayabhaga they do not acquire an interest by birth. under Mitakshra all the coparceners hold the property jointly and no one has any defined share whereas under the Dayabhaga each coparcener holds a determined share. Under the Mitakshra there is unity of ownership among the coparceners, while there is no such unity of ownership under the Dayabhaga. The father under Mitakshara cannot dispose of the property without the consent of the coparceners, whereas under Dayabhaga such disposition is possible
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(3) (4)
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(5) (6)
Under Mitakshara, the oparceners cannot ask for an account of the joint family property, but under Dayabhaga they can do so. Under Mitakshara off springs have right to demand for partition, while under Dayabhaga there is no such right during life time of the father.
Q. 15- Write short notes on the following topics: (1) Doctrine of factum valet (2) Restitution of conjugal right (3) Maintenance pendent late and expenses of proceedings (4) Permanent alimony and maintenance (5) Sapinda Relationship (6) Cruelty as a ground of divorce (7) Alternate relief in divorce proceeding (8) Divorce by mutual consent (9) Duty of court U/S -23 of H.M. Act (10) Ceremonies for a Hindu marriage (11) Concept of irretrievable break down of marriage (12) Custody of a minor child. Ans (1) Doctrine of factum valet: In certain cases it is presumed that the necessary rites and ceremonies have been followed to constitute a valid marriage. This is known as doctrine of factum valet. Under the old Hindu Law, where the factum of marriage is established the doctrine of factum valet was applied and a valid marriage is presumed. Even after passing of the H.M. Act 1955, such a presumption can be drawn in appropriate cases. Living for a long period as husband and wife is recognized as valid marriage. This doctrine of factum valet is recognized by both schools of Hindu Law i.e. in Dayabhaga and Mitakshara. Even today it is provided U/S -29 of H.M. Act as savings provisions. It says A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not deemed to be invalid or even it shall not be invalid by reson only of the fact that the parties thereto belonged to same gotra or pravava or belonged to different religions, castes or subdivision of the same caste. Thus a fact cannot be altered by a hundred texts i.e. when an act is performed, even against the directive principles laid down in standard articles, shall be valid and will have legal and binding effect. (2) Restitution of Conjugal Rights: S -9 of H.M. Act 1955 deals with Restitution of Conjugal Rights. It says When either the husband or the wife
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has without reasonable excuse withdrawn from the society of other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights. Then court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Expen: Where a question arises whether there has been reasonable excuse for withdrawal from the society of other the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. The foundation of the right to bring a suit for restitution of conjugal right is the fundamental rule of matrimonial law. One spouse is entitled to the society and comfort consortium of the other spouse. Where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the court should grant a decree for restitution. The object of restitution decree is to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The courts in their decisions have held the following valid grounds for separate living, disentitling petitioner spouse to a decree for restitution of conjugal rights: 1. 2. 3. 4. 5. 6. 7. Grossly indecent behaviour. Extravagance of living on the part of wife affecting the financial position and prospect of the husband. Persistence in a false charge against the respondent of having committed an unnatural offence. Refusal of marital intercourse without sufficient reason. Apprehension of violence due to development of insanity in the petitioner. Agreement to live separate. Imputation of unchastely by the husband persistently.
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8.
Misconduct approaching cruelty. Thus before passing a decree for restitution of conjugal rights, it is duty of the courts to be satisfied that respondent has without reasonable excuse, with drawn from the society of the petitioner and there is no legal ground why the decree should not be passed.
(3)
Maintenance pendent lite & expenses of proceedings: S -24 of the H.M. Act 1955 deals with maintenance, pendent lite & expenses of proceedings. It says where in any proceeding under this Act, it appears to the court that either the wife or the husband, as the case may, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such sum as having regard to the petitioners own income and the income of the respondent it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall as far as possible, be disposed of within 60 days from the date of service of notice on the wife or the husband, as the case may be. In Siddharth Vs Smt. Manta Bai AIR 2007 M.P. High Court held Maintenance pendent lite can be granted without first making an effort of reconciliation U/S -23 (2). Similarly in Mrs. Arpana Sharma Vs Rajinder Sharma AIR 2005 P & H High Court has held that Right to claim maintenance and expenses during pendency of proceeding under H.M. Act is a special right, irrespective of result of main petition for any relief covered by sections 9 to 13 of the Act.
(4) 1.
Permanent alimony and maintenance: S -25 of the H.M. Act 1955 with deals. It says: Any court exercising jurisdiction under this act may at any time of passing any decree or at any time subsequent thereto, on application made to it for
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the purpose, by either the wife or the husband as the case may be, order that the respondent shall pay to applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the respondents own income and other property of the applicant, the conduct of parties and other circumstances of the case, it may seem to the court to be just and any such payment may be secured, if necessary by a change on the immoveable property of the respondent. 2. If the court is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-sec(1) it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. If the court is satisfied that the party in whose favour an order has been made under this section has remarried or if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just. In R.C.R. Daya Vs R.R.C Daya AIR 2005 the S.C held that The wife, deserves to be granted maintenance U/S -25 of the Act, even though a decree declaring the second marriage of wife as null and void has been granted. In S.S. Nandanvankar Vs S.R Nandanvankar AIR 2005 Bombay H.C held that Where wife is trying to take advantage of her wrong or fraud to harass the husband, no order of permanent alimony can be passed in her favour. In Babu Shahab Vs Leela Bai AIR 2004 Bombay H.C held that an illegitimate wife can or faithful mistress also claim maintenance U/S -25 of H.M Act 1955. (5) Sapinda Relationship: S -2(f) of the H.M. Act deals with (1) Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
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3.
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(inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. (2) Two persons are said to be Sapindas of each other, if one is lineal ascendant of the other within the limits of Sapinda relationship or if they have a common lineal ascendant, who is within the limits of Sapinda relationship with reference to each of them.
Explin: For the purpose of this clause 2(f) relationship includes: (i) (ii) (iii) relationship by half or uterine blood as well as by full blood. illegitimate blood relationship as well as legitimate. relationship by adoption as well as by blood. And all terms of relationship in this clause shall be construed accordingly. A marriage between two persons who are related to each other within Sapinda relationship would be void U/S -11 of H.M. Act 1955. The person procuring a marriage in contravention of this provision would be punishable U/S -18(b) of H.M. Act 1955 and shall be punished with S.I. upto one month or fine upto Rs. 1000/- or with both. (6) Cruelty as a ground of divorce: The marriage Laws (Amendment) Act 1976 introduced-cruelty as a ground of divorce in section 13(u). The word cruelty has not been defined by the act. But through S -498 A of I.P.C, a new dimension has been given to the concept of cruelty. This section 498 A explain cruelty. It says cruelty means any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave in jury or danger to life, limb or health of the woman. The cruelty may either be physical or mental physical cruelty will necessarily constitute a violence of certain degree and such degree of violence, should be sufficient to constitute legal cruelty.
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On the other hand, mental cruelty denotes a set of circumstances which though not fall short of actual physical violence, may be act of cruelty. It is difficult to observe as to what amounts to cruelty to justify it as a ground for action in all cases. So each case has to be judged on its own facts and circumstances having regard to the conduct of the parties. In Vimlesh Vs Prakash Chandra court held that A solitary incident of beating resulting in minor injuries cannot be said as an act cruelty, while in Sulekha Vs Kamala court held that even a single act of violence if grossly violent, amount to cruelty. Regarding cruelty as a ground of divorce in Rajan Vasant Vs Sobha Rajan AIR 1995 Bombay H.C held that cruelty contemplated by section 13 (1) (i) (a) is a conduct of such type that petitioner cannot reasonably be expected to live with the respondent or that it has become impossible for the spouse to live together. Some acts of cruelty, which may be ground of divorce are (1) (2) (3) (4) (5) (7) False accusations of adultery or unchastity. Persistent refusal to have marital inter course. Prosecution of a spouse by the other spouse of a false criminal charge. Persistent charges of immorality. False, defamatory, malicious, baseless and unapproved allegations. Etc. Alternate relief in divorce pr0ceeding: S -13A of H.M. Act 1955 provides Alternate relief in divorce proceedings. It says In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so for as the petition is founded on the grounds mentioned in clauses (ii), (vi) & (vii) of S -13 (1), the court may, if it considers just so to do having regard to circumstances of the case, pass a decree for judicial separation, instead of a decree for divorce. In respect of grounds mentioned in clauses (ii), (vi) and (vii) the court would grant relief by way of divorce, if the court is satisfied that the grounds are fully established. These are conversion to another religion, adoption of
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other religious order by renouncing the world respondent not being heard of as alive for seven years. In respect of the other grounds for divorce in section 13 the court has a discretion to grant a decree for judicial separation instead of decree for divorce it is seen from sec 23, the court is bound to grant relief if the grounds for granting the same are established, unless. Any of the absolute bars mentioned in S -23 (1) are present. Under the act, there is no general discretion vested in court to withhold relief. But in petition for divorce, the court is vested with a discretion in respect of the grounds for divorce, other than those mentioned in clause (ii) (vi) & (vii) of S -13 (1) and even though the ground for relief is established it may, having regard to the facts and circumstances of the case, grant relief only by way of judicial separation. (8) (1) Divorce By Mutual Consent: S -13B of H.M. Act 1955 deals with Divorce by mutual consent. It says Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce, may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of marriage caws (Amendment) Act, 1976 on the ground (1) that they have been living separately for a period of one year or more (2) that they have not been able to live together and (3) that they have mutually agreed that the marriage should be dissolved. On the motion of both the parties made not earlier than 6 months, after the date of presentation of petition and not later than 18 months after the said date, if the petition is not withdrawn in the mention, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. In Suvestha Devi Vs Om Prakash AIR 1992 the S.C held the period of living separately for one year must be immediately preceding the presentation of petition. The expression living separately connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be
(2)
living as husband and wife. The parties should have no desire to perform marital obligations. The period of 6 to 18 months time provides an opportunity to the parties to reflect on their more and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The mutual consent of both the parties must be free consent. i.e. not influenced by mistake, fraud, undue influence, coercion or misrepresentation. (9) Duty of court U/S -23 of H.M. Act: S -23 of the H.M. Act 1955 contains some vital clauses of considerable importance and consequence relating to the power and duty of court in the matter of granting any of the reliefs recognized under the Act, the court must be satisfied That the grounds for the relief exists, and That in granting of such relief there is no bar of any kind mentioned in section. The language employed in S -23 (1) clearly shows that clauses (b) to (c) and the latter part of the clause (a) lay down certain absolute bars to granting of any relief under the Act. The absolute bars prescribed by the section 23 are (1) (2) (3) (4) (5) That the petitioner has not in any way taken advantage of his or her own wrong or disability for the purpose of relief. There is no connivance between the parties or condo nation of the acts complained of Where a divorce is sought on mutual consent, such consent has not been obtained by mistake, fraud or undue influence, this preset taken, coercion etc. The petition except one U/S -11 regarding void marriage is not presented or prosecuted in collusion with the respondent There is no unnecessary or improper delay in initiating the proceedings
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(a) (b)
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(6)
There is no other legal ground why relief should not be granted. Thus S -23 lays down certain principles for the guidance of the court and also the conditions on satisfaction of which, the court may pass a decree. S -23(2) enjoins upon the court a duty to make every endear our in the first instance to bring about reconciliations between the parties in every case where it is possible to do, so consistently with the nature and circumstances of the case.
(10)
Ceremonies for a Hindu marriage: The H.M. Act 1955 retains the provisions relating to performance of ceremonies for a lawful marriage. It gives statutory recognition to the marriage under the Hindu law as a sacrament. Section -7 of the act provides for the ceremonies of a Hindu marriage as follows: A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the saptapadi i.e. taking of seven step by the bride groom and the bridle jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. The section speaks of solemnization of marriage in accordance with the customary rites and ceremonies. The word Solemnized means to celebrate the marriage with proper ceremonies. Customary rites of either party to thereto. In Asrabai Vs Dhondhiram it was held that where a marriage is performed, according to customary rites and ceremonies of one party which did not in dude Saptapadi, even though according to the customary rites and ceremonies of other party Saptapadi was an essential Ceremony, marriage, is valid. In Jyoti Saha Vs R.K. Pandey AIR 2000 Kolkata High Court held that if the Saptapadi and even Kanyadan were not performed, marriage cannot be said to be Solemnized according to Hindu rites. So that marriage shall be void-ab-initio. So at least either Saptpadi or kanyadan must be performed.
(1) (2)
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(11)
Concept of irretrievable break down of marriage: Foundation of a sound marriage is tolerance, adjustment and respecting one-another. Tolerance to each-others fault to a certain bearable extent has to be inherent in every marriage. A too technical and hyper sensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with deal husbands and ideal wives. In S.S. Kohli Vs Sushma Kohli AIR 2004 Apex court held that on the ground of irretrievable break down o marriage, the court must not lightly dissolve a marriage. It is only in extreme circumstances that the court may use this ground for dissolving a marriage. In Chandrakala Vs Dr. S.P. Trivedi 1993 A husband filed a petition for divorce on the ground of cruelty at the hand of wife, alleging her undesirable association with some young boys. The wife in reply made allegation of adultery against husband with a young lady doctor. The trial court found that the behaviour of wife was not that of a Hindu married woman. But court did not granted divorce. So husband preferred appeal in High Court, which granted divorce on the ground of cruelty. Further in appeal preferred by wife apex court maintained the order of divorce of High Court, but ordered for the deletion of findings in judgments of both courts regarding the ill behaviour of the wife. In Jyachandra Vs Aneel Kaur AIR 2005 the S.C held that In matrimonial cases cruelty is a conduct in relation to or in respect of matrimonial duties and obligations. The cruelty may be mental or physical, intentional or unintentional. It may be mentioned here that trend of various judicial pronouncements is that if any of the grounds for dissolution of marriage does exist, court lean in favour of severance of matrimonial ties. But at the same time it has been observed that mere irretrievable breakdown of a marriage cannot lead to disruption of marital ties.
(12)
Custody of minor child: Welfare of the child is the well-settled principle in relation to custody of a child. S -26 of H.M. Act provides for custody of children and declares that in any proceeding under the H.M. Act, the court
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may makes, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible. Moral and ethical welfare of the child must also weigh with the court as well as its physical well being. In Saraswati bai Vs Vasanji 1941 Bombay H.C stated It is not the welfare of father, nor the welfare of mother, that is paramount consideration for court. It is welfare of minor and the minor alone which is the paramount consideration. In Rosy Jacob Vs A. Jacob 1973 Apex court held that the object and purpose of Guardians and wards Act is not physical custody of the minor but due protection of the rights of wards health, maintenance and education. The power and duty of the court under the act is the welfare of minor. In considering the question of welfare of minor, due regard has to be given to the right of father as natural guardian, but if the custody of father cannot promote the welfare of the children, the court may refuse his guardianship. Further in S.K. Sandhu Vs H.S Sandhu 1984 Apex Court held that S 6 of the guardians and wards act constitutes father as a natural guardian of a minor son, but this provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. The expression Child U/S -26 covers both legitimate and illegitimate child. The rule of law of five years is a guiding factor, but the pivotal factor is the benefit and well being of the minor. Q. 16- Under the modern Hindu law marriage is neither a sacrament nor contract. Elaborate. Ans Marriage as Sacrament Under traditional Hindu Law Marriage is one of the essential sacraments for every Hindu. According to Manu He is only a perfect man who consists of wife, and off springs. Hindus conceived of their marriage as a union primarily meant for the performance of religious and spiritual duties. Such a marriage cannot take
place without the performance of sacred rites and ceremonies. Secondly a sacramentary union implies that it is a permanent union. Marriage is a tie, which once tied cannot be untied. This implies that marriage cannot be dissolved. Thirdly, the sacramental union means an eternal union. Marriage as a contract The concept of traditional Hindu Marriage has undergone a radical change and it has lost its religious sanctity under Hindu Marriage Act 1955. The Act has an overriding effect on all old customs & usage of all sects of Hindus. Section 5, 11, & 12 deal with marriage S -5 deals with conditions for valid Hindu Marriage. Under the provisions of S -5 of H.M. Act as parties to marriage must be major and sound minded and neither party should be incapable of giving a valid consent for their marriage. U/S -11 of the Indian contract Act 1872 for a valid c ontract parties to contract must b major and sound minded and contract must be made with free consent of parties. Thus S -5 of the H.M. Act 1955 compile with the requirements of S -11 of contract Act 1872. Further Section 11 & 12 of H.M. Act 1955 deal with void and voidable marriage, which is just like void & voidable contract. Thus in terms of section 5, 11 & 12 of the H.M. Act now the Hindu marriage is a contract. Neither a Sacrament nor contract S -7 of the Hindu Marriage Act 1955 deals with ceremonies for a Hindu Marriage. It provides that (1) (2) A Hindu Marriage must be solemnized in accordance with customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the Saptapadi that is the taking o seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage become complete and binding when the seventh step is taken.
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Here the term fire is not used in its general sense. The fire lit at the time of marriage with the enchanting of vedic mantras becomes sacred and parties to marriage must take seven steps around the sacred fire. In B. Shanker Lokhande Vs State of Maharashtra AIR 1965 the S.C has clearly held that the word Solemnized means marriage celebrated with proper ceremonies and in due form. Therefore it is follows that unless the marriage is celebrated and performed with proper ceremonies and in due form, it cannot be said to have been solemnized. Thus under modern Hindu law The Hindu Marriage has semblance of both Sacrament as well as contract. So it can be under modern Hindu law marriage is neither sacrament, nor a contract. Sec -5, 11, 12 & 13 have damaged its sacramental character, but S -7 has preserved its traditional sacramental character. Q. 17- Is Hindu Idol a Juristic person? What is position and power of shibait in matter of Idol? Ans Legal position of Idol Under Hindu law an idol is considered as a sacred legal entity and an ideal personality possessing proprietary rights. In Gopal Dutt Vs Baburam AIR 1936 the P.C had held that Idol is a legal person and is also a judicial person. It can institute a suit and a suit can be brought against it. Its interest is taken care of by a natural person as a minors guardian. In Ram Jankijee Deities Vs State of Bihar AIR 1999 the S.C has held that Hindu law recognizes Hind idol as a judicial person being capable in law of holding property by reason of the Hindu Shastras following the status of a legal person in the same way as that of a natural person. Legal position and power of Shibait
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Shibait is a natural person who exercises the rights vested in the idol and in fact he is the guardian of the idol. He can bring suit on behalf of the idol and a suit can be brought against him the possession of the property dedicated to the idol remains in the hands of the Shibait. The Shibait enjoys extentive powers with respect to management and possession of the debaters properties. The Shibait has power of alienation of property for any legal necessity or for the benefit of the properties vested in idol. The Shibait is the human ministrant and custodian of the idol, as its earthly spokes man, its authorized representative entitled to deal with all its temporal affairs and manage its property. He can incur debts for the worship of idols, for repair of temple or for the protection of the belongings of the temple or for contesting the suit or saving the property from being sold in execution of decree. Debts can also be incurred according to needs by him. Q. 18- What is math? Discuss the legal position and power of mahant in respect of math property. Ans Math: Math is a place where persons of a particular religious community or followers thereof reside or it is place of Sanyasees where religious preachings are given and religious debates are held. The object of math is the propagation of religious belief. Mahant: Mahant is the manger of property of the math and religious and spiritual head of the math. Position and power of Mahant Mahant acts in two ways one as religious Gure and the other like a Shibait of idol. The performance of religious acts, worshipping of idols and the execution of the traditional religious activities are the responsibilities of the Mahant. All the properties of the institution vest in him. He keeps the property of the institution as a trustee. The Mahant can use and retain the usufruct so long he remains the Mahant. He possesses very wide the property of math. The only restriction upon his right is that he cannot spend the money for an immoral purpose or for his personal use.
He is the manger of math and guardian of the idol. He can use the property, according to tradition of math. He is custodian of property, but not trustee in English sense, still he is responsible like a trustee with respect to the administrative powers relating to property of math. In Viram Prakash Vs Narendra Das AIR 1966 the S.C held When the maths property goes in the hands of a trespasser, the Mahant for the recovery thereof can file a suit and spend money for its recovery. He can mortgage the property. He can go to extent of alienation or even selling of property in case of legal necessing. He can also alienate the property for benefit of the math properties. He can appoint his successor in his life time. Q. 19- Examine the expression The adopted son/child must bear the reflection of a son/child and comment upon statement. Ans The position of an adopted child By adoption a child is uprooted from the natural family and transplanted in the new family. the adopted child is deemed to have merged in adoptive family. He acquires all the rights and privileges with respect to marriage, inheritance and partition in the adoptive family. Section 12 of HA & MA 1956 deals with the effect of adoption. It says An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the tie of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by adoption in the adoptive family. In Kesharpar Vs state of Maharashtra 1981 the Bombay H.C held that The adoptive child deemed to be the child of adopter for all purposes. His position for all purposes and for all intents is that of a natural born son. He has same rights, privileges and the same obligation in the adoptive family. In short the adoptive child will inherit in the adoptive family, as if he is born in the adoptive family. Conversely all persons are entitled to succeed to him, as if he is natural born in adoptive family. He can claim maintenance
against his adoptive parents or against any person, against whom a natural child, a can claim maintenance. Conversely he is liable to maintain all those persons whom a natural child has an obligation to maintain. As per S -15 of HA MA 1956 No adoption. Which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth. Thus once an adoption has been made in accordance with law, it cannot be cancelled and no one can destroy the rights of the adopted child. Thus the expression The adopted son must bear the reflection of a son. is absolutely right, in the light of S -12 & 15 of HA & MA 1956 and in the light of aforesaid judicial verticts. Q. 20- State briefly the essentials of a valid endowment. Or Endowment is dedication of property for purpose of religion or charity having both the subject and object certain and capable of ascertainment. In light of this statement give a critical account of the essentials of a valid endowment under Hindu law. Ans Essentials of a valid endowment The properties set apart or dedicated by way of gift or in any other legal way, for the worship of some particular deity or for maintenance of a religious or charitable institution or for benefit of public or some section of public in the advancement of religion, knowledge, commerce, health, safety or for any other object & beneficial to the mankind. Endowment may be (1) Public (2) Private (3) Religious (4) Charitable (5) Absolute or (6) Partial etc. But for all type of Endowment there are certain conditions, which are to be complied with for al valid endowment. These conditions are
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(1)
Absolute dedication: For the creation of a valid endowment it is necessary that the property is absolutely and in perpetuity dedicated for the worship of deity by the donor or the dedication is for charitable purpose. It is necessary that the donor has divested himself of the beneficial interest in the property forever. Object must be definite: For valid endowment it is necessary that the object of the dedication is definite, meaning thereby, it should be made explicit (clear) as to for which deity the dedication has been made or for what charitable purpose the bequest has been made. Property must be definite: Any endowment is not valid unless some definite property is dedicated. Any uncertainty regarding the subject matter of the bequest is fatal for its validity. Hence the subject matter of the property given in endowment must be specified. Person setting or creating the endowment should be competent person: It is necessary that the settler is major and sound minded person and not legally disqualified for creating an endowment. Endowment must not be opposed to law: An endowment created or saving the property from creditors is void or if it is made within 2 years of the insolence of the settler is also void. Where a part of the property is dedicated for performing Puja of a deity it does not give rise to a valid religious endowment. Thus we can say that Endowment is dedication of property for purpose of religion or charity having both the subject and object certain and capable of ascertainment.
(2)
(3)
(4)
(5)
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Model Q. & Ans. for Judicial Service Main Exams On Hindu Law Q.

(c) (iii) (iv)

(ii) (iii) (iv)

(2) (3) (4) (5)

(4) (5) (6) (7) (8) (9) (10)

(4) (5) (6)

Ans Joint Hindu Family and coparcenary

(2) (3) (4)

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