Hindu Law Ak. Jain PDF

Introduction
Hindu law has the most ancient pedigree of any known system of jurisprudence.
However, it is not law as understood in modem times. Hindu law is “what is followed
by those learned in the Vedas, and what is approved by the conscience o f the virtuous
who are exempt from hatred and inordinate affection” (Manusmrifi). Thus, it was a
branch o f Dharma. Hindu law was a mixture of religion and legal philosophy.
Hindu law has been described by an English author as “a mere phantom of the
brain, imagined by Sanskritists without law, and lawyers without Sanskrit”. Mayne
defined Hindu law as “the law of the Smritis as expounded in the Sanskrit commentaries
and digests which, as modified and supplemented by custom, is administered by the
court.” Today, however, a very large portion of Hindu law has been codified.
[1] SOURCES OF HINDU LAW1
The ancient sources o f Hindu law include Shruti, Smriti, Digests, Commentaries and
Customs. The modern sources of Hindu law include equity, justice and good
conscience, precedents (judicial decisions) and legislation.
\
Shruti, Smrities, etc.2
‘Shrub* (‘What was heard) are divine utterances to be found in the four Vedas (Rig -
Veda, Yajur Veda, Sama Veda and Atharva Veda), the six I edangas (appendages to the
Vedas) and the eighteen Upanishadas. ‘Smrid* or Codes (What was remembered*), like
Shruti, were handed down bv the Rsshis (sages) from generation to generation viz.
Manns/nriti. Turanas’ are Codes which illustrate the law by instances of its application.
They arc a supplement to the scriptures, and as such, constitute a fifth Veda.
1. Give th e m ain sources o f H in d u law. [Ra;. JS . 1991]

2. W hat is the im p o rtan ce o f S hruti in H in d u law? [Bihar J S . 1991]
dl
2 Hindu Law
For all practical purposes, the interpretation put on the Smritis by the
Commentaries (‘Nibandhas’) and Digests written on them forms the basis of Hindu
law. Where there is a conflict between the Vedas and the Smriti, the Vedas should
prevail. The subject of marriage has been meticulously dealt with in Smriti.
Judicial Decisions
‘Judicial decisions’ are considered as the “most fertile and practical source” of
Hindu law. However, “in applying Hindu law, the Judge should not introduce his
own concepts of modern times, but should enforce the law as derived from
recognized and authoritative sources of Hindu law i.e. Smritis and Commentaries as
interpreted in the judgments of the courts” [Sbri Krishna Singh v Mathura Ahir (1981)
3 SCC 689], However, the Allahabad High Court has pointed out that it is not well
settled that Hindu law, as administered in India, is not the shastric law, but the law
as declared by the courts [Dudb Nath v Sat Narain AIR 1966 All 315 (F.B.)].
Legislations
There are four major enactments of codified Hindu law, viz. Hindu Marriage Act,
1955 (18th May, 1955), Hindu Succession Act, 1956 (17* |une, 1956), Hindu Minority
and Guardianship Act, 1956 (25* August, 1956), and, Hindu Adoptions and
Maintenance Act, 1956 (21st December, 1956). These legislative enactments which
declare, abrogate or modify the ancient rules of Hindu law, thus form an additional
modern source of Hindu law.
By these enactments some fundamental changes have been introduced, though
a total break from the past has not been made. Thus, the Hindu Marriage Act, 1955
1. I n tr o d u c tio n
1. The ancient sources of Hindu (aw include:
(a) Shruti and Smriti.
(b) Digests.
(c) Commentaries and Customs.
(d) All of the above.
2. The modern sources of Hindu law include:
(a) Equity, justice and good conscience.
(b) Precedents (judicial decisions).
(c) Legislation.
3. Codified Hindu law includes:
(a) Statutory law.
(b) Sacred law.
(c) Both (a) and (b).
(d) Customary law.
4. Mark the incorrect statement:
(a) The codified Hindu law overrides all rules and customs of Hindu law.
(b) A person will be governed by custom if he is able to establish a custom applicable
to him, even though such a custom is in derogation to codified Hindu law.
(c) In matters of prohibitions on marriage on the ground of blood relationship or
affinity, ceremonies of marriage, and, divorce, customs are not allowed to override
the statutory law.
(d) It has been an established rule of Hindu law th at custom overrides sacred law.
Introduction 3
abolished bigamy legally and introduced divorce, which was as yet unknown to
Hindus (except certain customary modes of divorce). However, the law relating to
Hindu joint families, their partition and re-union, as well as the law relating to wills,
gifts and religious usages and institutions (in so far as it is not abrogated or modified
by any other Act) continues to be derived from the ancient sources o f Hindu law.
Justice, Equity and Good Conscience

In the absence o f any specific law in the Smriti, or in the event o f a conflict between
the Smritis, the principles of equity, justice and good conscience would be applied.
In other words, what would be most fair and equitable in the opinion of the Judge
would be done in a particular case. Thus, a rule o f English law founded on public
policy that a murderer is to be disqualified from succeeding to the property of the
victim found expression in the Hindu Succession act, 1956.
Customs and Usages

Custom is one o f the most important sources of Hindu law. A custom may be
defined as ‘a habitual course of conduct generally observed in a community’. In
Sanskrit, it is called sadacbara which means ‘the approved usage’. It is, thus, a rule
which, as a result o f a very long usage, has obtained the force of law in a particular
community or in a particular district. Customs modify and supplement the written
law. “Immemorial custom is transcendent law” (Manu).
As per Sec. 3 of the Hindu Marriage Act, “custom” and “usage” signify any
rule which having been continuously and uniformly observed for a long time, has
obtained the force of law among Hindus in any local area, tribe, community, group
or family. Provided that the rule is certain and not unreasonable and opposed to
public policy and provided further that in the case of a rule applicable only to a
family it has not been discontinued by the family. By far the largest area o f custom
in personal law of the Hindus is covered by caste or community custom. Most of
the Punjab customary law is of this nature.
Thus, customs may be broadly divided into (i) local customs (ii) class customs,
and (iii) family customs. A valid custom must satisfy the following requirements:
(a) It must be ancient. It need not be of immemorial antiquity, but a long
usage is absolutely necessary.
(b) It must be certain and uniform.
(c) It must be reasonable i.e. should be in accordance with the rules o f equity,
justice and good conscience.
(d) It must be continuous.
(e) It must not be opposed to public policy.
(f) It must not be opposed to any law. It is essential that it must not be
forbidden by any act of the legislature.
A custom cannot be enlarged by parin’ of reasoning, since it is the usage, and not
the reason underlying the custom, that makes the law. A custom should be established
before die court by means of clear and reliable evidence. A court takes judicial notice
of a custom if such custom is so clearly established that no furdier evidence o f its
existence is necessary viz. when it is repeatedly brought to the notice o f die court.
An important aspect o f Hindu law is that a person will be governed by
custom if he is able to establish a custom applicable to him, even though such a
4 Hindu Law
custom is in derogation to Hindu law. Although the codified (statutory) Hindu law
overrides all rules and customs of Hindu law, yet such has been the impact of custom
that in certain areas custom has been expressly saved. Thus, in matters of prohibitions
on marriage on the ground of blood relationship or affinity, ceremonies of marriage,
and, divorce, customs are allowed to override the statutory law [Sec. 5 (iv) and (v),
Sec. 7 and Sec. 29 (2) of Hindu Marriage Act, 1955], Further, it has been an
established rule of Hindu law that custom overrides sacred or sbastric law.
[2] SCHOOLS OF HINDU LAW3
Hindu law has two main schools: the Mitakshara school and Dayabhaga school. The
Mitakshara (‘a concise work’) is a commentary on the code of Yajnavalkya and is
written by Vijnaneshwar. The Dayabhaga is a digest of all the codes and is written
by Jimutavahana. The Mitakshara is the orthodox school, whereas the Dayabhaga
is a reformist school of Hindu law.
The Dayabhaga prevails in Bengal and North-East States and it has no sub
schools. The Mitakshara prevails in rest of India and it has four sub-schools, the
3. Write a sh o rt note on: M itak sh ara an d D a y ab h ag a Schools. [Bihar J.S. 1991}

[A\ote. For a distinction between the two Schools, see under the ‘Hindu Law of
Succession’.]
5. In respect of family relations, the law applicable in India is:

(a) Secular law in India.
(b) Statutory law.
(c) Religious law.
(d) Personal law of the parties. [Uttaranchal PCS (J) (Prel.) 2002]
6. Under the Constitution of India, all aspects of family law are in the:
(a) Union list.
(b) State list.
(c) Concurrent list.
(d) None of the above. [Uttaranchal PCS (J) (Prel.) 2002]
7. The Hindu Marriage Act, 1955 came into force on:
(a) 1st January, 1955.
(b) 1st May, 1955.
(c) 26th January, 1955.
(d) 18th May, 1955. [Uttaranchal PCS (J) (Prel.) 2002]
8. As per Sec. 3 of the Hindu Marriage Act, "custom" and "usage" signify any rule:
(a)
Which having been continuously and uniformly observed for a long time, has obtained
the force of law among Hindus in any local area, tribe, community, group or family.
(b) Which is certain and not unreasonable.
(c) Which is not opposed to public policy.
9. Hindu law has two main schools:
(a) Mitakshara school and Dayabhaga school.
(b) Mitakshara school and Mithila school.
(c) Dayabhaga school and Benaras school.
(d) Dayabhaga school and Dravida school.
Introduction 5
Bcnaras (Northern and North-west), the Bombay (Western), the Mithila (Bihar),
and, the Dravida or Madras school (South India). Although the Dayabhaga prevails
in Bengal, the Mitakshara is also regarded there, as a very high authority on questions
in respect whereof there is no express conflict between the two. Likewise, the
Dayabhaga is also referred to sometimes in a case governed by Mitakshara law, on
points on which the latter is silent.
Where a Hindu family migrates from Maharashtra (where the Mitakshara law
prevails) to Bengal (where the Dayabhaga prevails), the presumption is that the
family continues to be governed by the Mitakshara law unless it is shown that the
family has abandoned the law of the province of its origin (i.e. Maharashtra) and
adopted the law o f die province where it has settled. Thus, the Hindu law is not a
lex loci i.e. a local law, but it is, in every sense, a personal law.
In the modem Hindu law, schools have relevance only’ in the respect of the uncodified
Hindu law, they have lost all their relevance in regard to the codified Hindu law
[3] WHO ARE HINDUS?4
The Hindus constitute the majority community in India. Till this day there is no
precise definition of the term “Hindu” available either in any statute or in any
judicial pronouncement. In its ambit are included [Sec.2, Hindu Marriage Act, 1955]:
(a) Any person who is a Hindu by religion in any of its forms or development,
including a Virashaiva, a Ungayat or a follower of the Brahmo, Prarthana or
A ry a Samaj.
(b) All those people who are Hindus, Sikhs, Jains and Buddhists by rtligton (including
converts and reconverts to Hinduism, Sikhism, Jainism or Buddhism).
A person can become Hindu by conversion as well as re-conversion. No
formal ceremony of purification is necessary for a person becoming a Hindu;
an intention to become a Hindu, accompanied by conduct unequivocally
expressing that intention would be sufficient evidence o f conversion.
(c) /Ml those people who are bom of Hindu, Sikh, Jain or Buddhist parents, Le. Hindus
by birth (in case only one parent is a Hindu, then the child must be brought up as
a Hindu). The children of such parents may be legitimate or illegitimate.
(d) All those persons who are not Muslims, Christians, Parsis or Jews, who’re
domiciled in India and to whom no other law is applicable.
The H. M. Act will not apply to Hindus who have renounced the Hindu religion
and have become converts to some other religion. If after the birth of a child, one
or both of the parents become convert to another religion, the child will continue to
be a Hindu child, unless, in the exercise of parental right the child is also converted
into the religion in which the parent or parents have converted. The same will be the
position if a child is brought up as a Hindu after the death of his Hindu parent.
The Hindu Marriage Act does not apply to the Scheduled Tribes (even if Hindus)
unless the Central Government by notification in the Official Gazette directs so.
Most of the Scheduled Tribes are still governed by customs.
4. W ho is a H in d u ? 1% : J.S. 1991/1994\
6 Hindu Law
[4] EXTENT AND APPLICATION OF THE H. M. ACT, 1955
Overriding Effect of the Act

Sec. 4 o f the Act provides that this Act shall have an overriding effect. It seeks to
repeal all existing laws which are inconsistent with the Act, whether such laws are
in the shape of ancient texts, customs or legislations. However, in certain areas
custom has been expressly saved. Thus, in matters of prohibitions on marriage on
the ground of blood relationship or affinity, ceremonies of marriage, and, divorce,
customs are allowed to override the statutory law. Further, a marriage between
Hindus solemnized under the Special Marriage Act is no! affected by the H. M. Act.
The Act is not retrospective in operation i.e. it applies only to cases coming
into existence after the passing o f this Act. It may be noted that an Act which deals
with rules of substantive law cannot be construed to have retrospective operation,
unless it is expressly so stated.
Territories to which the H. M. Act Extends

Although die Act provides that it shall extend to the whole o f India, except the
State of Jammu and Kashmir, it has now been made applicable to that State by
appropriate legislation. It is also provided that the Act also applies to Hindus who
are domiciled in the territories to which the Act extends, but who are outside such
territories (i.e. outside India).*1
10. Mark the incorrect statem ent:

(a)The Dayabhaga prevails in Bengal and North-East States and the Mitakshara
prevails in rest of India.
(b) The Mitakshara school has four sub-schools, the Benaras, the Bombay, the
Mithila and the Dravida or South India.
(c) In the modem Hindu law, schools have relevance only in the respect of the uncodified
Hindu law; they have lost all their relevance in regard to the codified Hindu law.
(d) None of the above.
11. Which one of the following is NOT included in the term 'Hindu' used in the Hindu
Marriage Act, 1955?
(a) Sikhs.
(b) Jains.
(c) Parsis.
(d) Buddhists. [Uttaranchal PCS (J) (Prel.) 2002]
12. The following followers are "Hindu" as per Sec. 2 of the Hindu Marriage Act, 1955:
(a) Hindu.
(b) Buddhists and Jains.
(c) Sikh.
13. The Hindu Marriage Act does not apply to
(a) Scheduled Tribes (even if Hindus).
(b) Scheduled Tribes (even if Hindus) unless the Central Government by notification
in the Official Gazette directs so.
(c) Buddhists.
(d) Sikhs.
Hindu Law of Marriage
[1] CONCEPT OF HINDU MARRIAGE: SACRAMENT OR CONTRACT5
Hindus have always considered their marriage as a sacrament (samskaru), which has the
implication that it is permanent, indissoluble, eternal (i.e. valid not merely in this life but
in lives to come), and holy union (Le. performance of religious ceremonies is essential).
Wife is ardhanguu', dlmrmapatni (partner in the performance t>f spiritual as well as secular
duties) and sahadharmini. The Calcutta High Court once observed that a Hindu marriage
is “more religious than secular in character” (Manmohini v Basant Kumar).
A Hindu marriage is unlike a Muslim marriage, which only requires offer and
acceptance. Further, unlike Muslim law, the only purpose of Hindu marriage is not
to beget children and get them legitimated; it is a holy union to perform religious
duties. However, in modern Hindu law, marriage has become not only monogamous
but also a dissoluble union. To a great extent it has ceased to be a sacramental
union, though it is doubtful whether it has become a full-fledged contract. It has
a semblance of both.
It has a semblance of a “contract” as consent is of some importance (though
consent is not an essential aspect of Hindu marriage, thus, if consent obtained by
force or fraud the marriage is voidable and not void; similarly, a child marriage is a
5. D e fin e th e n a tu re o f H in d u m a rria g e u n d e r H in d u law. W h a t a re th e

ch aracteristics o f sacram en tal m arria g e a m o n g H in d u s? H o w far th e s e have
b een affected by the H in d u M arriage Act, 1955?
[U P. P a ' (J) I992\1 [Ddhi JS. 1990]
Is it co rrect to say th a t m arriage has n o t re m a in e d a sa c ra m e n ta l m a rria g e a n d
has also n o t becom e co n tract u n d er the H . M . Act?
1U.P. P a (J) 1997] [Bibar J.S. 1991]
[?1
8 Hindu Law
valid marriage under Hindu law while under the Contract Act, the contract of a minor
is void). Further, to the extent that marriage is a gift (kanyadati), it is also a contract.
In Anjona Dasi v Gbose (6 Bcng. L.R. 243), the Calcutta High Court observed that suits
relating to marriage deal with that which in the eye o f the law must be treated as a
civil contract, and important civil rights arise out of that contract.
It has a semblance of a “sacrament” as in most marriages a sacramental
ceremony is still necessary. The concept of a Hindu marriage as a sacrament continues
to exist even after the enactment of the Hindu Marriage Act. This concept is not,
in any way, inconsistent with the provisions of the Act, which has merely laid down
certain conditions for a valid Hindu marriage and certain grounds for obtaining
judicial separation and divorce. However, the addition of new grounds o f divorce
(breakdown and mutual consent) has created a view that the Hindu concept of
marriage as a sacrament has undergone change over the years.
[2] FORMS AND CEREMONIES OF MARRIAGE
Eight forms of marriage are to be found in the ancient Hindu law. They are:
(1) Brabmcr. In this form of marriage, the father (or guardian) gave the bride
away (as a gift) in marriage without receiving any consideration from the
bridegroom; prevalent among Brahmins only.
(2) Driver. In this form of marriage, the father gave away his girl for the
purpose of deriving a spiritual benefit, to a priest at a sacrifice performed *I.V
14. In which of the following cases, a child could not be a 'Hindu':

I.
Only one parent is a Hindu, and th e child was brought up as a Hindu.
II.
Only one parent is a Hindu, and th e child was not brought up as a Hindu.
III.
If after the b irth of a child, one or both of th e paren ts become convert to
another religion.
IV. If after th e b irth of a child, one or both of th e parents become convert to
another religion, and, in th e exercise of p aren tal rig h t th e child is also
converted into th e religion in which the p aren t or paren ts have converted.
Codes:
(a) I, III and IV.
(b) II and IV.
(c) I and IV.
(d) II and III.
15. Under the Hindu Marriage Act, 1955: Mark the correct statem ents:
I. Any two Hindus domiciled in India can perform th e ir m arriage.
II. Any two Hindus whether domiciled in India or not, whether Indian nationals or
foreigners (i.e. a Hindu living in a foreign country), can perform their marriage.
III. Marriages between the persons belonging to Hinduism, Jainism , Sikhism
and Buddhism are valid.
IV. Marriages between a Hindu and non-Hindu or outside th e four m ain religious
communities of Hindus are not possible in India. But in a foreign country
it will be a valid marriage. Such a m arriage could be perform ed in India
under the Special Marriage Act, 1954.
V. For the application of the Hindu Marriage Act, citizenship is not a necessary qualification.
Codes:
(a) I, III and IV.
(b) II, III and IV.
(c) II and IV.
(d) II, III, IV and V.
Hindu Law of Marriage 9
by the girl’s father, in lieu of the ‘dakshina’ payable to the priest. It is

considered to be inferior to the brahma form.
(3) Arsbcr. This form of marriage required the bridegroom to deliver one or
two pairs o f cows to the bride’s father.
(4) Prajapatjcr. This form of marriage was similar to the brahma form, except
that it was not necessary for the bridegroom to be a bachelor.
(5) Asurcr. In this form o f marriage, the father (or guardian) ‘sold’ the bride for
monetary consideration. “Where a man marries a girl for gladdening her
father or guardian by money, it is called astm marriage.”
(6) Gandharvcr. In this form of marriage, there is a mutual agreement o f bride
and bridegroom i.e. “love marriage”.
(7) Kaksbasha. This form of marriage was preceded by rape or the abduction
o f a virgin girl in times o f war.
(8) Paisbacba. This form o f marriage was preceded by the crime o f ravishing
a girl while she was asleep or intoxicated. This was the most reprehensible
form o f Hindu marriage.
Out of the above eight forms of marriage, the first four are the approved forms
of marriage, whereas the last four are considered to be the unapproved forms of marriage.
The Hindu Marriage Act, 1955, does not specifically proride for any form of marriage.
The Act calls marriage solemnized under the Act as Hindu marriage, which may be
performed in accordance with the s/mstric ntes and ceremonies or in accordance with the
customary ceremonies. Marriage can still be entered into any one of the approved forms
by performing necessary ceremonies and rites required under the Act.
Thus, performance of certain sbastric ceremonies is still necessary for a valid
Hindu marriage. Kanjadan, panigrahan, vivaha-homam and saptapadi are the four main
shastric ceremonies (as prescribed in the Grtbija Sutra). Sec. 7 o f the Hindu Marriage
Act lays down ceremonies for a Hindu marriage, which includes saptapadi (i.e. the
taking o f seven steps by the bride and bridegroom jointly before the sacred fire;
usually pberas are seven, but in some communities, they are five or even three) only.
Thus, the performance of saptapadi before the sacred fire is obligatory, though
chanting o f mantras is not. The other ceremonies of marriage are not essential, c.g.
among the Sudras, vivaha-homam is not essential.
Section 7 also lays down that a Hindu marriage may be solemnized m accordance
with the customary rites and ceremonies of either party thereto. A customary ceremony
may not include any one of the shastric ceremonies including saptapadi; it may be
totally non-religious ceremony or it may be very simple ceremony. Thus, among the
Sanlbals, smearing of vermilion by the bridegroom on the forehead o f the bride,
and among the Nairs of South India, tying of the mangta sutra around the bride’s
neck is the only essential ceremony of marriage.
Similarly, among Jati Vaishnavas a marriage can be performed by exchange o f
garlands between the bride and bridegroom. Likewise, Jats in Punjab and Haryana
can perform their marriage by chadar andasp (A person marries his brother’s widow
by putting a chadar on the widow’s head or around her shoulders). Among the Jats
and some lower caste Hindus in Northern India kareva form of marriage is prevalent,
in which a man and woman agree to live together as husband and wife. A mere
cohabitation is also enough among the Buddhists.
It is obvious that a marriage without requisite ceremonies is null and void
(though it is not expressly laid down under the Act). Thus, if a Jain marries a
10 Hindu Law
Buddhist by performing Anartd karaj (Sikh ceremony), the marriage will be void,
since it is a ceremony, which is recognized neither on the side of the bride nor
bridegroom. Similarly, a marriage between two Hindus by the Buddhist rites is void.
No one can innovate new ceremonies and a marriage performed with the innovated
ceremonies and rites is invalid.
Inter-caste and Inter-religious Marriages
The ancient texts prescribed that if the parties did not belong to the same caste,
the marriage was invalid, unless sanctioned by custom. These texts prohibit a marriage
between a male of a lower caste and a female of a higher caste (Prafi/oma marriage).
However, a marriage between a male of a higher caste and a female of a lower caste
(/Xmiloma marriage) was permitted.
Under die Hindu Marriage Act, 1955, ‘any two Hindus’ whether domiciled in
India or not, whether Indian nationals or foreigners (i.e. a Hindu living in a foreign
country), can perform their marriage. The inter-caste marriages are valid under the
Hindu Marriage Act.
Further, marriages between the persons belonging to Hinduism, Jainism, Sikhism
and Buddhism are valid. But, under the Act, marriages between a Hindu and non-
Hindu or outside the four main religious communities of Hindus are not possible
in India. But in a foreign country it will be a valid marriage. Such a marriage could
be performed in India under the Special Marriage Act, 1954.
2. H in d u Law o f M arriag e
16. Which section of the Hindu Marriage Act, 1955 provides for conditions of marriage?
(a) Sec. 5.
(b) Sec. 9.
(c) Sec. 10.
(d) Sec. 11. [Uttaranchal PCS (J) (Prel.) 2002]
17. In modern Hindu law, marriage has become:
(a) Monogamous.
(b) Indissoluble union.
(c) Sacramental union.
(d) Contract.
(a)
Under Hindu law, marriage is a sacrament.
(b)
Under the Hindu Marriage Act, marriage is having semblance of a sacrament as
well as semblance of a contract.
(c) Consent is not an essential aspect of Hindu marriage.
(d) A child marriage is a valid marriage under Hindu law while under the Contract
Act, the contract of a minor is void.
19. Which of the following ancient forms of marriages were NOT approved by Hindu Law?
1. Gandharva. 2. Arsha.
3. Prajapatya. 4. Asura.
Codes:
(a) 1, 2 and 3.
(b) 2 and 3.
(c) 3 and 4.
(d) 1 and 4. [Uttaranchal PCS (J) (Prel.) 2002]
Other Major C hanges brought about by the Hindu Marriage Act. 1955*
(i) Bigamy has been disallowed under the Act. Persons committing bigamy are
to be punished under the I.PC.
(ii) The degree of sapinda relationship has been curtailed. The Act has further
laid down the list of prohibited degree of relation between whom a valid
marriage could not be solemnized.
(iii) The Act also prescribes die minimum age for marriage (21 for boys and 18
for girls). Ancient Hindu law did not prescribe any such age for marriage.
(iv) Legitimacy has been conferred on many of such children who were bom
of void and voidable marriages.
(v) The Act has provided several ‘matrimonial reliefs’ such as restitution o f
conjugal rights, judicial separation, nullin’ of marriage and divorce. The
concept of divorce was not recognized by the ancient Hindu law.
(vi) Provisions for alimony and maintenance have been made.
(vii) Wide discretionary powers have been conferred on the courts for the custody,
education and maintenance of children of the parties.
(viii) The Act provides for the first time the registration of Hindu marriage.
[3] VALIDITY OF HINDU MARRIAGE7
Section 5 of the Hindu Marriage Act lays down that a marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled, namely-
(i) neither party has a spouse living at the time of marriage;
(ii) at the time of marriage, neither party-
6. “Let a damsel wait for 3 ytars from the appearance of her first menstruation
and after that time let her chose for herself and marry a husband equal to
herself in qualifications i.e. suitable to her” (Manu Smriti). The Indian society
and our Parliament in order to prevent early marriages, infantile mortality and
weaklings from premature death, prescribed the age for the bride and the boy.
Give the age prescribed for marriage under the Hindu Marriage Act and the
other changes affected by the Act. [Lr.P. PCS (J) 1988\
7. Have the changing times, terrorism, unemployment, dearness, drinking and
drug-addiction altered the very concept of Hindu marriage? What is its form
now? A young person remains imperfect so long as he does not marry and he
attains perfection only by marrying. A maiden is always gifted even then demand
for money, property, car, motorcycle, scooter are made and if not complied
with then she is burnt. Do you consider girls are married for selling or burning
them, or for adultery? What are the conditions of a Hindu marriage?
[HP. PCS 0) 1986\
Discuss 'he conditions for a valid Hindu marriage, under the H. M. Act.
[Delhi J.S. 2000]
12 Hindu Law
(a) is incapable of giving a valid consent owing to unsoundness of mind, or

(b) though capable of giving a valid consent, has been suffering from
mental disorder of such a kind as to be unfit for marriage and the
procreation of children, or
(c) has been subjected to recurrent attacks of insanity or epilepsy;
(lii) the bridegroom has completed the age of 21 years and the bride age of 18 years;
(iv) the parties are not within the degrees of prohibited relationship, unless the
custom or usage permits such marriage;
(v) the parties are not sapindas of each other, unless the custom or usage
permits such marriage.
(i) Bigamy
Before 1955, Hindus could practice polygamy (having several wives) or polyandry
(having several husbands). Now, under the Hindu Marriage Act, only monogamy is
permitted (i.e. one is permitted to have only one wife or husband at a time). A
person who marries during the lifetime of his or her spouse, provided that the first
marriage is not null and void, commits the offence of bigamy. Sec. 11 of the Act
makes a bigamous marriage void and Sec. 17 makes it a penal offence under Secs.
494 and 495, Indian Penal Code (punishable with imprisonment up to 7 years).
For prosecution for bigamous marriage, the first marriage should be perfectly
valid and should’ve been solemnized according to proper ceremonies. Thus, if the
first marriage is void, a person can’t be prosecuted for bigamy. Also, if the first
20. The Hindu Marriage Act, 1955:

(a) Recognizes Brahma (bride given in gift by father) form of marriage.
(b) Recognizes Gandharva (mutual agreement of bride and bridegroom).
(c) Does not specifically provide for any form of marriage.
(d) Recognizes only court marriages.
21. The H. M. Act calls marriage solemnized under the Act as "Hindu marriage":
(a) Which may be performed in accordance with the shastric rites and ceremonies.
(b) Which may be performed in accordance with the customary ceremonies.
(d) Only (a).
22. Mark the correct statem ent(s):
(a)The expression 'solemnization of marriage' refers to rites and ceremonies of a marriage.
(b)Hindu Marriage Act does not prescribe the ceremonies requisite for solemnization
of marriage but leaves it to the parties to choose a form of ceremonial marriage
which is in accordance with the custom or usage applicable to them.
(d) Only (a).
23. Performance of certain shastric ceremonies is still necessary for a valid Hindu
marriage. The ceremonies specifically recognized by the H. M. Act is / are:
I. Saptapadi and invocation before the sacred fire.
II. Kanyadan.
III. Panigrahan.
IV. Vivaha-homam.
(a) I, II and IV.
(b) II, III and IV.
(c) I and IV only.
(d) I only.
marriage is voidable and a court’s decree annulling first marriage has been obtained,
a person can’t be prosecuted for bigamy. In Bhanrao v Stale of Maharashtra (AIR 1965
SC 1964), the bigamy was in issue. It was held that a marriage without the performance
of essential ceremonies laid down in Sec. 7 is not a valid marriage. The second
marriage in this case was performed in gattdbarva form. The prosecution failed to
establish that the ceremonies observed by the parties were the only essential ceremonies
in the community of the parties.
In Dr. ALT Mukerji v State (AIR 1969 All 489), die court held invalid the ceremony
of exchange of garlands in the Kali temple after walking seven steps, an imitadon of
saptapadi. The court observed that the mere intendon of parties, however serious, will
not make them husband and wife and the accused will escape prosecution even if he
deliberately performed a defective ceremony. Thus, there is a lacuna in the law relating
to bigamy under Hindu law The persons who perform bigamous marriage can’t be
guilty if they omit, deliberately or inadvertendy (by mistake), to perform the essential
ceremonies of marriage. Further, a married person can keep a concubine. The solution
lies in prescribing one ceremony for all Hindu marriages, and by providing for registration
of marriages (registration is not compulsory under the Hindu Marriage Act).
In Sarla Mndgal v Union of India (AIR 1995 SC 1531), the Supreme Court put
a check on the practice of Hindus to embrace Islam in order to contract a second
marriage. In tltis case, the husband already married under Hindu law, embraced
Islam and solemnized a second marriage under Muslim law. It was held that the
second marriage would be invalid because unless and until the first marriage is
dissolved by a decree under the Hindu Marriage Act, the second marriage during
subsistence of the first one would be in violation o f the Hindu Marriage Act, which
strictly professes monogamy. Such marriage would amount to bigamy punishable
under Sec. 494, IPC. A marriage, which is in violation o f “any provisions o f law”,
would be void under Sec. 494, IPC.
As far as the judicial remedies are concerned, in case of bigamy, the aggrieved
spouse can initiate criminal proceedings, can claim divorce and file a petition for
maintenance allowance. The aggrieved spouse can also seek an injunction, to restrain
erring spouse from remarrying, from the court under the Code o f Civil Procedure.
In the case of bigamous marriage, the “second wife” has no status o f wife, but she
can start criminal proceedings against the erring spouse if she was not aware o f die
existence of the first marriage of the erring spouse. It is important to note that the
first wife cannot petition for nullity under Sec. 11, only second wife could do so.
However, the first wife may file a declaratory suit under the Specific Relief Act.8
(ii) Mental Capacity (Soundness of Mind)

A marriage on account of lack of mental capacity- is voidable at the instance o f the
other party. The mental conditions specified in Sec. 5 (ii) relate to pre-marriage
conditions and not to post marriage mental conditions for which other reliefs like
divorce is available. Further, mere mental weakness, foolishness, idiosyncrasy and
excessive sentimentalism are not covered. A person is ‘unfit’ for marriage if h e / she
is unable to carry out the ordinary duties and obligations o f marriage [Bennett v
Bennett (1969) AU ER 539).
8. Is the follow ing m arria g e valid u n d e r the H . M . A ct a n d w h a t re m e d y is o p e n

to the wife: T h e h u sb a n d h a d a w ife, a t th e tim e o f m a rria g e , th e first m a rria g e
having b e e n p erfo rm ed in E n g la n d before 1955? [Delhi f.S. !990\
14 Hindu Law
The word ‘epilepsy’ has been removed from Sec. 5 (ii) (c) o f the Hindu
Marriage Act, 1955 and Sec. 4 (b) (iii) of the Special Marriage Act, 1954 by Secs.
2 and 3 respectively of die Marriage Laws (Amendment) Act, 1999.
(iii) Child Marriage7

A child or minor’s marriage is a perfecdy valid marriage under the Hindu law (P. V.
Venkataramana v State AIR 1977 A.P. 43). It is neither void nor voidable. The Hindu
Marriage Act only provides for some punishment for such marriage under Sec. 18
(imprisonment up to 15 days or a fine up to Rs. 1,000 or both). A child marriage
is void under the Special Marriage Act, 1954.
The Child Marriage Restraint A ct, 1929 (as amended in 1978), applies to all
communities in India and prohibits child marriages. But the Act does not affect the
validity of child marriage, which is governed by the personal law o f the parties to
marriage. The Act is a penal legislation and provides for punishment for the violation
o f its provisions. Under the Act, a male above the age of 21 years marrying a girl
below 15 years is punishable with imprisonment up to 3 months and is also liable
'
9. E xam ine the validity of the H in d u m arriage o f a boy o f 17 years w ith a girl
o f 15 years. [U.P. PCS 0) 1997] [Bihar J.S. 1991]
Is the follow ing m arriage valid under the H . M. Act an d w hat rem edy is open
to the wife: T h e age o f the bride at the tim e o f m arriage was below 15 years.
[Delhi J.S. 1990/1999]*
24. Section 7 of the H. M. Act lays down that a Hindu marriage may be solemnized
in accordance with the:
(a) Customary rites and ceremonies of either party thereto.
(b) Customary rites and ceremonies of both parties thereto.
(c) New and innovated ceremonies and rites.
(d) Both (b) and (c).
25. A customary ceremony:
(a) May not include any one of the shastric ceremonies including saptapadi.
(b) May be totally non-religious ceremony or simple ceremony.
(c) Should be an essential ceremony in the community of the parties.
26. Which of the following is a valid customary marriage:
(a) Smearing of vermilion by the bridegroom on the forehead of the bride.
(b) Tying of the mangla sutra around the bride's neck.
(c) Exchange of garlands between the bride and bridegroom.
27. Among the Jats and some lower caste Hindus in Northern India which form of the
marriage is prevalent?
(a) Kareva.
(b) Chadar andazi.
(d) Pratiloma.
28. Anand karaj is a:
(a) Buddhist ceremony.
(b) Sikh ceremony.
(c) jain ceremony.
(d) Oat ceremony.
to fine. A similar punishment has been prescribed for the persons who conduct,
direct, prom ote or perform a child marriage. The offences under the Act arc
cognizable. It may be noted that the court has power to issue an injunction to
prohibit a child marriage from being performed, in the interest o f the child, under
its civil jurisdiction and under the Child Marriage Restraint A ct
Doctrine of Factum Valet
In Sivanandy v Bbagavatlyamma (AIR 1962 Mad 400), it was held that a marriage
under Hindu law by a minor male is valid even though no consent of the parents/
guardians was obtained. The marriage under the Hindu law is sacrament and not a
contract; a minor can’t enter into a contract but can perform necessary ‘samskars’.
According to the doctrine of factum valet, ‘a fact cannot be altered by hundred texts’
or Svhat ought not to be done becomes valid when done’. The doctrine in the case
o f minor’s marriage, which was solemnized, couldn’t be undone by reason o f a large
number o f legal prohibitions to the contrary. Sec. 4 of the H. M. Act lays down
that old Hindu law as it prevailed before 1955 is to continue if no provision is made
with respect to that in the Act or if it is not inconsistent with any provision o f the
Act. In old Hindu law, such marriages were valid.
According to the doctrine of factum valet, where an act is done and finally
completed, though it may be in contravention of hundred directory texts, the fact
will stand, and the act will be deemed to be legal and binding. The doctrine was
applied by the British Courts in India on grounds o f equity; justice and good
conscience. The doctrine applies only to directory and not mandatory texts o f Hindu
law. The texts which prescribe rules for the guardian’s consent to the marriage are
merely directory. However, the non-observance of essential ceremonies o f marriage
cannot be overlooked or cured by applying this doctrine, as this is in contravention
o f the mandatory text of Hindu law.
(Iv) & (v) Prohibition on Account of Relationship by Blood or Affinity

All systems prohibit marriage among near relations. According to the rule o f exogamy,
a person is not permitted to marry within the same tribe. The shastric prohibition
o f marrying within the same golra and pravaru or sapinda falls under this head.
However, today, sagotra or sapravara marriages are valid.
The Hindu Marriage Act prohibits marriage on account of sapinda relationship1®.
The term ‘sapinda’ has been explained by Vijaneshwara - ‘pinda’ means ‘body’ and
‘sapinda’ are those persons who are particles of same body. Two persons arc said to
be sapindtts of each other if one is a lineal ascendant of the other within the limits
of sapinda relationship, or if both arc sapindas to the common ancestors.
Sec. 3 (f) has limited the extent of sapinda relationship to 5 degrees in line o f
ascent through the father and 3 degrees in the line of ascent through the mother.
In the ‘Smritis’, the sapinda relationship extends, in the line of ascent to 5 degrees
through the mother and 7 degrees through the father.
As per Sec. 3 (g) of the Act, two persons cannot marry if they are related to
eacli other within the ‘degrees of prohibited relationship’11, viz.10
10. W hat d o you m ean by ‘Sapinda-Relationship’ under the H in d u law?

[% ; J.S. 1994]
11. W hat is prohibited degree in H indu law? [Raj. J.S. f9 9 l\
D escribe the degrees o f prohibited relationship in H in d u law. [Ri^. J.S. 1999]
16 Hindu Law
(i) if one is a lineal ascendant of the other, or

(ii) if one was the wife or husband of a lineal ascendant or descendant of
the other [Thus, a person can’t marry his father’s wife (step mother),
grandfather’s wife, etc.; similarly, he can’t marry the wife of his son or
of son’s son, etc.; likewise, a girl can’t marry her mother’s husband or
her daughter’s husband, etc.], or
(iii) if one was the wife of the brother, or the father’s brother’s wife, or
grandmother’s brother’s wife, or
(iv) if the two are brother and sister, uncle and niece (e.g. mama-bhanji, chacha-
bhatiji), aunt and nephew (eg. mausi- bhatija, bhiia- bbatijd), or children of
a brother and sister or of two brothers or two sisters (i.e. cousins).
Explanation to Sec 3 (f) and (g) lays down that the relationship includes legitimate
as well as illegitimate relationship, relationship by full, half and uterine blood, and
relationship by adoption as well as by natural birth. When both the parents (father and
mother) of two persons are same, it is ‘relationship by hill blood’; when father is
common and mothers are different, it is ‘relationship by half blood’; when mother is
same and fadiers are different, it is ‘relationship by uterine blood’.
It is also laid down under Sec. 5 (iv) and (v) that if a custom permits, a
marriage between two sapitidas or between two persons within the degrees of
prohibited relationship, will be valid. For instance, among the Jats of Punjab marriage
with brother’s widow, and in South India marriage with one’s sister’s daughter are
recognized by customs.
29. A marriage without requisite ceremonies under the H. M. Act is:

(a) Null and void.
(b) Voidable.
(c) Void or voidable.
(d) Irregular.
30. A marriage between two Hindus by the Buddhist rites is:
(a) Void.
(b) Voidable.
(c) Valid.
(d) Invalid.
31. Where there was no form of marriage gone through either under Sec. 7 of the
Hindu Marriage Act or under Sec. 7 A as amended by Hindu Marriage (Madras)
Amendment Act, 1967, the mere registration of the marriage under Sec. 8 for the
purpose of securing employment abroad is:
(a) Valid.
(b) Voidable.
(c) Null and void.
(d) Ineffective.
32. Which of the following is not a valid condition for solemnizaion of a Hindu
marriage:
(a) Neither party has a spouse living at the time of marriage.
(b) The parties are not within the degrees of prohibited relationship, unless the
custom or usage permits such marriage.
(c) The parties are not sapindas of each other, unless the custom or usage permits
such marriage.
(d) Both bridegroom and the bride are of the age of 18 years at the time of marriage.
A marriage in violation of the requirement of sapinda relationship and degree

of prohibited relationship is void. In addition to this, the party guilty o f performing
such a marriage may be sentenced to a term of imprisonment up to one m onth or
with fine up to Rs. 1,000 or with both (Sec. 18). However, modem society do not
attach much importance to these relations, nor has there been any legal objection
on grounds of Sec. 3 (f) and (g) because marriages among close relations are more
frequent than ever.
Illustrations
(1) A marries a widow while she is pregnant.
Under the Hindu law, there is no provision, which prescribes a time period
for remarriage of spouse who is widowed, pregnant, etc. (unlike the Muslim
law). Thus, such spouse can remarry immediately.
(2) A marries his adopted sister.
It is not a valid marriage, as the marriage falls under the prohibited degrees.
Relationship includes relationship by adoption or by blood.
(3) A marries his stepmother’s sister.
It is not a valid marriage; A is related to his stepmother by half blood
relationship.
(4) Marriage of step brother and sister.
It is not a valid marriage; they’re related to each other by half (father same,
mothers different) or uterine (mother same, fathers different) blood
relationship. However, when both of their father and mother are different,
then they can marry.
(5) Marriage widi the wife o f pre-deceased brother.12
It is not a valid marriage, as the parties are within the prohibited degrees.
(6) Marriage with wife’s sister after her death.
It is valid in Hindu law as the parties are neither sapinda nor within the
degrees o f prohibited relationship. >
(7) Marriage with deceased wife’s mother.
It is a valid marriage, as there is no prohibition regarding die same in the
Hindu Marriage Act (however, under the Muslim law, it is not permitted).
(8) A marries with mother’s sister’s daughter’s daughter.
It is a valid marriage as sapinda relationship is in four degrees to the line o f
ascent through the mother (while for invalid marriage, it should be three .-
degrees).
12. Examine the validity of the following'Hindu marriage: “A” marries “B”, the
widow of his elder brother. [U.P. PCS' (j) 1997] ■
mi 4 (Mother’s father) (common ancestor)
(Mother’s father’s daughter
i.e. mother’s sister) M FD
M ( M o th e r)
(G)
Since G is not a sapinda to the common ancestor, even though A is (being

within three degrees), they (A) and (G) are not sapinda to each other, thus, can
marry. It may be noted that the computation of degrees is inclusive of the person
concerned and the common ancestor. Further, the sapinda relationship is always
traced upwards (i.e. ascent) and not downward (i.e. descent).
Marriage Between Members of Same Sex
Under the English law, such a marriage is void ab initio [Corbett v Corbett (1970) 2
All ER 33]. The Hindu Marriage Act is silent on the issue. Ordinarily dictionary
meaning of “marriage” is that it is the social institution by which a man and a
woman are legally united and establish a new family unit. That this was the intention
of the legislature is also evident from the use of the word ‘husband-wife’, ‘he-she’,
and ‘bride-bridegroom’ in various places in the Hindu Marriage Act. However, in
33. The offence of bigamy is committed by a person who marries during th e lifetime
of his or her spouse provided:
(a)
The first marriage is not null and void.
(b)
The first marriage is null and void.
(c)
The first marriage is voidable and no court's decree annulling first marriage has
been obtained.
(d) Both (a) and (c).
34. A Hindu husband converting to Islam and marrying again will be guilty of bigamy. Held in:
(a) Bhaurao v State of Maharashtra.
(b) Dr. N.A. Mukerji v State.
(c) Sarla Mudgal v Union o f India.
(d) P. V. Venkataramana v State.
35. Section 11 of the H. M. Act makes a bigamous marriage:
(a) Void.
(b) Voidable.
(c) Void or voidable.
(d) Invalid.
36. Section 17 of the H. M. Act makes bigamy a penal offence under:
(a) Secs. 49^ and 495, Indian Penal Code.
(b) Secs. 493 and 495, Indian Penal Code.
(c) Secs. 492 and 494, Indian Penal Code.
(d) Secs. 496 and 497, Indian Penal Code.
37. The performance of necessary ceremonies is important in which of the following cases:
(a) Divorce cases.
(b) Bigamy cases.
(c) Restitution of conjugal rights.
recent times, in countries like USA and some European countries, recognition has
been given to homosexual (male-male) and lesbian (female-female) relationships.
A question arises whether a marriage of a boy with another boy who had
undergone a sex change operation and became a female will be valid. In Corbett case,
held that the sexual constitution of an individual is fixed at birth and can’t be
changed either by the natural development of organs of opposite sex or by medical
or surgical means. In view of that decision, such a marriage will be invalid.
It may be noted that under the old Hindu law (Manu, IX, 203) an eunuch (Le.
‘hijra’) have prima facie a right to marry. Such will be the case o f an impotent
marrying another impotent or eunuch, or one eunuch marrying another. Under the
modern Hindu law, the marriage with an impotent or eunuch is valid, though
voidable at the instance of normal spouse.
Self-Respect Marriages
Such marriages were initiated in the former Madras State, to do away with the priest
and traditional rites and ceremonies. In a simple ceremony, the bride and bridegroom
in the presence o f the guests exchange garlands and rings or tying of thali (‘mangala
sutra’). In 1967, the Tamil Nadu legislature validated such marriages by inserting
Sec. 7-A in the Hindu Marriage Act. Sec. 7-A applies to any marriage between any
two Hindus, whether called ‘Suyamariyathal’ or ‘Seerthiruththa’ marriage or by any
other name.
Presumption of Marriage
In the Hindu law it is the solemnization of marriage by performance o f certain
ceremonies and rites that confer the status of husband and wife and not the mere
intention or agreement of parties to live together as husband and wife. However,
it is the policy of law to lean in favour of validity of marriage once it is proved that
it has existed de facto.
Thus, Sec. 114 of the Indian Evidence Act lays down that where independent
evidence o f solemnization of marriage is not available, it will be presumed to be
valid marriage by continuous cohabitation between the parties unless contrary is proved.
The presumption is rebuttable if there are such circumstances (KJiages/nvar Naif: v
Dornuni Rewa AIR 1989 Ori. 10). It may be noted that this presumption does not
apply to cases of restitution of conjugal rights and bigamy where the solemnization
o f marriage as a fact has to be proved.
[4] NULLITY OF MARRIAGE
There are two types of impediments or bars to a marriage: absolute and relative.
If an absolute bar exists, a marriage is void[ while if a relative bar exists, a marriage
is voidable,u 13
13. What do you understand by “void” and ‘Voidable” marriages? Illustrate your
answer. [UP. PCS (J) 1982/1984/I9S6\
20 Hindu Law
Void Marriages
A void marriage is void ab initio i.e. does not exist from its very beginning. It is called
a ‘marriage’ because two persons have undergone the ceremonies of marriage, but
as they absolutely lack the capacity to marry they cannot become husband and wife.
A void marriage is no marriage and no legal consequences flow from it. It can
neither be approbated nor can it be ratified.
A decree of nullity is not necessary in case of a void marriage. Even when the
court passes a decree it merely declares an existing fact i.e. the marriage is null and
void. It is not the court’s decree which renders such a marriage void. However, a
decree is sought when the parties want to be certain of their legal position to avoid
subsequent complications and that the court may grant ancillary reliefs, such as
spousal maintenance, custody of children, etc. It may be noted that only either party
to the marriage can file a petition for nullity, and if one o f the parties dies, the other
cannot file such a petition.
The grounds of void marriage under the Hindu Marriage Act (Sec. 11) are:
(1) Bigamy.
(2) Parties sapindas to each other.
(3) Parties are within the prohibited degrees of relationship.
(4) Essential ceremonies of marriage are not performed (not mentioned in Sec 11).
These grounds (discussed earlier) apply only to marriages solemnized after the
commencement of the Act, i.e. after 18 May 1955; to the pre-Act marriages the old
Hindu law of nullity applies.

(a) Second marriage can be proved by the essential rites and ceremonies and not
by the mere admission of the parties.
(b) A married person cannot keep a concubine.
(c) A marriage, which is in violation of "any provisions of law", would be void under
Sec. 494, IPC.
(d) In Sarla Mudgal v Union o f India, the Supreme Court put a check on the practice
of Hindus to embrace Islam in order to contract a second marriage.
39. In 1965, Ramesh aged 7 years got married to Vibha, a 2-year old girl in accordance
with religious rites and ceremonies. In 1985, Ramesh got married to Sudha in a
temple by exchange of garlands, and applying a tilak of his blood to Sudha's
forehead in presence of the priest of the temple and the parents of the Sudha.
(a)Ramesh can be prosecuted for committing bigamy.
(b)Ramesh cannot be prosecuted for committing bigamy.
(c)Ramesh cannot be prosecuted for committing bigamy because his second marriage
was not valid.
(d) Ramesh cannot be prosecuted for committing bigamy because his first marriage
was not valid.
40. A marries B; later A started living with C and a child was born between them. B
prosecutes A.
(a) A cannot be prosecuted for bigamy.
(b) A can be prosecuted for bigamy.
(c) A has committed no offence.
Voidable M arriages'4
It is a perfectly valid marriage so long as either party to the marriage does not avoid
it on a petition and a decree of the court annuls it. Thus, if one o f the parties does
not petition fo r annulment of marriage, the marriage will remain valid. If one o f
the parties dies before the marriage is annulled, no one can challenge the marriage.1415
The parties to a voidable marriage cannot perform another marriage without first
getting a decree declaring their first marriage as void, otherwise they will be guilty
o f bigamy (while any part)- to a void marriage may perform a second marriage
without getting it annulled and the part}' will not be guilt}- o f bigamy).
Once a voidable marriage is annulled the decree is given retrospective effect
from the ‘date o f the marriage’. The marriage is deemed to have been void for all
purposes from its inception and parties are deemed to have never been husband
and wife. The rule has its origin in the doctrine o f ecclesiastical (English) law o f
indissolubility o f marriage- either marriage exists forever or never. It may be noted
that the effect o f a decree of nullity of marriage has been almost equated with the
effect o f a divorce decree. It may also be noted that a Svife’ o f void marriage cannot
claim maintenance under Sec. 125 of the Criminal Procedure Code o f India, though
a wife o f voidable marriage can.
The grounds of voidable marriage under the Hindu Marriage Act are laid
down in Sec. 12(1). The grounds are available in respect o f both the pre-Act and
the post-Act marriages. These grounds are:
(a) Impotency o f the respondent.
(b) Respondent’s incapacity to consent and mental disorder.
(c) Consent o f the petitioner obtained by fraud or force.
(d) Concealment of pre-marriage pregnancy by the respondent.
(a) Impotency
Before the 1976 Amendment to the Hindu Marriage Act, it was laid down that “if
at the time o f marriage one of the parties to marriage was impotent and continues
to be so till the presentation of the petition”, the other part}- could sue for annulment
of marriage. The 1976 Amendment reworded the clause thus, “the marriage hasn’t
been consummated on account of impotency o f the respondent”. Thus, now
respondent must be impotent ‘at the time of consummation o f marriage’.
Impotency means practical impossibility of consummation o f marriage, i.e.
inability to perform or permit performance of ‘the co/nplele act o f sexual intercourse’.
Thus, partial or imperfect, difficult and painful intercourse amounts to impotency.
However, sexual intercourse, which is incomplete occasionally, does not amount to
impotency (Sbakiintala v Orn Prakash AIR 1981 Del 53). Consummation is sometimes
referred to as vtra coiipiilu, which consists of erection and intromission.
Impotency is usually either: (a) physical, or (b) mental. The latter includes
emotional, psychological or moral repugnance or aversion to the sexual act. If
14. Which marriages are voidable under the H.M. Act? How and when petitions
for annulling such marriage can be presented? (Raj. J.S. 199-f]
15. Can a suit lie in the Civil Court for obtaining a decree for annulment of a
Hindu marriage after the death of spouses? (U.P. PCS' (f) l9S-f\
[Ans. N o, the suit will n o t lie.]
22 Hindu Law
impotency can be cured by medical treatment or surgery, it would not amount to

impotency, unless the respondent refuses to undergo treatment [Rajendra v SIsanti
AIR 1978 P & H 181; M. v M. (1956) 3 All ER 769]. Merc barrenness (‘bhaanj’)
or sterility (incapability for procreation) or no-uterus does not amount to impotency,
when the wife was capable of having sexual intercourse.
(b) Menfa/ Unsoundness
Discussed earlier.
(c) Fraud or Force
Absence o f free consent renders the marriage voidable under Sec. 12 (1) (c) of the
Act. However, it is important to note that no consent do not invalidate the marriage
as absence o f consent do not make a marriage voidable. The requirements of the
ground under Sec. 12 (1) (c) are:
(i) consent of the petitioner was obtained by fraud or force,
(ii) the petition must be presented within one year of the discovery o f fraud
or cessation o f force,
(iii) the petitioner mustn’t have lived with the respondent (as husband or wife),
after the discovery of fraud or cessation of force. A single act of sexual
intercourse after such discovery will be fatal to the petition.
‘Force’ implies coercion or undue influence. Mere pressure or strong advice,
persuasion, etc., will not amount to force, unless there is use of actual or physical
force and threat to use force. Similarly, not every misrepresentation or concealment
amounts to ‘fraud’. The fraud vitiative of the consent should relate to the nature
41. A marries B; later A, after conversion to Islam, marries a Muslim girl. B prosecutes A.
(a) A cannot be prosecuted for bigamy.
(b) A can be prosecuted for bigamy.
(c) A has committed no offence.
42. G, a Hindu girt, aged 14 years, marries B, a Hindu boy, by exchanging garlands in a temple.
Later on, G finds that B is impotent G leaves the matrimonial home and marries A.
(a) G can be punished for bigamy.
(b) G cannot be punished for bigamy.
(c) G cannot be punished for bigamy because his first marriage was not valid on
account of improper solemnization of marriage.
(d) G cannot be punished for bigamy because his first marriage was not valid on
account of impotency of B.
43. B, a Hindu boy, aged 20 years, loves G, a Hindu girl, aged 16 years. They go to a
temple and take a vow that they are now husband and wife. B does not disclose this
fact to his parents. Subsequently, his father duly solemnizes B's marriage with W.
(a)
B can be punished for bigamy.
(b)
B cannot be punished for bigamy.
(c)
B cannot be punished for bigamy because his first marriage was not valid on
account of improper solemnization of marriage.
(d) B cannot be punished for bigamy because his first marriage was not valid on
account of non-disclosure to parents.
44. In case of bigamy, the aggrieved spouse can:
(a) Initiate criminal proceedings.
(b) Claim divorce and file a petition for maintenance allowance.
(c) Seek an injunction, to restrain erring spouse from remarrying, from the court
under the Code of Civil Procedure.
o f ceremony or any material fact or circumstance concerning the respondent (it is

immaterial whether such fact or circumstance is curable or remediable, P. v K. AIR
1982 Bom 400). The fact should be such as to cause an interference with the marital
life and pleasure of the couple.
Where the parties went through a ceremony of marriage without any intention
on the husband’s part to regard it as a real marriage, it amounts to fraud. Fraud could
be as to the identity of the part}-; thus, if A goes to G and says that he is B, on that
representation G marries him. It has been held that concealment o f serious disease,
age, religion or caste, and illegitimacy amount to fraud. Similarly, non-disclosure of
pre-marriage status (e.g. divorcee) amounts to fraud. Likewise, inability to bear a child
is a material fact and should be disclosed (if known) before the marriage.
Concealment o f pre-marriage unchastitv (and even delivery o f illegitimate
child) does not amount to fraud under the English and Indian law. However, in P.
v K, it was held that suppression of the fact o f immoral life before the marriage
would be a fraud.
Law Commission of India in its 59th Report 1974 observed that all kinds of
flimsy excuses (e.g. status, reputation, qualification, habits, etc) for avoiding a marriage
on the ground o f fraud need not be considered. Because if such grounds are
considered, then most of the marriages would become avoidable. When such grounds
are present, the parties are under a burden of informing themselves i.e. they should
make proper enquiries before the marriage. However, in recent cases, the concealment
of financial status and job and educational qualification has been held to constitute
fraud (Anurag Anand v Sunita Anand AIR 1997 Del 285).
Where the fraud was committed by the petitioner’s father to the petitioner
(concealed the age of bridegroom), the court allowed the petitioner (bride) to avoid
the marriage {Babtti v Ram AIR 1968 Pat 190). It may be noted that the fact o f the
husband being ‘adopted’ son does not amount to a material fact (though ‘illegitimacy’
has been held to be a material fact). Under the Hindu Adoptions and Maintenance
Act, 1956, ‘adopted son’ is the son of his parents for ‘all purposes’.
A ‘minor’ girl can avoid the marriage under Sec. 12 (1) (c) if she was married
against her consent and wishes. She can also take the plea of consent of her guardian
being obtained by fraud, when the marriage was performed before the Child Marriage
Restraint (Amendment) Act, 1978 came into force. Sec. 12 (1) (c) prior to the 1976
Amendment read: That the consent of the petitioner, or the consent of the guardian
in marriage of the petitioner, was obtained by force or fraud.
(d) Pre-marriage Pregnancy
According to the Dbaramasbastra, if a man knowingly married a pregnant woman,
she is his wife and the child born to her is his child, known as sabudajd. But if he
married a pregnant woman without any knowledge of her pregnancy; he has the
power to repudiate the marriage (Manusmnti, IX, 73). Somebody else’s child cannot
be foisted on the husband.
The ground is ‘pre-marriage pregnancy’ and not ‘pre-marriage unchastity’. The
latter is not a ground o f voidable marriage. Pre-marriage pregnancy (Snpprtssio itn
by a woman, pregnant at the time of marriage) is a special case of ‘fraud’ but put
under a separate category, as it cannot amount to obtaining consent by fraud as
there may not be any representation that the bride is not pregnant. In India, this
ground was borrowed from English law, where it is called Pregnancy per ahum.
24 Hindu Law
The requirements of the ground under Sec. 12 (1) (d) are:

(i) the respondent was pregnant at the time of marriage, from a person
other than the petitioner,
(ii) the petitioner, at the time of marriage, didn’t know about it,
(iii) die petition must be presented within one year o f marriage (under the
Parsi law, it is two years of marriage),
(iv) marital intercourse didn’t take place with the petitioner’s consent after
die discovery of respondent’s pregnancy by the petitioner.
The burden of proof is on the petitioner. Wife’s admission of pre-marriage
pregnancy plus the fact that the husband had no access to her before marriage is
sufficient to establish her pre-marriage pregnancy (Mabendra v Sushila AIR 1965 SC
384). Medical evidence may also be given.
[5] CHILDREN OF VOID AND VOIDABLE MARRIAGES:

LEGITIMATE AND ILLEGITIMATE CHILDREN
Although distinction between legitimate and illegitimate children is still maintained,

there is a tendency in most of the countries including India to blur this distinction.
In this regard, two trends are discernible. One is to confer the status of legitimacy
on some type of illegitimate children. The other is to confer rights of legitimate
children on illegitimate children.

(a)The first wife cannot petition for nullity under Sec. 11, only second wife could
do so.
(b) The first wife may file a declaratory suit under the Specific Relief Act.
(c) In the case of bigamous marriage, the "second wife" has no status of wife, but
she can start criminal proceedings against the erring spouse if she was not aware
of the existence of the first marriage of the erring spouse.
(d) In bigamy the solemnization of marriage as a fact has not to be proved.
46. To make a marriage voidable on account of lack of mental capacity, the mental
capacity should relate to:
(a) Pre-marriage mental conditions.
(b) Post marriage mental conditions.
(d) Either (a) or (b).
47. A child marriage is prohibited under Hindu law but if it is solemnized, what will
be the status of such marriage:
(a) Valid.
(b) Void.
(c) Voidable.
48. A boy of 17 years marries a girl of 15 years. The marriage is:
(a) Void.
(b) Voidable.
(c) Valid and NOT punishable.
(d) Valid and punishable. [Uttaranchal PCS (J) (Prel,) 2002]
Under the Hindu law, an illegitimate child has never been considered as filius
iwlliiis and his relationship with both parents was recognized. One species o f an
illegitimate child, called dasiputra (son born to a permanendy and exclusively kept
concubine) was accorded a definite status in his father’s family, although his status
was inferior to the aurasa (natural) son, inasmuch as he had no right o f inheritance
or survivorship in the presence of natural son.
Broadly speaking, a child born within lawful wedlock has been considered to
be a legitimate child, and a child who is born outside the lawful wedlock to be an
illegitimate child. Sec. 112 of the Indian Evidence Act, 1872, lays down a rule o f
presumption in this regard. It lays down that (i) a child born within the lawful
wedlock (at any time, even soon after the marriage), or (ii) a child born within 280
days of the dissolution of marriage by death or divorce, will be conclusively presumed
to be the child of his father, provided the mother remained unmarried.
In some countries, like England, there is a tendency to confer a status o f
legitimacy on illegitimate children. Such children are known as “legitimated” children.
Legitimation is a legal process by which status o f legitimacy is conferred on the
children born outside the lawful wedlock, by subsequent marriage o f parents.
Legitimation by acknowledgement or recognition (by putative father) is also common
in some countries, like France. In India, institution o f legitimation is unknown, only
Muslim law recognizes legitimation by acknowledgement in a limited way.
The position regarding the children o f void and voidable marriages under the
Hindu Marriage Act (Sec. 16) and Special Marriage Act (Sec. 26) is:
(i) Children of unanmdled voidable marriage are legitimate in the same way as
children of an otherwise valid marriage are.
(ii) Children o f annulled voidable and void marriages are legitimate but they will
inherit the property of their parents alone and of none else.
It may be noted that before the 1976 Amendment to the Hindu Marriage Act, a
status o f legitimacy was conferred on the children of those %-oid marriages, which were
declared null or void. If a marriage was not declared null and void, the children remained
illegitimate. The position has been remedied by the 1976 Amendment. Now such a
declaration (i.e. a decree of nullity) is not required to confer a status of legitimacy.
Under Sec. 16, by a fictiojuris (legal fiction), a child born of a void or voidable
marriage is deemed to be the legitimate child of his parents (as if such a marriage
had been valid). It may be noted that Sec. 16 comes into play only if a marriage was
proved to have taken place, but which is otherwise void or voidable. So, where there
has been no marriage at all, Sec. 16 cannot be invoked, and legitimacy cannot be
conferred on any child.
(iii) If the marriage is void or voidable under any other provision of the law,
except Sections 11 and 12 (which lays down the grounds o f void and
voidable marriages), the children will be illegitimate. Such a case will be, for
instance, when the marriage is void for lack o f performance o f valid
ceremonies.
It is interesting to note that the Indian Divorce Act, 1869 (applicable to
Christians and persons married under the Special Marriage Act) lays down that
where a marriage is annulled on the ground of bigamy but it is shown that the
subsequent marriage was contracted in good faith and with full belief o f the parties
that the former spouse was dead, or when a marriage is annulled on the ground o f
uisanity, children begotten before the decree, will be legitimate.
26 Hindu Law
Position of Illegitimate Children Under the Modern Hindu Law

(a) Maintenance-. Both, father and mother, are under an obligation to maintain
illegitimate children up to the period of minority.
(b) Inheritance: An illegitimate child is not entitled to succeed to his father. But he
can inherit the property of his mother or of his illegitimate brother or sister.
(c) Joint family Property and Partition: An illegitimate son does not acquire any
interest in the ancestral property in the hands of his father, nor does he
form a coparcenary with him. During the lifetime of his father, his right
is only limited to maintenance. But the father may give him a share of his
(separate) property.
(d) Guardianship: A mother had a preferential right of guardianship. After her,
the father becomes the natural guardian of such a child.
(e) Adoptioir. The mother of an illegitimate child has power to give the child in
adoption. Thus, such a child may be validly adopted. Existence of an
illegitimate son is not a bar in respect of adoption of a son.
Paternity Test for Checking Chastity
Seeds of the institution of marriage lie in man’s quest to know the paternity of
children. A child born of a married woman is deemed to be ‘legitimate’ unless the
contrary is proved. Sec. 112 of the Indian Evidence Act is based on the well-known
maxim pater est quern nuptiae demonstrant (he is die father whom the marriage indicates).
A strong preponderance of evidence, and not a mere balance of probabilities could
rebut the presumption laid down under the section. The section requires the party
disputing the paternity to prove non-access (non-existence of opportunities for
sexual intercourse) in order to dispel the presumption.

(a)
Hindu Marriage Act provides for some punishment for child marriage under Sec.
18.
(b) A child marriage is void under the Special Marriage Act, 1954.
(c) The Child Marriage Restraint Act, 1929 (as amended in 1978), applies to all
communities in India and prohibits child marriages. But the Act does not affect
the validity of child marriage, which is governed by the personal law of the
parties to marriage.
(d) The court has no power to issue an injunction to prohibit a child marriage from
being performed.
50. Which Act raised the minimum age of marriage for girls 18 and for boys 21:
(a) Hindu Marriage Act.
(b) Indian Divorce Act.
(c) Child Marriage Restraint Act, 1978.
(d) Special Marriage Act.
51. 'A' is a girl of 14 years. 'A's parents performed her marriage with 'B' a boy of 18
years. Parents of 'A' are liable to punishment under:
I. Hindu Marriage Act.
II. Indian Penal Code.
III. Child Marriage Restraint Act, 1978.
Codes:
(a) I and III.
(b) I and II.
(c) II and HI.
In Gontam Ki/ndn v State oj West Bengal (1993) 3 SCC 418, the Supreme Court
laid down some important principles in this regard:
(i) courts in India cannot order a blood test as a matter of course,
(ii) there must be a strong prima facie case for suspecting the fatherhood of
a child which can be established only by proving non-access, and
(iii) the court must carefully examine as to what would be the consequences of
ordering a blood test: whether it would’ve the effect of branding a child as
a bastard and the mother as an unchaste woman.
[6] RESTITUTION OF CONJUGAL RIGHTS16
The necessary implication of marriage is that parties will live together. The ‘restitution
of conjugal rights’ means that if one of the parties to the marriage withdraws from
the other’s society, the latter is entitled to compel the former to live with him or
her. Thus, it is a positive relief which aim ‘to preserve marriage’ and not at disrupting
it as in the case o f divorce or judicial separation. The remedy has its origin under
the Jewish law.
Sec. 9 o f the Hindu Marriage Act provides this relief. The court, on being
satisfied o f the truth o f the statement made in such petition and that there is no
legal ground why the application should not be granted (this relates to bars to
matrimonial relief) may decree restitution of conjugal rights. Where there was no
valid marriage between the parties, the decree could not be granted. Similarly, when
both the parties are not Hindus, Sec. 9 will not apply.
The term “conjugal rights” means matrimonial rights i.e. the right o f the
parties to society and comfort of each other. The word “society” means
companionship, cohabitation i.e. consortium (living together as husband and wife).
The words “withdrawal from the society of other” mean withdrawal from the
totality o f conjugal relationship, such as refusal to stay togedier, refusal to have
marital intercourse and refusal to give company and comfort.
In withdrawal from the society, there is an element of ‘desertion’. Desertion
obviously amount to withdrawal from the society. However, to establish withdrawal
from the society, it is not necessary to prove legal desertion. It can be less than legal
desertion. It is a total repudiation of cohabitation. Thus, a couple which is sharing the
same household, rejection by one of the physical relationship coupled with difficulties
o f normal affection does not amount to withdrawal from the society.
A petitioner shall be entided to a decree of Resdtution on establishing that he
or she has a desire to resume matrimonial co-habitadon and to perform all
matrimonial obligations. A petidon for resdtution of conjugal rights will fail, even
if it is established that the respondent has withdrawn from the other’s society, where
there is a ‘reasonable excuse’ for doing so (as laid down in Sec. 9). In sum, the
following will amount to reasonable excuse:
(a) a ground for relief in any matrimonial cause (e.g. if peddoner is guilty o f
cruelty or is an impotent die peddon will fail),
16. W hat are th e leg al provisions reg ard in g re stitu tio n o f c o n ju g a l rig h ts u n d e r
the H . M. A ct? D iscu ss in the light o f case law. \Delht J.S. t 996]
28 Hindu Law
(b) an act, omission or conduct, which makes it impossible for the respondent
to live with the petitioner.
The matrimonial misconduct should be “weighty and grave’; mere temperamental
incompatibilities, inexplicable conduct using rough language in public, or before
guests, residing of aged parents in matrimonial home, husband’s refusal to migrate
to wife’s place have been held not to constitute reasonable excuse.
The following have been held to amount to “reasonable excuse’:
- Husband’s insistence that wife must live with his parents or persistent
nagging o f wife by husband’s parents (Sbanti v Bctlbir AIR 1971 Del 294).
- Husband’s keeping a concubine or addiction to drink/ drugs accompanied
by violent temper or husband’s overbearing, domineering and dictatorial
conduct [Tim/m/s v Timmns (1953) 2 All ER 187].
- Husband’s extravagance in living.
- Husband forces wife to take drink before guests or to eat meat (if she is
vegetarian) (Chandra v Saroj AIR 1975 Raj 88).
- Husband’s false accusations of adultery or immorality.
Thus, ‘cruelty’ (whether physical or mental) has often been the major cause of
withdrawal by one spouse from the society of the other.
As far as ‘burden of proof’ is concerned, Explanation to Sec. 9 lays down that
the initial burden to prove that the respondent has withdrawn from the society of
the petitioner is on the petitioner, and once that burden is discharged it is for the
respondent to prove that there exists a reasonable excuse for the withdrawal.
52. If a minor marries without the consent of the parents/ guardians, the marriage would be:
(a) Invalid.
(b) Valid.
(c) Void. .
(d) Voidable.
53. A marriage under the Hindu Marriage Act, 1955 between two persons within
prohibited degrees of relationship is:
(a) Valid.
(b) Void.
(c) Voidable.
(d) Irregular. [Uttaranchal PCS (J) (Prel.) 2002]
54. Void marriage under Sec. 11 of the H. M. Act includes marriage with respect to:
(a) Sapinda relationship.
(b) Degree of prohibited relationship.
55. Under the H. M. Act, Sapinda relationship is created:
(a) Up to 3 generations inclusive in line of ascent through mother.
(b) Up to 5 generations inclusive in line of ascent through father.
(c) Up to 5 generations inclusive in line of ascent through father.
(d) Both (a) and (b).
56. As per Sec. 3 (g) of the Act, two persons cannot marry if they are related to each
other within the 'degrees of prohibited relationship', viz.:
(a) If one is a lineal ascendant of the other.
(b) If one was the wife or husband of a lineal ascendant or descendant of the other.
(c) If one was the wife of the brother, or the father's brother's wife, or grandmother's
brother's wife.
Effect of Non-compliance of Decree of Restitution

A decree for Restitution enables the aggrieved spouse for maintenance under Secs.
24 and 25 o f the H. M. Act. A decree of Restitution can be executed by attachment
o f the property of the respondent. More importantly, non-compliance of the decree
by one spouse enables the other spouse to obtain a decree of divorce after one year.
Thus, the decree is used as a device to obtain divorce because grounds o f divorce
were not available to him or her. Restitution will be refused where the petition is
not bona fide or filed with an ulterior motive or where it will be unjust or inequitable
to pass a decree.
There must be a bona fide desire to resume cohabitation (e.g. husband sincere
to bring wife back) and a petitioner who is sincere is entitled to decree even though
parties may not have affection for each other. In Sitshil Kumar Dang v Prem Kjimar
Dang (AIR 1976 Del 321), the court observed: “Matrimonial law ought not to be
made the pawn for selfish gains unconnected with matrimonial home in the hands
of one spouse to the other’s detriment”.
The remedy of restitution of conjugal rights has been criticized as a savage
and barbarous remedy (‘worst tyranny and worst slavery’) violating the right of
privacy and human dignity guaranteed by Art. 21 of the Constitution (T. Sarettha v
T. V. Sabbath AIR 1983 A.P. 356). It is obvious that a marriage cannot be specifically
enforced. However, in Harvinder Knar v Harrnander Singh (AIR 1984 Del 66) and Saroj
Rani v Sudarshan K. Chadha (AIR 1984 SC 1562), the court observed that the remedy
serves a social purpose as an aid to the prevention o f break-up o f marriage. The
remedy aims cohabitation and consortium and not merely sexual intercourse. The
court observed that introduction of Constimtional law in home is like a “bull in a
china shop”. Thus, the remedy was held to be intra vires the Constitution.
Right to Set up Matrimonial Home (Case of Working Ladies)

A very controversial issue with regard to Sec. 9 is: Can a husband force his wife to
give up her job and join him at his place or whether the wife can choose to live
separately where she is gainfully employed?
Under the Hindu shastras, obligation of wife to live with her husband in his
home and under his roof and protection are clear and unequivocal. The logic
behind this was that a husband is traditionally the wage earner. However, the above
logic is no more valid in modern society. In Tirath Kaur v Kirpal Singh (1975 PLR
572) and Kailasbwati case (1977) P & H 642 (FB), the court took a conservative view.
In the latter case, the wife was willing to join her husband on holidays. But the court
held that the concept o f marriage couldn’t be reduced to a ‘weekend marriage’. The
court, however, added that the husband must actually establish a matrimonial home
where he can maintain his wife in dignified comfort.
In Sbanti Nigam v Ramesb Nigam (1971) A.L.J. 67, and Swaraj Garg v K. M. Garg
(AIR 1978 Del 296), the court took a progressive view and observed that any law
which gives such exclusive right to the husband would be contrary to Art. 14. Where
the wife is financially well off than her husband, she may be better situated to
choose the place of matrimonial home than the husband. 1'he court observed: As
king as the wife doesn’t refuse to cohabit with husband or doesn’t deny access to
him whenever she visits him or he visits her, the mere fact that she is herself
working at a different place, even contrary to wishes of husband, will not furnish
a ground for restitution o f conjugal rights. In other words, her refusal to resign the
job will not amount to withdrawal from the society. However, if the circumstances
30 Hindu Law
are “equally balanced” in favour of wife and husband, then there would be a
stalemate and neither of them would be able to sue the other for restitution of
conjugal rights. In such a case, there is a ‘breakdown of marriage’.16a
It may be noted that a respondent can be ordered to take up residence with
the spouse where the marriage has been consummated or where the parties have
provisionally lived together or at a new place, depending on the facts and
circumstances of each case.
I
16a. Ravi, a school teacher in a private school in Delhi drawing Rs. 10, 000 per
month, files a petition for restitution of conjugal rights against his wife, Radha,
working as a teacher in a government school at Patiala and drawing Rs. 7, 000
per month. Ravi contends that ignoring his advice for resigning her job and
joining his company, she is continuing to live away from matrimonial home,
which amounts to withdrawal from matrimonial home on her part. Radha
pleads that there is no withdrawal from matrimonial home on her part since
the locus of the matrimonial home is at her house in Patiala and she never
denied to Ravi the opportunity to visit and stay with her at Patiala. Decide.
[Punjab C. S. (J. B.) 1999\

(a) Rules relating to sapinda relationship are based on principle of exogamy.
(b) Sapinda relationship and Degrees of prohibited relationship may overlap each other.
(d) Only (a).
58. Which of the following is/are within the 'degrees of prohibited relationship':
(a) Brother and sister.
(b) Uncle and niece or aunt and nephew.
(c) Cousins.
(a)When both the parents (father and mother) of two persons are same, it is
'relationship by full blood'.
(b) When father is common and mothers are different, it is 'relationship by half blood'.
(c) When mother is same and fathers aredifferent, it is'relationship byuterine blood'.
(d) Even if a custom permits, amarriage between two sapindas or between two
persons within the degrees of prohibited relationship, will be invalid.
60. 'A' marries 'B', the widow of his elder brother. The marriage is:
(a) Valid.
(b) Void.
(c) Voidable.
(dj None of the above. [Uttaranchal PCS (J) (Prel.) 2002]
61. Which one of the following marriages is a valid Hindu marriage:
(a) Marriage of maternal uncle and niece.
(b) Marriage with brother's widow.
(c) Marriage with father's brother.
(d) A marries a widow while she is pregnant.
Hindu Law of Marriage (Questions/Problems) (Contd.)
62. Which one of the following marriages is not a valid Hindu marriage:
I.
A m arries his adopted sister.
II.
A m arries his stepm other's sister.
III.
M arriage of step -b ro th er and sister.
IV.
M arriage w ith wife's sister a fte r h er death.
V.
Marriage w ith deceased wife's m other.
VI.
A m arries w ith m other's sister's d au g h ter's daughter.
Codes:
(a) I, n,
and HI.
(b) I, H, IU and VI.
(c) II, IE, IV and V.
63. Which one of the following is a void marriage:
(a) Marriage of a girl of 15 years.
(b) A 20-year-old boy marries a 16-year-old girl with her consent.
(c) Marriage between members of same sex.
(d) Self-respect marriage.
64. Which one of the following is a void marriage:
I.A, girl of 20 years m arries B, h e r girl frien d aged 24 years fo r th e sake
of companionship.
II. A, a boy m arries B, a boy by b irth who had undergone a sex change
operation and became a female.
III. An im potent m arrying an o th er im p o ten t or a eunuch, or one eu n u ch
m arrying another.
Codes:
(a) I and II.
(b) III only.
(c) I only.
65. The presumption of marriage by continuous cohabitation between th e parties will
not apply in the case of:
(a) Restitution of conjugal rights.
(b) Bigamy.
(c) If there are contrary circumstances.
66. A void marriage is:
(a) Void ab initio.
(b) No marriage.
(c) One which can neither be approbated nor can it be ratified.
(a) A decree of nullity is not necessary in case of a void marriage.
(b) It is the court's decree which renders such a marriage void.
(c) A decree is sought when the parties want to be certain of their legal position
to avoid subsequent complications and th at the court may grant ancillary reliefs,
such as spousal maintenance, custody of children, etc.
(d) A petition for nullity can be filed only by either party to the marriage, and if
one of the parties dies, the other cannot file such a petition.
32 Hindu Law
68. Match List-1 and List-2 and select the correct answer using the codes given below
the lists:
List-1 List-2
A. Marriage between parties within 1. Voidable.
degrees of prohibited relationship.
B. Impotency. 2. Void.
C. Marriage between two sapindas of 3. Voidable.
each other.
D. Pregnancy of wife at the time of 4. Void.
marriage by some person other
than the petitioner.
Codes:
A B C D
2
(a) 1 4 3.
(b) 2 3 1 4.
(c) 2 1 3 4.
(d) 2 4 1 3. [Uttaranchal PCS (J ) (Prel) 2002]
69. Sec. 18 of the Hindu Mr
(a) Child marriage.
(b) Marriage between sapindas.
(c) Marriage between persons falling within the degrees of prohibited relationship.
70. The grounds of void marriage under the Hindu Marriage Act (Sec. 11) are:
I. Bigamy.
II. Parties sapindas to each other.
III. Parties are within the prohibited degrees of relationship.
IV. Essential ceremonies of marriage are not performed.
Codes:
(a) I, n and IV.
(b) I, H and HI.
(c) I, ffl and IV.
71. A voidable marriage is:
(a) A valid marriage.
(b) A valid marriage so long as it is not avoided on a petition by either party to
the marriage.
(c) Invalid marriage.
72. Once a voidable marriage is annulled:
(a) The marriage is deemed to have been void for all purposes from its inception.
(b) The marriage is not deemed to have been void for all purposes from its inception.
(c) The parties are deemed to have never been husband and wife.
(a) If one of the parties does not petition for annulment of marriage, the voidable
marriage will remain invalid.
(b) If one of the parties dies before such marriage is annulled, no one can challenge
the marriage.
(c) The parties to a voidable marriage cannot perform another marriage without first
getting a decree declaring their first marriage as void, otherwise they will be
guilty of bigamy.
(d) A 'wife' of void marriage cannot claim maintenance under Sec. 125 of the
Criminal Procedure Code of India, though a wife of voidable marriage can.
H indu Law o f M a rria g e (Q uestions/Problem s) ( Contd.)
74. The grounds of voidable marriage under the Hindu Marriage Act (Sec. 12) are:
(a) Impotency of the respondent.
(b) On account of mental disorder or fraud or force.
(c) Concealment of pre-marriage pregnancy by the respondent.
75. Which of the following statements is correct
(a) The grounds of void marriage apply only to marriages solemnized after the
commencement of the Act, Le. after 18 May 1955; to the pre-Act marriages the
old Hindu law of nullity applies.
(b) The grounds of voidable marriage are available in respect of both the pre-Act
and the post-Act marriages.
(d) Both (a) and (b) are incorrect.
76. In view of the recent amendment, which of the following is no longer a ground
of voidable marriage:
(a) Schizophrenia.
(b) Epilepsy.
(c) Impotency.
(d) Concealment of pre-marriage pregnancy.
77. A party could sue for annulment of marriage:
(a) If the respondent was impotent at the time of consummation of marriage.
(b) If the marriage hasn't been consummated on account of impotency of the
respondent.
(c) If at the time of marriage one of the parties to marriage was im potent and
continues to be so till the presentation of the petition.
(d) Both (a) and (b) are correct.
78. Which of the following does not amount to impotency?
I. Inability to perform or permit performance of the complete act of sexual
intercourse.
II. Partial or imperfect, difficult and painful intercourse.
III. Sexual intercourse, which is incomplete occasionally.
IV. Emotional, psychological or moral repugnance or aversion to the sexual act.
V. Barrenness or sterility (incapability for procreation).
Codes:
(a) I, H, ID and V.
(b) I, U, IV and V.
(c) ID and V.
79. 'A' married 'B' and the marriage was consummated. Subsequently, 'A' contacted with
an accident and became impotent. 'B' filed petition for dissolution of marriage.
Can impotency be a ground of dissolution of marriage in 'B's case?
(a) Yes. It is a voidable marriage.
(b) No. A subsequent impotency would not entitle for a decree of nullity.
(c) No. It is a valid marriage.1
(d) No. Sec. 12 confers this benefit only on males.
34 Hindu Law
80. W h ich o f t h e fo llo w in g r e n d e rs t h e m a rria g e v o id a b le u n d e r Sec. 12 ( 1 ) (c) o f th e

H. M. Act:
(a) Absence of free consent.
(b) No consent.
(d) None of th e above.
81. T he r e q u ir e m e n ts o f t h e g ro u n d u n d e r Sec. 12 ( 1 ) (c) a re:
(a) Consent of th e petitioner was obtained by fraud or force.
(b) The petition must be presented within one year of th e discovery of fraud or
cessation of force.
(c) The petitioner m ustn't have lived with th e respondent (as husband or wife),
after the discovery of fraud or cessation of force.
82. To c o n s t it u t e fra u d , t h e tim e w h ich i s r e le v a n t is:
(a) When the parties consent to solemnize the marriage.
(b) When the marriage is solemnized.
(d) Only (b).
83. In w h ich o f th e fo llo w in g c a s e s , a m a rria g e w ill b e v o id a b le on a c c o u n t o f force
o r fra u d :
I. M istake as to id e n tity of a p a rty viz. A goes to G and says th a t h e is B,
on th a t rep re se n ta tio n G m arries him .
II. Concealm ent of serious disease, age, religion or caste.
III. Non-disclosure of p re-m arriag e statu s (e.g. divorcee).
IV. Mistake as to n a tu re of cerem ony in th e m ind of a party.
V. Concealment of p re-m arriag e unchastity.
VI. Concealment of financial statu s and job and educational qualification.
Codes:
(a) I, N, III, V and VI.
(b) n, m , IV and VI.
(c) All except III.
(d) All except V.
84. 'A# t h r e a te n e d 'C w ho is t h e g u a rd ia n o f 'B ', a m in o r, t h a t h e i s g o in g t o k ill 'C'
i f h e did n o t g iv e 'B ' in m a rria g e . S om ehow , 'A' m a rrie d 'B'. A fte r f o u r y e a rs o f th e
m arriag e, 'B ' f ile d a p e ti t io n f o r d is s o lu tio n o f m a rria g e .
(a) The marriage is void.
(b) The marriage is invalid.
(c) The petition is not maintainable.
(d) The petition is maintainable.
85. Vinay m arried Divya. P rio r t o th e m a rria g e D ivya's u te r u s w as re m o v e d by su rg ic a l
o p e ra tio n and sh e w as n o t in a p o s itio n t o c o n c e iv e a c h ild . T his f a c t w as n o t
b ro u g h t to th e n o tic e of Vinay. Vinay could su c c e ssfu lly file a p e titio n fo r a n n u lm e n t
o f m arriag e on th e g ro u n d of:
(a) Impotency.
(b) Fraud.
Hindu Law of M arriage (Questions/Problems) (Contd.)
86. In which of the following cases the marriage would be annulled on the ground of
fraud under Sec. 12 of the Hindu marriage Act?
(a)
The date of birth and horoscope of the wife given were false, however, the
correct date of birth was made known to the husband much before the marriage.
(b) The husband found th a t certain good qualities mentioned about th e wife were
not true and because of th at it was difficult to live with her..
(c) Non-disclosure of diseases like irregular menstruation, pain, etc.
(d) Incorrect representation of his monthly income and property status by the
husband before marriage.
(a)
Where the fraud was committed by the petitioner's father to the petitioner
(concealed the age of bridegroom), the petitioner (bride) cannot avoid th e
marriage.
(b) The fact of the husband being 'adopted' son does not amount to a material fact
so as to avoid a marriage.
(c) Where the boy's father approved the girl despite knowing th a t the girl was
devoid of female organs. Later on the husband sought to get the marriage
annulled; he will not succeed.
(d) A 'minor' girl can avoid the marriage under Sec. 12(1) (c) if she was married
against her consent and wishes.
88. Pregnancy per alium means:
(a) Pre-marriage pregnancy.
(b) Pre-marriage unchastity.
(c) Both (a) and (b). ___
89. The requirements of the ground under Sec. 12 (1) (d) are:
I. The respondent was pregnant a t th e tim e of m arriage, from a person o ther
th a n th e petitioner.
II. The petitioner, a t th e tim e of m arriage, didn't know about it.
III. The petition m ust be presented w ithin one year of m arriage.
IV. Marital intercourse d idn't take place w ith th e petitio n er's consent a fte r th e
discovery of respondent's pregnancy by th e petitioner.
Codes:
(a) I, II and IV.
(b) I, H, III and IV.
(c) I and n.
(d) III and IV.
90. Shyam married Rani in 1980. Before marriage, Shyam had seen Rani. Immediately
after marriage he discovered that Rani had love affair with Ramesh and she was
aborted before marriage. This fact of abortion was neither disclosed to him nor
could be apparently deducted. Rani also admitted her guilt. Soon afterwards Shyam
filed a petition for annulment of marriage on the ground th at his consent to
marriage was obtained by fraud as envisaged under Sec. 12 (1) (c).
(a) Shyam will succeed.
(b) Shyam will succeed not under Sec. 12(1) (c) but Sec. 12(1) (d).
(c) Shyam will not succeed either under Sec. 12(1) (c) or Sec. 12(1) (d).
36 Hindu Law
91. U nder th e Hindu law:

(a) An illegitimate child has never been considered as filius nullius.
(b) An illegitimate child has been considered as filius nullius.
(c) An illegitimate child has never been considered as filius nullius and his relationship
with both parents was recognized.
(d) An illegitimate child has been considered as filius nullius and his relationship
with both parents was not recognized.
92. W hich o f th e follow ing w ill be a le g itim a te ch ild :
(a) A child bom within the lawful wedlock (at any time, even soon after the
marriage).
(b) A child bom within 280 days of the dissolution of marriage by death or divorce.
93. L eg itim atio n is:
(a) A legal process by which status of legitimacy is conferred on the children bom
outside the lawful wedlock, by subsequent marriage of parents.
(b) Unknown in India.
(c) Unknown in India except Muslim law.
94. Assertion (A): A b ig am o u s m arriag e is void u n d e r H indu Law.
Reason (R ): A child b o m o u t o f void m arriag e is le g itim a te ch ild o f h is p a r e n ts .
(a) Both 'A' and 'R' are true and 'R' is the correctexplanation of 'A'.
(b) Both 'A' and 'R' are true but 'R' is NOT the correct explanation of 'A'.
(c) 'A' is true but 'R' is false.
(d) 'A' is false but 'R' is true. [Uttaranchal PCS (J) (Prel.) 2002]
95. U nder th e Hindu M arriage Act (Sec. 1 6 ) an d S p e c ia l M arriage Act (Sec. 2 6 ) :
(a) Children of unannulled voidable marriage are legitimate in the same way as
children of an otherwise valid marriage are.
(b) Children of annulled voidable and void marriages are legitimate but they will
inherit the property of their parents alone and of none else.
(c) A child of void marriage is not entitled to an interest in which his father is a
coparcener.
(d) All are correct.
96. U nder th e Hindu law, in re la tio n to ille g itim a te ch ild ren :
(a) A court declaration is necessary to confer a status of legitimacy.
(b) A court declaration is not necessary to confer a status of legitimacy.
(c) Such a child becomes legitimate after reaching the age of 18 years.
(d) Such a child cannot become legitimate.
97. Mark th e incorrect s ta te m e n t:
(a) A child bom of a married woman is deemed to be 'legitimate' unless the contrary
is proved.
(b) Sec. 112 of the Indian Evidence Act is based on the well-known maxim pater
est quern nuptiae demonstrant (he is the father whom the marriage indicates).
(c) The presumption laid down under the section could be rebutted by a mere
balance of probabilities.
(d) The section requires the party disputing the paternity to prove non-access (non
existence of opportunities for sexual intercourse) in order to dispel the presumption.
Hindu Law of Marriage (Questions/Problems) (Contd.)
98. In w hich o f t h e fo llo w in g c a s e s, t h e ap ex c o u rt laid dow n i m p o r ta n t p r in c ip le s in

re la tio n to 'p a te r n ity test":
(a) Goutam Kundu v State o f West Bengal.
(b) Mahendra v Sushila.
(c) Babui v Ram.
(d) Rajendra v Shanti.
99. W here th e le g itim a c y o f a ch ild is d o u b tfu l, t h e c o u rt m ay c o n s id e r:
(a) Doctrine of factum valet.
(b) Blood grouping test.
(c) Statement of father.
(d) Evidence of neighbours.
100 . The marriage o f X and Y was perform ed in accordance w ith th e req u isite cerem onies, and
t (a son) was bom o u t of th e m arriage. Thereafter, Y obtain ed a decree o f a n n u lm e n t
o f marriage (under S e c 12) on th e ground th a t h er consent to th e m arriage w as o b tain e d
by X 's fraud. The decree of annulm ent will operate from th e d a te o f th e m arriage.
(a)
'Z' will not be deemed to be the legitimate child of X and Y.
(b)
'Z' will be deemed to be the legitimate child of X and Y.
(c)
'Z' will be deemed to be the legitimate child of X and Y and will have a right
to inherit from both X and Y.
(d) 'Z' will be deemed to be the legitimate child of X and Y but inherit only from X.
101 . The m arriage o f X and Y was perform ed in accordance w ith t h e r e q u is ite c e re m o n ie s,
an d 'Z ' (a so n ) w as born o u t o f th e m arriag e . A ctually, t h e m a rria g e w as v o id , a s
'X' h ad a n o th e r w ife living a t th e tim e o f th e m arriag e , an d on a p e t i t i o n p r e s e n te d
to t h e c o u rt, th e m arriag e w as d e c la re d n u ll a n d v oid.
(a) 'Z' will not be deemed to be the legitimate child of X ' and Y.
(b) 'Z' will be deemed to be the legitimate child of 'X' and Y.
(c) 'Z' will be deemed to be the legitimate child of X' and Y and will have a right
to inherit from both X' and Y'.
(d) T will be deemed to be the legitimate child of X' and Y but inherit only from X.
102 . R e s titu tio n o f c o n ju g al rig h ts is pro v id ed fo r in w hich s e c tio n o f t h e H. M. Act:
(a) Sec. 7.
(b) Sec. 8.
(c) Sec. 9.
(d) Sec. 10. [Uttaranchal PCS (J ) (Prel.) 2002]
103. The 'r e s t it u t io n o f c o n ju g al rig h ts ’ m e a n s th a t:
(a) If one of the parties to the marriage withdraws from th e other's society, the
latter is entitled to compel the former to live with him or her.
(b) If one of the parties to the marriage withdraws from the other's society, the
latter is not entitled to compel the former to live with him or her.
(c) If one of the parties to the marriage withdraws from the other's society, th e
latter is always entitled to compel th e former to live with him or her.
(d) If one of the parties to the marriage withdraws from the other's society, the
latter is never entitled to compel the former to live with him or her.
38 Hindu Law
104. R e s t it u t io n o f c o n ju g a l r i g h ts c a n b e d e m a n d e d by:
(a) Husband.
(b) Wife.
(c) Both.
(d) Court.
105. C o n ju g a l r i g h ts m e a n s :
(a) Matrimonial rights.
(b) Cohabitation rights.
(c) Right of th e parties to live together..
(d) All of th e above.
106. The w o rd s " w ith d ra w a l fro m t h e s o c i e t y o f o t h e r " m e a n :
(a) Withdrawal from th e to ta lity of conjugal relationship.
(b) Refusal to stay together.
(c) Refusal to have m arital intercourse and refusal to give company and comfort.
107. In w ith d ra w a l fro m t h e s o c i e t y o f o t h e r , t h e r e is :
(a) An element of desertion.
(b) A total repudiation of cohabitation.
108. A p e t i t i o n f o r r e s t i t u t i o n o f c o n ju g a l r i g h ts w ill f a il, e v e n i f i t i s e s t a b l i s h e d t h a t
t h e r e s p o n d e n t h a s w ith d ra w n fro m t h e o t h e r 's s o c ie ty , w h e r e t h e r e i s a 'r e a s o n a b l e
e x c u s e ' f o r d o in g s o ( a s la id d o w n in S ec. 9 ) . W h ich o f t h e f o llo w in g w ill a m o u n t
t o r e a s o n a b le e x c u s e :
I. A g r o u n d f o r r e l i e f i n a n y m a t r i m o n i a l c a u s e ( e .g . i f p e t i t i o n e r i s g u i l t y o f
c r u e l ty o r is a n i m p o t e n t t h e p e t i t i o n w ill f a i l ) .
II. A n a c t, o m is s i o n o r c o n d u c t, w h i c h m a k e s i t i m p o s s i b l e f o r t h e r e s p o n d e n t
to l iv e w i t h t h e p e t i t i o n e r .
III. T h e m a t r i m o n i a l m is c o n d u c t s h o u l d b e w e i g h t y a n d g r a v e .
C o d es:
(a ) I and II.
(b) I and III.
(c) II and m .
(d) I, II and III.
109. W hich o f t h e fo llo w in g i s not a re a s o n a b le e x c u s e t o a t t r a c t S ec. 9 o f t h e H. M. A ct:
I. H u s b a n d 's i n s i s t e n c e t h a t w if e m u s t l iv e w i t h h i s p a r e n t s .
II. P e r s i s t e n t n a g g in g o f w if e b y h u s b a n d 's p a r e n t s .
I II. H u s b a n d 's k e e p i n g a c o n c u b in e .
IV. H u s b a n d fo r c e d w ife to t a k e d r i n k b e f o r e h i s g u e s t s .
V. H u s b a n d 's f a ls e a c c u s a ti o n s o f a d u l t e r y o r i m m o r a li t y .
V I. In e x p lic a b le c o n d u c t u s i n g r o u g h l a n g u a g e i n p u b l ic , o r b e f o r e g u e s t s .
V II. H u s b a n d 's r e f u s a l to m i g r a t e t o w i f e 's p la c e .
V III. D e n ia l o f c o m p le te s e x u a l i n t e r c o u r s e t o a y o u n g w if e .
C odes:
(a) I, II, IV, V and VIII.
(b) I, II, V, VI and VIII.
(c) All except IV and VII.
(d) All except VI and VII.
Hindu Law o f M arriage (Q uestlons/Problem s) (Contd.)
110. A w i t h d r a w s fro m t h e s o c i e t y o f B, w h ile B w a n te d t o r e m a in w ith A. B c a n g e t

a d e c re e fo r th e :
(a) R estitution of conjugal rights.
(b) Judicial separation.
(c) B oth of th e above.
111 . W h ic h h a s o f t e n b e e n t h e m a jo r c a u s e o f w ith d r a w a l b y o n e s p o u s e f r o m th e
s o c i e t y o f t h e o th e r :
) (a) Sexual abuse.
/
(b) Dowry demand.
(c) Cruelty.
(d) Desertion.
112. N o n - c o m p lia n c e o f t h e d e c r e e o f R e s t it u t io n by o n e s p o u s e e n a b l e s t h e o th e r
s p o u s e t o o b t a i n a d e c r e e o f d iv o rc e a f te r :
(a) One year.
(b) Two years.
(c) Three years.
(d) Six months.
113. In w h ic h o f t h e f o llo w in g c a s e s t h e a p e x c o u r t u p h e ld t h e c o n s t i t u t i o n a l v a l i d i t y
o f S e c . 9 o f t h e H. M. Act:
(a) T. Sareetha v T. V. Subbaih.
(b) Sushil Kumar Dang v Prem Kumar Dang.
(c) Saroj Rani v Sudarshan K. Chadha.
(d) Chandra v Saroj.
114. In w h ic h o f t h e f o llo w in g c a s e s t h e c o u r t o b s e r v e d t h a t " t h e r e m e d y s e r v e s a s o c i a l
p u r p o s e a s a n a id t o t h e p r e v e n tio n o f b r e a k - u p o f m a r r ia g e . T he r e m e d y a im s
c o h a b i t a t i o n a n d c o n s o r tiu m a n d n o t m e re ly s e x u a l i n t e r c o u r s e ."
(a) T. Sareetha v 7*. V. Subbaih.
(b) Sushil Kumar Dang v Prem Kumar Dang.
(c) Saroj Rani v Sudarshan K. Chadha.
(d) Chandra v Saroj.
115. W ho c a n e s t a b l i s h m a tr im o n ia l h o m e :
(a) Wife.
(b) Husband.
(c) Both.
(d) Depends upon th e financial capacity to establish m atrim onial home.
116. W h ic h o f t h e fo llo w in g i s / a re r e la te s t o " m a t r i m o n i a l h o m e c a s e " :
(a) Kailashwati v Ayodhya Prasad.
(b) Shanti Nigam v Ramesh Nigam.
(c) Swaraj Garg v K. M. Garg.
40 Hindu Law
117. M ark t h e incorrect s t a te m e n t :

(a) As long as th e wife doesn't refuse to cohabit w ith husband or doesn't deny
access-to him whenever she visits him or he visits her, th e mere fact th a t she
is herself working at a different place, even contrary to wishes of husband, will
not furnish a ground for restitution of conjugal rights.
(b) The wife's refusal to resign th e job will not am ount to withdrawal from th e
society of husband.
(c) If the circumstances are "equally balanced" in favour of wife and husband, then
there would be a stalem ate and neither of them would be able to sue th e other
for restitution of conjugal rights. In such a case, th ere is a 'breakdown of
marriage'.
118. M ukesh a n d M adhvi ( ju d ic ia l o f f ic e r s ) w e re m a rrie d in 1 9 8 2 . T h o u g h e a c h o f th e m
is e n ti t le d t o g e t f r e e a c c o m m o d a tio n s t i l l M adhvi o p t e d t o s ta y w ith M u k e sh w h o
w as liv in g a lo n g w ith h is p a r e n ts . B e in g v e ry p ro u d a n d e c o n o m ic a lly in d e p e n d e n t ,
s h e co u ld n o t a d ju s t h e r s e l f w ith M u k e sh 's p a r e n t s . A fte r t h e b ir th o f a so n in
1 9 8 9 , s h e s t a r te d liv in g s e p a r a t e l y a lo n g w ith h e r s o n . M ukesh a s k s h e r t o re s ig n
h e r jo b , a s s h e w as n o t f u lf illin g h e r m a r i t a l o b lig a tio n s . M adhvi r e f u s e d t o d o so .
M ukesh f ile s a p e t i t i o n f o r r e s t i t u t i o n o f c o n ju g a l r ig h ts .
(a) Mukesh will succeed.
(b) Mukesh's petition cannot be granted.
(c) Mukesh's petition cannot be granted because Mukesh and Madhvi are equally
balanced in th eir circumstances; it is a case of breakdown of marriage.
(d) Mukesh's petition can be granted because wife and husband must live under the
one roof.
Problem. A, a H in d u boy, a g e d 18, m a rrie d B , a S ik h g irl a g e d 17, in 1990 a c c o rd in g

to H in d u rites a n d c e re m o n ie s. T h e m a rria g e re m a in s u n c o n s u m m a te d d u e to th e
im p o ten cy o f B. U n sa tisfie d w ith his p re v io u s m a r ria g e , A m a r rie d a n o th e r g irl C as
p e r H in d u rites a n d c e re m o n ie s in 1995. A a n d C w e re b le s s e d w ith a s o n D in 1996.
D iscu ss th e validity o f b o th th e m a rria g e s. A lso d is c u s s th e rig h ts o f D to in h e r it th e
p ro p erty o f A, B a n d C. [Punjab C. S. (J. B.) 1999]
Answer. The marriage between A and B is a voidable marriage, but it was not
annulled by a decree o f court; thus, it remains a valid marriage. Therefore, A’s
marriage with C is a bigamous marriage and, thus, null and void. However, in view
o f the provisions of Sec. 16 o f the H. M. Act, D will be considered a ‘legitimate*
child of A and C. And, D can inherit the property o f A and C only.
3
Hindu Law o f Divorce
[1 ] JUDICIAL SEPARATION17
It is viewed as a lesser evil than divorce, since it leaves open the door for reconciliation.
A decree o f judicial separation does not dissolve the marriage bond but merely
suspends marital rights and obligations during the subsistence o f the decree; parties
continue to be husband and wife but not obligated to live together; neither party
is free to remarry.
Sec. 10 o f the Hindu Marriage Act provides for ‘judicial separation*. The
grounds for judicial separation are the same as the grounds for divorce viz. fault
grounds (prior to 1976, the provisions relating to divorce were more stringent than
those for the grant o f judicial separation). Where a decree for judicial separation has
been passed, the court may on the petition o f either party rescind (cancel) the decree
if it considers it just and reasonable to do so (a divorce decree cannot be so
rescinded). Sec. 13 (1A) (ii) lays down that if after a decree o f judicial separation
parties have n o t resumed cohabitation for a penod o f one year, either party may
seek divorce.
If the parties, during the subsistence o f the decree o f judicial separation,
commit sexual intercourse then the decree could be declared neutralized or ineffective.
Such an act has no effect on the decree o f divorce. In case one o f the spouses dies
during the subsistence o f the decree o f judicial separation, the other will succeed
to his/ her property. It is important to note that the matters relating to alimony and
maintenance o f wife and children may be agitated both after a decree o f divorce
as well as judicial separation.
17. D is tin g u is h b etw een divorce a n d ju d ic ia l s e p a r a tio n . [U.P. PCS (J) 1982\
W h a t a r e th e leg al pro v isio n s re g a r d in g ju d ic ia l s e p a r a tio n u n d e r th e H . M .
A ct? D is c u s s . [Delhi J S . 1996\
[41]
42 Hindu Law
The courts have been given discretionary power to grant judicial separation
instead of divorce in a petition for divorce, even though no such prayer is made in
the petition (Sec. 13-A: Alternate relief in divorce proceedings). However, if a
divorce petition is filed on the ground of change of religion, renunciation o f world
or presumption of death, the court has no power to pass a decree of judicial
separation in place of divorce decree.
[2] DIVORCE
Once it came to be established that marriage was a civil contract, it was the next
logical step to recognize that it was also a dissoluble union. The loft)' ideals of liberty
and equality also undermined the strongly considered indissoluble aspect of marriage.
However, as marriage is also regarded as a social institution and not merely a
transaction between two individuals, therefore, it was argued that there was a social
interest in preservation and protection of the institution o f marriage. The institution
of marriage was hedged with legal protection.
Thus, the marriage came to be regarded as a ‘special’ contract, which could
not be put to an end like an ordinary contract. 'The primary objective of the H. M. Act
is to preserve and protect the marriage, rather than allow it to disintegrate.’ Under the old
Hindu law, divorce was not recognized, except where allowed by custom. Under the
Act also, divorce is neither favoured nor encouraged, it is permitted only on certain
serious specified grounds. A period of one year has been fixed to give maximum
3. H in d u Law o f D ivorce
1 19. A d ecree o f ju d ic ia l se p a ra tio n :
I. D issolve t h e m a r r ia g e b o n d .
II. Does n o t d isso lv e t h e m a r r ia g e b o n d b u t m e re ly s u s p e n d s m a r ita l r i g h ts
a n d o b lig a tio n s d u r in g t h e s u b s is te n c e o f t h e d e c re e .
III. T he p a r tie s c o n tin u e to b e h u s b a n d a n d w ife b u t n o t o b lig a te d to liv e
to g e th e r; n e it h e r p a r ty is fr e e to re m a rry .
IV. If a f te r a d e cre e o f ju d ic ia l s e p a ra tio n p a r ti e s h a v e n o t re s u m e d c o h a b ita tio n
fo r a p e rio d o f o n e y e ar, e it h e r p a r ty m a y s e e k d iv o rce .
V. T he m a tte r s re la tin g to a lim o n y a n d m a in te n a n c e o f w ife a n d c h ild r e n m ay
n o t b e a g ita te d a f te r a d e c re e o f j u d ic ia l s e p a r a tio n .
W hich o f t h e fo llo w in g a r e correct:
(a) II, III and IV.
(b) I, III and IV.
(c) II, III, IV and V.
(d) III and IV.
120. Mark th e correct sta te m e n t:
(a) A petition for judicial separation lies only if the marriage is valid.
(b) After the passing of a decree for judicial separation, co-habitation is not obligatory.
(d) Only (a).
121. O rdinarily ju d ic ial se p a ra tio n leads to:
(a) Reconciliation.
(b) Divorce.
(c) Reconciliation or divorce.
(d) Separation and divorce.
Hindu Law of Divorce 43
opportunities o f mutual adjustment after a decree of judicial separation. Similarly,

a period of one year should have elapsed between the date of marriage and the
presentation o f a divorce petition.
A marriage can be dissolved only if one of the spouses is found guilty’ of such
acts and conducts which undermined the very foundation of marriage. This led to
the emergence o f the offence or guilt theory of divorce.
(a) Offence or Guilt or Fault Theory

Divorce is regarded as a mode of punishing the guilty party who had committed
a matrimonial offence and thus, rendered him or herself unworthy o f consortium.
The offence must be one that is recognized as a ground of divorce, viz. adultery,
cruelty’ or desertion.
The guilt theory,, on the one hand, implies a guilty party, and on the other, it
implies that the odier party is innocent i.e. in no way party to or, responsible for the
offence o f the guilty' party. Thus, if one party condones the acts of the guilty party,
no divorce can be granted. Similarly, if cruelty is provoked, divorce will be refused.
In this way, the bars to matrimonial relief were evolved.
English law took this theory to its logical end by laying down that if both parties
were guilty, divorce would not be granted to either. Thus, if the respondent is guilty
of desertion and the petitioner is guilty’ of adultery, the petition will be refused. The
‘doctrine of recrimination’ provides that if both parties, independent of each other,
have committed matrimonial offences, the marriage should not be dissolved.
Recognition of grounds like insanity and epilepsy led to renaming of ‘guilt’
theory as the ‘fault’ theory. If one of the parties bas some fault in him or her,
marriage could be dissolved whether this fault is his or her conscious act (adultery,
etc.) or providential (insanity, etc.). It may be noted that the English law has abandoned
the offence or guilt theory of divorce, but from English law the fault theory of
divorce came to Indian law which has retained it. In fact, originally under the Hindu
Marriage Act, 1955, divorce was based only on the fault theory. The consent theory
and breakdown theory were introduced later on.
(b) Consent Theory (Free Divorce)

According to this theory, parties to marriage are as ‘free’ to dissolve a marriage, as
they are to enter it. Freedom of marriage implies freedom of divorce. It may
happen that two parties who’ve entered into a marriage with free consent may, later
on, realize that they made a mistake and they cannot live together harmoniously.
The very basis of marriage is mutual fidelity, and if for any reason the parties feel
that it cannot continue, thev should’ve freedom to dissolve the marriage. Further,
an unhappy family is a breeding ground for delinquent children.
However, the consent theory is criticized as it makes divorce very easy, and
also it makes divorce very difficult. Divorce by mutual consent offers great temptation
to hasty and ill-considered divorce. That is why the divorce by mutual consent has
been hedged with safeguards. On the other hand, as it requires the consent o f both
the parties and if one o f the parties withholds his or her consent, divorce can never
he obtained.
44 Hindu Law
(c) Breakdown Theory

This theory represents the modern theory of divorce. A fundamental shift in the
policy was discernible from the judicial recognition of the view that the purpose of
divorce law was not to punish the guilty but to protect the innocent spouse [William
v William (1963) 2 All ER 994]. The problem that the modern law faces is that if
a marriage has in fact broken down irretrievably, may be on account of fault of
either or both parties (e.g. both had committed adultery), or on account of neither
(e.g. incompatibility of temperament), then, is there any sense in continuing such a
union which would serve no social and individual interest? The guilt theory was
found to be deficient as it recognizes divorce only on certain specific grounds.
The breakdown of marriage is defined as “such failure in the matrimonial
relationship or such circumstances adverse to that relation that no reasonable probability'
remains for die spouses again living together as husband and wife”. If a marriage has
broken down beyond all possibilities of repair, titan it should be brought to an end,
without looking into the causes of breakdown and without fixing any responsibility
on either party’. Such marriage should be dissolved even if one of the parties to the
marriage does not desire it. The empty shell is to be destroyed with the maximum
fairness and minimum bitterness, distress and humiliation [Law Commission of Iut/ia,
71st Report, Reforms of the Grounds for Divorce].
In Yousuf v Sowramma (AIR 1971 Ker 261), the learned judge said: “While there
is no rose which has no thorns but if what you hold is all thorn and no rose, better
throw it away The ground for divorce is not conjugal guilt but breakdown of marriage.”*I.V
12 2 . Sec. 13-A: A ltern ate re lie f in divorce p ro c ee d in g s lays down th a t:

(a) The courts may grant judicial separation instead of divorce in a petition for
divorce, even though no such prayer is made in the petition.
(b) The courts may grant judicial separation instead of divorce in a petition for
divorce, if a prayer is made in the petition.
(c) If a divorce petition is filed on the ground of change of religion, renunciation
of world or presumption of death, the court has no power to pass a decree of
judicial separation in place of divorce decree.
12 3 . Pre-m arriage ag ree m e n ts to live s e p a ra te ly or p o st-m a rria g e a g re e m e n t t o live
sep arately are:
(a) Valid.
(b) Void.
(c) Voidable.
(d) Illegal.
124. According to Hindu M arriage Act, which o f th e follow ing is / a r e t h e m atrim o n ial
cause:
I. Nullity of marriage.
II. Judicial separation.
III. Dissolution of marriage.
IV. Restitution of conjugal rights.
Codes:
(a) I, n and HI.
(b) H and HI.
(c) H, HI and IV.
(d) I, H, HI and IV.
Sometimes the determination of the question whether in fact a marriage has

broken down o r not is left to the courts. At other times, the legislature lays down
the criterion o f breakdown of marriage and if that is established, the courts have
no option but to dissolve the marriage [JVr Sec. 13 (1A)].
Position in the Modern Hindu L aw
Section 13 of the Hindu Marriage Act, 1955, recognizes all the three theories of
divorce, and divorce can be obtained on the basis of any one of them. Sec. 13 (/)
contains nine fault grounds on which either the husband or the wife, in respect of
a marriage solemnized before or after the commencement of this Act, could seek
divorce. Sec. 13 (2) provides four additional fault grounds to the wife. Thus, 13 fault
grounds are at present contained in the Act. Sec. 13 (1A) which recognizes two
grounds o f breakdown of marriage was inserted by the 1964 Amendment (these
grounds were previously part of the fault grounds). Sec. 13 B which recognizes
divorce by mutual consent was inserted by the 1976 Amendment.18
(A) Fault Grounds of Divorce

(1) A d u ltery [Sec. 13(1)(i)]- Prior to 1976 Amendment, for this ground (i.e. voluntary
sexual intercourse with non-spouse after the solemnization of marriage) the petitioner
had to prove that the respondent was ‘living in adultery’ (Le. a continuous period o f
acts of sexual intercourse). Now, one single act of adultery is enough. It may be
noted that adultery is a matrimonial offence punishable under Sec. 497, IPC.
If the second marriage is void, then intercourse with the second wife will
amount to extra-marital intercourse. It may be noted that a mere attempt at sexual
intercourse will not amount to adultery. Further, it seems that sex-act is necessary. A
wife who allows her to be artificially inseminated with semen provided by a person
other than her husband is not guilty of adultery [Oxford v Oxford (1921) 58 CLRJ.
The act of sexual intercourse must be consensual or voluntary. Thus, a spouse
is not guilty of adultery if the act is committed under intoxication or unconsciousness
(or lack o f mental capacity to consent) or by force/ fraud (e.g. kidnapped and
raped). Also, if a sex-act is committed under a mistake that the co-respondent is his
or her spouse, it will not amount to adultery.
The very fact that such acts are committed in extreme secrecy forbids direct
proof (of actual intercourse) and the courts have always accepted circumstantial
evidence. Such evidence which establishes ‘preponderance of probabilities’ is enough
(e.g. a woman discovered in a compromising position with a man in a room); it need
not be proved beyond all reasonable doubt. Mere admission of the respondent in
cross-examination is not enough to prove adultery (Anandi v Raja AIR 1973 Raj 94).
Vasectomy is not a conclusive proof of adultery unless proper semen test has been
taken (Cbirutbakntliy v Subramanian AIR 1987 Ker 5).
18. ‘E q u a l R ights to W om en’ m o v em en t g a in e d m o m e n tu m re c e n tly b u t th e

Parliam ent in 1955 g ran te d the m ost im p o rta n t rig h t to H in d u w o m e n . T h e
con cep t of “p e rm a n e n t u n io n ” or “ etern al u n io n ” is only n o tio n a l now. U n d e r
w hat circum stances disso lu tio n o f m arria g e can take place? [U.P. PCS (Jj 1986]
W hat are the g ro u n d s on w hich a H in d u c an se e k divorce u n d e r th e H . M.
Act? [Dtlht J.S. 1991]
46 Hindu Law
(2) C ruelty^ [Sec. 13(1) O f all the matrimonial offences, cruelty is probably
the most difficult to define. What may amount to cruelty in one case may not
amount to cruelty in another case. In Rjuselv R//W(1897) AC 305, cruelty defined
as “conduct o f such a character as to have cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable apprehension o f such danger”.
‘Reasonable apprehension’ is no more necessary under the Indian law and it is
enough that the respondent has treated the petitioner with cruelty after the
solemnization of marriage.
Further, intention or motive is not an essential element of cruelty. Thus, an
unintentional act may amount to cruelty [Sayal v Sarla AIR 1961 Punj. 125; Bbagwat
v Bbagwaf AIR 1977 Bom 80]. Intention as an element of cruelty in England was
finally rejected in William v William (1963) 2 All ER 994. The court observed that
the main concern of it was to give protection to the suffering spouse. It may be noted
that an act or conduct which has an intention to injure, will certainly constitute cruelty
The Supreme Court has observed that the concept of cruelty is fast changing.
The concept is to be viewed against the background of the way of life of the parties,
their economic and social condition, their culture, sense of values, etc. Therefore,
precedents cannot always be relied upon (Shobha Rani v M. Reddi AIR 1988 SC 121).
Cruelty may be plrysical or mental. In the modern matrimonial law, mental
cruelty is a very important aspect of legal cruelty (Dastane v Dastane AIR 1976 SC
19. A nalyze th e m ea n in g o f ‘cruelty* u n d e r th e H in d u M arriag e A ct, 1955 w ith the

help o f d ecid e d cases? W h at rem ed ies c an a H in d u wife claim a g a in s t the
h u sb a n d on the above g ro u n d ? [U.P. PCS (J) 1985/1991]*
125. A m arriag e is:

(a) An ordinary contract.
(b) A special contract, which could not be put to an end like an ordinary contract.
(c) A civil contract and dissoluble union.
126. A m arriag e can b e d isso lv ed :
(a) If one of the spouses is found guilty of such acts and conducts which undermined
the very foundation of marriage.
(b) If both the spouses are found guilty of such acts and conducts which undermined
(c) Even if none of the spouses are guilty of such acts and conducts which undermined
127. Which o f th e follow ing th e o rie s r e la te to divorce:
(a) Offence/ Guilt/ Fault theory.
(b) Consent theory.
(c) Irretrievable breakdown theory.
1534). In Jyotish v Meera (AIR 1970 Cal 266), held that utter indifference, callousness
and apathy on the husband’s part towards his wife with whom he lived like a
stranger under the same roof, amounted to cruelty. ‘Constructive or remote-controlled’
cruelty is a form o f (mental) cruelty which may not by itself, but indirectly associated
with situations amounting to cruelty. Wilful refusal to perform mantal obligations
amounts to cruelty [also held in Nijbawan v Nijbawan AIR 1973 Del 200].
Some o f the instances of cruelty include: (i) false accusations of adultery or
unchastity (ii) demand o f dowry (iii) persistent refusal to have marital intercourse/
refusal to have children (iv) impotency (v) burth of a child (illegitimate) within 6
months o f marriage (vi) drunkenness (vii) threat to commit suicide (viii) wilful,
unjustifiable interference by one spouse and continuous ill treatment e.g. rough or
domineering conduct (ix) hurling of insults at the husband and his parents (ix)
incompatibility o f temperament - case of broken-down marriage ( V\ Bhagat v D.
Bbagat AIR 1994 SC 710); etc.
These do not constitute cruelty: (i) ordinary wear and tear of married life e.g.
mere neglect or want of affection, use of vulgar, obscene or rude language (ii) wife’s
refusal to resign her job (iii) wife’s quarrelling with mother-in-law (iv) non-payment
o f interim maintenance (v) desertion per srf etc.20
Insanity is no longer a defence to cruelty. Provocation or self-defence is still
good defence to a charge of cruelty (e.g. where one spouse provokes the other and
the other spouse acts cruelly, or where one spouse acts cruelly to protect against
cruelty o f other spouse). Acquiescence to the acts or conduct of the defendant is
also a good defence, but submission to acts must be voluntary. If the petitioner has
no option but to submit, he or she cannot be precluded from basing the ground
upon these acts.
The cruelty, like adultery, need not be proved beyond all reasonable doubts.
It may be proved on balance of probabilities. It is a welcome step to depart from
the rigid test of “beyond all reasonable doubts” particularly when in modern law,
adultery, desertion, and cruelty are not so much regarded as matrimonial offences,
but more or less as instances leading to breakdown of marriage.
(3) D esertion21 [See. /J ( /) (/-£))- Desertion has been defined as permanent forsaking
or abandonment o f one spouse by the other without any reasonable cause and
without the other’s consent or against the wish of such party, and includes wilful
20. M , th e wife o f G (b o th H in d u s), in a p e titio n for divorce a lle g e d th a t s h e h a d

b een receiving in su ltin g tre a tm e n t from h e r p a re n ts-in -la w w h ic h a m o u n te d to
leg al cruelty. T h e c o u rt found th a t as a m a tte r o f fact th e a lle g a tio n w a s tru e
b u t G w as not in any way involved in it. Will M su c c e e d ? [Delhi J.S. 1989]
[Ans. No, M will not succeed.)
21. A nalyze the m ean in g o f ‘desertion* u n d e r the H in d u M a rria g e A ct, 1955?
[U P. PCS 0) 1985]
E x am in e the co n cep t o f d ese rtio n u n d e r th e m a trim o n ia l law's o f H in d u a n d
refer to decided cases. C an a h u sb a n d c o m p e l h is w ife to re s ig n h e r jo b a n d
stay w ith him? D oes h er refusal to d o so a m o u n t to d e se rtio n ?
[U P. PCS 0) 1991]
[Note Also see above ‘Right to Set up Matrimonial H om e: Case o f W orking Ladies’].
48 Hindu Law
neglect (Explanation to Sec. 13(1)]. Desertion is a total repudiation of obligations

of marriage. It is a withdrawal not from a place but state o f things. Thus, there is
a desertion if a spouse does not leave the matrimonial home but refuses to fulfill
his other marital obligations (‘constructive desertion’).
The desertion may be actual.’ constructive, or wilful neglect. The respondent must’ve
deserted the petitioner for a continuous period of not less than 2 years immediately
preceding the presentation of the petition. In all, the following five elements arc
necessary to constitute a desertion. All these five must co-exist, to make it a ground
for divorce:
(i) the factum of separation,
(ii) animus deserdendi (intendon to desert),
(iii) desertion should be without any reasonable cause,
(iv) desertion should be without the consent of other party, and
(v) statutory period of two years.
In actual desertion, it is necessary that respondent must’ve forsaken or
abandoned the matrimonial home, accompanied by a permanent intention to desert.
At any time when animus and factum co-exist, desertion commences. Thus,
abandonment in a state of temporary passion, anger, or delusion (e.g. wife thinks
that it would not be safe to live with her husband) without intending cohabitation
to cease permanently, will not amount to desertion. Similarly, when a spouse is
forced to leave the matrimonial home, it will not amount to desertion. In fact, in
that case the spouse who forced the other spouse to leave the house will be guilty
of desertion (Shyam Chand v Janki AIR 1966 H.P. 70).
128. The g u ilt th eo ry , on t h e o n e h an d , im p lie s a guilty p arty , an d on t h e o th e r, it

im p lies t h a t t h e o th e r p a rty is innocent. In view o f th is , w hich o f t h e fo llo w in g
i s / are correct:
I. If one party condones th e acts of th e guilty party, no divorce can be
granted.
II. If cruelty is provoked, divorce will be refused.
III. If both parties were guilty, divorce would n ot be gran ted to either.
Codes:
(a) I and m .
(b) I and D.
(c) I, II and III.
129. R ecognition o f which g ro u n d s led to re n am in g o f 'g u i lt ' th e o r y a s t h e 'f a u lt”
th eo ry :
(a) Insanity and epilepsy.
(b) Desertion.
(c) Adultery.
130. W hich th e o ry o f divorce is c o n sid ered as th e m o s t a p p r o p ria te b a s is o f d iv o rce in
U.S.A.?
(a) Guilt theory.
(b) Consent theory.
(c) Breakdown theory.
It is not necessary that intention must precede the factum. Thus, where a spouse
leaves the home with no intention to abandon it, but later on, he forms an intention
not to return and consequently he failed to return, then it will amount to desertion. The
party, who intends bringing cohabitation to an end, and whose conduct in reality causes
its termination, commits the act of desertion (Jyotish Clxmdra v Meeru AIR 1970 Cal 266).
Further, where the respondent leaves the matrimonial home with an intention
to desert but subsequently shows an inclination to return and is prevented from
doing so by the petitioner, the respondent is not guilty of desertion. To constitute
desertion it is necessary to prove that the deserting spouse persisted in the intention
to desert throughout the statutory period of two years (Bipinchandra v Prabhavati
AIR 1957 SC 176). Most of the cases of desertion relate to our typical joint family
background in which the wife, not able to adjust, had left the matrimonial home or
had been forced to leave it (Lachman v Aleena AIR 1964 SC 40).
Even in ‘constructive desertion’ factum of separation has to be established. It
must be established that there is nothing else left in the parties’ relationship except
their living under the same roof (Jyotisb Chandra v Meera). “Wilful neglect’ is designed
to cover constructive desertion. It adds new dimensions to the notion o f desertion,
in as much as if the offending spouse consciously neglects the other party without
any intention to desert, it would nonetheless amount to desertion. It would be a wilful
neglect to fulfill basic marital obligations, such as denial o f company or denial of
marital intercourse. Failure to provide maintenance may also amount to wilful neglect.
Termination of desertion- Desertion is a continuing offence. It can be put to an end
either before or after the statutory period has run out. Once desertion begins, it
continues day after day, till it is brought to an end by the act or conduct o f the
deserting spouse. It also means that the offence of desertion is not complete even
if the period o f two years is complete; it may still be brought to an end by the act
o f the deserting spouse. It is inchoate (i.e. incomplete) and becomes complete only
when the deserted spouse files a petition for matrimonial relief. In this respect,
desertion differs from the other grounds such as adultery or cruelty.
In Bipimhandra case, the wife was clearly in desertion, but she expressed an intention
to resume cohabitation before the husband filed a petition for divorce, and, thus,
terminated the desertion. Thus, the guilt)' party can bring desertion to an end. Desertion
may come to an end by (a) resumption of cohabitation by mutual consent (complete
reconciliation, not temporary) (b) when separation becomes consensual (c) genuine offer
o f reconciliation (animus revertemli i.e. intention to return) with no conditions or
qualifications (d) supervening event may remove the duty to cohabit (eg. deserted
spouse commits an act which justifies the other to continue to live apart).
(4) C onversion [JVr. 13 (/) (//)]- If the respondent has ceased to be a Hindu by
conversion to another religion, divorce may be obtained. It may be noted that mere
renunciation o f Hinduism does not make him cease to be Hindu and so does leading
a very unorthodox life so much so as to eat beef and decry all Hindu gods and
goddesses; he will cease to be Hindu when he converts to another religion (non-Hindu
21a. Rakesh married Rajni in 1995. Soon after marriage he started doubting her .
chastity. On 1.1.1996, Rakesh beats Rajni and turned her out of the house.
Rakesh files a petition for divorce against Rajni on ground of desertion on
15.1.1998. Will he succeed? Can Rajni file a petition for divorce against Rakesh?
Discuss. [Punjab C. S. (J. B.) !999\
[Arts. Rakesh’s petition is liable to be dismissed. Ra)ru can seek a decree of divorce
on the grounds of cruelty and desertion.]
so Hindu Law
faith such as Islam, Christianity or Zoroastrianism) (Chandrasekhar v Kt/nandaivelu AIR

1963 SC 185). Conversion should be in accordance with rites and ceremonies or
formalities laid down by that religion to which conversion is sought. It is also not
necessary that after conversion the respondent must practise his new faith.
The conversion of the respondent does not amount to automatic dissolution
of marriage. Thus, if a Hindu husband converts himself as Mohammedan, none of
his obligations as husband towards the Hindu wife come to an end. The petitioner
has to file a petition to obtain a decree of divorce. The petition can be filed only
by the non-convert spouse and not by the convert spouse (as it would amount to
taking advantage of one’s own wrong). If a petitioner chooses to live with the
convert spouse, there is nothing to debar him or her from doing so (in the case of
a wife, she may ask for separate residence and maintenance). A right under Sec. 13
(1) (ii) can be exercised by a party who continues to be a Hindu.
(5) Insanity [Sec. 13 (/) («>)]- Where the respondent has been incurably of unsound
mind, or suffering continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live with
the respondent, divorce may be obtained.
Explanation to the clause defines “mental disorder” as ‘mental illness, arrested
or incomplete development of mind, psychopathic disorder or any other disorder/
disability of mind and includes schizophrenia’. Mental disorder like schizophrenia
should be of such quality that the petitioner is not reasonably expected to live with
the respondent (Ram Narayan v Ramesbwari AIR 1989 SC 149).
(6) Leprosy [Sec. 13 (1) (/«/)]- Where the respondent has been suffering from virulent
and incurable form of leprosy, divorce may be obtained. In view of the curability of
leprosy, it has been proposed that this ground should be done away with.
131. The coun try w hich in tro d u c ed "th e o ry o f fre e c o n se n t or th e m u tu a l c o n se n t

th eo ry " in th e fam ily law is:
(a) Soviet Union.
(b) U.S.A.
(c) England. \
(d) Japan.
132. Originally u n d er th e Hindu M arriage Act, 1 9 5 5 , divorce w as b a se d on:
(a) Fault theory.
(b) Consent theory.
133. The co n cep t o f "fre e divorce" is im p lic it in:
va) Fault theory.
(b) Consent theory.
134. Which o f th e follow ing th e o rie s is th e o u tco m e o f a fu n d a m e n ta l s h i f t in th e
policy d iscern ib le from th e ju d ic ia l re co g n itio n of th e view t h a t t h e p u rp o s e of
divorce law was not to p unish th e g u ilty b u t to p ro te c t th e in n o c e n t s p o u s e :
(a) Fault theory.
(b) Consent theory.
(7) Venereal disease [Sec. 13 (/) (p)]- Where the respondent has been suffering
from venereal disease in a communicable form, divorce may be obtained.
It may b e noted that the venereal disease includes AIDS. In Mr. X v Hospital
Z (AIR 1999 SC 495), the Supreme Court observed that a person suffering from
AIDS prior to marriage must be injuncted from entering into marriage.
(8) R en u n cia tio n [Sec. 13 (/) («)]- Where the respondent has renounced the world
by entering into any religious order, divorce may be obtained.
A mere tyag is not enough, the respondent (sanyasi) must enter into a religious
order, i.e. go to some ashrama with a view to living the remaining part o f his life
permanently there. Again, merely entering into any holy order may not amount to
renunciation o f world. For instance, when a Sikh becomes a grantbi or a Hindu
becomes a pujari or mahant, he does enter into a holy order, yet he is not required
to renounce the world.
(9) P resum ption o f death (JVc. 13 1) (tv>)]- The basis o f this ground is Sec. 108,
Indian Evidence Act, according to which a person who is not heard alive by his
relations and near ones for a period of seven years is deemed to be legally dead.
Thus, a petitioner may obtain a decree for dissolution o f marriage on this ground.
Once the marnage is dissolved, the petitioner is free to marry again and even
if the missing spouse returns the next day of the passing o f the decree or much
before the second wedding, he/ she can do nothing. However, if the second marriage
were performed on the basis of presumption of death without getting the first
marriage dissolved, the petitioner would be guilty o f bigamy and the second marriage
will be void; no person other than the missing spouse can challenge it.
Wife's Special Grounds of Divorce

Besides the grounds available under Sec. 13 (1), a wife has been provided additional
grounds of divorce under Sec. 13 (2).
(1) P re-A ct polygam ous m arriage [iff. 13 (2) (/)]- This ground under the Hindu
Marriage Act is the natural corollary to the introduction of monogamy. The first
wife of pre-Act marriage may file a divorce petition on the ground that her husband
has remarried. Similarly, the second wife of the pre-Act marriage may file a divorce
petition on the ground that her husband’s first wife was alive at the time o f
solemnization of marriage. In either case, the other wife should be alive at the time
of the presentation of petition. It does not matter that the petitioner wife is aware
of the other wife or not. Similarly, it is immaterial whether the petitioner wife is
living with the husband or separately at the time of commencement o f the Act.
The ground will be available if both the marriages are valid. The Hindu
Marriage Act did not rightly render the pre-Act bigamous/ polygamous marriages
void but provides relief of divorce to any wife of polygamous marriage. Today, this
ground is no longer of any practical importance.
(2) Rape, sodom y or bestiality (JVc 13 (2) («)|- Under this clause the commission
of the offence of rape, sodomy or bestiality (unnatural offences) by the husband
gives the wife a right to divorce him. An ‘attempt’ by the husband is not covered.
Further, the offence should be subsequent to the marriage o f the petitioner.
A man is not guilty of raping his own wife unless she is under the age o f 15
years (Exception to Sec. 375, IPC). In a wife’s suit for divorce on this ground, it is
not necessary for her to show that the husband was prosecuted and convicted for the
offence. Even if the husband is discharged on the charge o f rape, etc., she can sue
52 Hindu Law
for divorce. In either case the burden o f proof for establishing the ground is on the
wife; thus, she has to prove the offence de novo (afresh) in the matrimonial proceedings.
(3) N o n -resu m p tio n o f coha b ita tio n a fter a d e c r e e / o rd er o f m a in ten a n ce
[Set\ 13 (2) (/»)]- Under this clause, if a wife has obtained an order o f maintenance
under Sec. 125, Cr.P.C or a decree under Sec. 18, Hindu Adoptions and Maintenance
Act, and cohabitation between the parties hasn’t been resumed for one year or
upwards after the passing o f the order/ decree, she may sue for divorce. It is
evident that this ground has been enacted as a fault ground.
(4) R ep u d ia tio n o f m arriage [Sec. 13 (2) (/>)]- Under this clause (Option of
Puberty), a wife who has married before she had attained the age o f 15 years, and
who had repudiated the marriage after attaining the age o f 15 years but before
attaining the age o f 18 years (irrespective o f the fact whether the marriage has been
consummated or not) may bring the petition o f divorce on that basis.
Under the Hindu law, a child marriage is a valid marriage. N ow this clause
provides some relief to those Hindu girls who were married against their wishes
below the age o f 15 years. However, no such relief is provided to a boy who is
married below the age of 15 or 18 or 21 years.
The repudiation may be express (oral or written e.g. sending a registered letter
to husband) or implied from the conduct o f the wife (e.g. she left her husband and
refuse to come back). The repudiation must be made before the attainment o f the
age of 18 years. A petition for divorce on this ground can obviously be filed after
she attains the age of 18 years. Thus, a repudiation o f marriage and dissolution of
marriage is not the same thing.
135. The s t a t e m e n t "w h ile t h e r e i s no ro s e w h ich h a s no th o r n s b u t i f w h a t y o u ho ld

is a ll th o rn a n d no ro se , b e t t e r th ro w i t a w a y " r e la te s to :
(a) Restitution of conjugal rights.
(c) Divorce by mutual consent.
(d) Irretrievable breakdown of marriage theory of divorce.
[Uttaranchal PCS (J) (Prel.) 2002]
136. Mark th e incorrect s t a te m e n t :
(a) If a marriage has broken down beyond all possibilities of repair, th a n it should
be brought to an end, w ithout looking into th e causes of breakdown and
without fixing any responsibility on either party.
(b) Such marriage should not be dissolved if one of th e parties to th e marriage does
not desire it.
(c) Sometimes the determination of th e question w hether in fact a marriage has
broken down or not is left to th e courts.
(d) At other times, the legislature lays down th e criterion of breakdown of marriage
and if th at is established, the courts have no option b u t to dissolve th e marriage.
137. The H indu M arriage Act, 1 9 5 5 c o n ta in s t h e p ro v is io n r e g a r d in g d iv o rc e in :
(a) Sec. 10.
(b) Sec. 11.
(c) Sec. 13.
(d) Sec. 15. [Uttaranchal PCS (J) (Prel.) 2002]
(B) Divorce by M utual C onsent22

There are cases when parties wish to part happily, rather than indulge in accusations.
Sec. 13 B (inserted by 1976 Amendment), which provides for divorce by mutual
consent, has following essential ingredients:
(i) Subject to the provisions o f this Act, a joint petition for divorce by
both the spouses may be presented to the District Court.
(ii) The petition should state that they’ve been living separately for a period
o f 1 year, and haven’t been able to live together, and that they’ve
mutually agreed to live separately.
The words “living separately” only means not living as husband and wife, they
may live in the same house. What seems to be necessary is that they have no desire
to perform marital obligations (state o f complete breakdown o f marriage).
(iii) After the presentation o f the petition, the parties have to wait for 6
m onths though not for more than 18 m onths, and then to m ove a
m otion in the court that divorce be granted. Thus, between 6 to 18
m onths, after the presentation o f ‘first’ petition [Sec. 13B (1)], the
parties have to jointly move a ‘second’ petition [Sec. 13B (2)].
If no motion is moved within 18 months, the petition shall stand dismissed.
The waiting period o f 6 to 18 months from the date o f filing petition has
been held directory bv some High Courts (Roopa v Prabhaktir AIR 1994
Kant 12) and not by others (Satyabbama v Nanndm AIR 1997 O ri 47).
Rajasthan High Court has held that the court has power to grant divorce
even after the expiry of that time or even before the expiry o f 6 mondis,
if odier conditions are fulfilled (Sorttosh v I 'inndra AIR 1986 Raj 128).
(v) At the time o f second petition, the court shall after hearing the pardes
and making such inquiry as it thinks fit that a marriage has been solemnized
and that the averments made in the petition are true pass a decree.
(vi) The court must in every case be satisfied that the consent o f neither party
has been obtained by force, fraud or undue influence [Sec. 23 (l)(bb)J.
(vii) Collusion [Sec. 23 (l)(c)J may be pleaded as a bar to peddon for divorce
on the basis o f mutual consent.
However, a ‘compromise* application agreeing to divorce submitted by the parties
can be a basis o f divorce, though it should not be collusive. In fact, it is possible now
to dissolve a marriage by agreement between the parties although none o f the grounds
on which the court may dissolve marriage, be found to exist. In Santos!) v I 'inndra, a
petition for divorce on the ground o f cruelty and desertion was allowed to be converted
into a petition for divorce by mutual consent, ignoring the formality o f a joint peddon
required under Sec. 13 B. However, in a petition for divorce by mutual consent, no
other ground o f divorce can be taken (Raw v Sharda AIR 1978 M.P. 44).
(viii) No appeal against a divorce decree under Sec. 13B shall lie unless the
party finds himself or herself deceived.
22. Is th e re any p ro v is io n for d ivorce b y m u tu a l c o n s e n t in th e H . M . A ct? D is c u s s .
{Delhi J.S. 1991)
“ M u tu a l c o n s e n t to o b ta in a d e c re e o f d iv o rc e b y m u t u a l c o n s e n t u n d e r th e H .
M. Act is n e e d e d at tw o s ta g e s ” . D isc u ss in th e lig h t o f r e c e n t ju d ic ia l d e c is io n s .
[Punjab C. S. (J. Z3) 19991
54 Hindu Law
Unilateral Withdrawal of Consent by One Party

In Siiresbta Deviv Om Prakasb (AIR 1992 SC 1909), the Supreme C ourt laid down
that if one o f the parties withdraws consent unilaterally it would be withdrawal of
consent. Mutual consent should continue tilI the divorce decree is granted. Sec. 13 B (2)
requires the court to hear the parties which means both the parties. If one o f the
parties at that stage says that “I have withdrawn my consent”, the court cannot pass
a decree o f divorce by mutual consent. If the court is held to have the power to
make a decree solely on the basis o f initial petition, it negates the whole idea of
mutuality and consent for divorce.
But in a recent case, Asbok Hurra v Rupa (1997) 4 SCC 226, the Supreme
Court has left the question open. In this case divorce was granted even though the
wife had unilaterally withdrawn the consent as the marriage was found to be
irretrievably broken down. The court further observed that Suresb/a Devi should be
reconsidered. It is submitted that the view taken in A sbok Hurra case appears to be
correct, as in cases o f divorce by mutual consent marriage has in fact broken down
irretrievably and no use will be served in keeping it alive.
(C) Irretrievable Breakdown of M arriage

Sec. 13 (1A) (inserted by 1964 Amendment), which provides the grounds o f irretrievable
breakdown of marriage, lays down that either party to a marriage (solemnized before
or after the Act) may present a petition for divorce decree on the ground-
(i) that there has been no resumption o f cohabitation for a period o f 1 year
or upward after the passing o f a decree for judicial separation,*I.V
138. Sec. 13 o f t h e H in d u M a rriag e A ct, 1 9 5 5 , r e c o g n iz e s :

(a) Fault theory.
(b) Consent theory.
139. Sec. 1 3 ( 1 ) c o n ta in s how m a n y f a u l t g r o u n d s o n w h ic h e i t h e r t h e h u s b a n d o r th e
w ife, in r e s p e c t o f a m a rria g e s o le m n iz e d b e f o r e o r a f t e r t h e c o m m e n c e m e n t of
t h is Act, c o u ld s e e k d iv o rc e :
(a) Eight.
(b) Nine.
(c) Thirteen.
(d) Twelve.
140. W hich o f th e fo llo w in g is a f a u l t g ro u n d o f d iv o rc e :
I. V o lu n ta ry s e x u a l i n t e r c o u r s e w i t h n o n - s p o u s e a f t e r t h e s o l e m n i z a t i o n of
m a r r ia g e .
II. C ru e lty .
III. D e s e r tio n .
IV. C e a s e s to b e a H in d u b y c o n v e r s i o n t o a n o t h e r r e l i g i o n .
V. I n s a n i ty .
V I. C o n sen t o b ta in e d b y fo rce o r fra u d .
C o d es:
(a ) I, n , IV and VI.
(b) All except II and V.
(c) All except VI.
(d) All except V.
Hindu Law o f Divorce 55
(ii) that there has been no restitution o f conjugal rights for a period o f 1 year
o r upward after the passing o f a decree for Restitution.
As is evident, either part)’ can seek a divorce, irrespective o f the fact that decree
for judicial separation o r Restitution has been obtained by the other spouse. Prior
to 1964, this right was available only to that spouse in whose favour such a decree
was passed and thus, only innocent party could avail it (this right was part o f the
fault grounds before 1964). The concept o f irretrievable breakdown o f m arriage
makes no distinction between a guilt}- and innocent party.
T he 1964 A m endm ent has not touched Sec. 23, as to its application to all
m atrim onial causes, including divorce under Sec. 13 (1A). Sec. 23 (1) (a) provides
a bar to relief to the petitioner on the ground that he is n o t taking advantage o f
his own w rong or disability.
In Dbarmendra Kumar v Usba Kumar (AIR 1977 SC 2218), the Suprem e C ourt,
however, held that mere non-compliance with the decree o f Restitution does n o t
constitute a wrong under Sec. 23 (1) (a). To be such a ‘w rong’, the conduct alleged
has- to be som ething more than a mere disinclination to agree to an offer o f
reunion, it m ust be a serious misconduct. U nder Sec 13 (1A) (ii), the party is n o t
taking advantage o f his own wrong, but availing a legal right.
W here the petitioner made allegations o f adultery against his wife (O.P. Mehra
v Saroj A IR 1984 Del 159) and where after the decree o f Restitution, the husband
n o t only non-complied with it but ill-treated his wife and drove her o u t o f the
house, held that the petitioner is taking advantage o f his own w rong under S ec 23
(1) (a) (Geeta Laxm i v Serveshwara AIR 1983 A.P. 111).
In Saroj Rani v S .K Chadha (AIR 1984 SC 1562), held that the husband’s
refusal to o r failure to make efforts at resum ption o f cohabitation o r his failure to
pay alimony doesn’t am ount to his taking advantage o f his own wrong. In this case,
also held that ‘consent’ decrees (passed by courts after making conciliation efforts)
per se are n o t collusive under Sec. 23 (1) (c). A consent decree can also be the basis
o f petition for divorce under Sec. 13 (1A).
However, in a recent case, T. Snnivas v T. Varulakshmi (AIR 1999 SC 595), the
Supreme C ourt has again ruled to the effect that Sec. 23 (1) (a) shall be applicable
to Sec. 13 (1A).
C ustom ary Divorce

Am ong Hindus, customary divorce is still recognized. Sec. 29(2) reads: “N o th in g
contained in this Act shall be deemed to affect any right recognized bv custom o r
conferred by any special enactment to obtain dissolution o f a H indu m arriage,
whether solemnized before or after the com m encem ent o f this Act.”
It is im portant to note that before the coming into force o f the H indu
Marriage Act, 1955, Hindus could obtain divorce only if a custom governing them
allowed it. N o provision o f the Act applies to customary divorce (Sbakunta/abai v
Knlkarni AIR 1989 SC 1309).
The present position is that customary divorce is available unless a particular
ground or mode o f divorce is found to be contrary to public policy o r morality. F or
instance, a custom permitting divorce to one spouse against the wishes o f the o th er
is void, being unreasonable and against public policy. A custom am ong the Sikh Jats
o f Punjab is that a husband has the power to repudiate the marriage. Im m ediately
on repudiation, the wife is free to remarry.
56 Hindu Law
A custom among Vaishya community under which abandonment or desertion

o f the wife by die husband brings about dissolution of marriage has been held valid
(Gopi Krishna v Jogga, 63 IA 295). Most communities, which recognize divorce by
abandonment, also confer a right of re-marriage on the wife (Gurdit Singh v Angrej
AIR 1968 SC 142).
Custom among some castes and tribes recognize divorce by mutual consent.
If consent to divorce is obtained on payment of some price in cash or kind, divorce
is not valid (Keshav v Bai Gandhi ILR (1915) 39 Bom 538). It may be noted that
among most o f the low caste Hindus, divorce has always been available under
custom; with them sacramental character of marriage was a form without any
substance.
The customary divorce can be obtained through the agency of gram panchayat
or caste tribunal, by private act of parties, orally or in writing, or under an agreement
such as tyaga-patra or Jarkat-nama. However, the court can look into the question as
to whether the gram panchayat had the jurisdiction and as to whether the principles
o f natural justice were followed [Krishanlai v Prabhn AIR 1963 Raj 95).
In South India, divorce among several castes or groups was recognized and
regulated under special enactments, viz. Madras AUsantana Act, 1949; Travancore
Es^hva Act, 1925; Madras Marmakhathayama Act, 1933; etc. Among the matrilineal
communities, such as marmakhathayama and a/isantana, marriage can be dissolved by
mutual consent and special enactments regulate it. The Hindu Marriage Act has not
repealed these statutes and therefore divorce is still available under them.
141. A d u ltery by a H indu h u sb a n d is:

(a) Ground of divorce only.
(b) Not a ground of divorce.
(c) Ground of judicial separation only.
(d) Ground of divorce and judicial separation of th e both.
142. W hich o f th e fo llow ing s t a te m e n ts is incorrect in r e la tio n to 'a d u lte ry 's
(a) It is voluntary sexual intercourse with non-spouse after the solemnization of
marriage.
(b) The petitioner has to prove th a t the respondent was 'living in adultery' (i.e. a
continuous period of acts of sexual intercourse).
(c) One single act of adultery is not enough to sought divorce.
(d) If the second marriage is void, then intercourse with the second wife will
amount to adultery.
143. A s p o u s e is not g u ilty o f a d u lte ry i f th e a c t is c o m m itte d u n d er:
(a) Intoxication or unconsciousness (or lack of mental capacity to consent).
(b) Force/ fraud.
(c) A mistake th at the co-respondent is his or her spouse.
144. In w hich o f th e follow ing c ases, th e r e is an a d u lte ry :
(a) Intercourse with the wives of pre-Act polygamous marriage.
(b) Intercourse with a married woman personating to be her husband.
(d) Only (b).
[3] BARS TO REMARRIAGE AND MATRIMONIAL RELIEF
Bar to Remarriage23
As far as the bar to remarriage is concerned, a ‘one-vear bar to divorce’ has been
provided under the Hindu Marriage Act. Sec 14 enacts a “fair trial” rule, according
to which no marriage may be dissolved unless period of one year has elapsed after
the solemnization of the marriage, though in the case of ‘exceptional hardship’ to
the petitioner or ‘exceptional depravity’ on the respondent’s part, the marriage may
be dissolved earlier by the court. In such cases, the court has also to give due weight
to factors such as whether there is a reasonable probability of a reconciliation
between the parties, as also to the interest of children (if any) of the marriage.
Reydon on Divorce has observed: “It is submitted that the proper test is
whether the conduct of the respondent is of a character more depraved, not than
that o f normal persons, but than that in the normal run of cases which come
before the Divorce Court; and, whether the hardship suffered by applicant is similarly
greater than that suffered by the normal run of petitioners to the court (including
those in cases of cruelty)”.
It is also provided under Sec. 14 that if it appears to the court, at the time
of the hearing of the petition, that the leave of the court (to present such a petition
within one year of the marriage) had been obtained by misrepresentation or by a
concealment of the true nature of the case, the court may dismiss the petition or
may pass a decree for divorce with a condition that such a decree shall not operate
until one year expires from the date of the marriage.
Sec. 15 lays down that the persons divorced under the Act may marry at any
time after the divorce decree (before 1976, there was a one year restriction), provided
there is no right of appeal against the decree or if a right, the time for appealing
has expired or the appeal has been dismissed.24
23. A m arried B on 15.12.1978. B alleged th at her h u sb a n d A treated h er w ith

cruelty a n d she filed a petition for divorce on the g ro u n d o f cruelty u n d e r Sec.
13(1) (i-a) o f the H . M. Act in the co u rt o f D istrict Ju d g e on 31.3.1979. C an B
su cceed in the court? D iscuss. |Delhi J.S. I99l\
\Ans. No, B will not succeed. No exceptional hardship has been pointed out by the
petitioner to file the petition within one year of her marnage. Nor even any application
for leave as envisaged by Sec. 14 has been filed.]
24. G w as g ran ted divorce by the co u rt ag ain st J. G g o t rem arried before the
expiry of the period o f appeal. J filed an appeal a g ain st divorce a n d it h as b een
granted. D iscuss the legality o f the second m arriag e o f G. Will it m ak e any
difference if the appeal is dism issed? [C/.P. PCS (J) 1992\
[/ins. G’s second marnage would be mid, if the appeal is dismissed, G ’s marriage would
be valid.|
68 Hindu Law
Precautions to be taken by Court before Passing a Decree (Bars to

Matrimonial Relief)25
The petitioner to succeed in his petition should not merely prove the fault of the
respondent on the basis of which he seeks the matrimonial relief, but should also
be able to cross the bars to such relief before his petition will be granted. The
burden of proof is on the petitioner. Some of the bars, such as collusion and delay
apply to all matrimonial relief, while some apply only to divorce. Most of the bars
are based on the maxim, ‘one who comes to equity must come with clean hands’.
Sec. 23 of the Hindu Marriage Act deals with the following bars:
(a) Doctrine of strict proof (b) Taking advantage of one’s own wrong
disability (c) Accessory (d) Connivance (e) Condonation (f) Collusion (g) Delay, and
(h) Any other legal ground. All bars are absolute bars and if a bar exists the petitioner
cannot be granted relief (Under English law, some bars are discretionary bars i.e.
depends upon the discretion of the judge). A decree passed in disregard to these
bars is a nullity.
The doctrine of ‘strict proof’, as laid down under Sec. 23 (1) has been relaxed
by the judiciary in recent times. The standard of proof need not be of ‘beyond all
reasonable doubts’ (as required under criminal law); the balance of probabilities may
prove guilt.
25. W hen w ould a co u rt refuse to p ass a d ecree o f divorce u n d e r th e H .M . Act?

[Raj. J.S. 1992\*•
145. Mark th e incorrect sta te m e n t:

(a)Direct proof (of actual intercourse) is not necessary and the courts have always
• accepted circumstantial evidence.
(b) Such evidence which establishes 'preponderance of probabilities' is enough (e.g.
a woman discovered in a compromising position with a man in a room).
(c) Mere admission of the respondent in cross-examination is enough to prove
adultery.
(d) Vasectomy is not a conclusive proof of adultery unless proper semen test has
been taken.
146. Which of th e follow ing is not n e ce ssa ry in th e m a trim o n ia l o ffe n c e o f 'cru elty ':
(a) Reasonable apprehension.
(b) Intention or motive.
147. The sta rtin g p o in t of th e d e fin itio n o f c ru elty was m ad e in t h e fo llo w in g case:
(a) Russel v Russel.
(b) Cooper v Cooper.
(c) Dastane v Dastane.
148. In which case th e apex court exam ined th e m ean in g and p ro o f o f " m e n ta l cruelty":
(a) V. Bhagat v D. Bhagat.
(b) Corbett v Corbett.
(c) Brown v Brown.
The bar of ‘taking advantage o f one’s own wrong or disability’ [Sec. 23 (1) (a)]
lays down that if the petitioner is, directly or indirecdy, responsible for respondent’s
wrong, the petition cannot be granted. Thus, if a husband has been constandy cruel
and callous to his wife and on that account the wife withdraws from his society, the
husband’s petition for Restitution cannot be granted. Here the petitioner is taking
advantage o f his own wrong. Likewise, if a person files a petition for annulment of
marriage on the ground that he is impotent, then also his petition cannot be granted
because he is taking advantage o f his own disability. However, Sec 23 (1) (a) does
not apply to petitions for annulment of marriage on the ground o f incapacity to give
consent (e.g. insanity, mental disorder, etc.).
Sec. 23 (1) (b) lays down that where the ground of the petition is adultery, the
petitioner has not in any manner been ‘accessory’ to or ‘connived’ at or ‘condoned’
the act(s) complained of, or where the ground is cruelty, the petitioner has not in any
manner ‘condoned’ cruelty.
The term ‘accessor)'’ implies an active participation in the respondent’s crime.
Thus, if a husband goes out and brings people for having intercourse with his wife,
he is an accessory. The term ‘connivance’ (‘to wink-at1) implies anticipatory willing
consent or culpable acquiescence, active or passive. What is necessary is a corrupt
intention and not active corruption. Like accessory, connivance also applies to adultery.
Wherever the ground for matrimonial relief is adultery or cruelty, Sec 23 (1)
(b) requires that the court should be satisfied that the petitioner has not condoned
the offence. Condonation essentially implies forgiveness plus reinstatement i.e.
restoration of status quo ante (restoration to the same position as the offender was
before committing the offence). Thus, where cruelty o f one spouse is established,
but both of them cohabitated and had a normal sexual life, then it amounts to
condonation by the other spouse {Dastane v Dastane AIR 1975 SC 1534). However,
where the petitioner has no alternative but to put up, it should not amount to
condonation.
Condonation to be valid can take place only when the offended spouse has
full knowledge of all material circumstances of the offence forgiven. Thus, resumption
o f cohabitation with the full knowledge o f respondent’s adultery amounts to
condonation. A condoned offence revive if the guilty party repeats the condoned
offence, commits some other offence, or is guilty of some marital misconduct.
Thus, condonation is like taking the guilt)’ party on probation, but probationary
period cannot be unlimited.
Sec. 23 (1) (c) lays down that where a petition is presented or prosecuted in
‘collusion’ with the respondent, the court shall not decree such relief. With the
exception of a petition for nullity of marriage under Sec. 11 (void marriages),
collusion is a bar to every other matrimonial relief. Collusion may be defined as an
agreement, arrangement, etc., between the parties whereby matrimonial relief is
designed to be obtained, where in fact no ground or sufficient ground exists, by
deceiving the court by misrepresentation, etc. of facts. For example, where a husband
allows excessive maintenance to the wife so that she may agree for divorce.
‘Improper and unnecessary delay’ (laches) [Sec. 23 (t) (d)] is a bar to relief in
respect of all matrimonial causes under the Hindu Marriage Act. However, the
matrimonial bar of delay should not apply when marriage is void. It has been held
that the Indian Limitation Act does not apply to petitions under the matrimonial
statutes {Aina Devi v Buchan Singh AIR 1980 All 174). A long delay, if the petitioner
could explain it, would not be a bar.
60 Hindu Law
Sec. 23 (1) (e) is a residuary clause, which lays down that there should be ‘no
other legal ground’ for refusing the petition.
[4] RECONCILIATION BY COURTS
Under the Hindu Marriage Act and the Special Marriage Act, the courts have been
entrusted with a duty to attempt reconciliation. N o other Indian matrimonial statute
contains such a provision. Sec. 23 (2) o f the Hindu Marriage Act reads: “Before
proceeding to grant any relief under this Act, it shall be the duty o f the court in the
first instance, in every case where it is possible so to do consistently with the nature
and circumstances o f the case, to make every endeavour to bring about a reconciliation
between the parties.”
Since the objective o f reconciliation is to save marriage, the court at all levels
(including appellate courts) have power and duty to make efforts at reconciliation.
Even in a petition for divorce by mutual consent, it is the duty o f the court to make
efforts at reconciliation. However, no reconciliation endeavour by die court is required
when the ground for divorce is insanity, venereal disease, leprosy, unheard absence,
seven years’ imprisonment, renunciation o f the world and conversion. The
reconciliation efforts need not be made where marriage is null and void.
Although the duty to effect reconciliation is mandatory, the court’s failure to
make endeavour to effect reconciliadon does not vitiate the court’s decree (lueelawati
v Sewak AIR 1979 All 285). Further, the court’s duty is to endeavour to effect*I.V
149. Dastane v Dastane is a c a s e o n :

(a) Adoption.
(b) Divorce.
(c) Marriage.
(d) Maintenance. [Uttaranchal PCS (J) (Prel.) 2002]
150. W hich o f th e fo llo w in g a m o u n t t o 'c r u e lty ':
I. -Persistent refu sal to have m a rita l in te rc o u rs e / re fu sa l to h av e c h ild re n .
II. Wife's refusal to resig n h e r job.
III. Wife's quarrelling w ith m other-in-law .
IV. Birth of a child (illeg itim ate) w ith in 6 m o n th s of m arria g e .
V. Incom patibility of te m p eram en t- case o f b ro k en -d o w n m a rria g e .
VI. Non-payment of in te rim m ain ten an ce.
VII. Desertion per se.
Codes:
(a) I, IV, V and VII.
(b) I, IV and V.
(c) All except II and III.
(d) All except III and VII.
151. W hich o f th e fo llo w in g is a d e f e n c e t o c ru e lty :
(a) Insanity.
(b) Provocation or self-defence.
(c) Acquiescence to the acts or conduct of th e defendant.
reconciliation and not to impose it. ‘Reconciliation is reconciliation’, n o t coercion

far less judicial coercion (Bejoy v A loka AIR 1969 Cal 477).
Sec. 23 (3) o f the Hindu Marriage Act provides for reconciliation machinery.
The court may itself endeavour to effect reconciliation or it mav adopt a private
agency o f reconciliation (named by the parties) where reconciliation may be
endeavoured in an informal and frank atmosphere, by adjourning the proceedings
for a reasonable period not exceeding 15 days.
[5 ] JU RISDICTIO N OF COURTS, PROCEDURE AND INCIDENTAL MATTERS
Section 19 o f the Hindu Marriage Act lays down that a petition in arty matrimonial cause
may be presented to the District Court within the local limits o f whose jurisdiction-
(a) the marriage was solemni2 ed, or
(b) the respondent at the time o f the presentation o f petition resides, o r
(c) the parties to the marriage last resided together, or
(d) the petitioner is residing at the time o f the presentation o f petition, in a
case where the respondent is, at that time, residing outside the territories
to which the Act extends or hasn’t been heard o f as being alive for a period
o f 7 years or more.
T he petition must distinctly set out the nature o f the case and the facts on
which the claim to relief is founded. It must also state (except in a petition under
Sec. 11) that there is no collusion between the parties to the marriage (Sec. 20). T he
procedure under the Act is governed by the Code o f Civil Procedure (except as
otherwise provided by the Act) and by the High C ourt Rules (Sec. 21).
Power to transferpetition in certain cases —Sec. 21A lays down that if a petition under the
Act has been presented to a District Court for judicial separation o r divorce, and
subsequently another petition is presented by the other spouse for similar relief, in the
same court, or in a different District Court, in the same State or a different State-
(a) If the petitions are presented to the same court, both the petitions are to
be tried by it.
(b) If the petitions are presented to the different courts, the subsequent petition
is to be transferred to the court in which the earlier petition was presented,
and both the petitions are to be tried by it.
Specialprovisions relating to trial and disposal o f petition —Sec. 21B provides that the trial
o f a petition should be continued from day to day until its conclusion; all petitions
and appeals are to be disposed o f as expeditiously as possible (for petitions- 6
months, for appeals- 3 months).
Documentary evidence — Sec. 21C provides that notw ithstanding anything in any
enactment to the contrary, no document shall be inadmissible in evidence in any-
proceeding under the Act on the grounds that it is not duly stamped o r registered.
Hearing in C am era
livery proceeding under the Act shall be conducted ‘in camera’ (Sec. 22). Further,
it is nnlawfnl fo r any person to print or publish any m atter in relation to any such
proceeding, except a judgment o f a 1ligh C o u rt/ Supreme Court, and that too, with
the prior permission o f the court (otherwise a fine up to Rs. 1000).
62 Hindu Law
Relief for Respondent in Divorce and Other Proceedings

Sec. 23A (introduced in 1976) provides that in any proceeding for divorce, Restitution,
etc. the respondent may not only oppose the relief sought on the ground o f the
petitioner’s cruelty, adultery or desertion, but may also make a counter-claim for “any
relief under the Act” on that ground. If the petitioner’s adultery, cruelty or desertion
is proved, the court may give to the respondent any relief under this Act to which
he or she would have been entitled if he or she had presented a petition seeking
such relief on that ground.
There is no such provision under the Indian Divorce Act. The Civil Procedure
Code contains a provision for the counter-claim.
Maintenance of Spouse/ Custody of Children
Secs. 24-26 - See under ‘Hindu Law of Maintenance’.
Disposal of Property (Sec. 27)26
In order to avoid multiplicity of litigation, Sec. 27 lays down that in any proceeding
under the Act, the court can make such provisions in the decree, as it deems just
26. W hat is the scope o f Sec. 27 o f the H . M. A ct for d isp o sal o f p ro p e rty of
H indu spouse? D iscuss. 1' [Delhi J.S. 2000]
In a petition for divorce, wife files an applicatio n u n d er Sec. 27 cla im in g som e
jewellery w hich was p resen ted to h er at the tim e o f recep tio n after a b o u t a
week of her m arriage. Can the c o u rt p ass o rder u n d e r Sec. 27? [Delhi J.S. 1999]
152. Desertion:
(a) Is permanent forsaking or abandonment of one spouse by the other without any
reasonable cause and without the other's consent or against the wish of such party.
(b) Includes wilful neglect.
(c) A total repudiation of obligations of marriage.
153. In 'co n stru ctiv e d ese rtio n ':
(a) There is a withdrawal not from a place but state of things.
(b) A spouse does not leave the matrimonial home but refuses to fulfill his other
marital obligations (wilful neglect).
154. To c o n stitu te d esertio n w hat m ust co -exist:
(a) Factum and animus.
(b) Reasonable cause and consent.
(a) In actual desertion, it is necessary that respondent must've forsaken or abandoned
the matrimonial home, accompanied by a permanent intention to desert. It is
not necessary that intention must precede the factum.
(b) When a spouse is forced to leave the matrimonial home, it will not amount to desertion.
(c) The spouse who forced the other spouse to leave the house will not be guilty
of desertion but of cruelty.
(d) To constitute desertion it is necessary to prove that the deserting spouse persisted
in the intention to desert throughout the statutory period of two years.
and proper, with respect to any property presented jointly to the husband and the
wife at or about the time of marriage. It may be noted that in the absence of such
an express provision, a Matrimonial Court would have no jurisdiction to dispose of
any property jointly owned by the spouses.
The settlement of property can be made only at the time of the passing of
the decree in a matrimonial cause. The property of the parties acquired by them
before or after the marriage is not within the purview o f this section. The court is
free to make any setdement o f the joint property o f aforesaid description either for
the benefit o f any spouse or children. It may distribute the property among the
spouses. In either case, the property must joindy belong to the husband and wife
(Akasan Chin v Parvati AIR 1967 Ori 163).
The property which is not presented to spouses at or about the time of marriage
is outside the purview of Sec. 27 {Krishna v Padma AIR 1968 Mys 226). The court
has no power o f making necessary provision about the separate property o f spouses.
But, if pardes enter into settlement about any property, the court can record the
compromise {Sibnatb v Sunita AIR 1989 Cal 84).
The wife’s application for recovery of jewellery and ornaments in the possession of the
husband is also not maintainable under Sec. 27 (Satyapa! v Sushila AIR 1989 All 81). But,
it has been held that where jewellery was kept in the joint names o f husband and wife
in a bank locker, the court can pass appropriate orders (Brtj Kishore v Rekiia AIR 1992
Ori 85). It seems that such an order could be made under the Family Courts Act
Appeals From Decrees and Orders (Sec. 28)
All decrees made by the court in any proceeding under the Act are appealable. Every
appeal must be preferred within 30 days from the date o f the decree. However,
there can be no appeal under Sec. 28 on the subject of costs only. Sec. 28A provides
for the enforcement of decrees and orders.
Savings (Sec. 29)
Sec. 29 of the Act contains a savings clause in respect of certain matters:
(1) A valid Hindu marriage solemnized before the Act, is not deemed to be
invalid on the ground that the parties belonged to the same gotra or pravara,
or belonged to different religions, castes, etc.
(2) See above under ‘Customary Divorce’.
(3) No provision in the Act is to affect any proceeding, under any law for the
time being in force, for declaring any marriage to be null and void, o r for
annulling or dissolving any marriage or for judicial separation, pending at the
commencement of the Act. Such a proceeding is to be continued and
determined as if this Act has not been passed.
(4) No provision in the Act is to affect the provisions of the Special Marriage
Act, 1954, as regards marriages between Hindus solemnized under that Act,
whether before or after the commencement of the Act.
[6] FAMILY COURTS
A brief mention o f the Family Courts may be desirable here. The b'amtiy Courts A ct,
1984, stipulates for the establishment of family courts for those town and cities
64 Hindu Law
whose population exceeds one million. The status o f a family court is like that of
an Income-tax Tribunal; it is higher than that o f the district judge and lower than
that o f the High Court. All matters pertaining to the family, such as matrimonial
causes, maintenance and alimony o f spouses, guardianship and custody of children,
etc. come within the jurisdiction o f the family court.
The Family Courts Act has precedence over other statutes including those of
codified Hindu law (Shalina~ v Shirim AIR 1995 Bom 30). The concept o f family
court essentially implies the discarding o f adversarial procedure, and adoption of a
less formal procedure. However, much more needs to be done before the family
court system can be brought to effective functioning in India.
[7] REGISTRATION OF MARRIAGE
Registration o f Hindu marriage has not yet been made compulsory, though the State
Governments have been empowered to frame rules for compulsory registration of
marriages (Sec. 8). The interesting aspect o f the law is that even when State
Government makes the registration o f marriage compulsory, non-registration does
not render the marriage invalid, though any person contravening the rules relating
to compulsory registration o f marriage may be punished with a nominal fine o f up
to Rs. Twenty-five. Mere registration is no proof o f marriage (Shahji v Gopinath AIR
1995 Mad 161).
156. In w h ich o f t h e fo llo w in g c a s e s , t h e m a tr im o n ia l o f f e n c e o f d e s e r t i o n h a s b e e n

c o m m itte d by 'A':
(a) 'A', a spouse, leaves th e home with no in ten tio n to abandon it, b u t later on, he
forms an in tention n ot to return and consequently he failed to retu rn .
(b) A' leaves th e matrimonial home with an intention to desert b ut subsequently shows
an inclination to return and is prevented from doing so by 'B', th e other spouse.
157. W hich o f th e fo llo w in g is a le a d in g c a s e o n 'd e s e r t i o n ':
(a) Bipinchandra v Prabhavati.
(b) Dastane v Dastane.
(c) Russel v Russel.
(d) Ram Narayan v Rameshwari.
158. W hich o f t h e fo llo w in g is a c a s e b o th o n 'c r u e l ty ' a n d 'd e s e r t i o n ':
(a) Dastane v Dastane.
(b) Russel v Russel.
(c) Jyotish Chandra v Meera.
(d) V. Bhagat v D. Bhagat.
159. H, t h e h u s b a n d b e a ts h is w ife W a n d h e r c h ild C a n d t u r n s t h e m o u t o f th e
m a tr im o n ia l h o m e. W g o e s t o h e r p a r e n t's h o u s e a lo n g w ith C. H m a k e s n o e f fo r t
to b rin g th e m b ack . A fte r tw o y e a rs H f i le s a p e t i t i o n f o r d iv o r c e a g a i n s t H o n th e
g ro u n d o f d e s e rtio n .
(a) H will not succeed because he is th e deserter.
(b) W can file a divorce petition on th e ground of desertion or cruelty.
(c) H will succeed.
Hindu Law of Divorce (Q uestions/Problem s) (Contd.)
160. M eera w a s m a rrie d to C h a n d ra. The h u s b a n d w a s c o ld , i n d i f f e r e n t a n d s e x u a lly

a b n o r m a l a n d p e rv e rs e . He l e f t f o r E n g lan d a n d h is b e h a v io u r e v e n a f t e r r e t u r n fro m
E n g la n d b e c a m e c o ld e r. He w o u ld r e tu r n la t e fro m c lu b . T he m e n t a l a g o n y o f t h e w if e
c o n ti n u e d a n d s h e o u t o f f r u s t r a t i o n j o in e d U n iv e rs ity a s a le c tu r e r . U l tim a te ly
b e c a u s e o f p h y s ic a l a n d m e n ta l t o r tu r e s h e l e f t t h e m a r ita l h o m e a n d s t a r t e d liv in g
s e p a r a te ly . T he h u s b a n d w e n t t o h e r a n d a d v is e d h e r t o r e s ig n a n d le a v e t h e c ity .
(a) Chandra will n o t succeed because he is th e deserter.
(b ) Meera can file a divorce p etitio n on th e ground of desertion or cruelty.
(c) Chandra will succeed.
161. D e s e r tio n i s a c o n tin u in g o f f e n c e . I t m e a n s :
(a) Once desertion begins, it continues day a fte r day, till it is b ro u g h t to a n en d
by th e act or conduct of th e deserting spouse.
(b) That th e offence of desertion is n o t com plete even if th e period o f tw o years
is complete; it may still be b ro ught to an en d by th e act of th e desertin g spouse.
162. H an d W are H indu h u sb a n d an d w ife. W i s a s h o r t- te m p e r e d w o m a n a n d s h e o f t e n b e a t s
t h e c h ild ren an d a b u se s H. H is very t o le r a n t an d h e c o n tin u e s t o live w ith W f o r a n o rm a l
life fo r fiv e y ears. In J a n . 1 9 9 2 , W lea v es fo r h e r p a re n t's h o u s e o n t h e p r e te x t t h a t h e r
f a th e r w as ilL W co m e s back in Aug. 1 9 9 4 . H d o e s n o t allo w h e r t o e n t e r t h e h o m e a n d
s h e g o e s back to h e r p a re n ts . In Oct. 1 9 9 4 , H f ile s a p e ti t io n fo r d iv o rce o n g ro u n d
o f d e s e rtio n . W hen d id t h e d e s e rtio n b e co m e c o m p le te in t h e p r e s e n t c a s e ?
(a) Jan. 1994.
(b) Aug. 1994.
(c) Oct. 1994.
(d) Jan . 1993.
163. D e s e r tio n i s in c h o a t e ( i .e . i n c o m p l e t e ) a n d b e c o m e s c o m p l e t e o n ly :
(a) When th e deserted spouse files a p etitio n for m atrim onial relief.
(b) When th e deserting spouse files a p etitio n for m atrim onial relief.
(c) After th e statu to ry period of 2 years.
164. D e s e r tio n m ay c o m e t o a n e n d by:
(a) Resumption of cohabitation.
(b) Resumption of m arital intercourse.
(c) Supervening animus revertendi.
165. A H in d u c e a s e s t o b e a H in d u by:
(a) Renunciation.
(b) Abandonment.
(c) Expressing his faith in another religion and practising it.
(d) Conversion.
(a) If th e respondent has ceased to be a Hindu by conversion to a n o th e r relig io n ,
divorce may be obtained.
(b) Mere renunciation of Hinduism does n o t make a spouse cease to be H indu; h e / ‘
she will cease to be Hindu when h e /s h e converts to a n o th e r religion (n o n -H in d u
faith such as Islam. Christianity or Zoroastrianism ).
(c) The conversion of th e respondent am ounts to auto m atic d isso lu tio n o f m arriage.
(d) If a petitioner choose to live with th e convert spouse, th e re is n o th in g to d eb ar
him or her from doing so.
66 Hindu Law
167. 'A', a H indu, m arried to 'B', c o n v erts to a n o th e r re lig io n . 'A' th e n f ile s a p e titio n
fo r divorce on th e ground o f co n v ersio n .
(a) A will succeed.
(b) A will not succeed.
(c) A will not succeed; the petition can be filed only by B.
(d) A could succeed if B agrees to divorce.
168. If on e sp o u se c h an g es h i s / h e r re lig io n , t h e n t h a t sp o u se:
(a) Shall not be granted any matrimonial relief.
(b) Can be granted matrimonial relief.
(c) Can be granted matrimonial relief if other spouse also converts to the same religion.
(d) Can be granted matrimonial relief if the first spouse reconverts.
169. Conversion o r a p o sta s y i s not a gro u n d fo r ju d ic ia l se p a ra tio n o r d iv o rce under:
(a) Special Marriage Act.
(c) Muslim Law.
(d) Parsi Marriage and Divorce Act.
170. U nder w hich e n a c tm e n t, m ere co n v ersio n o f h u sb a n d d o e s n o t c o n s titu te a ground
fo r divorce u n le s s i t is co u pled w ith bigam y:
(a) • Hindu Marriage Act.
(c) Muslim Law.
1 7 1 . Mark th e incorrect m atching:
(a) Adultery: Sec. 13(l)(i).
(b) Cruelty: Sec. 13(1) (i-a).
(c) Conversion: Sec. 13 (1) (ii).
(d) Leprosy: 'Sec. 13 (1) (v).
172. The w hereabouts of th e husband of R, a Hindu wife, have n o t been known for a period
of eig h t years. R ceases to be Hindu by converting to non-Hindu religion. Can she file
a su it for divorce against her m issing husband under Sec. 13 (1 ) (vii) o f th e H. M. Act?
(a) Yes.
(b) No.
(c) Yes, but under Sec. 13 (1) (ii).
173. The ground of 'in sa n ity '- a ground o f divorce c o n te m p la te s :
(a) That the respondent has been incurably of unsound mind.
(b) That the respondent has been suffering continuously or interm ittently from
mental disorder of such a kind and to such an extent th a t the petitioner cannot
reasonably be expected to live with the respondent.
(d) Only (a) is correct.
17 4 . In sa n ity is a ground for:
(a) Getting the marriage annulled as voidable.
(c) Divorce.
17 5 . Divorce may be ob tain ed :
(a) Where the respondent has been suffering from venereal disease in a'communicable
form e.g. AIDS.
(b) Where the respondent has been suffering from venereal disease in a communicable
or non-communicable form.
(c) Where the respondent has been suffering from venereal disease in a virulent form.
Hindu Law of Divorce (Questions/Problems) (Contd.)
176. U n d er w hich e n a c tm e n t, in s a n ity o r L ep ro sy / v e n e re a l d is e a s e i s n e i t h e r a g ro u n d

f o r d iv o rce n o r fo r ju d ic ia l s e p a ra tio n :
(c) Dissolution of Muslim Marriage Act.
177. In view o f th e 1 9 9 9 A m endm ent, which o f th e follow ing is no lo n g er a ground o f divorce:
(a) Insanity.
(b) Leprosy.
(c) Venereal disease.
178. R e n u n ciatio n o f world and P resu m p tio n o f d e a th are th e g ro u n d s o f d iv o rce a v a ila b le
in In d ia o nly u n d er:
(a) Hindu law.
(b) Hindu and Muslim law.
(c) Hindu law and Special Marriage Act.
(d) Hindu and Christian law.
(a) Once the marriage is dissolved on the ground of presumption of death, the petitioner
is free to marry again and even if the missing spouse returns the next day of the
passing of the decree or much before the second wedding, h e / she can do nothing.
(b) If the second marriage were performed on the basis of presumption of death
without getting the first marriage dissolved, th e petitioner would be guilty of
bigamy and the second marriage will be void.
(c) If the second marriage were performed on the basis of presumption of death without
getting the first marriage dissolved, the petitioner would not be guilty of bigamy.
180. The a d d itio n a l g ro u n d s o f divorce a v a ila b le t o a w ife u n d e r S ec. 13 ( 2 ) a re :
I. P re -A c t p o ly g a m o u s m a r r ia g e .
II. R ap e, s o d o m y o r b e s tia lity .
III. N o n - r e s u m p tio n o f c o h a b i t a t io n a f t e r a d e c r e e / o r d e r o f m a i n t e n a n c e .
IV. C o n se n t o b ta in e d b y fr a u d .
V. R e p u d ia tio n o f m a rria g e .
C odes:
(a) I, n, m and V. 11
(b) n , ra, IV and V.
(c) I, H and IV.
181. Mark th e correct s ta te m e n t:
(a) Under Sec. 13 (2) (i), a light to divorce has been given to th e first wife only.
(b) A compromise or agreement between the husband and th e wife before th e
commencement of the Hindu Marriage Act, 1955 cannot take away th e rig h t of
the wife under Sec. 13 (2) (i).
(d) Only (a). . X
182. Rape, sodom y and b e s tia lity (u n n a tu ra l o f f e n c e s ) a r e s p e c ia l g ro u n d s o n w h ic h
w ife a lo n e can su e fo r divorce u n der:
(a) Hindu marriage Act.
(b) Special Marriage Act.
(c) Indian Divorce Act.
68 Hindu Law

(a) The Hindu Marriage Act did not render th e pre-Act polygam ous marriages void
b u t provides relief of divorce to any wife of polygam ous marriage.
(b) In a wife's suit for divorce on the ground of rape, sodomy, etc., it is not necessary
for her to show th at the husband was prosecuted and convicted for the offence. Even
if the husband is discharged on the charge of rape, etc., she cam sue for divorce.
(c) If a wife has obtained an order of m aintenance under Sec. 125, Cr.P.C. or a
decree under Sec. 18, Hindu Adoptions and M aintenance Act, and cohabitation
between th e parties h a sn 't been resumed for one year or upwards after the
passing of th e o rder/ decree, she may sue for divorce.
184. A m an i s n o t g u ilty o f ra p in g h is w ife u n le s s s h e is u n d e r t h e a g e o f:
(a ) 12 years.
(b) 13 years.
(c) 14 years.
(d) 15 years.
185. U n d e r t h e H in d u law , w h ic h g r o u n d o f d iv o rc e i s a v a ila b le o n ly t o a f e m a le :
(a) Repudiation of marriage.
(b) Adultery.
(c) Impotency.
186. U n d e r S ec. 13 ( 2 ) ( iv ) , a m a rria g e m u s t h a v e b e e n r e p u d ia te d :
(a) Immediately after th e marriage.
(b) After attaining th e age of 15 years b u t before attain in g th e age of 18 years.
(c) Immediately after th e consummation of marriage.
(d) Any one of th e above.
187. A, a H in d u boy, a g e d 15 y e a rs , m a r r ie s B, a H in d u g ir l, a g e d 1 2 y e a r s . T he m a rria g e
w as c o n s u m m a te d w h e n t h e g ir l h a d a t t a i n e d t h e p u b e r ty (w h ic h s h e d id a t th e
a g e o f 1 3 ) . The g irl a t t h e a g e o f 1 7 :
(a) Can claim divorce.
(b) Cannot claim divorce.
(c) Can seek repudiation of marriage.
(d) Cannot seek repudiation of marriage.
188. G, a H indu g irl b o m on 1 Aug. 1 9 7 5 , w as m a rrie d b y h e r f a t h e r t o B, a H in d u boy
on 1 4 th Ju ly 1 9 9 0 . S he s ta y e d w ith B f o r a c o u p le o f d a y s a n d th e n r e tu r n e d t o her
p a re n t's p lace and re fu s e d to g o b a c k t o h e r h u s b a n d . In O ct. 1 9 9 0 , G w as f o u n d to
b e p re g n a n t b u t a fe w d a y s l a te r a b o r tio n to o k p la c e . In Nov. 1 9 9 1 , G w ro te a
re g is te re d l e t t e r to B re p u d ia tin g h e r m a rria g e w ith h im . I s t h e m a r r ia g e d iss o lv e d ?
(a) No, because a repudiation of marriage and dissolution of m arriage are not the
same thing.
(b) A minor girl can get her marriage dissolved only after she becomes 18 years old
and files a petition in th e court.
(c) Yes.
1 8 9 . W hich o n e o f t h e fo llo w in g is a correct s t a t e m e n t ?
(a) Divorce by mutual consent has been provided under th e Hindu Marriage Act,
from its inception.
(b) Divorce by m utual consent was introduced by Hindu Marriage (A m endm ent)
Act, 1976.
(c) Divorce by mutual consent has been provided under Sec. 13-A o f th e Hindu
Marriage Act.
(d) A petition for divorce by mutual consent must be presented within one year of marriage.
Hindu Law of Divorce (Q uestions/Problem sl (Contd.)
190. W h a t i s n e c e s s a r y in a p e t i t i o n o f d iv o rc e by m u tu a l c o n s e n t:
I. J o in t p e titio n .
II. L iv in g s e p a r a t e l y f o r a p e r i o d o f 1 y e a r .
III. S t a t e o f c o m p le te b r e a k d o w n o f m a r r i a g e .
IV. B e tw e e n 6 t o 18 m o n th s , a f t e r t h e p r e s e n t a t i o n o f 'f i r s t ' p e t i t i o n , t h e
p a r t i e s h a v e t o j o i n t l y m o v e a 's e c o n d ' p e t i t i o n .
V. C r u e lty b y o n e s p o u s e to t h e o t h e r .
V I. M u tu a l a n d f r e e c o n s e n t.
C o d e s:
(a) I, II, m , IV and VI.
(b) I, n , IV and VI.
(c) I, m . IV and V.
191. M ark t h e correct s t a t e m e n t ( s ) :
(a) In a proceeding for divorce by m utual consent, th e parties have to move th e
court once again after 6 m onths b u t before 18 m onths from th e d ate of th e
presentation of th e petition.
(b) In a petition under Sec. 13B. th e consent can be w ithdraw n after moving th e
court for th e second tim e but before th e passing of th e decree for divorce.
(d) Only (a).
192. W hich m ay b e p le a d e d a s a bar to p e titio n f o r d iv o rce o n t h e b a s is o f m u tu a l c o n s e n t:
(a) Compromise.
(b) Collusion.
(a) A 'compromise' application agreeing to divorce subm itted by th e parties can be
a basis of divorce, though it should n o t be collusive.
(b) It is possible to dissolve a marriage by agreement between th e parties although
none of th e grounds on which th e court may dissolve marriage, be found to exist.
(e) A petition for divorce on th e ground of cruelty and desertion could be converted
into a petition for divorce by m utual consent, ignoring th e form ality of a jo in t
petition required under Sec. 13 B.
(d) In a petition for divorce by mutual consent, other grounds of divorce can be taken.
194. I f o n e o f t h e p a r ti e s to a p e ti t io n o f d iv o rc e by m u tu a l c o n s e n t w ith d r a w s c o n s e n t
u n ila te r a lly :
(a) It would be withdrawal of consent under Sec. 13 B (Sureshta Devi v Om Prakash).
(b) It would not be withdrawal of consent.
(c) The apex court has left th e question open (Ashok Hurra v Rupa).
(d ) Both (a) and (c).
195. B a n d P w e re m a rrie d in J a n . 1 9 8 8 . A fte r m a rria g e , P w as h a r a s s e d f o r n o t b r i n g in g
s u f f i c i e n t dow ry. S h e l e f t t h e h o m e in J u n e 1 9 8 8 a n d f i le d a p o lic e c o m p l a in t a n d
a d iv o rc e p e t i t i o n a g a i n s t h e r h u s b a n d o n t h e g ro u n d o f c r u e lty . H o w ev er, a t t h e
i n s t a n c e o f s o m e m e d ia to rs s h e a g re e d t o w ith d ra w h e r a f o r e s a i d d iv o rc e p e t i t i o n
a n d c o m p la in t, in s t e a d , s h e w as 'p e r s u a d e d ' t o f i le a p e t i t i o n f o r d iv o rc e b y m u t u a l
c o n s e n t. B oth m oved a p e ti t io n fo r d iv o rc e by m u tu a l c o n s e n t in J a n . 1 9 9 0 .
H ow ever, in Aug. 1 9 9 0 , P f ile d a n a p p lic a tio n in t h e C o u rt i n t i m a t i n g h e r i n t e n t i o n
t o w ith d ra w fro m t h e p e ti t io n . Can t h e c o u r t s t i l l p a s s a d e c r e e f o r d iv o r c e ?
(a) Yes.
(b) No.
(c) Mutual consent being th e sine qua non of Sec. 13B th e Court cannot pass a
decree of divorce in absence of her consent.
70 Hindu Law
196. Sec. 13 (1A) w hich p ro v id es t h e g ro u n d s o f irre tr ie v a b le b re a k d o w n of m arriag e,

lays down th a t:
(a) Either party to a marriage may present a petition for divorce decree on the
ground that there has been no resumption of cohabitation for a period of 1 year
or upward after the passing of a decree for judicial separation, or th at there has
been no restitution of conjugal rights for a period of 1 year or upward after the
passing of a decree for Restitution.
(b) The party (in whose favour a decree for judicial separation or Restitution has
been passed) may present a petition for divorce decree on th e ground th a t there
has been no resumption of cohabitation for a period of 1 year or upward after
the passing of a decree for judicial separation, or th a t there has been no
restitution of conjugal rights for a period of 1 year or upward after the passing
of a decree for Restitution.
(c) The party (against whom a decree for judicial separation or Restitution has been
passed) may present a petition for divorce decree on the ground th at there has been
no resumption of cohabitation for a period of 1 year or upward after the passing
of a decree for judicial separation, or th at there has been no restitution of conjugal
rights for a period of 1 year or upward after the passing of a decree for Restitution.
197. W here o n e of th e sp o u se, a f te r p a ssin g o f th e d e cre e fo r R e s titu tio n , n o t o n ly non-
com plied w ith i t b u t ill- tr e a te d t h e o th e r s p o u s e , and th e n m oved t h e c o u rt un d er
Sec. 13 (1 A) ( i i) , h is p e titio n
(a) Would fail.
(b) Would not fail as there is irretrievable breakdown of marriage and the petitioner
is availing a legal right.
(c) Would fail as he is taking advantage of his own wrong.
198. Which is th e m o st com m on in s ta n c e lea d in g to breakdow n o f m a rria g e :
(a) Desertion.
(b) Cruelty.
(c) Insanity.
(d) Impotency.
199. Radha o b tain e d a decree fo r ju d ic ia l s e p a ra tio n in 1 9 9 0 a g a in s t h e r h u sb an d
Raman, on th e ground o f cruelty. In Ju ly 1 9 9 2 , Radha cam e to know fro m t h e local
new sp ap er t h a t Raman had b e en a rre s te d by th e p o lice fo r a s s a u ltin g a public
se rv an t on duty. Pending th e p o lic e -c a se a g a in s t him , in A u g u st 1 9 9 2 , R am an filed
a p e titio n fo r divorce a g a in st Radha u n d e r Sec. 13 (1 A ). W ill R am an s u c c e e d ?
(a) Yes, Raman can ask for divorce under Sec. 13 (1A) (i) since more th an one year
have elapsed after the passing of the decree of judicial separation and cohabitation
has not been resumed.
(b) No, because Raman is having a police case against him.
(c) No, because Raman was guilty of cruelty; one cannot take advantage of one's
own wrong.
2 0 0 . W hich of th e follow ing is not a case u n d e r Sec. 13 (1 A):
(a) Saroj Rani v S.K. Chadha.
(b) 7! Srinivas v T. Varalakshmi.
(c) Dharmendra Kumar v Usha Kumar.
(d) Santosh v Virendra.
201. S ectio n 14 e n a c ts a " fa ir tria l" rule, according to w hich
(a) A couple can get a divorce within one year of marriage.
(b) A couple can get a divorce only after one year of marriage except in exceptional cases.
Hindu Law of Divorce (Questlons/Problems) (Contd.)
202. P rio r t o M arriage Laws (A m e n d m e n t) Act, 1 9 7 6 , t h e p e rio d o rig in a lly p re s c rib e d

u n d e r Sec. 14 o f th e H. M. Act w as:
(a) 1 year.
(b) 2 years.
(c) 3 years.
(d) 6 months.
203. M ark t h e incorrect s t a te m e n t in re la tio n t o S ec. 1 5 o f t h e H. M. Act:
(a) A divorced person may marry again as a m atter of right, immediately after th e
decree of divorce, without the court's leave.
(b) During the pendency of appeal against th e decree of divorce th e parties cannot
contract another marriage.
(c) If a party remarries during the pendency of appeal against th e decree of divorce,
the second marriage would be void w hether or not th e decree of divorce is set
aside in appeal.
204. R eg ard in g th e b ars t o m a trim o n ia l re lie f:
(a) The petitioner to succeed in his petition should not merely prove th e fault of
the respondent on the basis of which he seeks th e matrimonial relief, b ut should
also be able to cross the bars to such relief before his petition will be granted.
(b) The burden of proof is on the petitioner.
(c) One who comes to equity must come with clean hands.
205. Section 23 o f th e Hindu Marriage Act deals w ith th e follow ing bars to m a trim o n ia l re lie f:
I. D o c trin e o f s t r i c t p ro o f.
II . T a k in g a d v a n ta g e o f o n e 's o w n w ro n g o r d is a b ility .
III. A c ce sso ry o r c o n n iv a n c e .
IV. C o n d o n a tio n .
V. C o llu sio n .
VI. D elay.
V II. A ny o t h e r le g a l g ro u n d .
C odes:
(a) I, n, in, IV and VI.
(b) I, II, III, V, VI and VII.
(c) II, III, IV, V and VII.
206. A d e c re e p a sse d in d isre g ard to m a trim o n ia l b a rs is:
(a) Null and void.
(b) Voidable.
(c) Invalid.
207. In w hich o f t h e fo llow ing c ases, a b ar to m a trim o n ia l r e li e f c o u ld b e p le a d e d :
I. A h u s b a n d h a s b e e n c o n sta n tly c ru e l a n d callous to h is w ife a n d o n t h a t a c c o u n t
th e w ife w ith d raw s fro m h is society; t h e h u s b a n d file d a p e titio n fo r R e s titu tio n .
II. If a p e r s o n f ile s a p e t i t i o n f o r a n n u lm e n t o f m a r r i a g e o n t h e g r o u n d t h a t
h e is im p o te n t.
III. I f a p e r s o n file s a p e t i t i o n f o r a n n u lm e n t o f m a r r i a g e o n t h e g r o u n d o f
in c a p a c ity to g iv e c o n s e n t (e .g . in s a n it y , m e n t a l d is o r d e r , e t c .) .
IV. W h e re c r u e lty o f o n e s p o u s e is e s t a b l i s h e d , b u t b o t h o f t h e m c o h a b i t a t e d
a n d h a d a n o rm a l s e x u a l life .
C odes:
(a) I, II and IV.
72 Hindu Law
(b) I and IV.

(c) I, E and IV.
208. G e n e ra lly , 'a c c e s s o r y 7 i s a t e r m o f:
(a) Civil law.
(b) Criminal law.
(c) In tern atio n al law.
(d) C onstitutional law.
209. 'C o n n iv a n c e ' i s a b a r t o t h e m a t r i m o n i a l o f f e n c e o f __ a lo n e u n d e r t h e H. M. Act:
(a) Cruelty.
(b) Desertion.
(c) Adultery.
(d) Fraud.
210. W h ic h o f t h e fo llo w in g b a rs t o m a t r i m o n i a l r e l i e f a p p l i e s t o b o t h a d u l t e r y a n d
c r u e lty :
(a) Accessory.
(b) Connivance.
(c) Condonation.
211. C o n d o n a tio n i s b a s e d o n t h e E n g lish p r in c i p l e :
(a) Rule of fair trial.
(b) Doctrine of strict proof.
(c) No person can approbate and reprobate.
212. M ark t h e incorrect s t a t e m e n t :
(a) Condonation essentially im plies forgiveness plus rein statem en t i.e. resto ratio n of
status quo ante (restoration to th e same position as th e offender was before
comm itting th e offence).
(b) Condonation to be valid can ta k e place only when th e offended spouse has full
knowledge of all m aterial circum stances of th e offence forgiven.
(c) Where cruelty of one spouse is established, b u t b o th of them c o h ab itated and
had a normal sexual life, th e n it am ounts to condonation by th e o th e r spouse.
However, where th e p etitio n er has no altern ativ e b u t to p u t up, it should not
am ount to condonation.
(d) A condoned offence does n o t revive if th e guilty p arty repeats th e condoned
offence, commits some oth er offence, or is guilty of some m arital m isconduct.
213. C o llu s io n im p lie s :
(a) An agreem ent, anangem ent, etc., betw een th e parties w hereby m atrim onial
relief is designed to be obtained, where in fact no ground or su fficien t ground
exists, by deceiving th e court by m isrepresentation, etc. of facts.
(b) Where a husband allows excessive m aintenance to th e wife so th a t she may
agree for divorce.
(c) With th e exception of a petitio n for nullity of marriage under Sec. 11 (void
marriages), collusion is a bar to every o th er m atrim onial relief.
(a) Indian Limitation Act applies to petitio n s under th e m atrim onial sta tu te s.
(b) Improper and unnecessary delay (laches) is a bar to relief in resp ect of all
m atrim onial causes under th e Hindu Marriage Act, except when th e m arriage is
void.
(c) A long delay, if th e petitio n er could explain it, would no t be a bar.
(d) The m atrim onial bar of delay should n o t apply when marriage is void.
Hi ndu l a w of Divorce (Q uestions/Problem s) (C ontd.)
215. U n d e r Sec. 23 (2 ) o f th e Hindu M arriage Act, th e c o u rts have b e e n e n tr u s te d w ith a d u ty

t o a t t e m p t re c o n c ilia tio n . H ow ever no r e c o n d lia tio n e n d e a v o u r by t h e c o u rt is re q u ire d :
(a) When th e ground for divorce is insanity, venereal disease, leprosy, unheard
absence, and, seven years' imprisonment.
(b) When th e ground for divorce is ren u n d atio n of th e world and conversion.
(c) Where marriage is null and void.
(a) A lthough th e duty to effect recondliation is mandatory, th e court's failure to
make endeavour to effect recondliation does not v itiate th e court's decree.
(b) R econdliation is reconciliation, n ot coerdon far less ju d id a l coerdon.
(c) In a petitio n for divorce by m utual consent, th e court is n o t to make efforts
a t recondliation.
(d) The court may itself endeavour to effect recondliation or it m ay adopt a private
agency of recondliation (named by th e parties) where reco n d liatio n may be
endeavoured in an informal and frank atmosphere.
217. A m o n g H in d u s, c u s to m a ry d iv o rc e :
I. Is s t i l l r e c o g n i z e d .
II. Is n o t r e c o g n i z e d .
III. N o p r o v i s i o n o f t h e H. M. A c t a p p l i e s t o c u s t o m a r y d i v o r c e , e x c e p t S e c . 2 9
( 2 ).
IV. B e f o r e t h e c o in in g i n t o f o r c e o f t h e H i n d u M a r r i a g e A c t, 1 9 5 5 , H i n d u s
c o u ld o b t a i n d iv o r c e o n ly i f a c u s t o m g o v e r n in g t h e m a ll o w e d i t .
C o d e s:
(a ) I and m .
(b) II only.
(c) H and IV.
(d) I, m and IV.
218. C u s to m a ry d iv o rc e i s a v a ila b le u n le s s a p a r ti c u l a r g ro u n d o r m o d e o f d iv o r c e is
f o u n d t o b e c o n tra ry t o p u b lic p o lic y o r m o ra lity . In v ie w o f t h i s , w h ic h o f t h e
fo llo w in g c u s to m a ry d iv o rc e i s v o id :
I. A c u s to m p e r m ittin g d iv o rc e to o n e s p o u s e a g a in s t t h e w is h e s o f th e o th e r.
II. A c u s t o m a m o n g a c o m m u n i ty u n d e r w h i c h a b a n d o n m e n t o r d e s e rtio n of
t h e w if e b y t h e h u s b a n d b r i n g s a b o u t d i s s o l u t i o n o f m a r r i a g e .
III. A c u s t o m a m o n g t h e S ik h J a t s o f P u n j a b t h a t a h u s b a n d h a s t h e p o w e r to
r e p u d ia te th e m a rria g e . Im m e d ia te ly o n r e p u d ia tio n , t h e w ife is f r e e to
re m a rry .
IV. D iv o rc e b y m u t u a l c o n s e n t; i f c o n s e n t t o d i v o r c e i s o b t a i n e d o n p a y m e n t
o f so m e p ric e in c a sh o r k in d .
C o d e s:
(a) I. II and IV.
(b) I, HI and IV.
(c) I and IV.
(d) H and III.
219. T h e c u s to m a r y d iv o rc e c a n b e o b ta in e d th r o u g h t h e :
(a) Agency of gram panchayat or caste tribunal.
(b) By private act of parties, orally or in writing, or under an agreem ent such as
tyaga-patra or farkat-nama.
74 Hindu Law
220. A d iv o r c e by a r b i t r a t i o n is :
(a) Not perm itted under Hindu law.
(b) Perm itted under Hindu law.
(c) Perm itted under Hindu law, b u t as a custom ary mode.
221. U n d e r t h e G u ru w a n t c u s to m :
(a) The sister and brother of one family marry th e b ro th er an d sister of another
family; if one marriage breaks down, th e second also breaks down.
(b) The sisters of one family marry th e sisters of a n o th er fam ily; if one marriage
breaks down, th e second also breaks down.
(c) The brothers of one family marry th e brothers of a n o th er fam ily; if one marriage
breaks down, th e second also breaks down.
(d) The sister and brother of one family marry th e b ro th er and sister of another
family; if one marriage breaks down, th e o th er does n o t break down.
222. S e c . 1 9 o f t h e H. M. A ct d e a l s w ith :
(a) Bars to divorce.
(b) Jurisdiction.
(c) Permanent m aintenance.
(d) Guardianship and custody of children
223. A p e t i t i o n in a n y m a t r i m o n i a l c a u s e m a y b e p r e s e n t e d t o t h e D is tr ic t C o u r t w ith in
t h e lo c a l l i m i t s o f w h o s e j u r i s d i c t i o n :
I. T he m a rria g e w a s so le m n iz e d .
II. T h e re s p o n d e n t a t th e tim e o f th e p r e s e n ta tio n o f p e titio n re s id e s .
III. T h e p a r tie s to th e m a rria g e la s t r e s id e d to g e th e r.
IV. T h e p e ti t io n e r is r e s id in g a t t h e tim e o f t h e p r e s e n t a ti o n o f p e ti t io n , in
a c ase w h e re th e r e s p o n d e n t is , a t t h a t tim e , r e s id in g o u ts id e t h e te r r ito rie s
t o w h i c h t h e A ct e x t e n d s o r h a s n 't b e e n h e a r d o f a s b e i n g a l i v e f o r a p e r io d
o f 7 y e a rs o r m o re.
C o d e s:
(a) I, nand IV.
(b) I, n,m and IV.
(c) I, HI and IV.
(d) I and m .
224. The p ro c e d u re u n d e r t h e H. M. A ct i s g o v e r n e d by t h e :
(a) Procedure laid down under th e H. M. Act.
(b) Code of Civil Procedure and High Court Rules.
225. U n s ta m p e d a n d u n r e g is te r e d d o c u m e n ts h a v e b e e n m a d e a d m i s s ib l e f o r t h e p u rp o se
o f e v id e n c e in m a tr im o n ia l c a s e s u n d e r w h ic h s e c t i o n o f t h e H. M. A ct:
(a) Sec. 20.
(b) Sec. 21-A.
(c) Sec. 21-B.
(d) Sec. 21-C.
226. S ec. 2 2 lay s dow n t h a t e v e ry p r o c e e d in g u n d e r t h e H. M. A ct s h a l l b e c o n d u cted :
(a) In camera.
(b) In open court.
(c) In family court.
227. C r o s s - p e titio n s a re a llo w e d u n d e r w h ic h s e c ti o n o f t h e H. M. A ct:
(a) Sec. 23.
(b) Sec. 23A.
(c) Sec. 24.
(d) Sec. 27.
Hindu Law of Divorce (Quesfions/Problem s) (Contd.)

(a) Under Sec. 23A, a counter-claim can be filed by th e respondent.
(b) A counter-claim can be filed in respect of a petition for divorce, judicial separation,
or restitution of conjugal rights.
(c) Grounds of counter-claim as laid down under Sec. 23A are th e petitioner's
adultery, cruelty or desertion.
229. M ark t h e incorrect s t a t e m e n t in r e la tio n t o S ec. 2 7 o f t h e H. M. A ct:
(a) Sec. 27 provides for th e disposal of property belonging join tly to th e husband
and th e wife.
(b) The settlem ent of property can be made only a t th e tim e of th e passing of th e
decree in a matrimonial cause.
(c) The property of th e parties acquired by them before or after th e marriage is
w ithin th e purview of this section.
230. T he p o s s ib le d e c r e e s u n d e r t h e H. M. A ct a re :
I. D e c re e of n u l l i t y ( v o id /v o i d a b le m a r r i a g e ) .
II. D e c re e of d iv o rc e .
III. D e c re e of ju d ic ia l s e p a ra tio n .
IV. D e c re e of r e s t i t u t i o n o f c o n ju g a l r i g h t s .
C o d e s:
(a) I, n and IV.
(b) II, m and IV.
(c) I, II and III.
(d) I, n , m and IV.
231. I f a v a lid m a rria g e d o e s n o t e x is t b e tw e e n t h e p a r ti e s , n o d e c r e e f o r __ c a n b e
p assed :
(a) Nullity of marriage.
(b) Restitution of conjugal rights.
(c) Divorce.
(d) Judicial separation.
232. P ro v is io n s o f Sec. 5 , L im ita tio n Act a p p lie s t o a p p e a ls u n d e r w h ic h s e c ti o n o f t h e
H. M. Act:
(a) Sec. 25.
(b) Sec. 27.
(c) Sec. 28.
(d ) Sec. 29.
233. I f a n a p p e a l i s m a d e a g a in s t a d e c re e o f n u llity a n d t h e o t h e r s p o u s e m a r r ie s
d u rin g t h e p e n d e n c y o f a p p e a l, t h e a p p e a l:
(a) Has to be waived.
(b) Has become infructous.
(c) Has to be dismissed.
(d) Cannot be dismissed as becoming infructous.
234. An a p p e a l a g a in s t t h e o r d e r o r d e c re e c o u ld b e m a d e w ith in 3 0 d a y s t o t h e :
(a) District Court.
(b) High Court.
(c) Supreme Court.
(d) Any of th e above.
76 Hindu Law
235. The c o n c e p t o f Fam ily C ourt e s s e n tia lly im p lies:

(a) The discarding of adversarial procedure.
(b) Adoption of a less formal procedure.
(c) Both (a)and (b).
236. W hich o f t h e follow ing com e w ith in t h e ju ris d ic tio n o f t h e Fam ily C ourt:
(a) Matrimonial causes.
(b) Maintenance and alimony of spouses.
(c) Guardianship and custody of children.
237. W hich s e c tio n o f t h e H. M. Act pro v id es fo r t h e re g is tra tio n o f m arriag e :
(a) Sec. 6.
(b) Sec. 8.
(c) Sec. 12.
(d) Sec. 26.
238. Mark t h e incorrect s ta te m e n t:
(a) Registration of Hindu marriage has not yet been made compulsory.
(b) The State Governments have been empowered to frame rules for compulsory
registration of marriages.
(c) When State Government makes the registration of marriage compulsory, non
registration render the marriage invalid.
(d) Mere registration is no proof of marriage.
Hindu Law o f Adoption
“He whom, his father and mother give to another as his son, provided that the
donee has no issue, if the boy be of the same class, and affectionately disposed, is
considered as a son given, the gift being confirmed by pounng water ...” (Menu).
Hindu law, from the most ancient times, recognized adoption; the ancient Greek
and Roman legal systems also recognized adoption.
The objects of adoption are two-fold: firsdy, religious (to secure spiritual benefit
to the adopter and his ancestors, by having a son to offer funeral cakes and libations
of water); secondly, secular (to secure an heir and perpetuate the name o f the
adopter). The old Hindu law recognized adoption but regarded it as a sacrament
and only adoption of the son was recognized for spiritual benefit. A dattak (adopted)
son was not considered as a son at all. Further, adoption of a daughter, an illegitimate
or orphan child was not allowed. This position has been changed by the 1956 Act,
which has made adoption a secular institution. However, in Chandrasekhar v
Kunandaivelu (AIR 1963 SC 185), it was laid down that the validity o f an adoption
is to be determined by the spiritual rather than temporal consideration.
The Hindu Adoptions and Maintenance Act, 1956 (H.A.M.A.) extends to the
whole o f India except the State of J & K. The Act came into force on 215t
December, 1956. The Act made a radical departure from the old Hindu law:
(i) Adoption is no more a religious act and no performance o f any religious
ceremony (e.g. datta homani) is essential. The only ceremony required under
the Act is the ceremony of giving and taking. I Iowever, adoption has been
retained as a ‘private’ act; no order o f the court is necessary except when
guardian gives the child in adoption.
(ii) The old law recognized twelve kinds of sons, o f which Jive kinds were
adopted sons. Modern Hindu law recognizes two kind o f adopted sons.
(iii) Under the old law, only a male could adopt, and that too, only a son. Under
the Act, both male and female could adopt a son or a daughter.
(iv) Under the old law, a wife could only adopt a son to her husband; she could
not adopt a son to herself i.c. in her own nght. Under the Act, she can
make an adoption to herself.
[77]
78 Hindu Law
(v) Under the old law, the wife’s consent was not essential. Under the Act, it
is so.
(vi) Under the old law, a widow could adopt a son (in some parts of India, if
the husband had expressly authorized her to adopt, in other parts e v e n
without such authority). The HAMA recognizes the right of a Hindu widow
to adopt.27
(vil) Under the old law, the mother’s consent was not necessary when the
child’s father exercised his right to give in adoption. Under the Act, he
cannot do so without the mother’s consent.
(viii) Under the old law, the person to be adopted had to belong to the same
caste as his adoptive father. A near relative had to be taken in adoption in
preference to a stranger; an orphan could not be adopted. Further, the
person to be adopted must not be a boy whose mother the adopting father
could not have legally married.
(Lx) Under the old law, the rule that an adopted son had, in matters of succession,
the same rights as a natural-born son, was subject to certain exceptions.
These exceptions have now been done away by the Act, and the adopted
son or daughter is for all purposes of succession, to be deemed to be
natural-born child.
27. D iscuss the authority o f a H in d u w idow to a d o p t a so n to h e r h u s b a n d under

the H in d u law an d the ch an g es in tro d u c e d by HAM A. (U.P. PCS (J) I983\
4 . H in d u Law o f A d o p tio n
239. Under th e Hindu A doptions and M ain ten an ce Act, 1 9 5 6 (H.A.M .A.), t h e cerem ony
req u ired is:
(a) Datta homam.
(b) Giving and taking.
I. Under H.A.M.A., adoption has been retain ed as a 'p riv ate' act.
II. Under H.A.M.A., no order of th e court is necessary except w hen guardian
gives the child in adoption.
III. The H.A.M.A. applies to any person who is a 'H indu' u n d e r th e Hindu
Marriage Act.
IV. An adoption once made under th e Act is n ot fin al and irrevocable, i.e- **
can be cancelled by th e adopter, n atu ral parents, and adopted child.
Codes:
(a) None except I.
(b) None except II.
(c) None except HI.
(d) None except IV.
241. If th e adoption is n o t m ade in accordance w ith th e H.A.M.A., th e a d o p tio n sh a ll be:
(a) Void.
(b) Voidable.
(c) Invalid.
Hindu Law of Adoption 79
The HAMA has an overriding effect i.e. it seeks to repeal all existing laws
(ancient texts, customs or legislations). However, the Act does not affect any adoption
made before the commencement of this Act (Sec. 30, ‘Saving clause1). The Act
applies to any person who is a ‘Hindu’ under the Hindu Marriage Act. Under Sec.
3 (c) o f the Act, ‘minor’ means a person (male or female) who has not completed
the age o f 18 years.
All adoptions made after the Act came into force are to be regulated and
governed by the provisions of the Act. If the adoption is not made in accordance
with the H.A.M.A., the adoption shall be null and void (Sec. 5). An adoption once
made under the Act is final and irrevocable Le. cannot be cancelled by the adopter,
natural parents or any other person, and adopted child (Sec. 15). Thus, an ‘adopted’
child cannot be given in adoption; he cannot renounce his adoptive parents and
return to the family o f his birth. The law on this point prior to 1956 was the same.
Who May Take in Adoption
Every Hindu, male or female, has the capacity to make an adoption if he or she
is a major (18 years and above) and of sound mind. A Hindu male can adopt
whether he is a bachelor, widower, divorcee or married person (Sec. 7). However,
a married male can adopt only with his wife’s consent (even if she is living separately);
if he has more than one wife, consent of all the wives is necessary. If marriage is
void, the wife’s consent is not necessary; in the case o f voidable marriage, her
consent is necessary.
A Hindu female can adopt whether she is unmarried28, widow or divorcee (Sec.
8). An ‘unchaste’ woman also has capacity to adopt. A married woman totally lacks
capacity to adopt. She cannot adopt even with her husband’s consent, because it is
the husband who exercises the right of adoption with her consent.
A married man can adopt without the consent of his wife, and a married
woman can adopt a child, if the other spouse has ceased to be a Hindu by conversion
to other religion, or has renounced the world or has been declared by a court to
be o f unsound mind.
Other Conditions of a Valid Adoption2
29
8
Sec. 11 provides that a Hindu can adopt a male child if the adopter has no Hindu
son, son’s son or son’s son’s son; and a female child when the adopter has no Hindu
daughter or son’s daughter. It does not matter whether such son or daughter is by
legitimate blood relationship or by adoption. However, if such son or daughter has
ceased to be a Hindu, then adoption of a son or daughter could be made. It may
be noted that one cannot adopt more than one son and one daughter.
Existence of an illegitimate son is not a bar in respect of adoption o f a son.
But the existence of a son, who is deemed to be legitimate by virtue o f Sec. 16 o f
the Hindu Marriage Act, would be a bar. Existence of a stepson is not a bar to the
right o f Hindu female taking a son in adoption.
28. D isc u s s the validity o f th e follow ing ad o p tio n : An u n m a rrie d H in d u g ir l a g e d

25 y ears ad o p ted a g irl o f 6 years. [Lr.P PCS (J) 1997]
29. W h a t are the re q u isite s o f valid a d o p tio n a n d w h o are th e p e rs o n s c a p a b le o f
g iv in g in adoption? ]U.P. PCS (J) 1997]
80 Hindu Law
When a child of opposite sex is proposed to be adopted (e.g. a Hindu male wanting
to adopt a child), then adopter must be senior to it by at least 21 years. Thus, a Hindu
male (aged 28 years) could adopt a girl child of the 7 years or below. Tliis is meant to
prevent people from abusing die adopted child. Further, two persons (e.g. two sisters
or two friends) cannot adopt die same cliild unless they are husband and wife.
Who May Give in Adoption 30
Sec 9 lays down that no person except die father or mother or the guardian of a child
shall’ve the capacity to give the child in adoption. Each of them should be a Hindu. So
long as the fattier is alive, he alone can give the child in adoption with the consent of the
mother Even if there is a divorce, the consent of the modier cannot be dispensed with.
The expression ‘father’ does not include an adoptive father (can’t give his adopted child),
putative father (can’t give the illegitimate child) or stepfather (can’t give a step child).
The mother can give the child in adoption after the death of the father. During
the lifetime of the father she can give the child, and a father can give the child
without the mother’s consent, when the father/ mother has ceased to be a Hindu
or finally renounced the world or declared by a court to be of unsound mind. The
mother of an illegitimate child has power to give the child in adoption. The expression
‘mother’ under Sec. 9 (2) does not include adoptive mother or stepmother.31
30. W ho c a n give a m in o r ch ild in a d o p tio n ? [Rqf. J.S. 1991]
31. D iscu ss th e validity o f th e follow ing a d o p tio n : ‘A* is given in a d o p tio n by his
step m o th er. [U.P. PCS (J) 1997\
[Arts. The adoption is invalid.]
»\*I.V

(a) An adopted child can be given in adoption.
(b) Under the Hindu law, an agreement not to adopt is void.
(c) A married Hindu couple has a capacity to adopt if their marriage has been
solemnized under the Hindu Marriage Act, 1955.
(d) A married Hindu couple has a capacity to adopt if their marriage has been
solemnized under the Special Marriage Act, 1954.
2 4 3 . Mark th e incorrect m atc h in g :
(a) Requisites of a valid adoption: Sec. 6, H.A.M.A.
(b) Capacity of a male Hindu to take in adoption: Sec. 7, H.A.M.A.
(c) Capacity of a female Hindu to take in adoption: Sec. 8, H.A.M.A.
244. Every H indu, m ale o r fe m a le , has th e c ap a city t o m ak e an a d o p tio n i f h e o r sh e is:
(a) A major (18 yearsand above) and ofsound mind.
(b) A bachelor, widower,divorcee ormarried person.
(d) Only (a).
245. A m arried m ale can a d o p t:
I. O nly w ith h is w ife 's c o n s e n t.
II. O nly w ith h is w ife 's c o n s e n t, w h e n s h e is l iv in g w i t h h im .
III. If h e h a s m o re t h a n o n e w ife , c o n s e n t o f a ll t h e w iv e s is n e c e s s a r y .
IV. If m a r r ia g e is v o id , t h e w ife 's c o n s e n t i s n o t n e c e s s a r y .
V. In t h e c ase o f v o id a b le m a r r ia g e , t h e w if e 's c o n s e n t i s n e c e s s a r y .
(a) I, m , IV and V.
(b) n, HI, IV and V.
(c) I, IV and V.
(d) II, HI and IV.
After the death of the parents, or if alive, they’ve renounced the world or have
been judicially declared to be of unsound mind, or have abandoned the child, or
where the parentage of the child is unknown, child’s guardian (dejute or defacto) may
give the child in adoption with the prior permission of the court [Sec. 9 (4)]. If the
parents cease to be Hindus, then guardian is not empowered to give the child in
adoption. According to Mulla, in such a case, the mother has the right to give the
child in adoption.
The age o f guardian should be 21 years or above. The court will not accord
permission if the proposed adoption is not for the welfare of the child and that
no payment or reward has been received in consideration of the adoption except
such as the court may sanction. Sec. 17 prohibits the giving and receiving o f any
payment or reward in consideration of the adoption o f any person (punishment-
imprisonment up to six months or fine or both).
Under the old as well as the modem Hindu law the rule is that a ‘giver cannot
be a taker’. Thus, a mother could not adopt her illegitimate child, though a putative
father could adopt his illegitimate child, since mother could give such a child in adoption.
A stepfather could adopt a stepchild. A guardian may himself adopt the child.
The Act does not lay down any requirement of residence, domicile or nationality.
A parent who is a Hindu can give a Hindu child to any person if he is a Hindu,
irrespective o f the fact whether he is an Indian national or alien, or domiciled in
India or abroad. 'Hie residence of the child in India is also not necessary (except
in cases where the court grants an adoption order; in such cases the child should
be ordinarily resident within the court’s jurisdiction).
Who May be Taken in Adoption
The adopted child must be a Hindu. If the child is taken from an orphanage, it has
to be seen whether the child is brought up as a Hindu or not. An ‘adopted’ child
cannot again be given in adoption by the adopters. The child must be below 15
years in age32 and must not be a married child (unless a custom permits so) [Sec.
10]. In Bombay and among Jats in Punjab, adoption of married person of any age
is permitted.
It may be noted that consent of the child (to be adopted) is not necessary. An
orphan, foundling (whose parents are unknown) or abandoned child (whose parents
are known) can be adopted under the Act. A lunatic or illegitimate child may be validly
adopted. Adoption of an only or eldest son is valid. It is immaterial that child is related
to the adopter by blood or marriage or is a total stranger. Further, it does not matter
that the child to be adopted is suffering from any physical or mental deformity.
Effects of Adoption 33
Under the modern Hindu law, for all intents and purposes an adopted child is like
a natural child. From the date of adoption, all ties of the child with the natural
32. Discuss the validity of the following adoption: A boy of 19 years adopted by
a wido\v aged 38 years. [U.P. PCS (J) 1997\
\Ans. The adopuon is invalid. Also, the age difference between the two is less than
21 years.)
33. What are the consequences of an adoption? [Rjf J.S. !992\
How does an adoption affect the rights and status of adoptive child vis-a-vis
his family of birth and family of adoptive parents? Discuss. [Delhi JS. 199t>\
82 Hindu Law
family are severed {except that it cannot marry any female in its natural family whom
he couldn’t have married before its adoption) and replaced by those created by the
adoption in the adoptive family. He is related not merely to his adoptive parents, he
also becomes a brother o f the daughter (natural or adopted) o f his adoptive parents
(Sec 12).
Any property, which vested in the adopted child before the adoption, shall
continue to vest in such person subject to the obligations, if any, including the
obligation to maintain relatives in the family o f his birth. The adopted child shall
not divest any person o f any estate, which vested in him or her before the adoption.
For instance, A died leaving his widow B and two daughters X and Y. O n A’s death,
B, X and Y inherited properties o f A, each taking 1 /3 share. This one-third share
vests in each o f them immediately on the death o f A. If now B adopts a son P,
P cannot divest B, X or Y.
However, where a widow o f deceased coparcener in the joint family adopts a
son, the adopted son can claim his share in the JPT. In such cases, it cannot be said
that there was any “divesting” o f any person (any other coparcener) o f any estate
vested in him; though the shares o f the coparceners decreased. The adopted son will
be considered as the adopted son Tor her deceased husband’ and therefore inherit his
property —‘doctrine o f relating back’ (Sawan Raw v Kalawati AIR 1967 SC 1961).
Further, Sec. 13 lays down that an adoption does not (subject to a contrary
agreement between the adoptive and natural parents) deprive the adoptive father or
m other o f the power to dispose o f his or her property by transfer inter vivos or by*I.
246. An a d o p tio n m a d e by a H in d u m a le w i t h o u t t h e c o n s e n t o f h i s w i f e i s :
(a) Valid.
(b) Voidable.
(c) Illegal.
(d) Void. [Uttaranchal PCS (J) (Prel.) 2002)
247. A m a rrie d w o m an :
I. T o ta lly la c k s c a p a c i t y t o a d o p t .
II. C an a d o p t w i t h h e r h u s b a n d 's c o n s e n t .
III. C an a d o p t a c h ild , i f t h e o t h e r s p o u s e h a s c e a s e d t o b e a H i n d u b y c o n v e r s io n
t o o t h e r r e li g i o n , o r h a s r e n o u n c e d t h e w o r l d o r h a s b e e n d e c l a r e d b y a
c o u r t t o b e o f u n s o u n d m in d .
C o d es:
(a) I and HI.
(b) H and III.
(c) I and n.
248. U n d e r t h e H in d u A d o p tio n a n d M a in te n a n c e A ct, 1 9 5 6 a f e m a l e H in d u h a s th e
c a p a c ity t o ta k e a s o n o r d a u g h t e r in a d o p ti o n if :
(a) She is no t married.
(b) She is married.
(c) She is a widow and has no son or daughter but has a widowed daughter-in-law.
(d) She cannot adopt a t all. [Uttaranchal PCS (J) {Prel.) 2002]
249. U n d er t h e H.A.M.A., w h ic h o f t h e fo llo w in g i s p e r m i t t e d :
(a) Adoption of one son and daughter.
(b) Adoption of two sons and two daughters.
(c) Adoption of three sons and th ree daughters.
(d) Adoption of any num ber of sons and daughters.
will. U nder the Act, agreements restricting the power o f alienation o f the adoptive
parent arc valid.
W here a widower or a bachelor adopts a child, any wife whom he subsequendy
marries shall be deemed to be the stepmother o f the adoptive child. W here a H indu
has m ore than one wife and adoption has been made with their consent, the senior
m ost in marriage shall be called the ‘adoptive* m other and the others shall be called
stepm others o f the child.
It may be noted that when a widow or divorcee-woman, a widower o r divorcee-
man adopts a child there is no relationship whatever, with the'ex-spouse or deceased
spouse o f the adopter (Sec. 14). Thus, Sec. 14 provides for the relationship o f the
adopted child, only with the existing or future spouse o f the adopter.
An adoptee child also acquires the caste o f his father and he is entided to the
benefit o f reservation if it is available to that caste (Khaân Singh v Union o f India
AIR 1980 Del 60).
Miscellaneous —The presence o f a widowed daughter-in-law (even if pregnant) is no
bar in making an adoption by a sonless male or female. Under the old H indu law,
a ‘child in the womb* was considered a child in existence for some purposes. But
under the H.A.M.A., it is only when a son or son’s son, etc. is “living” at the time
o f adoption that the right to!adopt cannot be exercised. Hence, subsequent birth
o f a son .cannot invalidate the adoption o f a son. In such a case, thus, a pregnant
widow could adopt a child.
W here the only son o f |H and W died in an accident, and the son’s widow
adopts a child (son), H and W could also adopt a child. Because a widow can make
an adoption to herself, the adopted son cannot be called H and W ’s son’s son in
that situation. Where the daughter o f H and W died in an accident, and H and W
maintained the daughter’s daughter, H and W could adopt a female child. Because
under the Act, the adoptive parents must not have a daughter or son’s daughter, the
daughter’s daughter is not mentioned.
Proof o f A doption
The fact o f adoption has to be proved in the same way as any other fact under the
Evidence Act; there are no special rules. The burden o f p ro o f lies on the person
who alleges such adoption. The ‘registration’ o f documents relating to adoption is
optional
Under Sec. 16 o f the HAMA, there is a presumption as to a registered docum ent
relating to an adoption viz. that the adoption was made in compliance with the
provisions o f HAMA. However, the presumption is rebuttable; thus, the mere
registration o f an adoption-deed does not conclusively prove the validity o f the
adoption. Moreover, an admission o f adoption amounts to an admission both o f
the factum o f the adoption and its validity.
A doption Under O ther Personal Laws

There is no uniform law on adoption in India. Only Hindus, which includes Buddhists,
Jains and Sikhs, have legal provisions (H.A.M.A.) for adopting children. The other
communities, namely, Muslims, Christians, Parsis and Jews do not haveâny law o f
adoption available to them. Shariat does not recognize adoption and hence Muslims
have no law o f adoption (except under custom).
84 Hindu Law
In the absence of a law on adoption, Christians, Parsis and Jews have to make
use of the provisions of the Guardians and Wards Act, 1890. Under that law the
parents are appointed only as guardians of a child ‘adopted’ with no right of
inheritance. The child remains a foster child as distinguished from an adopted child.
250. 'A' and 'B' are w ife and h u sb a n d h av in g a son and a d a u g h te r. A gain th e y have
ad o p ted a boy 'B'. The a d o p tio n is:
(a) Valid.
(b) Void.
(c) Voidable.
(d) Illegal.
251. A Hindu can a d o p t a m ale ch ild i f th e a d o p te r has:
(a) No
Hindu son, son's son or son's son's son.
(b) No
legitimate Hindu son, son's son or son's son's son.
(c) No
adopted Hindu son, son's son or son's son's son.
(d) No
legitimate or adopted Hindu son, son's son or son's son's son.
2 5 2 . Mark th e incorrect s ta te m e n t:
(a) If a Hindu dies leaving behind more than one widow each widow can adopt in
the absence of her own child.
(b) If a Hindu dies leaving behind more than one widow, all the widows together
can adopt a child.
(c) The H.A.M.A. does not bar the giving in adoption the only so n / daughter.
(d) An unchaste woman has capacity to adopt.
253. Which o f th e follow ing s ta te m e n ts is correct.
(a) Existence of an illegitimate son is a bar in respect of adoption of a son.
(b) The mother of an illegitimate child has power to give the child in adoption
without the consent of the putative father.
(d) Only (a).
254. When a child o f o p p o site sex is pro p o sed to be a d o p te d , th e n a d o p te r m u s t be
sen io r to i t by a t least:
(a) 18 years.
(b) 21 years.
(c) 16 years.
(d) 14 years.
255. Mark th e incorrect sta te m en t:
(a)
No person except the Hindu father or mother or the guardian of a child shall've
the capacity to give the child in adoption.
(b) So long as the father is alive, he alone can give the child in adoption with the
consent of the mother.
(c) If there is a divorce, the consent of the mother can be dispensed with.
(d) After the death of the parents, or if alive, they've renounced the world or have
been judicially declared to be of unsound mind, child's guardian may give the
child in adoption with the prior permission of the court.
2 5 6 . The court will not accord perm ission to ad o p t:
(a)
If the proposed adoption is not for the welfare of the child.
(b)
Ifno payment or reward has been received in consideration of th e adoption
except such as the court may sanction.
257. Which of th e following sta te m e n ts is incorrect:
(a) A mother could adopt her illegitimate child.
(b) A guardian may himself adopt the child.
(c) Where the child given in adoption is less than five years of age th e natural
mother cannot claim the custody of the child at all.
Hindu Law of Adoption (Questions/Problems) (Contd.)
258. M ark t h e incorrect s ta te m e n t :

(a) The Act does not lay down any requirement of domicile or nationality.
(b) A parent who is a Hindu can give a Hindu child to any person if he is a Hindu,
irrespective of the fact whether he is an Indian national or alien, or domiciled
in India or abroad.
(c) The residence of the child in India is necessary.
(d) The residence of the child in India is necessary in cases where th e court grants
an adoption order; in such cases th e child should be ordinarily resident within
the court's jurisdiction.
259. The a d o p te d ch ild :
I. M u st b e a H in d u .
II. I f t h e c h ild is t a k e n f ro m a n o r p h a n a g e , i t h a s t o b e s e e n w h e t h e r t h e c h ild
is b r o u g h t u p a s a H in d u .
III. M u st b e b e lo w 15 y e a r s i n a g e .
IV. M u st n o t b e a m a r r i e d c h ild ( u n le s s a c u s to m p e r m i t s s o ) .
V. M u st n o t b e 'a d o p te d '.
VI. M u st n o t b e l u n a t i c o r i ll e g itim a te .
C odes:
(a) I, n , m and IV.
(b) I, n , HI and VI.
(c) All except V and VI.
(d) All except VI.
(a) From the date of adoption, all ties of the child with th e natural family are
severed and replaced by those created by th e adoption in th e adoptive family.
(b) An adopted child can l.’arry any female in its natural family whom he couldn't
have married before its adoption.
(c) Any property, which vested in the adopted child before th e adoption, shall
continue to vest in such person subject to th e obligations, if any, including th e
obligation to maintain relatives in the family of his birth.
2 6 1 . W hich o f t h e follow ing s t a te m e n ts is correct.
(a) In case of adoption of a son by a Hindu widow, th e adopted child shall be
regarded as the son of the widow as well as of her deceased husband.
(b) Where a Hindu who has a wife living adopts a child, th e said wife is called th e
adoptive mother of the child.
(d) Only (b).
2 6 2 . W hich o f th e follow ing s ta te m e n ts is correct.
(a) Registration of an adoption-deed conclusively proves th e validity of th e adoption.
(b) An admission of adoption amounts to an admission both of th e factum o f th e
adoption and its validity.
(d) Only (a).
2 6 3 . W hich o f th e follow ing c o m m u n itie s in In d ia d o e s not h a v e a law o n a d o p ti o n :
(a) Muslims.
(b) Christians.
(c) Parsis.
86 Hindu Law
264. W hich o f t h e fo llo w in g a d o p tio n s is valid u n d e r HAMA?

(a) A, a Hindu male adopted S, aged 10 years in 1986. S1# a son was born to his
wife in 1987. A cancelled th e adoption of S in 1988 and inform ed him that he
is no more to be known to be his son. Sj died in 1989. A adopted S2 in 1990.
(b) S, aged 12 years was the only son of his Hindu parents, both of whom died in
a road accident. A Christian Missionary brought up S. A Hindu couple adopts S
from the Missionary.
(c) Albert, a citizen of U.S.A. adopts an abandoned child who is being brought up
in an orphanage in India.
(d) Kamini, a Hindu widow aged 23 years, adopts her brother's daughter aged 2Yz years.
265. A fe m a le o f 2 1 y e a rs w a n ts t o a d o p t a b o y /g irl. She can do so:
(a) If she is unmarried.
(b) If she is married, with th e consent of her husband.
(d) She cannot adopt a child.
266. A H indu c o u p le a d o p ts a M uslim c h ild .
(a) The adoption is void.
(b) They can adopt only after conversion to Islam.
(c) The adoption is valid.
267. M ohan a n d A nita w as a c h ild le s s c o u p le . In 1 9 9 0 M ohan to o k in a d o p tio n his
b ro th e r's so n D eep ak . In 1 9 9 4 , a so n w as b o m t o th e c o u p le . M ohan w a n ts t o give
D eep ak b ack t o h is b ro th e r. Can h e do so ?
(a) No.
(b) Yes.
(c) Yes, if Deepak himself wants to return to his family of birth.
268. W hich o f th e follow ing a d o p tio n s is valid u n d e r HAMA?
(a) HW, a Hindu widow aged 28 years, adopted B, a boy aged 14 years as her son
against th e wishes of her father-in-law.
(b) H and W (Hindu husband and wife) had a son S. Later on H obtained a decree
of divorce against W on the ground of cruelty, but th e custody of S was given
to W. H adopts another son Sr
(c) HW, a Hindu widow, adopted AS aged 10 years as her son in March 1994. S,
a son was born to her in June 1994.
(d) HW, a Hindu woman, whose husband's whereabouts are not known for the last
two years, adopted S, aged 5 years, as her son.
269. W hich o f th e fo llo w in g a d o p tio n s is valid u n d e r HAMA?
(a) Ram, an orthodox Hindu, had a son by name Shyam, who died in an accident.
Two months later Ram adopted a boy named Laxman. But at that tim e th e widow
daughter-in-law of Ram was pregnant and subsequently, she gave birth to a son.
(b) Anant Ram, a Hindu adopts a boy from an orphanage when his only son married
a Muslim girl under the Special Marriage Act, 1954.
(c) Rahul married a widowed girl Shobha in 1994. Shobha had a son Prateek aged
2 years from her deceased husband. Rahul adopts Prateek.
270. Shanker, a b a ch e lo r a d o p te d a g irl ch ild c a lle d G uddu. S u b s e q u e n tly h e married
S eem a. P o in t o u t th e r e la tio n s h ip o f G uddu an d S eem a acco rd in g t o th e Hindu
A d o p tio n s and M a in ten an ce Act, 1 9 5 6 .
(a) Seema will be deemed to be th e stepmother of Guddu.
(b) Seema will be deemed to be the mother of Guddu.
(c) Seema will be deemed to be the adoptive mother of Guddu.
Hindu Law of Maintenance
“The aged parents, a virtuous wife, and an infant child must be maintained, even
by doing a hundred misdeeds” (Manu).
Under Hindu law,34 there are three different types of provisions {independent
reliefs) regarding maintenance to a wife (or husband), viz. under Criminal Procedure
Code (Cr.P.C.), 1973, Hindu Marriage Act, 1955, and, Hindu Adoptions and
Maintenance Act, 1956. While under the Hindu Marriage Act, either spouse can seek
maintenance, under the Cr.P.C. and HAMA (also, the Special Marriage Act, 1954),
only the wife can claim maintenance.
(I) Provisions Under the Hindu Marriage Act 195535

Interim Maintenance
Under Sec. 24 [corresponding to Sec. 36 of Special Marriage Act, 1954, and. Sec. 36
of Indian Divorce Act, 1869], an order for maintenance may be made by the court
for maintenance pendente lite (interim or temporary) and expenses of the proceedings.
The claim may be made either by husband or by wife. Only requirement is that the
claimant should establish that he/ she has no independent income sufficient for his/
her maintenance and support. In fixing interim maintenance, applicants conduct (e.g.
accusation of adultery) is immaterial. Income of the respondent is material.
An order for interim maintenance of the applicant and for the expenses of the
proceedings under Sec. 24 can be made in any proceedings in any matrimonial cause.
34. Discuss: Maintenance of wife in Hindu law. [U.P. PCS (J) 1999]
35. “Women must be honoured and adorned by their fathers, brothers, husbands
and brothers-in-law, who desire their own welfare. Where women are honoured,
there the Gods are pleased; but where they are not honoured, no sacred rite
yields reward. The husband receives his wife from the Gods; he must always
support her while she is faithful” (Manu). How far this concept exists in the
Hindu Marriage Act? [LJ.P. PCS Q) 2000]
[87]
88 Hindu Law
viz., nullity o f marriage, judicial separation, divorce, or restitution of conjugal rights

and even in proceedings for permanent maintenance under Sec. 25 (Yogesbwar v Jyotj
AIR 1981 Del 99). Expenses for proceedings under Sec. 24 include not only expenses
for proceedings under Sec. 24 but Sec. 25 also. In Rita Mago v V. P. Mago (AIR 1977
Del 176), held that an order for interim maintenance and for the expenses of the
proceedings under Sec. 24 can be passed during the pendency of the proceedings only.
Such an order cannot be passed after the conclusion of trial and passing of the decree.
An application under Sec. 24 can be made either before or after the filing of
the written statement. Whenever it is made, it is the bounden duty o f the court to
decide the application as expeditiously as possible and in every case before the trial
of the petition (of matrimonial cause) and in any event before the decision in the
petition (Rhanwarlal v Kamta Deri AIR 1983 Raj. 229).
The question of marriage between the parties (in case of doubtful marriage)
has to be decided after deciding the application under Sec. 24. In A rti Singh v Kamvar
Pal Singh (AIR 1977 Del 76), held that the exercise of power under Sec. 24 is not
dependent on the defence raised on behalf of the opposite party. Even to fight out
an issue relating to validity of marriage the wife was entitled to a decision on her
application under Sec. 24.35a
35a. W files a petition for restitution of conjugal rights against her husband, H, and
applies for maintenance pendente life. H contends that no marriage took place
between him and W, and, insists that the question of marriage be decided
first. Can the court under Sec. 24 grant to W the expenses for contesting the
question of marriage between H and W? Decide. [Punjab C. S. (J. B ) 1999\
5. H in d u L aw o f M a in te n a n c e
271. U nder H indu law, th e r e are d if f e r e n t ty p e s o f p ro v isio n s re g a rd in g m a in te n a n c e to
a w ife o r h u sb a n d . Mark th e correct s ta te m e n t:
(a) While under the Hindu Marriage Act, either spouse can seek maintenance; under
the Cr.P.C. and H.A.M.A., only the wife can claim maintenance.
(b) While under the Hindu Marriage Act and H.A.M.A., either spouse can seek
maintenance; under the Cr.P.C. only the wife can claim maintenance.
(c) Either spouse can seek maintenance under the Hindu Marriage Act, H.A.M.A.
and Cr.P.C.
272. U nder Sec. 24 o f H. M. Act, an o rd e r fo r m a in te n a n c e m ay b e m ad e by t h e court
fo r m a in te n a n c e pendente lite ( in te r im o r te m p o r a r y ) a n d e x p e n s e s o f th e
p ro ceed in g s. E xpenses fo r p ro c ee d in g s u n d e r Sec. 2 4 in c lu d e :
(a) Expenses for proceedings under Sec. 24.
(b) Expenses for proceedings under Sec. 25.
273. To claim m a in ten a n ce u n d e r Sec. 2 4 o f H. M. Act, w h a t is re q u ire d is :
(a) The claimant should establish that h e / she has no independent income sufficient
for h is/ her maintenance and support.
(b) Applicant's good conduct.
Hindu Law of Maintenance 89
Sec. 24 does not limit the jurisdiction of the court to award the maintenance.
Maintenance pendente lite and the litigation expenses are payable from the date o f the
application, and, once fixed can be enhanced or reduced depending on the nature of
change o f circumstances. An order under Sec. 24 can be enforced by execution
proceedings, or by stay of petition, or by striking of the defence. It is an interlocutory
order and no appeal lies against it. An order passed under Sec. 25 is appealable generally.
Permanent Maintenance
Under Sec. 25 (1), on the application of either spouse, the court may pass an order
for permanent alimony and maintenance (a gross sum or monthly or periodical
sums) at the time of passing any decree granting the petition or at any time subsequent
thereto. In case the court orders a monthly or periodical sum, such a sum can be
for any term not exceeding the life-time of the applicant. The payment ordered by
the court may be secured, if necessary, by a charge on the immovable property (self-
acquired or JFP) o f the respondent.
The court has power to pass an order of maintenance even when petition is
dismissed, because in either case (when petition is allowed or dismissed) it is decree. The
decree includes decree of nullity i.e. void/ voidable marriage, divorce, judicial separation
and restitution o f conjugal rights. Therefore, the wife of a void/ voidable marriage
is also entided to maintenance and alimony. However, the words ‘any decree’ under
Sec. 25 implies a decree granting relief and not a decree declining relief.
In a suit for jactitation of marriage, neither maintenance pendente lite nor permanent
alimony can be granted. Jactitation of marriage is a cause of action which arises when
a person falsely alleges that he or she is married to the petitioner and remedy sought
is a perpetual injunction against the respondent to cease making such allegations.
In granting maintenance under Sec. 25 o f Hindu Marriage Act, the court takes
into consideration the income and other properly of the respondent and applicant,
the conduct o f the parties (e.g. conduct towards marriage) and other circumstances
of the case (e.g. whether the non-claimant has dependent parents, brothers and
sisters). The usual practice is to award a third o f the husband’s income to the wife,
after taking wife’s income (if any) into account. If the claimant has independent and
sufficient means o f maintaining herself, no amount o f maintenance can be granted
to her (Kampal v Nisba AIR 1994 Raj 204).
The court may vary, modify, or rescind the order o f maintenance (either
prospectively or retrospectively) if change of circumstances is shown. The court
may rescind the order if the party in whose favour an order was passed has remarried
or if such party is the wife, she hasn’t remained chaste, or if husband, he committed
adultery. On the death of non-claimant, the order o f maintenance comes to an end.
It is now w'ell-setded that even if the conduct of the claimant under Sec. 25
has not been fair towards the marriage, or it is she who is responsible for breaking
the marriage, or is guilty of the matrimonial offence, the court may still grant her
maintenance though the quantum of maintenance may be affected. An act may
amount to misconduct for the purpose of matrimonial relief, yet for the purpose
of awarding maintenance it may be ignored. The ‘conduct’ is one o f the considerations
(in determination of application under Sec. 25), and howsoever important it may be,
undue importance should not be given to it.
In Gukib v Kamat (AIR 1985 Bom 88), held that a wife is entided to maintenance
even if the decree was passed on die ground of her adultery In Jagdisb v Manjnla (AIR
1975 Cal 64), held that the wife cannot be denied maintenance on the ground that die
decree was passed against her on account of her cruelty. The same new was taken when
wife was found guilty of desertion. May be, a woman has committed adultery once, this
does not necessarily mean that all her life she should be condemned to live in adultery.
If the wife has ceased to live in unchastity she is entided to maintenance. If this will
90 Hindu Law
not be done, it would, in most likelihood, condemn her to live in immorality, especially
in a society like ours, where most women are still dependent on husband, parents, etc
Sec. 25 confers on a spouse a ‘special’ right, though not absolute or discretionary.
It must be remembered that the right to maintenance is a ‘statutory* right, and therefore
a party cannot contract himself or herself out of the same. Thus, a wife cannot bind
herself under an agreement with her husband to forgo her right of applying to die court
for maintenance in case of matrimonial proceedings between them.
Custody o f M in o r Children
Sec. 26 o f the H. M. Act provides that in any proceeding under the Act, the court
may, from time to time, pass interim orders and make provisions as regards the
custody, maintenance and education o f minor children, consistendy with dieir wishes,
wherever possible. Similarly, even after passing the decree, the court may make
similar orders. The ‘children* includes children deemed to be legitimate under Sec.
16. Thus, illegitimate children are also covered. The test of jurisdiction under Sec.
26 is parenthood o f the child and not legitimacy of the child. The minority of the
children has to be determined with reference to the Indian Majority Act, 1875.
(ii) Provisions Under the Cr.P.C., 1973

Sec. 125, Cr.P.C. (as amended in 2001) provides that if any person, having sufficient
means, neglects or refuses to maintain his wife, unable to maintain herself, the court
may order such person to a monthly allowance for the maintenance o f his wife (at
such monthly rate as the court thinks fit). “Wife** includes a woman who has been
divorced by, or has obtained divorce from her husband and has not remarried.
274. W, a Hindu woman, files a petition for judicial separation against her husband H and
applies for maintenance pendente lite and expenses of proceedings under Sec. 24 of
the Hindu Marriage Act. H contends that no marriage had taken place between the
parties and the question of marriage between them be decided first, before the
application ofW under Sec. 24 is decided. Can the court grant the application ofW?
(a) Yes.
(b) No.
(c) Whenever an application under Sec. 24 is made it is the bounden duty of the court
to decide the application as expeditiously as possible.
(a) In an application under Sec. 24, the court is competent to grant maintenance in
respect of either husband o r wife.
(b) In an application under Sec. 24, the court cannot grant maintenance in respect of
both spouse and children.
(c) Sec. 24 does not limit the jurisdiction of the court to award the maintenance.
(d) Sec. 24 is limited to a proceeding under the Hindu Marriage Act only.
276. “One-fifth rule" in respect of granting alimony was incorporated only ini
(a) Indian Divorce Act.
(b) Special Marriage Act.
(c) Hindu Marriage Act.
277. An application for maintenance can be made to:
(a) Trial Court.
(b) Appellate Court.
(c) High C ourt o r Supreme Court.
N o wife shall be entitled to receive an allowance from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she refuses
to live with her husband, or if they are living separately by mutual consent.
(Hi) Provisions Under the Hindu Adoptions and M aintenance A ct 1956

Maintenance of Wifeu
The Hindu husband is under a duty to maintain his wife during his lifetime.
Maintenance is a personal/ legal obligation. It is an incident of the status or estate
o f matrimony. Thus, Sec. 18 (1) of the Act provides that a Hindu wife (whether
married before or after the commencement of the Act) shall be entided to be
maintained by her husband during her lifetime. Sec. 18 (1) is applicable when the
wife lives with her husband. A wife who has ceased to be a Hindu cannot claim
maintenance. However, an unchaste woman living with her husband can claim
maintenance.
‘Maintenance* has been defined under the HAMA to include: (i) in all cases,
provision for food, clothing, residence, education and medical attendance and
treatment; and (ii) in the case of an unmarried daughter also the reasonable expenses
of, and incidental to her marriage
The HAMA has repealed the Hindu Married Women’s Right to Separate
Residence and Maintenance Act, 1946. Sec. 18 (2) provides for ‘separate residence
and maintenance* to wife. A Hindu wife shall be entided to live separately from her
husband without forfeiting her claim to maintenance- if he is guilty of bigamy,
desertion (including wilful neglect), cruelty, keeps a concubine, suffering from virulent
leprosy, ceased to be a Hindu, or if there is any other cause justifying living separately.
A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu. Thus, her right is not absolute.
Sec. 18 (2) (g) of HAMA provides that a Hindu wife can claim maintenance
while living separately from her husband “if there is any other cause justifying living
separately.** This clause will mean the same thing as “reasonable cause or excuse**
under Sec. 13 and Sec. 9 of Hindu Marriage Act. Thus, under Sec. 18, maintenance
shall not be provided to a wife who refuses to live with her husband without
reasonable excuse. Further, in Hindu law, the husband’s failure to maintain his wife
has not been made a direct ground of divorce. However, if a decree/order awarding
maintenance to wife is passed under Sec. 18 and Sec. 125, Cr. RC. and there is no
cohabitation between parties for one year and more, then it is a ground of divorce
under Sec. 13 (2) of Hindu Marriage Act.
Differences Between the Provisions of Hindu Marriage Act and H.A.M.A
Under the Hindu Marriage Act, either spouse can claim maintenance, while under
H.A.M.A., only wife can claim. Under the Hindu Marriage Act, mamtenance can be
claimed only after a decree of nullity, Restitution, judicial separation or divorce,
while under H.A.M.A., a wife can claim maintenance and live separately from her
husband while her marriage subsists. Hindu wife contemplated under H.A.M.A.
includes only the wife of a valid marriage, while under Hindu Marriage Act even
a wife of void marriage can claim maintenance.
36. State the grounds on which a Hindu wife can claim maintenance and separate
residence from her husband. Whether a husband can refuse to provide
maintenance to an unchaste wife residing with him? [Ryl J.S. 1999[
92 Hindu Law
As laid down under the H.A.M.A., the provisions of this Act shall prevail over
the provisions (relating to maintenance) of Hindu Marriage Act. However, as there
is no inconsistency between these provisions and they provide for separate and
independent reliefs, the court’s jurisdiction cannot be ousted on the plea that the
applicant for maintenance under the Hindu Marriage Act is already getting
maintenance under the H.A.M.A., though in fixing the quantum of maintenance
that may be taken into consideration.
In C. Obula Konda Reddy v C.P. Venkata Lakshamma (AIR 1976 AP 43), held that
a woman, whose marriage was void under Sec. 11 of HMA, can claim maintenance
under Sec. 18 of HAMA, on the ground that “Hindu wife” in Sec. 18 includes a
woman whose marriage is solemnized, but void under Sec. 11. But, in Krishna v
Sakbarabai, 1 (1988) DMC 60 (Kan), held that the Hindu wife contemplated in Sec.
18 does not include the wife of a void marriage. Sec. 18 of HAMA striedy contemplates
a proceeding by a wife during the subsistence of her status as wife. In other words,
only a wife who continues to have that legal status has the right to claim and receive
maintenance. Sec. 18 does not permit a divorced wife or a wife whose marriage has
been declared void by a decree of nullity to claim and receive maintenance.
The court also observed that right of maintenance provided in Sec. 25 of
Hindu Marriage Act is right created under the Act and thereafter the remedy for its
enforcement will have to be as provided in the Act itself. Sec. 25 is a special
provision in the Act and provides for a specific right, which was and is not at all
available to a wife under any other provision o f law..*IV
278. Under Sec. 25 (1 ) o f H. M. Act, on th e application o f e ith e r spouse, th e co u rt m ay pass

an order for perm anent alim ony and m aintenance a t th e tim e o f passing any decree of:
(a) Nullity i.e. void/ voidable marriage.
(b) Divorce.
(c) Judicial separation and restitution of conjugal rights.
279. Andhra P radesh High C ourt has held in w hich c ase t h a t m a in te n a n c e o rd e r could
be m ade even w hen th e m ain p ro c ee d in g s have b e e n d is m is s e d :
(a) Lalitha v Nirmal.
(b) S. Jagannath Prasad v Lalit Kumar.
(c) Sobhana v Amarkanth.
(d) Jwala v Meena.
(a) Relief of permanent alimony is incidental to the passing of the decree granting
substantive relief.
(b) Such relief can be granted by the court only on a written application and not suo notu.
(c) Maintenance under Sec. 25 is a substantive relief.
(d) Maintenance under Sec. 25 is an ancillary relief.
281. In granting maintenance under Sec 25 of Hindu Marriage Act, the court takes into consideration:
I. In c o m e a n d o th e r p r o p e r ty o f t h e r e s p o n d e n t a n d a p p li c a n t .
II. C on d u ct o f t h e p a r tie s .
III. Age a n d p h y sic a l c o n d itio n o f t h e a p p lic a n t.
IV. W h e th e r t h e n o n -c la im a n t h a s d e p e n d e n t p a r e n t s , b r o t h e r s a n d s i s t e r s .
(a) I, n and ffl.
(b) I, II and IV.
(c) ffl and IV.
(d) n , HI and IV.
Maintenance of Widowed Daughter-in-law

Sec. 19 o f HAMA provides that after the death of her husband, a Hindu wife is
entitled to be maintained by her father-in-law, if she has no means o f her own
earnings or other property or estate o f her husband/ father/ mother or from her
son or daughter or his/her estate. However, this right cannot be enforced if the
father-in-law does not have the means to do so from an) coparcenary property in
his possession out o f which the daughter-in-law has not obtained any share. Further,
his obligation ceases when the daughter-in-law remarries.
Maintenance of Children and Aged Parents37
Sec. 20 casts a duty on a Hindu, during his (or her) lifetime to maintain his (or her)
legitimate as well as illegitimate children and his (or her) aged or infirm parents.
Further, a legitimate child can claim maintenance from his or her father or mother,
so long as the child is a minor. The term ‘parent’ also includes a childless step mother.
This obligation extends only so far as such parent or unmarried daughter is
unable to maintain himself (or herself) out of his or her own earnings or property.
It may be noted that the obligation of a Hindu to maintain his wife, minor sons,
unmarried daughters and aged parents (whether he himself possesses any property
or not) is personal and legal in character, and arises from the very existence o f the
relationship between the parties.
Maintenance of Dependants
Sec. 21 lays down a list of relatives of the deceased who would be included within
the term “dependants”. The list includes: Father, Mother, Widow (of a pre-deceased
son or of a son of a pre-deceased son), Minor son/ grandson, etc., Unmarried
daughter/ granddaughter, etc., Widowed daughter. Widowed daughter-in-law.
Illegitimate son or daughter.
The obligation to maintain a “widowed daughter’ exists only when she is
unable to obtain maintenance from the estate of her husband or from her son or
daughter or from her father-in-law. A widow is entided to maintenance even if she
does not reside with the relatives of her husband. The claim of maintenance o f
daughters is limited to their maidenhood.
Sec. 22 then provides that the heirs of a deceased Hindu are bound to maintain
the dependants o f the deceased out of the estate inherited by them from the
deceased. The liability of an heir is individual liability in proportion o f the value o f
the share o f the estate taken by him. A person who is a dependant and also a Class
I heir and gets a share in the deceased’s property as heir is not entitled to claim
maintenance as dependant.
Further, if a dependant has not obtained any share in the estate o f a Hindu
dying after the commencement of the Act, such a dependant can claim maintenance
from those (including other dependants) who take the estate. The other dependant’s
liability is limited to the extent that the remainder shall not be less than the
maintenance to him as a dependant.
Amount of Maintenance: Court's Discretion
Under Sec. 23, it is in the discretion of the court to determine whether any, and if
so what; maintenance should be awarded under the Act. In respect o f the wife,
children, aged or infirm parents, the court will have regard to:
37. Can an aged father claim maintenance? [Raj. JS. i99t\
94 Hindu Law
(i) the position and status of the parties;

(ii) the reasonable wants of the claimant;
(iii) if the claimant is living separately, whether he (or she) is justified in doing
so;
(iv) the value of the claimant’s property and any income derived from such
property, or from the claimant’s own earning or from any other source; and
(v) the number of persons entitled to maintenance under the Act.
The amount of maintenance, whether fixed by a court’s decree or by agreement,
may be altered subsequently if there is a material change in the circumstances (Sec
25). A person cannot claim maintenance under the Act if he or she has ceased to
be a Hindu by conversion to another religion (Sec. 24). The debts contracted or
payable by a deceased Hindu are to have priority over the claims of his dependants
for maintenance, unless there is a valid charge in respect of the same under Sec 27
(Sec. 26).
Sec. 27 lays down that a dependant’s claim for maintenance is not to be treated
as a charge on the estate of the deceased, unless such a charge has been created by
the will of the deceased, or by a court’s decree, or by an agreement between the
dependant and the owner of the estate, or otherwise.
Sec. 28 lays down that if a dependant has a right to receive maintenance out
of an estate, and such estate is transferred, the dependant can enforce his right to
receive maintenance against the transferee: (i) if the transferee has notice of such
right; or (ii) if the transfer is gratuitous; but not against a transferee for consideration
and without notice of the right.
282. An o rd e r fo r t h e g ra n t o f p e rm a n e n t alim o n y u n d e r Sec. 2 5 o f t h e H. M. Act:

(a) By itself operates as a charge on the respondent's property.
(b) Operates as a charge on the respondent's property only by th e court's order.
(c) Cannot operate as a charge on the respondent's property under any circumstances.
(a) On resumption of cohabitation by th e parties in cases of judicial separation,
restitution of conjugal rights or divorce, an order of maintenance may be rescinded.
(b) The court may rescind the order if th e party in whose favour an order was
passed has remarried or if such party is the wife, she hasn't remained chaste,
or if husband, he committed adultery.
(c) On the death of non-claimant, the order of maintenance comes to an end.
284. K ailash was g ra n te d divorce a g a in s t his w ife R ajni o n t h e g ro u n d o f h e r adultery.
R ajni file d a p e titio n fo r m a in te n a n c e u n d e r Sec. 2 5 o f t h e H indu M arriage Act.
(a) Rajni is guilty of adultery and so she is not entitled to any maintenance.
(b) Granting of maintenance to Rajani would amount to giving her advantage of her own wrong-
(c) Rajni is entitled to maintenance under Sec. 25.
(a) Alimony under Sec. 25 can be granted by a court exercising jurisdiction under
the Hindu Marriage Act.
(b) An agreement between the parties not to claim maintenance under Sec. 25 i*
not a bar in filing the petition for maintenance.
(c) An appeal against the order under Sec. 25 lies before th e High Court.
(d) Periodical payments of alimony, under an order of th e court in matrimonial
proceedings can be assigned or released.
Hindu Law of M aintenance (Questions/Problems) (Contd.)
286. S e c 2 6 o f th e H. M. Act provides th a t in any proceeding u n der th e Act, th e c o u rt may,

from tim e to tim e , pass in terim orders and m ake provisions as regards th e custody,
m a in te n a n c e and education o f m inor children. Mark th e most a p p ro p ria te re sp o n se :
(a) The minor children include children of a valid marriage.
(b) The minor children include children of a valid as well as void/ voidable marriage.
(c) The minor children include legitimate, illegitimate and adopted children.
(d) The minor children include legitimate or illegitimate children.
287. Sec. 1 2 5 o f Cr.P.C. provides t h a t i f any p erson, having s u ffic ie n t m ea n s, n e g le c ts o r
re fu s e s to m a in ta in h is w ife, unab le to m ain tain h e rself, th e c o u rt m ay o rd e r such
p e rso n t o a m o n th ly allow ance fo r th e m ain ten a n ce o f h is w ife. The " w ife " in c lu d e s:
(a) A woman who has been divorced by, or has obtained divorce from her husband
and has not remarried.
(b) A woman who has been divorced by, or has obtained divorce from her husband
and has or has not remarried.
(c) A woman who has or has not obtained divorce from her husband.
(d) A woman who has obtained divorce from her husband.
288. No w ife shall be e n title d to receive an allowance from h er husband u n der S e c 1 2 5 if:
(a) She is living in adultery.
(b) Without any sufficient reason, she refuses to live with her husband.
(c) She is living separately by mutual consent.
289. Am ar m arried Mansi in 1 9 5 1 . Very soon, th e ir relatio n s becam e stra in e d and M ansi
s ta r te d living separately. In 195 4 , Jyotsana m arried Amar. In Ja n . 1 9 5 6 Jy o tsa n a file d
a p e titio n fo r divorce a g ain st Amar on th e ground th a t he had a n o th e r w ife living.
(a) She can claim maintenance under Sec. 24 of the Hindu Marriage Act, 1955.
(b) In case she succeeds in obtaining divorce, she can claim maintenance under Sec.
25, HMA, and Sec. 125, Cr. P.C.
290. U nder t h e Hindu A doptions and M aintenance A c t 1 9 56: Mark t h e incorrect s ta te m e n t:
(a) Maintenance is a legal obligation.
(b) Maintenance is a personal obligation.
(c) A Hindu wife shall be entitled to be maintained by her husband during her lifetime.
(d) The husband's obligation to maintain his wife is co-extensive with property.
291. A H in d u w ife s h a ll n o t be e n title d to 's e p a ra te re sid e n c e and m a in te n a n c e ' fro m
h e r h u sb a n d if:
(a) She is unchaste.
(b) She ceases to be a Hindu.
(d) Only (a).
292. A w ife is e n title d to m ain ten a n ce i f sh e liv es s e p a ra te from h e r h u s b a n d f o r a
j u s t if i a b le c au se u n d e r w hich se c tio n o f th e H.A.M.A.:
(a) Sec. 18 (1).
(b) Sec. 18 (2).
(c) Sec. 18 (3).
(d) Sec. 18 (4).
293. A m an (m a rrie d ) lived w ith a wom an fo r sev eral y ears and w rongly le d h e r b e lie v e
t h a t s h e w as h is w ife and also had ch ildren from her. Can t h e w o m a n 's p e t i t i o n
fo r m a in te n a n c e u n d e r Sec. 18 o f HAMA is m a in ta in a b le ?
(a) Yes.
(b) No.
(c) Yes, under certain circumstances.
96 Hindu Law
29h. I n o r d e r t o c la im s e p a r a t e r e s i d e n c e a n d m a i n t e n a n c e u n d e r S e c . 1 8 ( 2 ) o f t h e
HAMA, t h e w ife :
I. Should live w ith h e r h u sb a n d .
II. S hall b e e n title d to live s e p a ra te ly fro m h e r h u sb a n d w ith o u t fo r fe itin g h er
claim to m a in te n a n c e - if h e is g u ilty o f bigam y, d e s e r tio n , c ru e lty , k eep s
a concubine, su ffe rin g fro m v ir u le n t leprosy, cea se d to b e a H in d u , or if
th e r e is a n y o th e r cau se ju s tify in g liv in g se p a ra te ly .
III. Even if u n c h a ste , b u t liv in g w ith h e r h u sb a n d , can c la im m a in te n a n c e .
IV. Even if u n c h a ste a n d n o t liv in g w ith h e r h u sb a n d , c a n c la im m a in te n a n c e .
V. Can claim m a in te n a n c e e v e n if sh e ceases to b e H in d u .
Codes:
(a) I, H and HI.
(b) I, n , IV and V.
(c) H, III and V.
(d) I, H and V.
295. An a p p li c a t io n f o r m a i n t e n a n c e u n d e r S e c . 1 8 ( 2 ) o f t h e HAMA c a n b e f i l e d in :
(a) M atrimonial court.
(b) District Court.
(c) High Court.
296. T h e h u s b a n d h a s n e g le c t e d a n d h a s f a il e d t o p r o v i d e r t h e w if e m a i n t e n a n c e f o r a
p e r io d o f tw o y e a rs : t h e w ife i s liv in g s e p a r a t e l y w i t h o u t a r e a s o n a b l e e x c u s e .
(a) The wife can claim m aintenance under Sec. 18, HAMA.
(b) The wife cannot claim m aintenance under Sec. 18, HAMA.
(c) The wife can claim m aintenance under Sec. 18, HAMA an d Sec. 125, Cr.P.C.
(d) The wife cannot claim m aintenance under Sec. 18, HAMA and Sec. 125, Cr.P.C.
297. S ec. 1 9 o f H.A.M.A. p r o v id e s t h a t a f t e r t h e d e a t h o f h e r h u s b a n d , a H in d u w ife is
e n t i t l e d t o b e m a in ta in e d by:
(a) Father.
(b) Brother-in-law.
(c) Father-in-law.
(d) Sister-in-law.
298. An i ll e g it i m a t e m in o r c h ild a s p e r S e c . 2 0 o f t h e H.A.M .A. i s e n t i t l e d t o claim
m a in te n a n c e d u rin g h is m in o r ity fro m :
(a) Father.
(b) Mother.
(c) Grandfather.
299. X is t h e w ife o f d e c e a s e d 'Y' w h o h a s n o s o n s o f h e r o w n . 'Z ' is t h e s o n o f Y
a n d e m p lo y e d in t h e f o r e s t d e p a r t m e n t . X h a s n o m e a n s o f l iv e lih o o d . A s p e r Sec.
2 0 o f t h e H.A.M.A. s h e c a n c la im m a i n t e n a n c e fro m :
(a) Her father-in-law.
(b) Step-son.
(c) Government.
(d) Department of social welfare.
300. A ged o r in firm p a r e n ts can c la im m a i n t e n a n c e u n d e r w h ic h s e c tio n o f t h e H.A.M .A.:
(a) Sec. 19.
(b) Sec. 20.
(c) Sec. 22.
(d) Sec. 24.
301. U n d er t h e H in d u A d o p tio n a n d M a in te n a n c e A ct, a m o th e r is :
(a) Entitled to live along w ith her son's family.
(b) Not entitled to live along with her son's family.
(c) Morally entitled to her son's care.
(d) Entitled to have separate accommodation from her son.
[Uttaranchal PCS (J) (P rel.) 2002]
Hindu Law of M aintenance 97
------ H-------------------------
Hindu Law of M a in te n an c e (Q uestions/Problem sl (Contd.)
302. M ark t h e correct s t a t e m e n t :

(a) A legitim ate child can claim m aintenance from his or her fath er or m other, so
long as th e child is a minor.
(b) A minor child (who has a guardian appointed by th e court) can enforce a decree of
maintenance and is entitled to claim maintenance till he attains majority by 21 years.
(d) Only (b).
3 03. T h e l i a b i l i t y o f p a r e n t s t o m a i n t a i n t h e i r u n m a r r ie d d a u g h t e r c o n t i n u e s :
(a) Till she attain s majority by 18 years.
(b) Till she gets married.
(c) So long as th e daughter is unable to m aintain herself.
3 04. M ark t h e incorrect s t a t e m e n t :
(a) Under Sec. 20 of th e H.A.M.A., th e obligation to m aintain th e aged or infirm
parents is on both th e Hindu male and female.
(b) An illegitimate daughter can claim m aintenance from her putative or natural father.
(c) Under Sec. 19 of th e H.A.M.A., th e father-in-law 's obligation to m ain tain th e
widowed daughter-in-law is co-extensive w ith th e ancestral p roperty in th e
hands of father-in-law.
3 05. W h ic h s e c ti o n o f t h e H.A.M.A. lay s d o w n a l i s t o f r e l a t i v e s o f t h e d e c e a s e d w h o
w o u ld b e i n c lu d e d w ith in t h e t e r m " d e p e n d a n t s " :
(a) Sec. 20.
(b) Sec. 21.
(c) Sec. 22.
(d) Sec. 23.
3 06. W ho a m o n g s t t h e fo llo w in g i s a d e p e n d a n t o f a d e c e a s e d H in d u w i t h i n S e c . 2 1 o f
t h e H.A.M .A.:
(a) A major son.
(b) Grandfather.
(c) Grandmother.
(d) Widowed daughter.
(a) The liability of .an heir in relation to a d ependant is individual liability in
proportion of th e value of th e share of th e deceased's e sta te ta k e n by him .
(b) The obligation to m aintain a 'widowed d a u g h te r exists only w hen she is unable
to obtain m aintenance from th e estate of her husband or from h er son or
daughter or from her father-in-law.
(c) A person who is a dependant and also a Class I heir and gets a share in th e
deceased's property as heir, is en titled to claim m aintenance as d ep en d an t.
308. I n d e te r m i n i n g t h e a m o u n t o f m a in te n a n c e t o b e a w a rd e d t o a w if e , c h il d r e n , a g e d
o r i n f ir m p a r e n t s u n d e r S ec. 2 3 o f t h e H.A.M .A., re g a r d s h a l l b e h a d t o :
I. P o sitio n a n d s ta tu s of th e p a rtie s.
II. D egree of re la tio n sh ip b e tw e e n th e two.
III. Value of th e claim ant's p ro p e rty an d an y in co m e d e riv e d fro m su c h p ro p e rty .
IV. R easonable w an ts of th e claim ant.
V. P rovisions m ade u n d e r a w ill of th e d e c e a se d in re s p e c t o f th e d e p e n d a n t.
(a) I, IV and V.
(b) I, III and IV.
(c) n i and V.
98 Hindu Law
309. Under Sec. 25 of the H.A.M.A. the amount of maintenance, w hether fixed by a
court's decree or by agreement:
(a) Cannot be altered.
(b) Can be altered.
(c) Can be altered if there is a material change in th e circumstances.
(d) Cannot be altered under any circumstance.
310. The debts contracted or payable by a deceased Hindu:
(a)
Are to have priority over the claims of his dependants for maintenance.
(b)
Are to have priority over the claims of his dependants for maintenance, unless
there is a valid charge in respect of th e same under Sec. 27.
(c) Are to have priority over the claims of his dependants for maintenance, even
if there is a valid charge in respect of the same under Sec. 27.
(d) Does not have priority over th e claims of his dependants for maintenance.
311. The right to maintenance, on transfer of property:
(a) Gets defeated.
(b) Does not get defeated under any circumstance.
(c) Gets defeated if the transfer is for consideration and without notice of the right.
(d) Gets defeated if the transfer is gratuitous.
I.Under th e Hindu Marriage Act, e ith e r spouse can claim m aintenance, while
under H.A.M.A., only wife can claim.
II. Under the Hindu Marriage Act maintenance can be claimed only after a decree of
nullity, Restitution, judicial separation or divorce, while under HJLMJL, a wife can
claim maintenance and live separately from her husband while her marriage subsists.
III. Hindu wife contemplated under H A M A includes only the wife of a valid marriage,
while under Hindu Marriage Act even a wife of void marriage can claim maintenance.
IV. The provisions of H.A.M.A. shall prevail over th e provisions (relatin g to
m aintenance) of Hindu Marriage Act.
V. Both Acts provide for separate and independent reliefs; th e court's jurisdiction
cannot be ousted on the plea th a t the applicant for m aintenance under the
Hindu Marriage Act is already getting maintenance under th e H.A.M.A., though
in fixing the quantum of m aintenance th a t may be taken in to consideration.
Codes:
(a) I, n,m and V.
(b) m , IV and V.
(c) I, H, IV and V.
313. A 'divorced' wife can claim maintenance under the
(a) Hindu Marriage Act only.
(b) Hindu Marriage Act and H. A. M. A.
(c) Hindu Marriage Act and Cr. P. C.
(d) Hindu Marriage Act, H. A. M. A. and Cr. P. C.
314. If there is no status of a wife, maintenance can be ordered under
(a) Hindu Marriage Act only.
(b) Hindu Marriage Act and H. A. M. A.
(c) Hindu Marriage Act and Cr. P. C.
(d) No maintenance can be ordered.
315. Wife's right to maintenance under the Hindu Law arises:
(a) When she lives with her husband.
(b) When the wife lives separate from her husband.
(c) When the wife lives separate under a decree of the court (judicial separation)
or when the marriage is dissolved.
Special Marriage Act, 1954
In India two forms of marriages are available: If both the parties are Hindus, Muslims,
Christians, Parsis or Jews, then they may perform their marriage under (i) the personal law
of the community to which both the parties belong, or (H) under the Special Marriage Act,
1954. In former case the marriage may be performed in accordance with the ceremonies
laid down by the personal law of the parties. In the latter case the marriage has to be a
“civil marriage” though parties are free to append any other ceremonies
The Special Marriage Act, 1954, (w.e.f. 9th October, 1954) permits inter-community
or inter-religious marriages, which are often not recognized under the personal law o f
most o f the communities Thus, the advantage o f marrying under this Act is that the
parties do not have to give up their faith by converting to the other's religion, and a
uniform family law becomes applicable to them in most o f the matters Once the
parties choose to be governed by it, they will be governed by the provisions o f the
Act and not by any other personal law. Succession to the property o f such persons
is also not governed by their personal law, but by the Indian Succession Acty 1925.
Under the Act, “any two persons” belonging to any community, religion,
nationality or domiciled in India or abroad may opt to marry under the provisions
of the Special Marriage Act. If both the parties belong to a particular religion, they
too can marry under the Act. The Special Marriage Act is applicable to marriages
performed or registered under it. Thus, a valid marriage performed under the
provisions o f any other law could be registered under the Act, and a marriage
registered under the Act is at par with marriage performed under the Act. For
instance, a marriage performed under the Foreign Marriages Act, 1969'**(which provides
* T his statem ent is subject to the limited freedom allowed for inter-religious m arriages
under Muslim and C hnstian law. But even in such cases the m arnage is know n as
either the ‘Muslim* or the ‘Chrisuan* marnage.
** For the applicability o f the Foreign M arnagcs Act, one o f the parties to the m arnage
m ust be an Indian national. T he m arnage under the A ct is a ‘consular* m arnage
because o f the involvement o f ambassador, high com m issioner, consul, e tc T h e
marriage is a civil marriage.
(99 )
facility for Indian nationals to marry abroad with other Indian nationals, or with
nationals o f other countries or foreign domiciled persons) may be registered under
the Special Marriage Act. As to the matrimonial causes, the provisions o f the
Special Marriage Act will govern a ‘foreign* marriage.
The Special Marriage Act lays down a civil ceremony for the marriage (the
marriage under the Act is essentially a civil contract). A notice o f the intended
marriage is required to be given by the parties to the marriage to the Marriage
Registrar o f the district. Any person may file objections to the intended marriage
before the expiry o f 30 days (from the 'date o f publishing o f notice) that the
intended marriage is in violation o f any o f the conditions o f marriage laid down
in Sec. 4.
The parties are free to solemnize their marriage in any form, but the marriage
shall not be complete and binding unless each party says to the other in the presence
o f the marriage officer and three witnesses, in any language understood by the
parties, “I (A), take thee, (B), to be my lawful wife or husband”. The registration
o f marriage is provided for under the Act.
The grounds o f void marriage under the Special Marriage Act are: (i) bigamy
(ii) prohibited relationships (iii) non-age (iv) lack o f consent owing to unsoundness
o f mind (v) impotency. The first two grounds are also grounds o f void marriage
under the Hindu law. While the last two grounds are grounds o f voidable marriage
under the Hindu law. The ground o f non-age (i.e. child marriage) is recognized only
under the Special Marriage Act.
6 . S p e c ia l M a r ria g e A ct, 1 9 5 4
316. U n d er th e S p e c ia l M arriage A ct, 1 9 5 4 : M ark t h e correct s t a t e m e n t s :
I. "Any two persons" belonging to any community, religion, n a tio n a lity or domiciled
in India or abroad m ay op t to m arry u n d e r th e p rovisions o f th e Act.
II. Inter-com m unity or in te r-re lig io u s m a rria g e s a re n o t p e rm itte d .
III. Both th e p a rtie s m ay be of sam e religion.
IV. Marriage has to be a "civil m arria g e" th o u g h p a rtie s a re f r e e to a p p e n d any
o th er cerem onies.
V. The p arties give u p th e ir fa ith by c o n v ertin g to th e o th e r 's relig io n .
VI. A uniform fam ily law becom es applicable to th e m in m o s t o f th e m atters.
(a) I, II, i n and IV.
(b) I, ID, IV and VI.
(c) I, HI, V and VI.
317. Once th e p a r tie s c h o o se to b e g o v e rn e d by t h e S p e c ia l M a r r ia g e A ct, 1 9 5 4 :
(a) They will be governed by the provisions of the Act and not by a n y other personal law.
(b) Succession to the property of such persons is also no t governed by th e ir personal
law, but by th e Indian Succession Act, 1925.
(c) Both (a) and (b) are conect.
3 1 8 . Mark th e incorrect s t a te m e n t :
(a) A valid marriage performed under th e provisions of any o th e r law could be
registered under th e Special Marriage Act, and a marriage re g iste re d under the
Act is at par with marriage performed under th e Act.
(b) The marriage under th e Act is essentially a civil contract.
(c) The registration of marriage is mot provided for under th e Act.
(d) The Special Marriage Act has th e unique feature of en a c tin g all th e three
theories of divorce side by side.
Special M arriage Act, 1954 101
T he grounds o f voidable marriage under the Special Marriage Act are: (i) wilful
refusal to consummate the marriage (ii) pre-marriage pregnane)' (iii) consent obtained
by coercion or fraud.
T he registration o f a marriage may be cancelled under the Special Marriage
Act on the similar grounds, as the grounds o f void marriage under the Act, except
the ground o f impotency. The registration may also be cancelled on the ground that
no valid ceremony o f marriage was perform ed between the parties.
T he Special Marriage Act has the unique feature o f enacting all the three
theories o f divorce side by side, in Secs. 27 and 28. The Marriage Laws (Am endment)
Act, 1976, has amended the grounds for divorce under the Hindu Marriage Act and
the Special Marriage Act, and has tried to bring them at par with each other (though
some differences still exists).
T he common fault grounds are: adultery, cruelty, desertion o f two years, incurable
insanity, leprosy, venereal disease, and, presumption o f death (seven years o f unheard
absence). Renunciation o f the world and conversion are recognized under the H indu
Marriage Act, but not under the Special Marriage Act. Further, seven years* sentence
o f im prisonm ent is a ground for divorce under the Special Marriage Act, but n o t
under the Hindu Marriage Act.
T he additional grounds o f divorce available to wife under the Special Marriage
Act are: rape, sodomy and bestiality; and, non-resum ption o f cohabitation for one
year o r m ore after the passing o f an order o f maintenance under Sec. 18, H indu
A doptions and Maintenance Act (when both the parties are Hindus) o r under Sec.
125, Criminal Procedure Code. The two other additional grounds o f divorce available
to wife under the Hindu Marriage Act (viz. pre-Act polygamous marriage o f the
husband and repudiation o f marriage) are not available under the Special Marriage
Act.
T he two breakdown grounds o f divorce are same under the H indu Marriage
Act and the Special Marriage Act. Further, like the Hindu Marriage A ct, the Special
Marriage Act also recognizes divorce by mutual consent. Still further, under the
H indu Marriage Act, all the fault grounds o f divorce are also the grounds for
judicial separation.
This is also the position under the Special Marriage Act, however, u n d er it,
there is an additional ground o f judicial separation, viz. a decree for restitution o f
conjugal rights has not been complied with. The bar to remarriage for a certain
period and bars to matrimonial reliefs are same under the Hindu Marriage Act and
the Special Marriage Act. And so does the provisions relating to alimony and
maintenance.
T he jurisdictional rules both under the Hindu Marriage Act and the Special
Marriage Act are virtually the same, though under the latter for certain p urposes
domicile also confers jurisdiction. The Special Marriage A ct contains a special
jurisdictional rule in respect o f the wife’s petition:
“The District Court may entertain a petition by a wife domiciled in die territories
to which this Act extends for nullity o f marriage or for divorce if she is resident
in the said territories and has been ordinarily resident therein for a period o f 3 years
immediately preceding the presentation o f petition and the husband is n o t resident
in the said territories”.
102 Hindu Law
The provision is meant for those cases where two Indian domiciled persons
solemnize their marriage abroad, but after sometime their marriage fails and wife
alone comes to India. In such a case, she cannot file the petition under the main
jurisdictional rules, but she can do so under this special provision.
319. A child m arriage is:

a) Void under the Special Marriage Act only,
320.
1b)
c)
d)
Valid under the Special Marriage Act.
Valid under the Special Marriage Act and Hindu law.

None of the above.
Adultery.
W hich o f th e follow ing is not a gro u n d o f divorce u n d e r t h e S p e c ia l M arriage Act:
Cruelty.
Conversion.
Desertion.
321. fhich o f th e follow ing is a ground fo r divorce u n d e r t h e S p e c ia l M arriag e Act, but
n o t u n d er th e Hindu M arriage Act:
a) Renunciation of the world,
1b)
fb)
Conversion.
c) Seven years' sentence of imprisonment,

d) None of the above.
3 2 2 . t h e Hindu
fa) re p u d iaand
tio n Muslim law only.
o f m arriage is recognized un d er:
Special Marriage Act and Hindu law.
( cj Ail personal law.
323. W hich o f th e follow ing is a case u n d e r th e S p e c ia l M arriage Act:
(a) T. Sareetha v T. V Subbaih.
fb) Sushil Kumar Dang v Prem Kumar Dang.
ic) Jyotish Chandra v Meera.
(d) Saroj Rani v Sudarshan K. Chadha.
324. t h e S p ecial M arriage Act c o n ta in s a sp e c ia l ju r is d ic tio n a l ru le in r e s p e c t o f the:
Wife's petition.
Husband's petition.
Both (a) and (b).
7.
Hindu Law of Guardianship and Custody
The law of guardianship is based on the incapacity which the law attributes to minors
and to persons who are deficient in mental capacity (e.g. lunatics). It is presumed
that such persons are incapable of looking after themselves or o f maintaining their
property or entering into a contract. Thus, it is necessary to entrust the management
o f their affairs to proper guardians.
The law o f guardianship is contained in the Guardians and Wards Act\ 1890,
which applies to all persons in India including Hindus. It is also contained in the
Hindu Minority and Guardianship Act, 1956 (HMGA) that came into force on 25th
August 1956. The Hindu Marriage Act, 1955 also declares certain persons to be
guardians in marriage. The Karta of a Hindu Joint Family also acts as a guardian
o f the minor members of the family.
It may be noted that Sec. 5 of the HMGA repeals all existing laws (enactments
or customs or ancient texts), if they are inconsistent with the Act. However, the
provisions o f HMGA are in addition to, and not in substitution or derogation of,
the Guardians and Wards Act. Thus, if the HMGA were silent on a point, the
Guardians Act would apply. If there is a conflict on the same point, the provisions
of HMGA will apply in case of Hindus.
Under the HMGA, a ‘minor* is a person who has not completed the age of
18 years. According to the Indian Majority Act, 1865 (which applies to all persons
domiciled in India, as regards all matters except marriage, dower, divorce and
adoption), a person attains majority at the age of 18. However, if the court has
appointed a guardian, such a person is deemed to have attained majority when he
completes 21 years.
Guardianship under the Hindu Minority and Guardianship Act, 1?56

‘Guardian* means a person having the care of the person of a minor, or his property,
or o f both, and includes: (a) natural guardians (b) testamentary guardians, and (c)
guardians appointed or declared by the court. This definition, given under the
HMGA, is not exhaustive. Thus, there are two other types of guardians, existing
under Hindu law, de facto guardians and guardians by affinity. It may be noted that
[103]
104 Hindu Law
the supreme guardianship o f the minor children is vested in the State as parenspatrie
and is exercised by the courts.
(a) Natural G uardians38

In Hindu law, only three persons are recognized as natural guardians: Father, Mother
and Husband. According to Sec. 6 o f the HMGA, the natural guardians o f a person
are:
(i) In the case o f a boy or an unmarried girl — the father, and after him, the
mother. However, the custody o f a m inor under the age o f 5 years is to
be ordinarily with the mother.
(ii) In the case o f an illegitimate child - the mother; and after her, the father.
(m) In the case o f a minor married woman — the husband.
Sec. 7 o f the HMGA lays down that the guardianship o f a m inor adopted son,
passed on his adoption, from the natural father and m other to the adoptive father
and mother. It may be noted that ‘step-parents’ are not entided to guardianship,
unless the court appoints them. Further, the Act does not recognize the principle of
joint guardians.
38. W ho are n a tu ra l g u a rd ia n s o f a s o n in H in d u law ? W h a t a re th e p o w e rs of

n a tu ra l g u a rd ia n ? J.S. 1989/1991]
7. H in d u L a w o f G u a r d ia n s h ip a n d C u s to d y
325. The H in d u s a re g o v e rn e d by:
(a) Guardians and Wards Act, 1890.
(b) Hindu Minority and Guardianship Act, 1956.
(d) Only (b).
326. G u ard ian s u n d e r t h e H indu M in o rity a n d G u a r d ia n s h ip A ct, 1 9 5 6 i n c l u d e :
I. N atural guardians.
II. T estam entary g uardians.
III. G uardians ap p o in ted or declared by th e co u rt.
IV. G uardians ap p o in ted u n d e r "G u ard ian s a n d W ards Act".
Codes:
(a) n and in.
(b) m and IV.
(c) I, H and HI.
(d) I, II, m and IV.
327. H indu Law r e c o g n i z e s __ p e rs o n s a s n a tu r a l g u a r d ia n s :
(a) Two.
(b) Three.
(c) Four.
(d) Five.
328. The n a tu ra l g u a rd ia n o f a m in o r H in d u b o y is :
(a) Only mother.
(b) Only father.
(c) Grandfather. -i
(d) Father and m other both. [U tta ra n c h a l PCS (J) ( P r e l) 20
Hindu Law of Guardianship & Custody 1 05
W here th e father fails to function or refuses to function o r is incapable o f

functioning as gxiardian, the mother will be able to exercise all powers and functions
o f a natural guardian w ithout being appointed as guardian by the court (ISZarayan v
S'optima AIR 1968 Pat 318).
T he Suprem e C ourt has recently held that under certain circum stances, even
when the father is alive, m other can act as a natural guardian. T he term ‘after* used
in Sec. 6 has been interpreted as ‘in absence of* instead ‘after the life-time* ( X'andana
Shiva v Jayanta Bandhopadheya AIR 1999 SC 1149).
It may be noted that Sec. 6 also lays down that no person shall be entided to
act as the natural guardian o f the minor: (i) if the guardian has ceased to be a
Hindu, o r (ii) i f the guardian has completely and finally renounced the world.
However, as the right o f the m other to act as the natural guardian o f her children
after the father is absolute and unconditional\ it seems that m other’s right o f guardianship
is not lost on h er conversion to another religion provided she is able to provide a
congenial, com fortable and happy home.
Also, if a H indu widow remarries, she does not lose her preferential right o f
guardianship over her m inor children by the decreased husband.
Rights o f G uardian o f Person
The natural guardian has the following rights in respect o f m inor children: (a) R ight
to custody, (b) Right to determine the child’s religion, (c) Right to education, (d)
Right to control movement, and (e) Right to reasonable chastisem ent. T h e children
o f tender years are ordinarily given in the custody o f the m other.
Power o ver M inor's Property
Prior to HM GA , a natural guardian o f a m inor had very wide rights, and he could
sell, mortgage, etc. the m inor’s property, without the court’s sanction, provided such
an alienation was in the m inor’s interest. Sec. 8 o f the Act lays dow n that ‘the
natural guardian has power to do all acts which are necessary o r reasonable and
proper for the m inor’s benefit or for the realization, protection o r benefit o f the
m inor’s estate.’
However, the court’s permission is required in the cases where the guardian
wishes to mortgage o r charge, or transfer by sale, gift, exchange, etc. any part o f the
immovable property o f the minor; and, cases o f lease for a term exceeding 5 years
or for m ore than 1 year beyond the date on which the m inor would attain majority.
The court shall not grant permission to the natural guardian except in case o f necessity
or for the evident advantage o f the minor. An unnecessary or unreasonable disposal
o f property is voidable at the m inor’s instance. Where the guardian acquires o r purchases
property for the m inor’s benefit, no court permission is needed.
In certain areas the guardian’s powers are not fettered by Sec. 8 , viz. alienation
o f movable property, and, contracts. However, a guardian cannot bind the m in o r by
personal covenants (i.e. make the m inor personally liable). T hough a guardian has
power to enter into, on behalf o f minor, marriage o r betrothal contracts, family
arrangements, apprenticeship contract, etc.
T he guardian can also bind the m inor’s estate for debts taken by him for the
supply o f necessaries to a minor. A contract for the purchase o f im m ovable property’
106 Hindu Law
entered into by the guardian can be specifically enforced (Radhejshaym v Kjsan Bala
AIR 1971 Cal 341).
(b) Testamentary Guardians

Prior to HMGA, a Hindu father could nominate a guardian o f his children, so as
to exclude even the mother from guardianship. Even in cases where the father was
dead, the mother did not have the power to appoint a testamentary guardian i.e. a
guardian appointed under a will.
Sec. 9 of HMGA confers testamentary power o f appointing a guardian on
both parents. The father may appoint a testamentary guardian but if mother survives
him, his testamentary appointment will be ineffective, as the mother will become
the natural guardian. Then, the mother could appoint a testamentary guardian of
her choice; if she does not appoint, father’s appointee will become the guardian.
Likewise, she is entided to act, as the natural guardian of her minor illegitimate
children, and, by will, appoint a guardian o f such children. The father of such
children does not have this right until the mother’s death.
The guardian of a ‘minor girl’ will cease to be the guardian of her person on her
marriage, and the guardianship cannot revive even if she becomes a widow while a minor.
A testamentary guardian can exercise only the rights o f a natural guardian,
subject to the restrictions contained in Sec. 8 , and also, subject to the restriction
contained in the will appointing him as such guardian.
329. Which o f th e follow ing is not a n a tu ra l g u a rd ia n ?

(a) Father.
(b) Mother.
(c) Husband.
(d) Uncle.
(a) Step-parents are not entitled to guardianship, unless the court appoints them.
(b) Under certain circumstances, even when the father is alive, mother can act as
a natural guardian.
(c) If a Hindu widow remarries, she loses her preferential right of guardianship over
her minor children by the decreased husband.
331. G enerally and legally also, th e cu stody o f a m in o r who h a s n o t c o m p le te d t h e age
o f _ shall be w ith th e m other:
(a) 4.
(b) 2.
(c) 3.
(d) 5.
332. The S uprem e Court has recen tly held in which o f th e fo llo w in g c a s e s, t h a t u n d e r
c e rta in circu m stances, even w hen th e fa th e r is alive, m o th e r can a c t a s a n a tu ra l
guard ian :
(a) Vandana Shiva v Jayanta Bandhopadheya.
(b) Narayan v Sapuma.
(c) Jiyabai v Pathan.
Hindu Law of Guardianship & Custody 107
(c) G uardians Appointed by the Court

The District Courts are empowered to appoint guardians under the Guardians and
Wards Act. In appointing a guardian, the court takes into consideration various
factors, including the age, sex, wishes of the deceased parents, character and capacity
of the guardian, previous and existing relations of the minor with proposed guardian,
personal law o f the child, the child’s preference (if the minor is o f sufficient
maturity), etc. “The welfare of the child is o f paramount consideration.”
Sec. 13 o f the HMGA also lays down that when the court appoints any
person as guardian, the welfare of the minor will be the paramount consideration.
This salutary rule forms the keystone of the whole law on this subject. The term
“welfare” includes not only the physical and material well being o f the minor, but
also every m atter connected with the moral and religious welfare, education and
upbringing o f the minor.
The court may appoint or declare any person as the guardian. The guardian
appointed by the court is known as ‘certificated guardian’-, he/she from the date o f
appointment is under the supervision, guidance and control of the court. The High
Court also have inherent jurisdiction to appoint guardians.
The HMGA also provides that if the court is of the opinion that a particular
person’s guardianship will not be for the minor’s benefit, such a person shall not be
entided to be the guardian even if he or she is otherwise entided to do so under the
provisions o f the Act, or any law relating to guardianship in marriage among Hindus.
Guardian Not to be Appointed for Minor's Undivided Interest in JFP
In cases where a minor has an undivided interest in JFP, and the property is under
the management o f Karta of the family, Sec. 12 provides that no guardian is to be
appointed for the minor in respect of such undivided interest. However, this provision
does not affect the jurisdiction of the High Court to appoint a guardian in respect
of such interest.
It may be noted that there cannot be a natural or testamentary guardian in
such cases. The reason why a guardian cannot be appointed in such a case is that
the interest of such a member is not separate or divided property. Such a case
would be governed by the general principles of Hindu law relating to JFP.
A Minor Cannot Act as Guardian
The Guardians and Wards Act recognizes by implication that a minor may act as
the guardian o f the property of his minor wife or child. This rule is now superseded
(as far as Hindus are concerned) by Sec. 10 of the HMGA which provides that a
minor is incompetent to act as the guardian of the property of any Hindu minor.
However, the right to act as the natural guardian of the person o f his minor wife and
children is still preserved.
Guardian's Liabilities and Rights
The legal position of all guardians being fiduciary, the guardians of all types are liable
‘personally’ for breach of trust. He is required to manage prudently properties,
business and affairs of the minor. He is also liable to render all accounts.
108 Hindu Law
The guardian is cntided to represent the minor in all litigations. Usually, he

files the suit as the next friend o f minor and if a suit is filed against the minor
usually it is he who is appointed as the guardian ad litenr® (i.e. at law, for the suit),*
though the court is not bound to do so.
The guardian has the right to be indemnified out o f the m inor’s property fQr
any expenses, he incurs properly on behalf o f the minor. The guardian may sue the
m inor after the termination o f guardianship for the recovery o f expenses.
Removal o f Guardians
The court has power to remove any guardian from the guardianship, if it comes to
the conclusion it will be in the interest o f the minor. Sec. 6 o f HM GA provides
four disqualifications, which would prevent a person from acting as a natural guardian
o f a minor:
(i) if such person has ceased to be a Hindu;
(ii) if he completely and finally renounced the world by becoming a sanyasi, etc.
(iii) if he is the step-father.
(iv) if she is the step-mother.
39. W h a t is m e a n t b y g u a rd ia n a d lite m ? [Raj. J.S. 1992]
333. The f a th e r 's r ig h t o f n a tu r a l g u a r d ia n s h i p is s u b o r d i n a t e t o t h e w e lf a r e o f th e

m in o r a s p e r w h ich s e c ti o n o f t h e HMGA?
(a) Sec. 11.
(b) Sec. 12.
(c) Sec. 13.
(d) Sec. 15.
334. A n a tu r a l g u a rd ia n o f a m in o r:
(a) Could sell or mortgage th e minor's property, w ithout th e court's sanction, provided
such an alienation was in th e minor's in terest.
(b) Has power to do all acts which are necessary or reasonable and proper for the
minor's benefit or for th e realization, protection or benefit of th e minor's estate.
(c) The court's permission is required in th e cases w here th e guardian wishes to
mortgage or charge, or transfer by sale, gift, exchange, etc. any p a rt of the
immovable property of th e minor.
(d) Both (b) and (c) are correct.
335. An a lie n a tio n o f t h e m in o r's p r o p e rty by a n a t u r a l g u a r d ia n w i t h o u t t h e p e r m is s io n
o f t h e c o u rt is:
(a) Void.
(b) Voidable.
(c) Invalid.
(d) Illegal.
336. A t e s ta m e n t a r y g u a rd ia n is:
(a) A guardian appointed under a will.
(b) A guardian appointed under th e Hindu Minority and G uardianship Act.
(c) A guardian appointed under a contract.
(d) A guardian by affinity.
Hindu Law o f Guardianship & Custody 109
T h e H M G A docs not say that the father or mother cannot appoint by will a
‘n o n -H in d u ’ as guardian o f the child. N or is there anything in the Guardians and
Wards A ct to prevent a court from appointing a non-Hindu as a guardian o f a
H indu m inor, though the court is required to take into consideration the personal
law o f the m inor. The court may not ordinarily appoint a non -1 lindu as a guardian.
(d) De fa c to G uardians40
A de facto guardian is a person who takes continuous interest in the welfare o f the
m inor’s p erso n o r in the management and administration o f his property w ithout
any authority o f law. It includes relatives or friends who are interested in the m inor’s
welfare o u t o f their love or affection for him.
Thus, a m ere intermeddler is not a defacto guardian. An isolated o r fugitive act
o f a person in regard to child’s property’ does not make him a de facto guardian.
T he existence o f de facto guardian has never been denied in H indu law. In
Haw/man Prasad Pattdey}s Case [(1856) 6 M.I.A. 393], the Privy Council held that a de
facto guardian has the same power, as a natural guardian as far as alienating the
m inor’s property is concerned.
However, Sec. 11 o f the HMGA has done away with the authority o f any
person to deal with or dispose o f a m inor’s property, on the ground that he is the
de facto guardian o f a minor. It may be noted that a de facto guardian has been
recognized under the Hindu Adoptions and Maintenance Act.
T here is a controversy among the High Cour s whether an alienation by de
facto guardian is void or voidable. Sec. 11 does not say that an alienation by a de facto
guardian is null and void. This section at best restricts the de facto guardian’s pow er
o f alienation.
T he Supreme C ourt has recognized the ‘m other’ as a de facto guardian o f a
m inor child in certain cases {Jifabi v Pathan Khan AIR 1971 SC 315). U nder the
Guardian Act, the court also has power to pass orders against a de facto guardian.
(e) G u ardians b y Affinity

Such a guardian in respect o f a ‘minor widow’ existed in pre-1956 law. “T he husband’s
relation, if there exists any, within the degree o f sapinday are the guardians o f a
minor widow in preference to her father and his relation” (Mayne).
A question arises: Whether the nearest sapinda o f the husband autom atically
becomes a guardian o f the minor widow on the death o f her husband o r w hether
he is merely preferentially entitled to guardianship and therefore he cannot act as
guardian unless he is appointed as such?
40. W h o is a d e fa c to g u a rd ia n o f a H in d u m in o r? C a n h e d is p o s e o f t h e m i n o r 's
p ro p e r ty fo r th e la tte r's e d u c a tio n a n d m o ra l w e lfa re ? [Ro/. J.S. 1999\
110 Hindu Law
There is a conflict of judicial opinion on this point. The fact that under Hindu
law, father-in-law has preferential right to be appointed as guardian is only a matter
of secondary consideration. This is especially true in view o f the fact that welfare
of the child (minor) is of paramount consideration in the appointment of a guardian.

(a) A contract for the purchase of immovable property entered into by th e guardian
can be specifically enforced.
(b) HMGA confers testamentary power of appointing a guardian on both parents.
(c) The court may appoint or declare any person as th e guardian.
(d) A guardian can be appointed for minor's undivided in terest in JFP.
338. W hich c o u rt is em p o w ered to a p p o in t g u a rd ia n s ?
(a) District court.
(b) High Court.
(d) Only (b).
339. Which is th e most im portant consideration in th e ap p o in tm en t o f a guardian by th e court? ^
(a) Character and capacity of the guardian.
(b) Personal law of the child.
(c) Wishes of the deceased parents.
(d) Welfare of the child.
340. Who w ill be t h e g u ard ian o f a m in o r w ife ?
(a) Her husband, even if minor.
(b) Her father or mother.
(c) Her father-in-law.
3 4 1 . A g u ard ian ad litem im p lies:
(a) A guardian for the suit against a minor.
(b) A guardian by affinity.
(c) A testamentary guardian.
342. On w hich o f th e follow ing gro u n d s a p e rso n could be p r e v e n te d fro m a c tin g as a
n a tu ra l guard ian of a m inor?
(a) If such person has ceased to be a Hindu.
(b) If he completely and finally renounced the world by becoming a sanyasi.
(c) If he is the step-father/mother.
343. A perso n who ta k e s co n tin u o u s i n te r e s t in th e w e lfare o f t h e m in o r 's p e rso n or in
th e m an ag em en t and a d m in istra tio n o f h is p ro p e rty w i th o u t a n y a u th o r ity of law
is called:
(a) De facto guardian.
(b) Guardian by affinity.
(d) De jure guardian.
344. G uardian by a ffin ity is th e :
(a) Guardian of a minor widow.
(b) Guardian of a major widow.
(c) Guardian of a bastard child.
(d) Guardian of an orphan.
8
Hindu Joint Family and Coparcenary
[1] HINDU JOINT FAMILY
A Hindu joint family is the fundamental aspect of the life o f Hindus. A Hindu joint
family (according to Mitakshara law) consists o f “the common ancestor and all his
lineal male descendants up to any generation together with the wife(s) or widows
and unm arried daughters o f the common ancestor and o f the lineal male
descendants.” Even an illegitimate son and widowed daughters may lay claim on the
bounty o f the joint family. The existence o f the common ancestor is necessary for
bringing a joint family into existence, but not necessary for its continuance.
The chief characteristics of a Hindu joint family are:
(i) It is a creation of law.
(ii) It has no legal entity distinct and separate from that o f the members
who constitute it. It is not a juristic person. It is not a corporation either.
(iii) It is a unit and in all affairs its Karta (head) represents it.
(iv) Status can be acquired into it only by -birth, marriage to a male member,
and adoption.
(v) Status can be lost by - conversion to a non - Hindu faith, marriage to
a non-Hindu under the Special Marriage Act, 1954, and, on partition.
(vi) It is different from a composite family - a creature o f custom and
agreement, where two or more families agree to live and work together,
pool their resources, throw their gains and labour into the joint stock
and shoulder the common risk.
(vii) A joint family may consist of a single male member and his wife and
daughters, or a single male member and a widow o f coparcener, or
even when there are only widows. The rule is “that even on the death
o f sole surviving coparcener, the Hindu joint family does not come to
[1111
112 Hindu Law
an end so long as it is possible in nature or law (i.e. adoption) to add

a male member to it” (Sitabai v Ram Chandra AIR 1970 SC 343). A single
male or female cannot make a joint family. There must be at least two
members to constitute it.
A married daughter gets excluded from the joint family of her parents (as she
now gets included in the joint family of her husband). However, a widowed daughter
may lay claim on the bounty of the joint family. A brother and sister (unmarried)
constitute a joint family (as there are two members present to constitute a joint family).
Two brothers constitute a joint family, but not two sisters as in the latter case it is hot
possible in nature or in law (i.e. adoption) to add a male member to the family.
Hindu Undivided Family - For the purposes of tax assessment, the revenue statutes
[viz. Income Tax Act, Sec. 2 (31)] use the expression ‘Hindu Undivided Family’
(HUF).
The basic principle of taxation is that where a person has absolute power of
disposition over his property, it is taxed as his individual property; where, however,
there is no such power and the property in the hands of an individual has other
claims (Le. subject to the rights of other family members) then it is taxed as joint
property or HUF property. A large tax exemption is allowed in the latter case.
In CIT v Laxminarayan (37 Bom LR 692), the issue was whether property in
the hands of sole surviving coparcener should be taxed as his individual property
or that of HUF. Held that the expression ‘Hindu Undivided Family’ in the Wealth
Tax Act is used in the sense in which a Hindu joint family is understood in the
personal law of Hindus and a joint family may consist of a single male member and
his wife and daughters.
8 . H in d u J o i n t F a m ily a n d C o p a rc e n a ry
345. A Hindu j o in t fam ily (according to M itakshara law ) c o n s is ts o f " t h e com m on
a n c e sto r an d Ml his lin e a l m ale d e s c e n d a n ts up to any g e n e ra tio n t o g e t h e r with
th e w ife (s) or widows and u n m arried d a u g h te rs o f t h e com m on a n c e s to r an d o f the
lin eal m ale d e sc e n d a n ts ." Now:
(a) The existence of the common ancestor is necessary for bringing a joint family
into existence, as well as for its continuance.
(b) The existence of the common ancestor is necessary only for bringing a joint
family into existence.
(c) The existence of the common ancestor is necessary only for th e continuance of
a joint family.
3 4 6 . Which o f th e follow ing is excluded from t h e H indu j o in t fa m ily :
(a) Illegitimate son.
(b) Widowed daughter.
(c) Adopted son.
(d) Married daughter.
347. W hich o f th e follow ing d o es not c o n s titu te a H indu j o i n t fa m ily :
(a) Husband and wife.
(b) Widows of two brothers.
(c) Two brothers.
(d) Two sisters.
Hindu Joint Family & Coparcenary 113
Presumption of Jointness
The normal state o f every Hindu family is that it is a joint family, presumably joint
in food, worship and estate, and it continues to be joint (Rukhmabai v Laxminarayan
AIR I960 SC 335). However, if a family is not joint in food, worship and estate,
or in any one or all o f them, it does not necessarily imply that it has ceased to be
a joint family. Thus, it is not necessary that all members of a joint family live or
work at the same place. There are only two ways to rebut the presumption of
jointness viz. partition and extinction of the family.
There is no presumption that joint family possesses joint property. In Hindu
law, existence o f joint property is not a condition precedent to the existence of joint
family, though it will be a rare case where a joint family possesses no (joint) property.
Acquisition o f property in the name of different members of the family is not
inconsistent with the jointness. When property is purchased in the joint names, it
is for the person who alleges it to be separate property, to prove it
[2] COPARCENARY41
The Mitakshara concept o f coparcenary is based on the notion o f “son’s birth

right” in the JFP. Coparcenary is a narrower body of persons within a joint family,
and consists o f father, son, son’s son and son’s son’s son Le. father- ancestor and his
three male lineal ascendants within four degrees (or three degrees, exclusive o f such
ancestor).
In its (coparcenary) continuance, the existence of the father-son relationship
is not necessary. Thus, a coparcenary can consist of grandfather and grandson, o f
brothers, o f uncle and nephew, and so on. The rule is that so long as one is not
removed by more than four degrees from the last holder o f the property, howsoever-
removed one may be from the original holder, one will be a coparcener. Last holder
means the senior-most living lineal male ancestor.
Example
A - B - C - D (Coparceners) / E - F - G - H (Not coparceners): 8 Generations
In the above example, if A dies, coparcenary will be of B, C, D and E. As
on A’s death, B becomes the last holder and so E comes within the limit o f four
degrees. Similarly, if B dies now, coparcenary will be of C, D, E and F. But, if B
dies before A, coparcenary will be of A, C and D. As A be the last holder and so
E removed (five degrees distance from A). Now, if C dies, E’s position won’t be
changed and the coparcenary will be of A and D. And, if D dies now, only A will
be a coparcener.
Extinction of Coparcenary
The case of Moro Vishwanath v Ganesh Vithaly ILR (1873) 10 Bom 444, gives an
example o f the extinction of coparcenary:
41. W h o are co parceners? [Raj- J S . 1991/1992]

E x p la in th e concep t o f coparcenary. C an a fem ale be r. c o p a rc e n e r?
[Punjab C S. (/. B.) 1999\
114 Hindu Law
H (Last Holder)
Sl S2 dV d2 (First Degree)
I
I---------1
s3 S4 (Second Degree)
I
s5 (Third Degree)
s6
S6 is not a coparcener; he can become so if H dies, for then he will come
within the four-degree rule. S6 will be completely eliminated from the coparcenary
if H remains alive and S1, S3 and S5 die. The moment the three immediate ancestors
die, line cannot proceed in that direction.
Suppose there is a line of lineally descendant males A, B, C, D and E. A is
the last holder of JFP. Now suppose B, C, and D die before A. The moment three
immediate ancestors die; the line cannot proceed in that direction. Thus, E will
never become a coparcener and the property in the hands o f A is the property of
the sole surviving coparcener. After A’s death, there will be an extinction of
coparcenary and the JFP will pass by succession. The coparcenary also becomes
extinct when all the male members die. However, it does not ipso facto mean the
extinction of the joint family, as a joint family can consist o f two female members.*V
348. W hich o f th e follow ing s ta te m e n t is incorrect a b o u t a H indu j o i n t fa m ily ?

(a) It is a creation of law.
(b) It has no legal entity distinct and separate from th at of the members who
constitute it.
(c) There is presumption th at joint family possesses joint property.
(d) A single male or female cannot make a joint family,
u 349. Mark th e correct s ta te m e n t:
(a)A Hindu joint family is akin to corporation.
m vm (b) A Hindu joint family is akin to composite family.
V (c) A Hindu joint family is synonymous to coparcenary.
(d) A joint Hindu family status comes to an end when the members of it become
separate in estate.
W 350. A co p arcenary c o n sists of:
(a) Father- ancestor and his three male lineal ascendants within four degrees.
(b) Father- ancestor and his four male lineal ascendants within four degrees.
(c) Father- ancestor and his three male lineal ascendants within fivedegrees.
(d) Father- ancestor and his three male lineal ascendants within three degrees.
351. W hich o f th e follow ing is not an e s s e n tia l c h a ra c te ris tic s o f a c o p arc en a ry :
(a) Existence of Joint family property.
(b) Male members only.
(c) Rule of survivorship.
(d) Rule of inheritance.
Essential Characteristics of a C oparcenary

( 1)Existence of property - Existence of JFP is essential in a coparcenary. If a
Hindu acquires property in his lifetime, on his death, the property inherited
by his son shall be held by the latter as JFP and he will form a coparcenary
along with his sons by operation of law, whether he likes it or not.
(2) Only males - Only males, including the adopted ones, can be members o f
a coparcenary. An illegitimate son, although a member of a joint family, is
not a coparcener. No female can be a coparcener. An insane son is a
coparcener, though he has no right to claim partition.
(3) Four generation rule —Only such males as are within four generation from,
and inclusive of, the last male holder or owner of property - the eldest
surviving male member in the family - form a coparcenary.
(4) Interest by birth - Coparceners acquires interest in the JFP from their birth,
rather conception (i.e. a child in mother’s womb).
(5) Rule of survivorship andfluctuation of interest - On the death o f a coparcener,
his interest in the JFP devolves on the surviving coparceners by rule o f
survivorship and not according to law of succession. Suppose Ram has two
sons S1 and S2. On death of S2, his share in the family property will vest
in the surviving two coparceners Ram and S1; and the share to which each
coparcener would have been endded during the lifetime o f S2 on parddon
(one-third), would be enlarged in case of Ram and S 1 on the death o f S2
to half each.
If after death of S2, two more sons S3 and S4 are bom to Ram, there will be
four coparceners and hence four shares on parddon. As a result, the interest o f the
coparceners in the coparcenary property’ fluctuates with the birth (diminishes) and
death (enlarges) of the coparceners; hence no coparcener can claim a definite share
in the JFP whilst the family remains joint.
(6) Coparcenary within a coparcenary - Within a joint family, there can be
coparcenaries more than one in different branches o f the family. Likewise
there can be a coparcenary within a coparcenary. The moment a Hindu
inherits property, from his father, grandfather or great grandfather, he
immediately forms a coparcenary with his sons, grandsons, etc.
Distinction betw een Joint Family and C oparcenary42

J o i n t Fam ily Coparcenary
(1) It is a wider body consisting of all (l) It is a much narrower body than the
persons lineally descended from a joint family and consists o f father
common ancestor, and includes and his three male lineal descendants.
their wives and unmarned daughters.
(2) Females, and illegitimate son are (2) Only a male can be a coparcener; an
members o f the HJF. illegitimate son is not a coparcener.
(3) Limitation of four generauons (3) Only such males as arc within four
applicable to coparcenary does not generations from, and inclusive o f the
apply to a HJF eldest surviving male thember in the
family form a coparcenary.
42. Distinguish between coparcenary and Joint Hindu family. [U.P. PCS Q) 2000)
116 Hindu Law
(4) Death of all the male members (4) The coparcenary becomes extinct when
does not ipsofactomean the extinction all the male members die.
of the joint family, as a joint family
can consist of two female members.
(5) In joint family, existence of property (5) Existence of JFP is essential in a
is not essential. coparcenary.
(6) Law of succession determines the (6) On the death of coparcener, his
rights and interests of joint family interest in the JFP devolves on the
members. surviving coparceners by rule of
survivorship and not according to law
of succession.
(7) The members of the joint family (7) The coparceners enjoy very wide rights,
enjoy very limited rights, viz. of viz. a right to partition and a right to
maintenance and marriage expenses alienate (their undivided interest in the
of unmarried daughters. family property). Each coparcener is
owner of the entire family property.
(8) HJF is not a juristic person. It is (8) A coparcenary is a distinct juristic
not a corporation either. person on whose behalf contracts can
be entered into and enforced. The
coparcenary property is held by the
coparceners inaquasi-corporatepersonality
Similarities - A Hindu joint family as well as coparcenary come into existence by operation
of law and cannot be brought into existence by agreement amongst the strangers. Thus, the
basis of formation of both is close relationship.
352. A coparcenary:
(a) Can be created by an agreement.
(b) Is a creature of law.
353. A Mitakshara joint family consists of the following -H, the father, his sons S*1I.V
and S2, his daughters D1 and D2, his grandsons S3 and S4; his great grandson S5
by S3 and his great great grandson S6 by S5, Which of the following is not a
coparcener?
(a) S3-
(b) S4-
(c) S5
(d) S6'
I. A coparcener has an in terest by b irth in th e jo in t fam ily property.
II. The interest th a t a coparcener acquires at b irth is u n d eterm in ed in te re st.
III. The interest which a coparcener acquires in th e jo in t fam ily p ro p erty is
unpredictable as well as fluctuating.
IV. The interest of a coparcener in th e jo in t family property becomes fixed
only by partition.
Codes:
(a) I, III and IV.
(b) I, II and IV.
(c) I and m .
(d) I, H, m and IV.
[3] CLASSIFICATION OF PROPERTY
(I) O bstructed and Unobstructed Heritage

The Mitakshara school classifies property mainly under two Heads: apratibandba daya
(unobstructed heritage) and sapratibandba daya (obstructed heritage). The Dayabhaga
school does not recognize unobstructed heritage.
All properties inherited by a Hindu male from a direct male ancestor, not
exceeding three degrees higher to him is called apratibandba daya. In this property his
son, son’s son and son’s son’s son acquire an interest by birth. Therefore, it is called
an ‘unobstructed heritage’, as the accrual of the right to it is not obstructed by the
existence o f the owner. Thus, if A inherits property from his father or grand-father
or great grandfather, it is unobstructed heritage in the hands of A as regards his
male issue (because the existence of A is no obstruction to his son acquiring an
interest) but as regards other relations he holds it as his absolute property.
Property inherited by a Hindu from a person other than his father, grandfather
or great grandfather is obstructed heritage viz. where a person inherits property from
maternal/ paternal uncle or brother, nephew, etc. It is so called because the accrual
of the rights to it is obstructed by the existence of the owner who holds it as his
separate and absolute property. The relations of the owner do not take a vested
interest in it by birth. They are entitled to it only on the death of the owner. For
example, A inherits certain property from his brother. A has a son B. The property
is obstructed in the lifetime of A. B does not take any interest in it during the
lifetime o f A. After A’s death, B will take it as A’s heir by succession.
Thus, the unobstructed heritage devolves by survivorship and obstructed
heritage by inheritance (succession). However, in some cases, obstructed heritage
passes by survivorship e.g. two or more sons, grandsons and great grandsons
succeeding as heirs to the separate property of their paternal ancestor take as joint
tenants with survivorship rights.
(II) Joint Family Property and Separate Property

According to the Hindu law, the property is divided into two classes, namely: (a)
Joint family property or coparcenary property, and (b) Separate property.
(a) Joint Family Property (JFP)*3
The JFP is the m ost important aspect of the law of the Hindu Joint Family. The
HJF property is like a big reservoir into which property flows in from various
sources and from which all members of the joint family draw out to fulfill their
multifarious needs. Thus, ‘coparcenary property’ is that in which every coparcener
has a joint interest and joint possession. It devolves by survivorship (interest by
birth), not by succession.
The Hindu Joint Family Property includes:
(1) All ancestral property. It is the property inherited from father, father’s father
or father’s father’s father which is called ‘ancestral property’. It is the same
A3. W hat c o n stitu te s coparcenary p roperty? E x p lain . [UP. PCS (J) 19S.']
118 Hindu Law
thing as apratibandha daya (unobstructed heritage). Property inherited from

any other relation (including maternal grandfather) is not ancestral property
but it is the separate property of the person inheriting it.
In M d Hussain v Babu Kishva (AIR 1937 PC 233), the court observed: “The
word ‘ancestral* ordinarily means an ascendant in the m aternal as well as paternal
line. But the ‘ancestral estate*, in which under the Hindu law, a son acquires jointly
with his father an interest by birth, must be confined (as shown by the Mitakshara
text, ‘pitamaha* referred to word ‘ancestral*) to the property descended to the father
from his male ancestor in the male line.**
It may be noted that the self-acquired property (separate property) o f the
grandfather in the hands o f the father is ancestral property, because all property
inherited by a male Hindu from his father or father’s father or father’s father’s father
is ancestral property'. It is immaterial whether the property was ancestral or self-
acquired in the hands o f the deceased.
(2) Property acquired with aid/assistance o f ancestral property (Doctrine of
Accretion). The term ‘accretion’ has been used in a wider sense including
all income, accumulations, or acquisition o f property made with the
joint family nucleus.
The income yielding capacity o f the nucleus is an equally im portant factor.
Any property acquired by the Karta out o f his own income in the name o f his son
will not constitute the JFP. Where the JFP is under separate and convenient enjoyment
o f members, any property acquired by a coparcener out o f the income o f such
property will be JFP. Where there is no joint family nucleus, the property acquired
is separate property'.*I.V
355. Mark the incorrect statem en t:

(a) The coparcenary becomes extinct when all th e male members die.
(b) Only a male can be a coparcener; an illegitim ate son is also a coparcener.
(c) Each coparcener is owner of th e entire family property.
(d) On the death of coparcener, his in terest in th e JFP devolves on th e surviving
coparceners by rule of survivorship and n o t according to law of succession.
356. A coparcener has th e following rights:
I.Right of jo in t ow nership.
II.Right of jo in t possession.
III.Right to m ain ten an ce.
IV.Right to p a rtitio n .
Codes:
(a) I and II.
(b) I, n and IV.
(c) n and IV.
(d) I, n , III and IV.
357. All properties inherited by a Hindu male from a d ire c t m ale an cesto r, n o t exceeding
three degrees higher to him is called:
(a) Apratibandha daya.
(b) Sapratibandha daya.
(c) Obstructed heritage.
(d) Both (b) and (c). i
(3) Property acquired at the cost o f ancestral property- {Doctrine of Detriment).

If a coparcener receives education, or acquires a job or som e o th er
benefit, which was financed out o f joint family funds, then the incom e
received from education, job, etc should be JFP. However, it is n o t
always and necessarily so (See ‘Separate or Self-acquired P roperty’).
(4) Separate property o f a coparcener which is voluntarily throw n by him
into the com m on stock to such an extent that it cannot be distinguished
from JFP (Doctrine o f Blending).
T he m ere act o f physical mixing o f property is not enough, but his ow n
volition and intention by waiving or surrendering his rights in it as separate property,
will make such property the JF P Thus, a mere intention to benefit the m em bers o f
the family by allowing them the use o f the income from the separate property may
not necessarily be enough to justify an inference o f blending (Alallesappa v AiaUappa
AIR 1961 SC 1268).
W here a karta has income from his separate property as well as from the J FP,
and he deposits all the incomes in the same bank account, without keeping separate
accounts, then it is a clear case o f blending {Lai Bahadur v Kanhaya L a i (1906) 26
All 244). I f a coparcener builds a house on joint family land out o f his separate
funds, the other coparceners will be entided to compensation for their share o f
land, unless it is clearly shown that the coparcener wanted to blend his separate
property with the JF P (Nilkanta v Ram Chandra AIR 1991 Bom 10).
T he doctrine o f blending cannot be invoked in regard to property held by a
H indu female as a limited owner. The doctrine is also inapplicable to a H indu male
who is n o t a coparcener.
(5) O ther types o f property e.g. recovered JF P
W hen one coparcener without any assistance from the joint famiiy funds o r
from his fellow coparceners recovers any ancestral property which has been lost o f
the joint family, the property so recovered will be the separate property o f the
recoverer if recoverer is the kartcry and o f other coparcener if property- is movable
(and in case o f immovable property, the coparcener will take one fourth o f it as his
separate property and the rest will become JFP).
Propertyjointly acquired by coparceners • with their joint labour and w ithout the aid o f
the JFP, will be J F P in which sons will acquire an interest by birth, unless it is
proved that the acquirers intended to own the property as co-owners between themselves
in which case it will be joint property and not JFP.
Property obtained on partition - When a coparcener partitions from the joint family and
obtains his share o f property-, then in respect o f his own son, son’s son and son’s
son’s son it will continue to be JFP, but in respect o f all others it will be his separate
property^.
(b) Separate or Self-Acquired Property
A m ember o f the H JF or coparcener can, under Hindu law, make separate acquisition
o f property. The separate property- may be obtained from several sources; the key
words in the doctrine o f seifacquisition are “what has been acquired without any detriment
to the J F P ” Mitakashara says regarding self- acquisition: “W hatever is acquired by
coparcener without detriment to father’s estate (or JFP) as present from a friend or
gift at nuptials, do esn ’t appertain to the co-heirs”.
120 Hindu Law
Property acquired in the following ways is the separate property o f the acquirers:
(1) Property inherited as obstructed heritage i.e. property inherited by a
Hindu from a person other than his father, father’s father and fathers
father’s father viz. from collaterals such as brother, uncle, etc., or from
a female e.g. mother.
(2) Gift or will o f his self-acquired property by father to his son, if the
father intends that the son will take it as his separate property.
(3) G ift o f a small portion o f ancestral movable property made through
affection by a father to his son, wife, daughter, daughter-in-law, son-in-
law, etc.
(4) Property obtained by a coparcener who has no male issue on partition.
(5) Property held by a sole surviving coparcener, when there is no widow
in existence who has power to adopt.
(6) Government grants - If property is granted to a coparcener by the
Government, unless it has been specially given to him as JFP.
(7) Incomefrom the separate property - or property acquired with such income.
(8) Separate earnings or earnings by selfexertion - without the aid o f the JFP.
(9) Income of the JFP allotted to a memberfo r his maintenance —I f some surplus
income remains after the maintenance, or any property is purchased
out o f surplus, such income or property will be separate property of
the coparcener (‘money saved is money earned’).*I.V
358. The H in d u J o i n t F am ily P ro p e rty in c lu d e s :

(a) All ancestral property.
(b) Property acquired a t th e cost of ancestral property.
(c) Separate property of a coparcener which is voluntarily throw n by him into the
common stock to such an e x ten t th a t it cannot be distinguished from JFP.
359. The te r m 'a c c r e tio n ' m e a n s:
(a) Accumulation of income of th e jo in t family property.
(b) Property purchased or acquired with th e income of jo in t family property.
(c) Property purchased out of th e sale of jo in t family property.
360. W hich o f t h e fo llo w in g is a s e p a r a t e o r s e lf - a c q u ir e d p r o p e r ty :
I. P roperty in h e rite d by a H indu from a p e rso n o th e r th a n h is fa th e r, father's
fa th e r and fa th e r's fa th e r's fath er.
II. P roperty ob tain ed by a coparcener w ho h as no m ale is su e o n p a rtitio n .
III. Gift of a small po rtio n of ancestral movable p ro p e rty m ade th ro u g h affection
by a fa th e r to h is son, w ife, d au g h ter, etc.
IV. G overnm ent grants.
V. Gains of learn in g .
Codes:
(a) I, H, HI and V.
(b) H, HI and IV.
(c) I, HI and V. '
Hindu Joint Fam ily & Coparcenary 121
(10) Benefits o f insurance pokey - If joint family funds are adv anced to m em bers
o f the coparcenary for their individual benefit, there is stricdy speaking a
detriment to*the family, nonetheless the intention with which that m oney
was given and the use o f it by the individual for his own benefit would
determine the character o f the income earned there from. His intention to
do so and to keep the property as his separate property would be manifested
if he makes a nomination in favour o f his wife or children.
(11) Gains o f learning —It means those gains, which are m ade o n account o f
som e education, or training that a coparcener has received o u t o f joint
family funds.
Before 1930, the courts made a distinction between a ‘specialized* and ‘ordinary*
training. In die former the earning o f a coparcener out o f his education/ training
were treated as part o f JFP, while in the latter it constituted his self-acquired property.
In 1930, the Hindu Gains o f Learning Act was passed and this distinction was done
away with. It is laid down that whether die training is ordinary o r specialized, any gains
made on account o f training/education will constitute ‘separateproperty o f the acquirer.
Sec. 2 (b) o f the Act states “gains o f learning” mean all acquisition o f p ro p erty
m ade substantially by means o f learning. Sec. 3 o f the A ct states ‘N otw ithstanding
any custom , rule o r interpretation o f Hindu law, no gains o f learning shall be held
n o t to be the exclusive and separate property o f the acquirer merely by reason o f
his learning having been, in whole or in part im parted to him by any m em b er o f
his family, o r with the aid o f joint family funds’.
It is also immaterial that while he was receiving training/ education, he o r his
family was maintained or supported out o f joint family funds. However, if the joint
family funds are invested in the business, industry or profession which the coparcener
takes up after receiving education/ training, the acquisition may not be his separate
property For instance, if a coparcener is trained as an engineer, and the joint family,
in view o f his training, opens up an industry in which joint family funds are invested.
(12) Salary and remunerations —I f remuneration, salary, profit o r com m ission
is earned by the karta or any other coparcener on account o f substantial
investments o f the joint family funds in the business, enterprise o r
industry, it will constitute JFP, even if the personal skill and labour o f
the karta/coparcener is an im portant factor in the earnings.
But, if no joint family funds or properties are invested o r only nom inal
investment is made or the joint family is, apart from the earnings o f karta/ coparcener,
receiving profits, dividends, etc. on investments without any detrim ent to the joint
family funds or properties (except the usual risk involved in any business), the
earnings will constitute the separate properties o f the earner.
Where karta became the Managing D irector o f a com pany solely o n the basis
o f joint family investment, the income was held to be JF P (G1T v Ka/u Babu A IR
1959 SC 1288). O n the other hand, where joint family investm ent was only used to
purchase a qualification share (i.e. to obtain dividends and other advantages o f
being shareholders) and karta became M.D. o f a com pany on the basis o f his ow n
qualifications, the incom e was held to be a separate property (Palaniappa v C JT A IR
1968 SC 678). Similar would be the case where the karta was a m anager o f a
business concern and the joint family had given security o f its properties for the
karta s honesty.
122 Hindu Law
Joint Family/ Coparcenary Property (JFP) v Separate/ Self-acquired Property

Jo in t Fam ily P ro p erty S e lf-a c q u ire d P ro p e rty
(1) Nature of interest - The coparceners (1) The holder of the separate property
have community of interest and has absolute and exclusive interest in the
unity of possession in JFP. Thus property which is not subject to
the undivided interest is subject to fluctuations.
fluctuations with the births and
deaths in the family until partition.
(2) Acquisition of interest - In joint (2) In separate property, none acquires any
family, the sons, grandsons and interest without consent of the holder.
great grandsons acquire interest
by birth.
(3) Devolution - The JFP passes on, (3) The separate property devolves on the
death of a coparcener, to the heirs under the law of succession.
surviving coparceners.
(4) Alienation - There are restrictions (4) In respect of separate property, the
on the part of a coparcener and holder has full power of disposition.
the karta to alienate JFP.
(5) Partition - JFP is liable to partition. (5) No one can claim a partition or share
in the separate property.
361. A p ro p e rty o b ta in e d on p a r titio n by a c o p a rc e n e r is:

(a) Joint family property in respect of his sons.
(b) Separate property in respect of other coparceners.
362. The in co m e o f t h e h e re d ita ry p ro fe s sio n , su ch a s o f p r ie s t c o n s t it u t e s :
(a) Joint family property.
(b) Ancestral property.
(c) Self-acquired property.
(d) Separate property.
363. W hich o f th e follow ing is an a n c e s tra l p ro p e rty ?
(a) Property inherited from maternal grandfather.
(b) Property inherited from father's father.
(c) Property inherited from maternal uncle.
(d) Property inherited from paternal uncle.
364. Which o f th e follow ing is not a j o in t fa m ily p ro p e rty :
(a) Ancestral property lost by the family and recovered by a member w ithout the
assistance of JFP.
(b) Property granted by Government to a member of the joint family.
(c) An acquisition made by means of learning under the Hindu Gains of Learning Act, 1930.
365. W hich o f t h e follow ing cannot be a Karta:
(a) A female.
(b) k minor.
(c) Undisqualified coparcener.
Trading Families: A ncestral/ New Business

When a Hindu starts his business independendy, it is his separate business and,
thus, separate property. On his death, like any other heritable property into the
hands o f his sons, it also becomes joint family business. When the business is
carried on exclusively by the members o f the joint family, it is not a partnership
business and the provisions o f the Partnership Act, 1932 does not apply. The Hindu
joint family business does not arise out o f a contract between the members, but it
comes into existence by operation o f law. It would be wrong to say that coparceners
are partners vis-a-vis each other or outsiders.
However, if a coparcener enters into a partnership with an outsider, the
Partnership Act will apply. If, on the other hand, the manager o f a trading family
enters into a partnership with strangers for the purpose o f carrying on the same
kind o f business as that o f the family, the members of the family would be liable.
If he starts a new business, he cannot impose the risks and liabilities o f such
business on the other coparceners (including minor) without their consent.
[4] RIGHTS AND POWERS OF KARTA AND COPARCENERS
Position of Karta44
In the Hindu Joint Family, Karta or head occupies a pivotal position. He is the
senior most male member (undisqualified coparcener) e.g. father, uncle, eldest brother.
So long as father is alive, he is karta. If all coparceners agree, a junior male can be
a karta. But a minor cannot act as the karta. If all the members o f a family are
minors, the court may appoint a guardian for the whole o f the JFP. There can be
more than one karta.
His position is determined by birth and he is not appointed by anyone, nor
does the consent of other coparceners is required. So long as he is alive, may be
aged, infirm, or ailing, he will continue to be the karta. Thus, a karta cannot be
removed. Whether insanity or other disqualifications will defeat his right is not clear,
but it seems that in such a case the next senior male member will take over.
The position of karta is suigeneris (of its own kind or unique). The relationship
between him and other members are not that of principal or agent, or partners. He
is not like a manager of a commercial firm. He is not a trustee for the other members
o f the family. He is the head of the family, and acts on behalf o f other members,
but he is not like a partner, as his powers are almost unlimited. At the same time
he is a person o f limited powers. He has liabilities towards members. Any coparcener
can, at any time, ask for partition. He obtains no reward for his services and he
discharges many onerous responsibilities towards the family and its members.
Female members as karta - According to Hindu sages only a coparcener can be
a karla, since females can’t be coparceners, they can’t be a karta. In CTT v Seth Govind
Ram Sujiar Mills (AIR 1966 SC 24), the question was whether a widow could be a
karta o f a Hindu joint family. Held that the mother or any other female could not
be the karta.
44. W rite a s h o r t note on: P ositio n a n d po w ers o f K a rta . [Raj. J.S. 1991\
124 Hindu Law
T h e N ag p u r H igh C o u rt held the view that a w idow could be a karta, in the

absence o f adult male m em bers. But, M adras and O rissa H igh C o u rts held not; she
w ould be the guardian o f her m in o r sons till the eldest o f them attains majority
Calcutta H igh C ourt has held that a widow can represent the H U F as guardian, but
not as karta.
Powers and Rights of Karta

(i) Power of alienation - is limited (discussed later).
(ii) Power of management - is absolute, as n o on e can question his m anagem ent
o r m ism anagem ent. H e is n o t b o u n d to save, econom ize o r invest. H e may
discrim inate betw een the m em bers.
(iii) Right to income - All incom e o f the family m u st be han ded over to karta and
it is for him to allot funds to m em bers.
(iv) Right to representation - in all m atters e.g. legal, social and religious.
(v) Power of compromise - o f all disputes relating to family p ro p e rties o r their
m anagem ent. But, he has n o right to give up (relinquish) a substantial
portion o f a debt... o u t o f charity, o r sym pathy w ith debtors. H e can make
a part paym ent o f d eb t so as to extend the lim itation.
(vi) Power to contract/ acknowledge debts - H e has an im plied au thority to contract
debts and pledge the credit o f family for ordinary p u rp o se s o f family
business. Such debts are binding on the entire family.
(vii) Power to enter into contracts - and such contracts are binding o n the family.
366. Mark the correct statement:

(a) According to Hindu sages, only a coparcener can be a Karta.
(b) Property belonging to a jo in t family is m anaged by Karta as well as a coparcener.
(c) Relationship between Karta and o th er members of th e family is th a t o f principal
and agent.
(d) In CIT n Seth Govind Ram Sugar Mills it was held by th e Suprem e Court th a t a
female can be a Karta of a jo in t family.
367. A Karta can alienate the Joint family property for:
(a) Apatkale.
(b) Kutumbarthe.
(c) Dharamarthe.
368. Alienation by the Karta without legal necessity or b enefit o f estate or in discharge
of indispensable duty is:
(a) Void.
(b) Voidable.
369. An alienation made by the Karta without legal necessity but with th e consent of
all other adult coparceners is:
(a) Valid.
(b) Invalid.
(c) Void.
(d) Voidable.
Karfa's Duties and Liabilities

The duties and liabilities o f K arta are num erous:
(i) Maintenance and marriage - o f m em bers o f the family.
(ii) Pay taxes, etc. — o n beh alfo f the family and he can be sued for all his
dealings on b e h alf o f the family
(iii) Partition - is a great check on his absolute powers.
Karfa's Power of Alienation

Alienation (transfer o f p ro p e rty by an act inter vim i.e. gift, sale, m ortgage, etc.) is
a very im p o rta n t, though controversial, pow er vested in the K arta. Jo in t family
property can be alienated by karta only, and for the following three p u rp o ses only
(as recognized u n d e r M itakshara):
(a) Legal necessity (Apatkale i.e. in the time o f distress o r emergency).
(b) B enefit o f estate (Kutumbarthe i.e. for the sake o f the family).
(c) A cts o f indispensable duty ( Dbaramarthe i.e. for religious, pious o r charitable
p u rp o se s e.g. m arriage, gauna, sbradha, etc.). (See under ‘G ift o f A ncestral
P ro p e rty by K arta’).
W hen karta exercises pow er o f alienation in these exceptional cases, the c o n se n t
o f o th er coparceners will be implied. Also, karta can alienate the p ro p e rty even if
none o f the above cases exists, but with the consent o f o th er coparceners. T h e
karta’s alienation in the aforesaid cases binds the interest o f the m in o r coparceners
also. It m ay be taken to be a well-setded law that alienation by the karta w ith o u t
legal necessity o r benefit o f estate o r in discharge o f indispensable duty is n o t void
but m erely voidable at the instance o f any coparcener {Raghubanchmani v Ambika
Prasad A IR 1971 SC 776).
(a) L e g a l N e c e s s ity
Broadly speaking, ‘legal necessity’ will include all those things w hich are deem ed
necessary fo r the m em bers o f the family. ‘Necessity’ is n o t to be u n d e rsto o d in the
sense o f w hat is absolutely indispensable bu t what, according to the n o tio n s o f a
H indu family, w ould be regarded as proper and reasonable (Maynes, Hindu Law and
Usage, 11th E d.). T h e ‘legal necessity’ m eans need, n o t luxury.
In Rani v Shanta (AIR 1971 SC 1028), held that for legal necessity actual
com pelling necessity is not the sole test but pressure upon the estate w hich in law
may be regarded as serious and sufficient. I f it is show n that the family’s need was
for that thing o r article, and if property was alienated for the satisfaction o f that
need, it w ould be enough. T he term is to be interpreted w ith due regard to the
conditions o f m o d ern life.
Illustrative cases of legal necessity

(i) F ood, shelter, clothing, and medical care for the m em bers o f family.
(ii) M arriage o f the m em bers o f family e g. coparceners and daughters; re
m arriage o f a widowed daughter. W hether the second m arriage o f a
coparcener is a legal necessity o r not is no t a well-settled law.
(iii) M arriage o f daughter’s daughter, when a daughter is n o t indigent is not a
legal necessity’ (Nagpur High Court). But, M adras H igh C o u rt in I enkata
Subba v Ananda Rao (1934) 57 Mad. 772, held that it does n o t m atter th at
126 Hindu Law
the daughter is indigent or not. The court reasoned that the marriage of
virgins is a pious and meritorious act conferring spiritual benefit on a
Hindu.
(iv) Defence o f a member involved in a serious criminal charge, provided he
is not involved in murder o f another coparcener. This is to defend the
family honour. However, to spend joint family m oney for assisting the
prosecution o f a person accused o f m urder o f the m em ber o f the family
is not legal necessity because prosecution o f m urderers is the duty o f the
State.
(v) Payments o f rent or Governm ent revenue and debts binding on the family.
(vi) Performance o f necessary funeral or family ceremonies.
(vii) Sale o f land to construct a pakka house.
(viii) Cost o f necessary litigation in recovering or preserving the estate.
Alienee's Duties and Rights/ Remedies
In Hanooman Prasad v Babooee Mutiraj (1856) 6 MIA 393, the alienee’s duties and
rights/ remedies were laid down. An ‘alienee’ is the person to w hom the property
is alienated to by the karta. In this case, a certain mortgage executed by a widow
in her character o f the guardian o f her infant son was challenged by the son on
becoming major on the ground that it is inalienable by the act o f the guardian, and
so he is not liable for it. The said mortgage was made for the paym ent o f arrears
o f revenue due to the government. Held that the alienation was rightly made and,
thus, binding on the son.
370. W h ich o f t h e f o llo w in g s a l e s o f t h e j o i n t f a m ily p r o p e r ty m a d e b y t h e K arta o f the

H in d u j o i n t f a m ily c o u ld not b e s a id f o r t h e le g a l n e c e s s i t y :
(a) Sale of a part of jo in t family property to m eet th e expenses of th e re-marriage
of a widowed daughter.
(b) Karta sold th e dwelling house to m eet th e expenses of h ig h er ed ucation of his
second son. Karta, himself and his first son are employed as peons in a Government
office.
(c) A house of th e jo in t family is sold to m eet th e expenses of appeal to defend
one of th e coparceners, convicted by th e lower court, of raping a m inor girl and
th en killing her.
(d) Payments of rent or Government revenue and debts binding on th e family-
371. In w h ich o f t h e fo llo w in g c a s e s , t h e a l i e n a t i o n b y K a rta w ill not b e c o n s id e r e d as
f o r t h e p u rp o s e o f le g a l n e c e s s ity ?
(a) Selling of an old house as he had insufficient income to su p p o rt several family
members.
(b) Selling of th e property for marriage of granddaughter.
(c) Selling of th e property to purchase business machinery.
(d) Selling of th e property to discharge th e debts of a close fam ily friend.
372. W hich o f t h e fo llo w in g s a le s o f t h e j o i n t f a m ily p r o p e r ty m a d e by t h e K a rta o f the
H in d u j o i n t fa m ily c o u ld not b e s a id f o r t h e le g a l n e c e s s i t y :
(a) Karta, aged 45 years, sold some portion of ancestral property to perform his ov^
second marriage.
(b) Karta mortgaged the jewels belonging to th e family for obtaining money foi t
purpose of assisting prosecution of person accused of murder of his (Karta's) daughte •
(d ) None of th e above.
T he Privy Council held: The power o f the manager for an infant heir (or the
power o f karta) to charge an estate which is not his own, is under the Hindu law, a
limited and qualified power. It can only be exercised rightly in the case o f legal necessity
or for the benefit o f estate. Whenever an alienation is challenged it is for the alienee to
show (‘burden o f p ro o f5) that there was necessity. It is because, when one deals with
a person whom one knows or is supposed to know to be a person o f qualified powers,
it is one’s duty to satisfy oneself that such a person has power to make alienations.
However, what an alienee is required to prove is - either there was actually a
need o r that he made proper enquiries as to the existence o f need and acted
honestly. I f he does th at he has discharged his burden, it is immaterial if it turns
out that actually there was no need for alienation o r that he was deceived. T he
alienee is not bound to see as to the actual application o f the m oney for the legal
necessity. He, however, shouldn’t have acted mala fide.
In The Benaras Bank v H ah Narain (AIR 1932 PC 182), the coparceners
m ortgaged the JF P to the bank and thus borrowed some m oney which was applied
for starting o f a theka business (the family had an ancestral business o f m ortgagors).
The co urt held the alienation invalid, as there was no legal necessity, and the bank
failed to make bona fide enquiries about the necessity.
(b) Benefit to Estate
Broadly speaking, ‘benefit o f estate’ means anything that is done which will benefit
the JFP. In Palamappa v Deivasikamony (1917) PC 68, the Privy Council said th at it
is im possible to define the word ‘benefit o f estate’ for all cases. But som e instances
are: preservation o f estate from extinction, the defence against hostile litigation
affecting it, protection o f it from injury, and such like things. It may be noted that
in all these instances, there was threat to estate. Thus, only that will be ‘benefit o f
estate* which is o f a defensive character.
T h e o th er view is that anything done which is o f positive benefit to the estate
would am ount to benefit o f estate. In Balmukand v Kamlawati (AIR 1964 SC 1385),
held that the karta, as ‘prudent manager’, can do all those things which are in
furtherance o f family’s advancement or to prevent probable losses, provided his
acts are n o t purely o f a speculative or visionary character. This implies that karta
can’t convert family property into money just because property d oesn’t yield any
income, w ithout replacing it with some more advantageous property. T he karta can
alienate...if it is clearly beneficial, even though there is no legal necessity.
T h e following transactions were held to be for the ‘benefit o f estate*:
(a) K arta sold a property which was 18-19 miles away and purchased a
m ore accessible property, or sale o f property to enable the family to
migrate to another place and to purchase m ore productive lands there.
(b) K arta, running a hotel business, mortgaged the family p roperty w ith a
view to raising funds for renovation o f hotel.
(c) Land yielding no profit sold to purchase land-yielding profit.
(d) Land worth Rs. 15,000 offered a price o f Rs. 1.5 lakh (/4.T. I 'asudevan
case AIR 1949 Mad 260).
T he following transactions were held not to be for the benefit o f estate:
(a) Entire homestead land was sold for the purpose o f buying a n o th e r
piece o f land for construction o f a residential house (Surendranaib v
Sudhir Kumar AIR 1982 Ori 30).
128 Hindu Law
(b) Borrowing money on the mortgage of JFP for purchase of a house.

(c) Transactions merely for the purpose of purchasing another property,
or for increasing the income of the family, or that the property was
fetching higher price than the market rate.
(d) An alienation by father of the entire family property with a view to stay with
his father-in-law since his wife was not willing to come and stay with him.
Conclusions - Whether transaction is for the benefit o f estate or not is to be decided
keeping in mind the facts and circumstances existing at the time of transactions and
not by looking at the ultimate result of one transaction many years later. Factors
like, status and position of family, nature of property (movable/immovable), difficulty
in managing it, nature and quantum of yield from transaction, etc., are important
in determining whether transaction should be upheld as beneficial to the family.
Rights of Coparceners (Incidents of Coparcenership)

A coparcenary can’t be created by an agreement. It is a creature of law. Under
Hindu law, an insane coparcener has no right to claim partition, but he is a coparcener.
Further, his son is not excluded from taking a share in partition. If a Hindu
performs a marriage under the Special Marriage Act, 1954 with a non-Hindu, his
interests in the JFP is severed. But a coparcenary will come into existence between
him and his son provided his son is a Hindu.
The main rights of coparceners are:
(i) Right of joint ownership (or communal ownership) - The interest is
unpredictable and fluctuating or there is community o f interest.
373. W hich o f t h e follow ing sa le s o f th e j o i n t fa m ily p ro p e rty m ad e by t h e K arta o f th e

H indu j o in t fam ily could not be sa id fo r t h e b e n e f i t o f t h e e s t a t e :
(a) Karta sold the paddy field in order to escape the risk of successive droughts
which he had experienced earlier. Out of the sale proceeds he constructed a 5-
star hotel and a sprawling shopping complex.
(b) Karta sells a joint family house worth Rs. 80,000 for Rs. 50,000 with a view to
deposit the money so received in a Bank for earning interest.
(c) Land worth Rs. 15,000 offered a price of Rs. 1.5 lakh.
374. In which o f th e follow ing c ases, i t w as h e ld t h a t t h e tr a n s a c tio n t o b e reg ard ed
as fo r th e b e n e fit o f th e e s t a t e n e ed n o t b e o f a d e fe n s iv e c h a ra c te r:
(a) Hanooman Prasad v Babooee Munraj.
(b) The Benaras Bank v Hari Narain.
(c) Balmukand v Kamlamti.
(d) Palaniappa v Deivasikamony.
375. The term " in d isp e n sa b le d u tie s " im p lie s p e rfo rm a n c e o f t h o s e a c t s w h ic h are:
(a) Religious.
(b) Pious.
(c) Charitable.
(ii) Right of joint possession, enjoyment and use of JFP - No coparcener has a
right of exclusive possession of any portion of JFP. Thus, if he is
ousted, he can’t by legal action recover the possession of same property.
(iii) Right ly birth and right oj survivorship - The moment a son is born in
family, he acquires an interest in JFP. Yet, when he dies he leaves
behind nothing; and his interest devolves on the surviving coparceners.
(iv) Right of maintenance - marriage, etc. out of JFP.
(v) Right of alienation - of undivided interest.
(vi) Right to challenge and restrain alienation - when improper and made without
his consent.
(vii) Right of partition - A coparcener could get his interest ‘individualized’.
Coparcener’s Right of Alienation/ to Challenge Alienation 45
The Mitakshara did not permit individual alienations by coparceners. According to
Mayne, such alienation without partition would have the effect of introducing
strangers into the coparcenary, without their consent and defeating their right of
survivorship).
The law of coparcener’s power of alienation is the product of judicial legislation;
(1) Undivided interest of a coparcener can be attached and sold in execution
o f a money decree against him before his death (payment of debts)-
involuntary alienation. If interest has been attached during his life-time/
or before judgment and coparcener dies during pendency of suit, his
interest can be sold.
(2) A coparcener is entitled to alienate his undivided share either in the
whole of property or in a certain specific item of property- voluntary
alienation. According to Bombay, Madras and M.P. High Courts, a
coparcener has power to sell, mortgage or alienate for value his undivided
interest without the consent of other coparceners; but in rest o f
Mitakshara jurisdiction, consent is required. In the former, non-alienating
coparcener’s only right is that property should bear proportionate share
o f common burden of family.
(3) An alienation is void e.g. a gift by coparcener without consent of other
coparceners. An alienation is voidable e.g. alienation without necessity or
benefit o f estate by Karta; a coparcener may file a suit to get such
alienation set aside—in Bombay and Madras, he is entitled to set aside
45. A, a H in d u , alienates coparcenary property in the lifetim e o f h is so n B, w ith o u t

B ’s co n se n t and w ith o u t justify ing necessity. B dies tw o years after th e sale. Six
m o n th s after B ’s d e a th , an o th er son C is b o rn to A’s wife from A. A dvise .about
C ’s rig h t to ch allen g e the alienation o f p ro p erty m a d e by th e father.
[Delhi J.S. 1980/2000\
[Ans . B did not challenge the alienation during his lifetim e O n his death, A became
the sole surviving coparcener and was free to alienate the property even w ithout legal
necessity. C was b o rn after the death o f the coparcener B. Thus, C has no nght to
challenge the alienation inade by his father.)
130 Hindu Law
alienation only to the extent o f his interest in JFP; while in o th er States,

it can be set aside wholly.
A coparcener who is in the womb o f his m other at the time o f alienation can
get the alienation set aside after his birth. Under H indu law a son conceived is, in
many respects, equal to a son born. An after-born coparcener cannot challenge the
alienation. But if an alienation is made by a father who has sons and before all the
sons die another son is born to him, then such son can challenge the alienation; it
is necessary that at the time o f his conception there m ust have existed an unexpired
right among some coparceners to challenge the alienation. It is settled law that a son
adopted subsequent to alienation has no right to challenge alienation.
The position o f minor coparceners is that they cannot challenge the alienation,
if made for the benefit o f estate or legal necessity; but they can challenge the
alienation if it was not for the benefit o f estate, etc. (and even if the other adult
coparceners have consented to it) on their attaining the age o f majority.
(4) A coparcener cannot obtain an injunction to prevent the K arta from
alienating the JFP, since he has the remedy o f challenging alienation
(Sunil Kumar v Ram Prakash AIR 1988 SC 576).
(5) A coparcener has power to renounce his interest in the JFP, generally, in
favour o f other coparceners as a body. Such renunciation is not valid in
favour o f his wife and sons. Renunciation does not am ount to transfer
and no deed, etc. is necessary. Also, renunciation cannot be revoked.

(a) Kaita as th e head of th e family is n o t under th e same o b lig atio n to save,
economise or invest as an agent or trustee, so long as he sp en d s th e family
income for th e purposes of th e family.
(b) Where a manager of a jo in t family borrows money on a prom issory note, the
other members of th e family are liable if th e borrowings are for fam ily business
or family necessity even though they are n o t parties to th e prom issory note.
(c) Authority of Karta to borrow in case of necessity is to borrow upo n reasonable
commercial rate of interest.
(d) Authority of Karta to borrow in case of necessity is to borrow u p o n cu rren t rate
of interest.
3 7 7 . Hanooman Prasad v Musammat Babooee is a c a s e o n :
(a) Powers of a Karta of th e Hindu jo in t family.
(b) Avyavaharik debt.
(c) Power of adoption of a widow.
(d) None of the above. [Uttaranchal PCS (J ) (Prel.) 2002)
3 7 8 . Mark t h e incorrect s t a te m e n t :
(a) A coparcener is entitled to alienate his undivided share e ith e r in th e whole of

property or in a certain specific item of property.
(b) A coparcener who is in th e womb of his m other a t th e tim e of alie n a tio n can
get the alienation set-aside after his birth.
(c) A minor coparcener can challenge th e alienation if it was n o t for th e benefit
of estate, etc. (and even if th e oth er adult coparceners have c o n sen ted to it)
on his attaining th e age of majority.
(d) A coparcener has no power to renounce his in terest in th e JFP.
Alienee's Rights a n d Remedies46

W hen alienation is valid, alienee (purchaser) is entitled to the interest o f the coparcener
(alienor) as it existed at the time o f alienation (not subject to fluctuation cither by
births o r deaths in family; thus, mortgagee o f a Hindu father is no t entitled to
proceed against the share o f a son subsequendy bom in the family). T he right
which die alienee acquires is to stand in the shoes o f his vendor and to w ork ou t
his rights by a suit for partition. In such suit he can’t claim the specific properties
that were alienated to him but he has an equitable claim and ordinarily the court
may assign that very property, if it could be done without injustice to o th er
coparceners (otherwise, ‘substituted security’).
T h e alienee has no right to joint possession o f the alienated property. H e will
take the property’ subject to all charges, encumbrances and liabilities affecting the
JF P or the interest o f the coparcener. But, when alienation is invalid' the alienee is
not entitled to any equity or charge on the alienor’s share for the m oney paid by
alienee to him. T h e purchaser o f the interest o f a coparcener is not entided to metise
(past) profits between the date o f the purchase and the date o f the suit for partition.
In Peramanayakam v Sivaraman (AIR 1952 Mad 419), held that if alienation
made by karta is supported only by partial necessity’ (i.e. money required to m eet the
necessity’ is less than the am ount raised by alienation), the alienee would be entitled
to have the alienors share allotted to him (in a suit for partition) and also to have
the binding portion o f consideration distributed equally.
In balmukund v Karrila Wati (AIR 1964 SC 1385), the court held:
(i) If the alienation is improper, only the karta will be bound by the
transaction.
(ii) Thus, in such cases, the alienee can make use o f provisions o f the
Specific Relief Act, 1963 to obtain a decree against the karta’s interest
in the JFP. Even after obtaining a decree his only right is to bring a suit
for general partition.
Sole Surviving C oparcener's Right o f Alienation47
(1) H e has fu ll rights o f alienation (no need o f legal necessity o r benefit to
estate to be shown, as property assumes the character o f separate property
in his hands) o f JF P but if at the time o f alienation, another coparcener
is in womb, on his birth, he can challenge such alienation.
46. ‘A’ a s m a n a g in g m e m b e r o f jo in t H in d u fam ily b o rr o w e d R s. 5 0 0 0 /- fr o m ‘B*

fo r th e n e c e s s itie s o f th e jo in t fam ily. 4B* o b ta in e d th e d e c r e e a g a i n s t ‘A’ a s
m a n a g e r o f th e jo in t fam ily. C o u ld th e d e c re e b e e x e c u te d a g a in s t th e w h o le
c o p a rc e n a ry p ro p erty ’? C o u ld d ie d e c re e b e e x e c u te d a g a in s t p e rs o n a l p r o p e r tie s
o f all th e m e m b e rs o f th e jo in t fam ily ? [Delhi J.S. 19S2\
|^l*j.T he decree can be executed against the w hole coparcenary pro p erty . I t c a n a lso
be executed against the personal separate property' o f *A\ b u t not against th e p e rs o n a l
separate properties o f the o th er coparceners unless they w ere party to th e tra n sa c tio n .|
47. W h a t is th e p o s itio n o f th e jo in t fam ily p ro p e rty in th e h a n d s o f a s o le s u r v iv in g
c o p a rc e n e r? [U.P. I K S (J) I 99f ]
132 Hindu Law
(2 ) I lis power to alienate is not affected by a subsequent adoption o f son by

a coparcener’s widow.
(3) I le cannot alienate the interest o f any female vested in her by virtue of Sec
6 , Hindu Succession Act.

(a) A void alienation can be challenged in a suit for th a t purpose or by taking a
stand in the collateral proceedings.
(b) Failure of one branch of the family to question validity of th e alienation in a
suit would not bar the right of the other branch.
(c) Only (b).
3 8 0 . Mark th e incorrect s ta te m e n t:
(a) If the alienation is invalid, the alienee has no equity entitling him to a refund
of a proportionate part of the purchase money.
(b) When alienation is valid, alienee is entitled to the interest of th e coparcener as
it existed at the time of alienation.
(c) An alienee's only right is to bring a suit for general partition either before or
after the death of the coparcener.
(d) An alienee is entitled to mense profits between the date of the purchase and
the date of the suit for partition.
381. W hich o f th e follow ing is a lea d in g case on a lie n e e 's d u tie s a n d r i g h t s / rem edies:
(a) Hanooman Prasad v Babooee Munraj.
(b) Peramanayakam v Sivaraman.
(c) Balrnukand v Kamlawati.
382. Mark th e incorrect s ta te m e n t in re la tio n to a so le su rv iv in g c o p a rc e n e r:
(a) He has full rights of alienation of JFP, but, if at the time of alienation, anothei
coparcener is in womb, on his birth, he can challenge such alienation.
(b) His power to alienate is not affected by a subsequent adoption of son by a
coparcener's widow.
(c) Both (a) and (b) are correct.
9
Gifts, Wills and Debts under Hindu Law
According to Mitakshara, “a gift consists in the relinquishment, without consideration,

of one’s own right in property, and the creation of the right of another ...The
creation o f another’s man’s right is completed on that other’s acceptance o f the gift,
but not otherwise.” The acceptance of a gift can be made in three ways - mental
acceptance, verbal acceptance and corporeal acceptance.
The traditional Hindu law did not recognize gifts to unborn persons. A gift
made in contemplation of death i.e. donatio mortis causa is recognized under the
Indian Succession Act. When property is given as a gift, subject to a condition
absolutely restraining the donee from alienating it or partitioning it, the condition
is void, but the gift is not bad. A gift with a reservation of life interest is valid. Once
a gift is complete, it is binding on the donor, and he cannot revoke it, unless it has
been obtained by fraud, etc.
A will is the legal declaration of the intentions of the person making it, with
respect to his property, which intentions he desires to be earned into effect after
his death. Wills were wholly unknown to pure Hindu law. The testamentary power
of Hindus was recognized later by judicial decisions [Tagore v Tagore, 1872 9 Beng.
LR 377]. The Indian Succession Act, 1925 now governs the wills made by Hindus.
Every Hindu who is of sound mind and who is not a minor may dispose o f
his property by will. As to acceptance of bequests under a will, there is no restriction.
Thus, even a minor, a lunatic or a person disqualified from taking a share on
partition may be given a bequest. A person capable of taking under a will must,
either in fact or in contemplation of law, be in existence at the death of the testator.
However, now, under the Indian Succession Act, a bequest can be made to an
unborn person.
A Hindu could not, by will (or gift), dispose of his entire property*, so as to
defeat the claim of his wife and of other persons who are legally entitled to
maintenance from him. The Hindu law recognizes the power to make wills in
respect of separate or self-acquired property*, but not in respect of coparcenary
property*. However, now*, Sec 30 of the Hindu Succession Act, 1956, has also
recognized the latter.
[133]
134 Hindu Law
Gifts of Love a n d Affection by K arta/ C o p a rc e n e r Father

T he father (karta/coparcener) has pow er to make a gift o f love and affection o f a
small portion o f movable JF P to his own wife, daughter, son-in-law, son, daughter-
in-law o r to any other near relation. Such gifts (jewels, gold, cash, etc.) are usually
made on occasion like marriage, ttpanayana, mundana, birth o f a child, etc. Two
conditions arc necessary for the validity o f such gifts: ( 1) it should be a gift o f love
and affection i.e. the father should stand in some relationship o f affection to the
donee, and (2) the gift should be o f a small portion o f movable JFP.
Such gifts cannot be made o f immovable property, though in Guramma v Mallappa
(AIR 1964 SC 510) a gift o f immovable property to daughter made by the father after
her marriage was held valid. The Supreme Court justified such gifts by saying that it was
given in lieu o f daughter’s share in partition which was recognized in ancient law. The
father or his representatives can make a valid gift, by way o f reasonable provisions for
the maintenance o f the daughter. Various judicial decisions recognize the validity of a
gift o f a reasonable extent o f JFP to a daughter or sister under varying circumstances
It may be noted that gifts o f love and affection o f immovable property' cannot
be made to sons or, for that m atter to any m em ber o f the family. T he Supreme
Court in a later decision has confined this rule to gifts to daughter (Ammathayee v
Kxmaresan AIR 1967 SC 569). A gift in favour o f m other has been held void.
Gift (or Will) of A ncestral Property by Karta

The Karta can alienate the JFP, without the consent o f other coparceners, in three
exceptional cases- legal necessity, benefit to estate, and indispensable duties. T he term
9 . G ifts . W ills a n d D e b ts u n d e r H i n d u L a w
383. A g i f t:
(a) To unborn persons was n o t recognized by th e trad itio n al Hindu law.
(b) Made in contem plation of death i.e. d o n a tio m o r tis c a u sa is recognized under
th e Indian Succession Act.
384. A H in d u f a t h e r h a s t h e p o w e r t o m a k e g i f t s o f a n c e s t r a l p r o p e r t y w h ic h i s :
(a) Movable.
, (b) Immovable.
(d) Only (a).
W J 385. W hich o f t h e fo llo w in g is not a v a lid g i f t u n d e r H in d u law :
V (a) A gift of love and affection of a small portion of m ovable JFP by fath e r (Karta/
W coparcener).
r (b) A gift of ancestral property by Karta for legal necessity, b en efit to estate, and
indispensable duties.
(c) A gift in favour of mother.
386. In w h ich o f t h e fo llo w in g c a s e s , t h e i s s u e w a s w h e n t h e f a t h e r m a k e s a g i f t ( ° r
w ill) o f h is s e p a r a t e p ro p e rty , w h e t h e r s u c h p r o p e r t y is 'a n c e s t r a l p r o p e r t y ' or
's e p a r a t e p r o p e r ty ' in t h e h a n d s o f d o n e e ( s o n ) ?
(a ) P a la m a p p a v D eiva sika m o n y.
(b ) S u n il K u m a r v R am P rakash.
(c) A ru n a c h a la m v M u ru g a n th a .
(d) B a lm u k a n d v K am law ati.
Gifts, Wills & Debts under Hindu Law 135
“indispensable duties” implies performance o f those acts which are religious, pious o r
charitable. While performing these acts, the karta can make a gift o f ancestral property
T h e indispensable duties include religious ceremonies e.g. shradha,, upanayanama
and perform ance o f other necessary samskars. Performance o f marriage is a samskara
and therefore perform ance o f marriage o f members o f joint family, particularly o f
daughters, is an indispensable duty (also covered under ‘legal necessity*).
Further, gift within reasonable limit can be made for ‘pious* purposes e.g feeding
the poor, alms, or gift o f a small portion o f immovable property for a permanent shrine
for a family idol or to an idol in public temple. In Gang v Tammi (1927) 54 IA 136, held
that a dedication o f a portion o f family property for the purpose o f religious chant)*
may be validly made by the karta, if the property allotted is small as compared with the
total means o f the family. Such an alienation cannot be made by a will
T here is a distinction between alienation made in the discharge o f indispensable
duties and gifts o f small portions o f property for chantable/ pious purposes. In
form er, the karta*s powers are unlimited, and he may alienate the entire property. In
the latter case, he can alienate only a small portion o f property.
Gift (or Will) by Father of Self-Acquired Property to Son

Two im portant principles o f Hindu law are: (1) Every Hindu has full pow er o f
disposal over his separate property. (2) When separate or self-acquired property o f
a H indu devolves on his son by inheritance or by partition, the son takes it as
ancestral property in which his son has an interest by birth. The difficulty arises w hen
the father make a gift (or will) o f his separate property, because in that case the
property' do not passes by inheritance and thus the question is whether such property
is ‘ancestral property** or ‘separate property** in the hands o f donee (son).
It may be noted that if A who has three sons - B, C and D, makes a gift o f
his separate property to C to the exclusion o f B and D, the question is n o t w hether
B or D can challenge it. They obviously cannot. The question is: Can C*s son claim
an interest in it by birth? This was the issue in Arunacbalam v Murngantha (AIR 1953
SC 495). T he will, in this case, recites that the testator is aged 65 and his properties
are all his own which he acquired from no nucleus o f ancestral funds. His three
sons are to enjoy the properties, mentioned in the will, allotted to them with
‘absolute rights and with powers o f alienation such as gift, exchange, sale, etc. from
son to grandsons hereditarily. The court held that:
(1) W hen a person receives gift, he receives it no t because he is son o r has
any legal right, but because his father choose to bestow a favour on
him which he could have bestowed on any other person as well.
(2) Further, the Mitakshara has placed the father’s gift under a separate
category, and has declared them exempt from the partition. T heory o f
equal ownership is not applicable to the father’s gifts, as father has a
predom inant interest in his self-acquired property’.
(3) As a Mitakshara father has complete power o f disposition over his self-
acquired property*, it must follow as a necessary consequence that father
is quite competent to provide expressly when he makes a gift, cither
that donee would take it exclusively for himself, o r the gift would be
for the benefit o f his branch o f family. Thus, the question primarily
depends upon the intention o f die father, which, has to be gathered
from the terms o f the deed and the surrounding circumstances. Thus,
136 Hindu Law
if it is shown that so-called gift was not a gift but an integral part of
a scheme o f partition, then the donee-son will take the property as JFp.
[It is submitted that simple rule should be that the donee-son takes it
as his separate property, subject to any restrictions that the father might
have imposed on the gift - Paras Diwan ‘Modern Hindu Law\]
(4) In the present case, the will expressly vests son with absolute rights (of
alienation), and no reference is made to son’s son. Thus, he (father) did
not intend that the property should be taken by son as ancestral property.
Gift (or Will) of Undivided C oparcenary Interest in JFP

Though the concept o f voluntary alienation by a coparcener has been recognized
in some States, the gifts and wills were not recognized due to there being no equity
in the favour o f alienee. After 1956, the individual coparcener can dispose o f his
undivided interest by will vide Sec. 30 o f the Hindu Succession Act.
But as regards gifts, the law even after 1956 is the same and no coparcener can
make a valid gift o f his undivided interest. Such a transaction is void. However, he can
make a gift with the consent of other coparceners provided it is in favour of all
coparceners. O f course, a sole surviving coparcener can make such a gift or will.
Debts under Mitakshara Law

Under the Hindu law, the liability to pay debts o f another has a religious, moral and
legal origin.
387. A M itak sh ara c o p a rc e n e r c a n n o t d is p o s e o f h is u n d iv id e d i n t e r e s t in t h e JF P by:

(a) Gift.
(b) Will.
(c) Sale.
(d) Mortgage.
388. W ho is u n d e r a p io u s o b lig a tio n to pay h is f a th e r 's d e b ts :
(a) Son.
(b) Grandson.
(c) Great-grandson.
389. The d o c trin e o f p io u s o b lig a tio n o f so n s t o d is c h a rg e t h e p e r s o n a l d e b t s o f th e
fa th e r is:
(a) Based on the spiritual benefit.

(b) Based on the joint family's benefit.
(c) Based on the creditor's benefit.
Gifts, Wills & Debts under Hindu Law 137
(a) Liability to Pay the Debts of a Person by His Heir

A Hindu heir is liable to pay the debts (whether property incurred or for an immoral or
unlawful purpose) of the deceased, out of the assets he has inherited from the deceased
In such cases, he is not personally liable at all, even if the deceased was his own father:
(b) Liability for the Debts of a Coparcener
Every coparcener is under a legal obligation to pay his debts. Undivided interest of
a coparcener can be attached and sold in execution of a money decree against him
before his death (for payment of debts) by a creditor. Thus, if a coparcener had died
with some personal debts, these debts cannot be enforced against his interest in JFP
after his death. However, if interest has been attached during his life-dme/or before
judgment and coparcener dies during pendency of suit, his interest can be sold.
Further, a creditor could claim from the persons inheriting the coparcener's property.
(c) Liability of a Son to Pay the Debts of His Father (Pious Obligation o f a
Son)48
A son (as well as grandson and great-grandson) is under a pious obligation to pay
his father's debts (not immoral or illegal) incurred when they were joint (pre-partition
debt), and his obligation continues even after a partition between them, but is
limited to his share in the JFP (thus, the liability is not personal).49 The son, however,
is not liable for a debt contracted by the father after partition.
The doctrine o f pious obligation of sons to discharge the personal debts o f
the father is peculiar to Hindu law (Smritis). The basis o f it is the spiritual benefit
which will accrue to the soul of the father by the discharge of his earthly obligations.
Thus, the liability does not arise from contract (ex contractu). It depends upon the
relationship between the father and the son. The doctrine is not intended in any
sense for the benefit of the creditor. “He who having received a sum lent or the
like does not repay it to the owner will be bom hereafter in his creditor's house, a
slave, a servant, a woman, or a quadruped" (a text of Brihaspad).
The obligation exists whether the sons are major or minor, or whether the
father is alive or dead. The liability exists even during the father's life-time (then, both
son and father will be liable), and subsists so long as the father is liable. Thus, for a
time-barred debt or when the father is adjudicated insolvent, the son is not liable.
The father in a HJF may sell or mortgage the whole of JFP (including the son's
interest therein), to discharge a debt contracted by him for his own personal benefit.
Such an alienation will bind the sons provided that:
(i) the debt was antecedent to the alienation;
(ii) the debt was not incurred for an immoral purpose (untainted debt), and;
(lii) the father acted like a prudent man, and did not sacrifice the property for an
inadequate consideration [Prasad v Govtndswamt \ludaliar (1982) 1 SCC 441].
An ‘antecedent debt' is one which is antecedent in fact as well as in time i.c. the
debt must be truly independent, and not part of the transaction (alienation) which is
48. Write a short note on: Pious obligation. (Lr.P. PCS (J) 1997\ [Raj. J.S. 1991\
49. State concisely what you understand by: Pious obligation of a son to pay debts
of his deceased father, when no property is inherited from the father.
[Delhi J.S. 1980\
138 Hindu L aw
impeached. Thus, it implies an indebtedness o f the father — prior in time to, and,
independent in origin of, the particular dealing with the family property', whether by
way o f sale or mortgage, which it is sought to enforce against the son. Thus, father
has no power to alienate his sons’ share, after a partition between him and his son,
even though the alienation is in respect o f a debt contracted before partition.
Antecedent debt need not be for legal necessity o r for the benefit o f the
estate. It may be even for a new business started by the father o r it may even be
for his own personal benefit .50
An ‘im moral or illegal’ (ayyavaharika) debt is “repugnant to good m orals”. It
includes all debts which the court regards as inequitable o r unjust to make the son
liable. According to H indu texts, the sons are not compellable to pay debts incurred
for: (i) losses at play, (ii) alcoholic drinks, (iii) prom ises w ithout consideration, (iv)
prom ises made o ut o f lust, etc., (v) suretyship, o r (vi) fines o r bribes. T he burden
o f p ro o f that the debt is ‘tainted’ is not on the creditor, but on the son.
T he son is not liable to pay debt incurred by the father in the circumstances
which would render the father liable to a criminal prosecution; b u t he is liable for
money which the father has to account in a purely civil capacity. W here the father’s
act which give rise to a debt is a mere to rt o r breach o f contract, the debt, is not
ayyavaharika, and the son will be liable for it. It may be noted that a tim e-bar red debt
is not ayyavaharika.
50. Define an antecedent debt. U nder what circum stances can a joint family
property be alienated for discharging an antecedent debt? [U.P. PCS (j) 1983]*I.V
390. M ark t h e correct s t a t e m e n t ( s ) :

I. A so n is liab le, b e fo re p a r titio n , fo r th e d e b ts c o n tra c te d b y h is father
b efo re p a rtitio n .
II. A so n is liable, a fte r p a rtitio n , fo r th e d e b ts c o n tra c te d b y h is f a t h e r before
p a rtitio n .
III. The o b lig a tio n e x is ts w h e th e r th e so n s a re m a jo r o r m in o r, o r w h e th e r the
fa th e r is aliv e o r d ead .
IV. The fa th e r's lia b ility e x te n d s to th e e n tir e JFP, b u t t h e s o n 's lia b ility is
co n fin e d to h is u n d iv id e d in te r e s t in th e JFP.
Codes:
(a) I, n and IV.
(b) n, III and IV.
(c) I and IV.
(d) I, n. III and IV.
391. A s o n is n o t lia b le t o p a y t h e d e b t s o f h i s f a t h e r w h e n t h e d e b t is :
(a) Avyavaharika.
(b) U ntainted.
(c) A ntecedent to th e alienation.
392. W h ich o f t h e fo llo w in g d e b t s a r e t a i n t e d :
(a) Debts due to losses at play.

(b) Debts due to promises w ith o u t consideration.
(c) Debts due to fines.
10
Partition and R eunion
M e an in g of Partition51
Partition m eans numerical division o f property. O n partition, the joint family ceases
to be joint, and nuclear families or different joint families come into existence.
Partition m eans fixing the share of each coparcener. After partition, two coparceners may
hold the property jointly without affecting the status o f property.
U nder the Mitakshara School, partition means two things:
(i) Severance o f status or interest (unilateral act - de jure).
(ii) Actual division o f property in accordance with shares so specified,
known as partition by metes and bounds (bilateral act - de facto).
T he form er is a m atter o f individual decision, the desire to sever him self and
enjoy his hitherto undefined and unspecified share separately from others; the latter
is a consequence o f his declaration o f intention to sever but which is a bilateral
action, arrived by agreement, suit, etc.
Deductions a n d Provisions
Before the division can take place out o f JFP, provisions should be made for certain
liabilities o f the family:
(a) Debts - debts taken by karta for a purpose binding on joint family; untainted
personal debts o f father, when joint family consists o f father and sons (N o
provisions have been made in Hindu law for individual debts o f coparceners).
(b) Maintenance o f (i) disqualified coparcener and their immediate dependants,
(ii) mother, stepmother, etc., (lii) illegitimate sons, (iv) unmarried sisters, till
they are married, (v) widowed daughters o f deceased coparceners.
(c) Marriage expenses o f daughters o f father/ sisters o f coparceners/ unmarried
daughter o f a coparcener, who dies before partition, and had no male issue. N o
51. W h a t is p a rtitio n ? [UP. PCS 0) 199:1

[1391
140 Hindu Law
provisions have been made for marriage of unmarried (male) coparceners or

for daughters of other coparceners (it is responsibility of their respective fathers).
(d) Performance of ceremonies - Funeral expenses of mother, sacred thread ceremony.
[Note - (a) Properties incapable of division-52 — e.g. dwelling house, elephant, wells,
ornaments, stair-cases, family shrines, temples and idols, etc. In such cases equitable
division is resorted to. For example, idols, impartible estate may be enjoyed by
coparceners turn by turn, assets like well may be left for common use, and properties
like elephant may be allotted to one coparcener and others compensated for the
same, or in the alternative, may be sold and proceeds distributed.
(b) No charge is to be made against any coparcener that large portion of
family income has been spent on him. However, if any coparcener was
given any amount o f money for which he is not entided to take, it has
to be considered at the time o f partition o f property.
(c) If money is spent by coparcener on repairment/ maintenance o f JFP,
then it is to be taken as debt o f the family, if money is spent from his
personal property (unless money thrown into the common stock or a
gift by him to joint family).
(d) A property attached under any money decree is to be considered at the
time o f partition.
(e) Taking of accounts - ie preparing an inventory of all items of JFP Karta is liable
to account for the family property as it exists; he cannot be called upon to
account his past dealings with JFP unless charges of fraud made against him]
52. Name some properties which are incapable of division. [U.P. PCS (j) 1992\
10. P a r t it io n a n d R e u n io n
393. P a rtitio n is:
(a) Severance of status or interest (unilateral act - de jure).
(b) Actual division of property in accordance with shares so specified, known as
partition by metes and bounds (bilateral act - de facto).
(d) Only (b) is correct.
394. W hich o f th e fo llo w in g p ro p e rtie s can b e a s u b je c t m a t t e r o f p a r ti t io n :
(a) Joint family property.
(b) Impartible estate.
(c) Separate property of a coparcener.
(d) Property which by custom descends to one member of th e family to th e exclusion
of other members.
395. Which o f th e follow ing p e rso n s d o e s not h a v e a r ig h t t o p a r ti t io n :
(a) Mother.
(b) Son, grandson and great grandson.
(c) Son conceived at the time of partition but born after partition.
(d) Adopted son.
Partition and Reunion 141
Persons having Right to Partition/ Entitled to a Share on Partition

Every coparcener has right to partition and entitled to a share on partition. However:
(a) an unqualified coparcener has no right to partition.
(b) in Bom bay school, the son has no nght to partition without the assent o f
father in some situations.
(c) father’s right to partition is superior to that o f all others, he can not only
effect a partition between himself and his sons, but can also impose a
partition o n his sons inter se.
The following persons have a right to partition and entided to a share on partition:
(1) Father - In exercise o f this power, the consent o f sons is immaterial
However, father must act bonafide. If division made by him is unequal
or fraudulent or vitiated by favoritism, partition can be re-opened. The
father can’t exercise this power by ‘will’ except with the son’s consent.
(2 ) Son, grandson and great grandson - They have a right to partition. But, in
Bombay school the son has no right to partition without the assent o f
father, if father is joint with his own father, brothers, and other
collaterals. Under Punjab customary law also sons have no right to
partition against their father.
(3) Son conceived at the time of partition but bom after partition^ — The Hindu
law has for many purposes equated ‘person in womb* to a ‘person in
existence’. If pregnancy is known, the partition should be postponed
till the birth o f child, but if coparceners do not agree to this, than a
share equal to share of a son should be reserved. If a son is born, he
takes it, and if a female is born, a marriage provision should be made
for her and surplus if any to be divided. In case, no share is reserved
for a son in womb, he can, after his birth, demand re-opening o f
partition. If pregnancy is not known and so the share is not reserved,
then also the after-born son can get partition reopened.
Son B egotten and Bom After Partition
When the father has taken or reserved a share for himself, the after born son
becomes a coparcener with his father. It is to be noted that if there are other sons
to father which have separated from him, then they can also claim a share or inherit
father’s (separate) property along with undivided son (Sec. 8 o f H.S.A. makes no
distinction between separated sons and undivided sons in the matter o f succession
to the separate property o f Mitakshara Hindu).
When the father has not taken a share for himself, the after bom son has a
right to get partition reopened. This rule applies, like the former, to a partition
between father and sons. For example, a coparcenary consists o f a father A and his
two sons B and C. Partition takes place. Subsequent to the partition, another son
D born to A, and a son BS is born to B. If A hasn’t taken the share, D can get
partition reopened. But BS has no such right.
[Note Where a coparcener renounced/ relinquished his interest in JFP, then a son
begotten after his renunciation can’t claim status o f a coparcener, as his father can
no longer be regarded as a member of coparcenary.)53
53. How the distribution of property shall be affected after the birth of a child in
womb? \Raf%J.S. 1999\
142 Hindu Law
(4) Adopted sotr. He has the same right of partition. Also, if after his adoption,
a son born to father, then also shares of adopted son and natural born
son will be equal (Sec. 12, H.S.A.).
However, in Bengal, if a son born, after adoption of a son, then adopted son
get only 1/3 of the estate; and in Benaras - 1/4, and in Bombay and Madras - 1/
5 o f the estate.
(5) Illegitimate son: It falls under two categories- (a) the dasiputra or a son
born to a concubine, permanendy kept by a Hindu, (b) an illegitimate
son born of a woman who is not a dasi.
An illegitimate son of both categories is not entitled to partition, as he is not
a coparcener. He is, however, endded to maintenance. Among Sudras, a dasiputra has
a superior position; the father can give him a share (equal to share o f a legitimate
son) during his lifetime. Further, a dasi son can get a share from his father’s separate
property. But his share would be only one-half to that o f a legitimate son. Thus,
if a Sudra dies leaving behind an illegitimate son A and a legitimate son B, the
dasiputra will get Vi of Vi i.e. Va. B will take Va.
(6) Minor coparcener- In partition, his right is same as that of major coparcener.
(7) Absent-coparcener - When coparcener is absent at the partition time, a
share has to be allotted to him. In case, no share is allotted to him, he
has a right to get partition reopened.
(8) Alienee - A purchaser of a coparcener’s interest in a court sale, or in
a private sale where the coparcener has such a power (Bombay, Madras
and M.P.), can demand partition.
396. Which o f th e fo llow ing p e rso n s have a r ig h t to a sh a re i f p a r titio n t a k e s place:

(a) Father’s wife.
(b) Mother.
(c) Grandmother.
397. Who am o n g st th e follow ing a re not e n title d t o p a r titio n :
(a) Legitimate son.
(b) Illegitimate son.
(c) Adopted son.
398. F ather has a rig h t to :
(a) Partition between himself and his sons.

(b) Effect a partition among the sons inter se.
(c) Impose a partial partition between himself and his minor sons.
Persons Entitled to a Share if Partition Takes Place

Mo female has a right to partition, but if partition occurs, there are certain females
who (besides maintenance) are entitled to a share, viz. father’s wife, m other and
grandmother. N o provision o f H.S.A. affects, adversely, her right to take a share on
partition. Whenever father’s wife or widowed mother is given a share on partition
and she has also received stridban from her husband or father-in-law, her share will
be subject to deduction to the extent of the value of her stridban.
( 1) Father’s wife: On a partition between her husband and her son, the wife is
entitled to a share equal to the share of a son. If there is more than one
wife, each wife is entitled to a share equal to the share o f son. If no share
is allotted to her, she can get the partition reopened.
(2) Mother - A widowed mother has a right to take share equal to that o f a son,
if partition occurs among the sons. This right accrues to her only when
partition by metes and bounds is made (Mother and step-mother each take a
share equal to the share o f a son).
(3) Grandmother —The paternal grandmother and step grandmother are entitled
to a share on partition. When partition occurs between her grandsons, her
son being dead, she gets a share equal to the share o f a grandson. When
partition occurs between her son and sons of a predeceased son, she gets
a share equal to that o f grandson.
(4) Coparcener’s widow - Under the Hindu Women’s Right to Property Act, 1937,
in respect o f separate property, the widow (intestate’s own widow, his son’s
widow and his grandson’s widow) took a share equal to the share o f a son,
and in default of the son, took the entire property. If there were more than
one widow, then all of them together took one share.
Example - If A dies, leaving behind his separate property and his own widow; son’s
widow and son’s son’s widow - each of the widow will get 1/3 share. If A dies,
leaving behind 2 widows and 2 sons, each son will get 1/3 share, while each widow
will get 1/6 share (both widows together taking 1/3 share).
Right of partition to a widow - When two or more widows succeed to property o f their
husband, each widow has a right to partition (with or without the consent o f
others). Even when a father’s widow succeeds along with her son (i.e. widowed
mother), she has a right to partition. However, a partition made at the instance o f
a widow is entirely different from that made at the instance o f a coparcener.
In such a partition, the severance of status doesn’t occur. The female gets her
share ascertained, and her share is separated, while the family continues to be joint.
She was given the same power of partition as any coparcener had, but thereby she
didn’t become a coparcener. The interest of the widow does not arose by inheritance
or by survivorship but bv statutory substitution i.e. her interest in coparcenary property
in place of her husband. Her interest is subject to all incidents o f coparcenary interest.
If she didn’t ask for partition, her interest is subject to fluctuations and on her death,
passes by survivorship to other coparceners (reversioners).
(5) Daughter - A daughter can claim a share equal to the son in a partition, if
there is a custom in this regard.
How Partition is Effected

There are two necessary conditions of partition, which bang about a severance o f the joint
status or interest: (a) Formation of an intention to separate; (b) Declaration o f an intention
to separate. 'The declaration involves the expression of intention plus communication o f
the intention to sever and, it is the declaration of intention that actually sever status.
144 Hindu Law
If the status of family is in question, the presumption, always, in favour of

that family is undivided one. Merely because one member severs his relations with
others, there is no presumption that there is a severance between other members.
Also, a joint family may make an arrangement for convenience sake under which the
coparceners divide the property, while remaining joint. But, if a family transfers all
its assets to a limited company, and all coparceners of the family secure equal
number of shares in company, it amounts to severance of status. Often in revenue
cases, a joint family may make a ‘fake or notional partition’ to avoid taxation.
The moment a clear, definite, unambiguous and unequivocal intention to
separate (‘I separate from thee’) is communicated to other coparceners during the
lifetime of the coparcener demanding the partition, the division in status takes
place. The following important points may be noted in this regard:
(i) Coparcener must have formed a fixed and definite intention to separate,
must not merely be in contemplation of it (viz. ‘I am thinking of separating).
(u) There should be a clear and unequivocal expression of intention, by words
(written or oral) or conduct (separation in food, dwelling, separate income
and expenditure, separate business transaction, etc).The intention may be
communicated by telephone, post, third person (e.g. friend) etc.
(iii) The unequivocal communication of intention must be the conscious and
informed act of the coparcener; sham documents, or even statements
and admissions serving a genuine purpose, but made in ignorance of
correct legal position, may not be a satisfactory evidence of severance.
(iv) Unless intention is brought to the knowledge of other coparceners, it
is uncommunicated intention which, at best, can amount to a desire to
partition, it can’t amount to severance.
399. In which o f th e follow ing cases, th e r e is no co m m u n ica tio n o f i n te n t io n t o effect

a p a rtitio n ?
(a) A coparcener says: 1 am thinking of separating'.

(b) A coparcener dies after communicating his intention to separate but before it
reaches other coparceners.
(c) If a third party informs and the separating coparcener says he is not authorized.
400. According to th e d o ctrin e o f re la tio n back:
(a) Although communication regarding partition might be received by coparceners
on different dates, their receipt will relate back to the date of notice.
(b) The vested rights th at might accrue in the interval, between th e date of
transmission and date of receipt, are not preserved.
(d) Only (a) is correct.
401. The d o ctrin e o f relatio n back was ex p lain ed in:
(a) Raghvamma v Chenchamma. •!

(b) Pedasubhayya v Akkamma.
(c) Kewal Narain v Prabhu Lai.
(d) Gurupad v Hirabai.
W The partition is effected from the date on which communicauon is put into
die transmission (Le., letter is posted) and not from the date on which it
reaches other coparceners (Rag/mamma v Chenchamma AIR 1964 SC 136).
(vi) I f a coparcener dies after communicating his intention to separate but
before it reaches other coparceners, then it cannot amount to partition.
Because for a partition to be effected, the separating coparcener must
communicate his intention during his lifetime.
(vii) Generally, notice (communication of intention) to karta should be there, in
order to corroborate, notice must also go to all other adult coparceners. If
a notice is given to a coparcener who refuses to accept it, the communication
is enough and effective. A notice to the karta is notice to the minor coparcener
(viii) Going for partition is a matter of individual decision of the coparcener
(unilateral act), assent or dissent of the other coparceners is immaterial.
Also, motive o f the separating coparcener is immaterial in this context.
(ix) If third party informs and the separating coparcener says he is not
authorized, there is no partition. In case third party informs and
coparcener dies, he was the only one who could have said that third
party was not authorized therefore valid communication has taken place,
and partition is effected (Puttrangamma v Rangamma AIR 1968 SC 1018).
(x) The proof of formal dispatch or receipt of communication by other
members is not essential What is necessary is that declaration to be effective
should reach the affected persons by some process appropriate to given
situation and circumstances of the case. Once there is communication, the
intention to separate cannot be withdrawn, for example, when a letter was
posted and letter withdrawn from the post office, but the news o f contents
o f the letter somehow readied other coparceners, partition was complete
and irrevocable (Puttrangamma v Rangamma).
Doctrine of Relation Back
According to this doctrine, although communication regarding partition might be
received by coparceners on different dates, their receipt will relate back to the date
oj notice i.e. severance will be effective from the date on which communication is put
into transmission; but the vested rights that might accrue in the interval, between
the date o f transmission and date of receipt, are preserved. This was explained in
Paghvamma v Chenchamma (AIR 1964 SC 136):
“But between the two dates, the person expressing his intention may lose his
interest in property, he may withdraw his intention to divide, he may die before his
intention conveyed, with the result that his interest survives to other members. A
manager o f a joint family may sell away the entire family property for debts binding
on the family. Thus, if doctrine of relation back invoked without any limitation
thereon, vested rights so created will be affected and setded titles may be disturbed.
1he principle o f retroactivity, usually saves vested rights. As the doctrine o f relation
back involves retroactivity by parity of reasoning, it can’t affect vested rights. Thus,
the rights accrued to others in JFP, between the two dates, would be saved.”
In this case, the question was whether by making a 'will" there is declaration or
manifestation of an intention to separate, which would sever status? l"he court observed:
A “will” do not communicate the intention to separate. And as the person making die will
dies, the right of survivorship applies, and the doctrine of relation back doesn’t apply,
which is limited in scope and not absolute. liven if the contents of “will” be presumed
to contain an intention to separate or the factum of partition, it would not be effective,
as die contents were not made known to odier members Lc. minor son and lus guardian.
146 Hindu Law
Problem- Mohan, a coparcener, writes a letter on March 10, 1945 addressed to the karta expressing
his intention to separate from the joint family and also informs Kumar 'a common friend of the
family) of his intention. Intending to post the letter, while on his way to office, his pocket gets picked
in a bus and he loses die letter. In the meantime, on March 13,1945, Kumar conveys to die family
of Mohan’s desire to separate. However, on March 12,1945, a portion of the family property was
attached in furtherance of a court decree. Is Molian still supposed to be joint with his family or
severance of status has taken place? How does die court decree affect lus share in JFP? Decide.
Answer - The partition, in the present case, become complete when on March 13,
1945 Kumar conveyed Mohan’s intention to the family. But the partition will be
effective from the date when Mohan expressed his intention to separate i.c. March 10,
1945 (Doctrine of Relation Back, Kaghavamma v Omchammd). But vested rights (which
occurred between March 10 and March 13) are not affected by this doctrine. Therefore,
even though Mohan has been separated from joint family, his share in the JFP' is
reduced proportionately to the property attached by the court decree. The attachment
of a part of family property by a court decree on March 12, 1945 tantamount to the
creation of a vested right, and it is binding on all undivided coparceners.
Problem - A JHF based in Delhi comprises of karta X, his brother Y, two sons of X, wife of
Y. On 1-1-90, Y went to Haridwar and from there he wrote a letter to X seeking partition of
JHF property. The said letter was received by X on 8-1-90. On 4-1-90, X had sold the entire
property of the JHF to meet out the medical expenses of his older son who was suffering
from cancer. Y files a suit for separate possession of his share and challenged the sale. Decide.
Answer- In the present case, the partition became complete on 8-1-90, when Y’s letter
was received by X. But the partition will be effective from the date when Y sent his
letter i.e. 1-1-90 (doctrine of relation back). However, the vested rights which accrued
between these two dates will be preserved {Pnghavamma v Cbenchammd). X, the karta,
can alienate the JFP to meet out the medical expenses of his elder son (on account
of ‘legal necessity’). Therefore, Y cannot challenge the alienation made by X.

(a) A minor coparcener has an equal right with the adult coparceners to demand
partition of a JFP.
(b) A minor can claim partition only by instituting a suit through a next friend/
guardian.
(c) If minor dies during pendency of the suit, the same can be continued by legal
representative of minor
(d) A partition by agreement entered into by adult coparceners, when there are
minor coparceners will be binding on the minors, unless it is unfair or prejudicial
to their interest.
403. Which o f th e follow ing is not a valid m ode o f p a r titio n ?
(a) Spoken words.
(b) Renunciation of share in the JFP by a coparcener.
(c) Conversion of a coparcener to a non-Hindu religion.
(d) Death of a coparcener.
404. A co p arcener file s a s u it fo r p a rtitio n . The c o u rt d is m is s e s t h e s u i t . T he p a rtitio n :
(a) Could not be said to have taken place.
(b) Could be said to have taken place from the date the suit is instituted.
(c) A decree of court is necessary to effect partition.
Severance of Status v Partition by Metes and Bounds

Severance of Status Partition by Metes and Bounds
(1) It is the desire to sever himself (1) It consists in a division by which the
and enjoy his hitherto undefined share of each coparcener with respect
and unspecified share separately to all or any of the joint property is
from others. fixed or defined. In short, it means
actual or physical division of JFP.
(2) It is partition in a strict sense, (2) It is partition in a larger sense, or de
or dejure partition. facto partition.
(3) It is a unilateral act, which may (3) It is essentially a bilateral action, and
be effected orally. may be arrived at by agreement, by
arbitration or by suit.
(4) Partition in the sense of severance (4) Thus it is the consequence o f a
of status or disruption of joint separating coparcener’s declaration of
status is complete by partition by the intention to sever.
metes and bounds.
Distinction Between Partition and Family Arrangem ent

(1) A ‘family arrangement* is concluded with the object of settling a bona fide dispute
arising out of conflicting claims to property. ‘Partition* is not necessanly a
compromise of conflicting claims.
(2) A widow or other limited owner or a manager can enter into a family arrangement
with persons who are not coparceners, whereas coparceners alone can effect a partition.
(3) A family arrangement can never be a unilateral declaration, whereas partition may
be effected by a unilateral declaration.
An agreement between the coparceners not to partition is invalid according to
the Bombay f Iigh Court; but according to the High Courts of Calcutta and Allahabad,
such an agreement does bind the actual parties, though it cannot bind their heirs, etc.
Minor’s Right to Dem and Partition54

A minor coparcener has an equal right with the adult coparceners to demand partition
of a JFP. But since a minor lacks legal capacity, he has to exercise this right through a
next friend/ guardian. When the guardian, etc. files a suit for partition on behalf o f the
minor, the court has to be satisfied that the partition will be for the minor’s benefit.
Partition takes effect from the date o f institution of the suit and not from the
date o f the court’s order finding that the partition is for the welfare o f the minor.
In Pedasubbajya v Akkamma (AIR 1958 SC 1042) the court observed: “The true
effect o f a court’s decision that the action is beneficial to the minor is not to create
in the minor ptvprio vigor* (‘by its own force’) a right which he did not possess before
but to recognize the right which had accrued to him, when the person acting on
his behalf instituted the action. Thus, what brings about the severance in status is
the action o f the next friend in instituting the suit. Therefore, if minor dies during
pendency o f the suit, w'hich was so in the present case, the same can be continued
by legal representative o f minor (mother of the plaintiff).’’
It is not necessary that the minor can claim partition only by instituting a suit.
He can do so bv giving a notice through his fnend or guardian. In other words, the
partition can be effected out o f the court. The suit becomes necessary when the adult
coparceners are not willing to effect a partition. It may also be noted that when father
partitions, it does not mean that his minor son’s interest also gets severed.
54. Write a short note on: Right of a minor in ancestral property. [Ray. J.S. 199t\
148 Hindu Law
It is also an established rule of Hindu law that presence of minor coparcener

is no bar effecting partition by adult coparceners. Thus, a partition by agreement
entered into by adult coparceners, when there arc minor coparceners will be binding
on the minors, unless it is unfair or prejudicial to their interest ([Bishnudeo v Seogant AIR
1951 SC 280). In the latter case, the minors can get it aside on attaining majority. On
attaining majority, minors may also sue for the enforcement of the partition.
Modes of Partition
Partition may be effected by institution of a suit, by will, by submitting the dispute
as to division of the properties to arbitration, by a demand for a share in the properties
or by conduct which evinces an intention to sever the joint family; it may also be
effected by agreement to divide the property. Partition can be made orally also.
Partition can also be effected by renunciation of share in the JFP by a coparcener
Similarly, when a coparcener sells his interest in theJFP to another coparcener, he becomes
divided from the other coparceners in respect of such property. An entry in the Record
of Rights showing die share of each member separately is evidence of partition.
Partition \ry suit - When a coparcener files a suit for partition, it amounts to an
unequivocal intimation of the intention to sever, and consequently, severance of
status takes place from the date the suit is instituted and not from the date of the
decree. Partition is not effected by a decree of court. Even if such a suit were to
be dismissed, that would not affect the division in status, which must be held to
have taken place (Kewal Narain v Prabhu Lai AIR 1917 PC 39). If the suit is
withdrawn before trial, the plaintiff not desiring separation, there is no severance
of status (here ‘before trial’ mean before the summons are served on the defendants
i.e. before the communication of intention).

(a) A widow mother is entitled to a share on partition taking place between sons
and the purchaser of an undivided interest of a coparcener.
(b) Where there are more than one wife, on partition between their husband and
his sons, each wife shall take a share equal to th a t of a son.
(c) After the institution of a suit for partition by a coparcener, subsequent births
and deaths in the family do not affect his share.
406. A p a rtitio n cannot be re -o p e n e d by w hich o f t h e fo llo w in g p e rs o n s :
(a) Adopted son.
(b) Absentee coparcener.
(c) Mother.
(d) Minor coparcener.
(a) A wife is entitled to get the partition re-opened if no share on partition is
allotted to her.
(b) A partition can be re-opened by a son begotten at the time of partition, but
born after partition, if no share is reserved for him at the time of partition-
(c) A son begotten at as well as born after partition is not entitled to have the
partition re-opened under any circumstance.
(d) An insane coparcener has neither a right to claim partition nor a right to a shai
in partition.
Automatic severance of status - Apostasy or conversion of a coparcener to a non-

Hindu religion (e.g. Islam) operates as an automatic severance o f status o f the
member from others, but it does not amount to severance of status among the
other members inter se. From the date of conversion, he ceases to be a coparcener,
and therefore, loses his right of survivorship. He is entitled to receive share in the
JFP as it stood at the date of conversion. Exactly, the same result follows if a
coparcener marries a non-Hindu under the Special Marriage Act, 1954.
Partial Partition
A suit for partition should ordinarily’ embrace all the joint family properties Partial partition
by’ private arrangement is, however, allowed. It often happens that only some coparceners
want partition, while the others do not In such cases, tnose who want partition may take
awayr their sliare and die rest will continue to remain joint Though a partition may be partial
by mutual agreement of parties, no coparceners can enforce a partial partition against the
other coparceners A partial partition may be: partial as to property; or partial as to persons
Rules Relating to Division of Property

lPutra bhagd rule of division of property’ of old Hindu law’ has been recognized by
the modern Hindu law. The rules relating to division o f property are:
(1) Father, sons and mothers (including the stepmother) share equally i.e. per
capita (per head). Similarly, Drothers get an equal share.
(2) If partition takes place between branches, rule of per stripes (Le. according to the stock)
ana per capita applies Each branch takes one share and members of eaoi branch take
equal share. In other words, the head of a branch gets one share and then that share
is further divided between him, his sons, their mothers equally and so on.
(3) Son of predeceased son takes equal to his father’s share by the doctrine o f
representation. Thus, the branch of a dead coparcener is also entitled to a share
if ne leaves behind one or more coparcener sons, grandsons and great grandsons.
(4) The following females are entided to a sliare on partition - father’s wife (if partition
occurs between father and son), mother (if partition occurs between sons), and
grandmother (if partition occurs between son and son of a predeceased son).
Importance of Partition
The importance of the partition lies in the following respects:
(i) By partition, the shares of the coparceners become defined and stop
fluctuating as a result of births and deaths in the famdy.
(ii) After partition, a person’s share is his separate property’and it will pass by succession.
(iii) A member of an undivided joint famdy has no right to dispose o f his share
in the property bv will, gift or alienation for value (except in some States).
A divided member can make a gift or devise it by will or alienate it for value
like his separate property’.
(iv) The undivided interest of a coparcener passes on his death to the surviving
coparceners. The share allotted to a coparcener on partition passes on his
death to his heirs, except where he has remained joint with nis owm male
issues. In such case it will pass to them by survivorship.
Re-openlng of Partition55
Under Shastric law; ‘once a partition is made, once a damsel is given in marriage and
once a gift is made (a man say ‘I give these’) are irrevocable and irrctractable*.
However, there are certain exceptions to this general principle. Mere readjustm ent
of property' does not amount to re-opening. Where readjustment o f properties is
not possible the entire partition has to be re-opened. A partition can be re-opened
under the following circumstances:
55. “Partition is made only once ...” (Manu). Discuss. [U.P. PCS (J) 1991/1999\
150 Hindu Law
(1) Fraud— fraudulent material facts.

(2) Son in womb - if at the time distribution of properties, unless the person affected
by the fraud acauiesces in with full knowledge of all of partition a son is in
womb, and no snare is reserved for him, he can get the partition re-opened.
(3) Son conceived and born after partition - can get the partition re-opened where
the father does not take a share on partition.
(4) Adopted son - is entitled to re-open the partition.
(5) Disqualified coparcener - recovering from his disqualification (e.g. insanity).
(6) Absentee coparcener - if at the time of partition a coparcener is absent and
no share is allotted to him, he can get the partition re-opened.
(7) Minor coparcener - can get the partition re-opened if he can show that
partition was unfair, prejudicial or unjust.
Re-union
“He who, being once separated, dwells again, through affection, with father, brother
or a paternal uncle, is termed re-united with hiirr (a text of Brihaspati).
Reunion is, thus, permitted between parties (all or any persons) to original
partition and exclusively between (a) father and son, (b) paternal uncle and nephew,
and (c) brothers. Reunion is not permitted with grandsons or after-born sons. Thus,
if a partition took place between a father F and two sons A and B. Subscquendy,
a son, S, is born to F. A or B can reunite with their father F or with each other but
they cannot reunite with S.
Reunion may be effected through an express agreement, even oral, or may be
implied from conduct. Mere living together is not enough to establish reunion. An
unequivocal intention reestablishing community of interest and unity of possession
must be there. A minor cannot reunite since he has no capacity to agree.
408. R eunion is p e rm itte d b e tw ee n p a rtie s to o rig in a l p a rtitio n an d e x clu siv ely betw een:
(a) Father and son.
(b) Brothers.
(d) Only (a).
409. R eunion to th e j o in t fam ily s ta tu s can b e b ro u g h t by v a rio u s m e th o d s . Which of
th e follow ing is not such a m eth o d :
(a) An express agreement to reunite in estate and to revert to their former status.
(b) Implied from conduct viz. unequivocal intention reestablishing community of
interest and unity of possession.
(c) An oral agreement.
(d) Withdrawal of unilateral declaration of the intention to separate.
11
Hindu Law of Succession
In succession, the property passes from one person to other after the death o f the
former. Today, we have uniform secular law of succession for all Hindus. Old
Hindu law and the customary law of succession stand abrogated. The Mitakshara
bias o f preference o f males over females and of agnates over cognates has been
considerably whittled down. The Hindu Succession Act, 1956 (which extends to the
whole o f India except the State of J & K, and, came into force on 17 June 1956)
preserves the dual mode of devolution of property, viz. by survivorship and by
succession, under the Mitakshara School. The Act bases its rule of succession on
the basic Mitakshara principle of propinquity i.e. preference of heirs on the basis o f
proximity o f relationship.
The law of succession is classified under the two heads:
(i) Testamentary succession - The testator Le. person who made the Will,
enjoys full freedom of bequeathing his property—separate (divided) or
undivided interest. It deals with rules relating to devolution o f property
on relations as well as others.
(ii) Intestate succession - It is based on the law of inheritance, viz. rules which
determine the mode of devolution of property of the deceased on the
heirs solely on the basis of their relationship to the deceased. If the
person dies without leaving a Will, it is the object of the law o f
inheritance.
Distinction between Succession and Inheritance - The law of inheritance consists o f rules
which determine the mode of devolution of the property* of the deceased on heirs
solely on the basis of their relationship to the deceased, while law o f succession
deals with the rules relating to devolution of property on relations as well as others.
The law o f inheritance applies to property belonging exclusively to a person, as
distinguished from the property* held by the joint family.
The Hindu Succession Act (H.S.A.), 1956 deals with both testm en tary
succession (Sec. 30) and intestate succession. The subject could be divided under
the four heads: (1) Succession to a Hindu male, (2) Succession to a Hindu female,
(3) Disqualification o f heirs and (4) General rules of succession. It is important to
[151J
152 Hindu Law
note that succession opens at the time of the death of the person whose estate is
in question and is governed by this law in force at the time.
Important Terms (Sec. 3, H.S.A.)

Intestate [Sec. 3 (g)] - A person who dies without making a will.
Heir [Sec. 3 (f)] - A person (male or female) who is entitled to inherit property after
the death of the intestate.
Descendants - It mean the offsprings of a person, e.g. sons and daughters. The
children of sons and daughters and their children, and so on (up to any degree of
descent), are also descendants.
Ascendants - It mean the ancestors of a person, e.g. father and mother. The father
and mother o f his father and mother are also his ascendants, and so are their
parents up to any degree.
Collaterals - These are descendants in parallel lines, from a common ancestor or
ancestress. For instance, brother is a collateral, so is sister. Similarly, paternal uncle
and paternal aunt and their children are collaterals, and so are maternal ones.
Agnates [Sec. 3 (a)] - When a person traces his relationship with another wholly
through mates, he or she is an agnate. His sex or the sex of the deceased Hindu is
immaterial. For instance, brother, brother’s son, son’s son, son’s son’s son, father,
father’s father, father’s mother, father’s father’s father or mother, son’s daughter, etc.
are agnates. Thus, agnates can be descendants, ascendants or collaterals.
Cognates [Sec. 3 (c)[ - Whenever in the relationship of a person with another, a female
(or females) intervenes anywhere in the line, one is a cognate to another. For
11. H in d u L aw o f S u c c e ssio n
410. The Hindu S uccession Act, 1 956 cam e in to force on:
(a) 17 June 1956.
(b) 19 June 1956.
(c) 17 March 1956.
(d) 16 October 1956.
411. The Hindu Succession Act, 1 9 5 6 p re serv e s w hich m ode o f d e v o lu tio n o f property:
(a) By survivorship.
(b) By succession.
(d) Only (b).
412. Coparcenary property of a Hindu:
1. Devolves by succession.
2. Devolves by survivorship.
3. Can be partitioned.
4. Cannot be partitioned.
Select the correct answer w ith the help of codes given below:
Codes:
(a) 1 and 2.
(b) 2 and 3.
(c) 1 and 4.
(d) 2 and 4. [Uttaranchal PCS (J) (Prel.) 2002)
Hindu Law of Succession 153
instance, sister’s son and daughters; daughter’s sons and daughters; mother’s mother
and father; father’s mother’s father and mother; mother’s father’s son and daughters
(ie., maternal uncles and aunts) are all cognates. Thus a cognate may be a descendant,
ascendant or collateral.
fu ll blood [Sec. 3 (e) (i)] - When the father and mother of two persons are the same,
e.g. ‘real’ brothers and sisters.
H alf blood [Sec. 3 (e) (i)] —When two persons have the same father but different
mothers.
Uterine blood [Sec. 3 (e) (ii)] - When two persons have the same mother but different
fathers.
Related [Sec. 3 (j)] - It means related by legitimate kinship. However, illegitimate
children are deemed to be related to their mother, and also to one another.
legitimate/illegitimate relationship - A person who is born within a lawful wedlock is
legitimate, and he or she is related to his or her parents by legitimate relationship.
A person born outside the lawful wedlock is illegitimate. With father, only legitimate
relationship is recognized. The illegitimate relationship is recognized to the mother.
[1] SUCCESSION TO A HINDU MALE
The H.S.A., 1956 deals with the inheritance to - (a) the separate (divided) properties
o f a Mitakshara male, (b) to the undivided interest in the JFP o f a Mitakshara
coparcener. The Act does not apply to the property o f a Hindu who is married
under the Special Marriage Act, 1954.
(i) Separate or Divided or Fixed Property/ Interest54

Sections 8-11 o f H.S.A. provide a scheme of succession to the property o f a male
Hindu dying intestate (without making a will). Sec. 8 provides that the property o f
a male Hindu shall devolve firstly upon the Class 1 heirs, secondly if there is no Class
I heir, then upon the Class II heirs; thirdly upon the agnates, and; lastly upon the
cognates o f the deceased. If a Hindu male has no heirs under all these four heads,
the Government takes the property as a heir (Escheat).
Class I Heirs5657 (12): Mother, Widow, Daughter, Son, Widow of a pre deceased son.
Son of a pre-deceased son, Daughter of pre-deceased son, Widow o f a pre-deceased
son o f a predeceased son. Daughter of a predeceased son of a predeceased son.
Son o f a predeceased son of a predeceased son. Daughter of a predeceased daughter,
and son o f a predeceased daughter.
‘Son’ means a —natural or ‘aurasa’ son (a son of a voidable marriage included);
adopted son; posthumous son (i.e. child in womb at the time of death o f intestate,
born alive later), sons born after the partition and the divided sons inherit with
other sons, under the H.S.A. Step-son is not a son. Illegitimate son is not entitled to
inherit (a son of void marriage and a son of annulled voidable marriage will inherit
56. How does the self-acquired property of a Hindu male dying intestate devolves?
[Raj. J.S. 1992J
57. Who are heirs of Class I in Hindu law? \Raf J.S. 1991]
154 Hindu Law
the property of father alone and of no other relation). Among the Santhals
‘gharjamai’ has the status of a son.
The position of ‘daughter’ is same as that of a son. The distinction between
married, unmarried and widowed daughters is not there and all daughters inherit
equally. Unchastity and divorce is no bar to inheritance. Illegitimate daughters and
sons of a daughter are included, as illegitimate children are related to their mother
i.e. daughter.
The propositus (deceased Hindu) ‘widow’ means wife of a valid marriage only
(thus, if void or annulled voidable marriage, widow is not entitled to inherit). Also,
a divorced wife will not be his widow. An unchaste widow can inherit. If she
remarries, she will not be divested of her husband’s inheritance. However, a son’s
widow or son’s son’s widow, if remarries, can’t inherit.
‘Mother’- Propositus (deceased Hindu) may be her legitimate/adopted/illegitimate
son. She may be unchaste/remarried/or divorced. It is immaterial whether her
marriage was void/voidable. Mother is always a mother. But, a stepmother is not
included in the expression “Mother”.
Section 10 lays down the rules of distribution of property among the Class I heirs —Sons,
daughters, mother and widow of intestate shall take one share (if there are more
than one widow, all of them together took one share); among the heirs of branches
of predeceased son and predeceased daughter, the doctrine of representation applies
and the heirs would take the same share their parents would have had if alive and
take per capita (i.e. per head).
413. The Hindu Succession Act bases its rule o f su ccessio n on th e b asic Mitakshara
principle o f 'preference o f heirs on th e basis o f proxim ity o f relatio n sh ip ' called as:
(a) Rule of survivorship.
(b) Rule o f re p re se n ta tio n .
(c) Rule of 'propinquity.
(d) Per c ap ita, p er strip es rule.
4 1 4 . If a person d ies w ith ou t leaving a W ill, th e su cc essio n to h is p rop erty w ill be
called:
(a) T estam entary succession.
(b) In te s ta te succession.
(c) E ither (a) or (b).
(d) Only (a).
4 1 5 . The law o f inheritance is a lso known as:
(a) T estam entary succession.
(b) In te s ta te succession.
(c) Either (a) or (b).
(d) Only (a).
4 1 6 . A person who is en titled to in h erit property a fter th e d eath o f th e in te sta te >
called:
(a) Legal rep resen tativ e of th e d eceased.
(b) Heir.
(c) Propositus.
(d) A gnate.
Hindu Law of Succession 15S
S' S2 D1 D2
Each o f the above heirs will take one share i.e. 1/5. In the above and following
illustrations, the deceased Hindu i.e. propositus is indicated by [P]; and, predeceased
person enclosed in brackets.58
M
| W1
P1 y/2
__ r W3
S D
[All widows will take together V* share i.e. 1/12 each]
The Class II heirs are (9 Categories): 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), I V (Brother’s
son, sister’s son, brother’s daughter, sister’s daughter), V (Father’s father, father’s
mother i.e. paternal grandfather/ mother), 17 (Father’s widow, brother’s widow),
V II (Father’s brother, father’s sister Le. paternal uncle or aunt/or grandfather’s sons
or daughters), VIII (Mother’s father, mother’s mother i.e. Maternal grandfather/
mother), and I X (Mother’s brother, mother’s sister i.e. maternal uncle/ aunt).
Father is the only nearest heir who hasn’t found a place in Class I heirs as
under the Mitakshara law, mother was considered to have greater propinquity than
the father. Father is the sole heir in category I, and in the absence of Class I heirs,
takes entire property.
The rule is when there is any brother or sister by full blood, the brother or
sister by half blood is excluded. When there is no former, the latter inherits. The
brother and sister by uterine blood are excluded. However, if propositus and his
brother and sister are all illegitimate children of their mother, such brothers and
sisters are heirs to him.
Father’s widow means stepmother (she is the only step relation that is included
among the heirs) (even if she remarries, she will inherit). A brother’s widow can’t
succeed, if she had remarried on the date when succession opens. The rule that ‘if
there are more widows than one, they together take one share’ applies to the Class
I heirs and not to the Class II heirs.
Section 9 provides the order of succession - the heirs in Class I shall take simultaneously
and to the exclusion of all other heirs; those in the first entry in Class II shall be
preferred to those in the second entry; and so on in succession.
58. How the ancestral property of a deceased Hindu be divided if he leaves a

widow, two sons and a daughter at the time of his death? [ICyl J.S. 199/}
156 Hindu Law
It may be noted that Class I heirs are also called ‘preferential heirs’, as presence
o f any one o f them excludes heirs in all other classes. They are also called
‘simultaneous heirs’, as heirs in Class I heirs inherits simultaneously—one does not
exclude the other. This is not so under Class II heirs - the heir in an earlier category
excludes all heirs in later categories; however, all heirs in one i.c. same category take
simultaneously and per capita {Sec. 1/).
Example:
F
I
[PI
I
(S)
I
(SD)
SDD SD D ‘
In this case, SDD and S D D 1 being heirs in category II, and F an heir in category
I, F will take entire property to the exclusion o f SDD and S D D 1.
Sec. 12 lays down the order o f succession among agnates and cognates.
(li) Undivided (A ncestral) Property or Interest

According to Sec. 6, H.S.A., read with the proviso — If a male H indu dies, his
undivided interest in the coparcenary property’ shall devolve by survivorship upon
417. T he H in d u S u c c e s s io n A ct d o e s not a p p ly t o t h e p r o p e r t y o f a p e r s o n w ho is
m a r r ie d u n d e r t h e :
(b) Hindu Marriage Act.
(c) Child Marriage Restraint Act (Sharda Act).
418. An h e ir u n d e r t h e H in d u S u c c e s s io n A ct, 1 9 5 6 c o u ld o n ly b e a:
(a) Male.
(b) Female.
(d) Only (a).
419. The o f f - s p r in g s o f a p e r s o n a re k n o w n a s:
(a) Ascendants.
(b) Descendants.
(c) Heirs.
(d) Collaterals.
420. A n c e s to rs o f a p e rs o n a re k n o w n a s:
(a) Ascendants.
(b) Descendants.
(c) Heirs.
(d) Collaterals.
421. D e s c e n d a n ts in p a r a lle l lin e s , fro m a c o m m o n a n c e s t o r o r a n c e s t r e s s a re called*
(a) Ascendants.
(b) Descendants.
(c) Heirs.
(d) Collaterals.
the surviving m em bers o f the coparcenary and not in accordance with this Act,
unless the deceased had left him surviving a female relative or a male claiming
through such female relative in Class I, in that case the interest shall devolve by
intestate/ testamentary succession.
Thus, if there is any o f the following nine heirs the coparcener’s interest shall
devolve by succession according to Secs. 8 , 9, and 10. These nine heirs are - widow,
mother, daughter, daughter o f a predeceased son, widow o f predeceased son, daughter
o f predeceased son o f predeceased son, widow o f predeceased son o f predeceased
son, daughter o f predeceased daughter, son o f predeceased daughter (only male
who can defeat survivorship ) .59
N o tio n a l/o r D eem ed Partition60
[explanation I to Sec. 6 —“For the purpose of this section, the interest o f a coparcener
shall be deemed to be the share in property that would have been allotted to him
if a partition had taken place before his death, irrespective o f whether he was
entitled to claim partition or not.”
U nder Sec. 8 , only a specified/ divided/ fixed interest can devolve. Therefore,
Explanation I to Sec. 6 has provided for a ‘notional’ partition, in which a partition
is made assuming that the deceased coparcener is alive (allotment o f shares by a
legal fiction). T he crucial question is: What is the interest o f the deceased coparcener
when he dies? Under the Mitakshara, immediately on the death o f coparcener, his
interest passes by survivorship to other coparceners, with the result that on his
death he leaves behind nothing. It is also a Mitakshara rule that coparcenary interest
in JF P can be specified and secured by partition. Thus, to know the share or interest
o f a deceased coparcener, the Parliament was left with no option but to im port the
fiction o f “notional partition”.
D eath o f a coparcener leaving behind a female does not mean automatic
partition am ong the heirs. The notional partition is not a real partition, it neither
effects a severance o f status nor does it demarcate interest o f other coparceners or
those who are entitled to a share on partition. It has to be used to demarcate the
interest o f deceased coparcener, once that specific purpose done, rest should be
forgotten. His share gets fixed on the date o f his death, subsequent fluctuations in
the fortunes o f coparcenary do not affect it, and it is this share which will go by
inheritance. As the allotment o f shares is only a fiction, it is called nouonal or
deemed partition.
59. A and his sons B and C constitute a coparcenary. B separates himself after
getting l/3 rd share of coparcenary property. A dies intestate leaving his
surviving daughter D and sons B and C. Examine the claims of daughter D
and son B to the property (coparcenary and self-acquired) left by A.
[Delhi J.S. 1980\
[Ans. A’s l/3 rd share {half of the remaining 2/3*^ share left after the separation of
B) will go to C and D, each taking l / 6 lh. B will be totally excluded. However, in
respect of the self-acquired property, even separated son would not be excluded from
inheritance. Therefore, B and C, and, D, all wx>uld take 1/3^ share.)
60. Write a note on: Notional partition. A Joint Mitakshara family consists of M
and his two sons N and O, and a son NS and a daughter N D of N. N dies.
Divide the property of N. |U.P. PCS (J) 199Z\
158 Hindu Law
Examples - A joint family of A, his two sons B and C and a son BS and daughter
BD o f B. Suppose B dies. Since he leaves behind BD, a female in Class I, hjs
interest will devolve by succession.
(B) C
r......I
BS • BD
If partition had taken place during B’s lifetime, he would have got 1/6 share (A
will get 1/3, C -l/3 , and B’s branch-1 /3). In the branch o f B, B and BS, on partition,
will take 1/2 of 1/3 Le. 1/6 each, since daughter does not take a share on partition.
In notional partition, one start with the assumption that B is alive. After demarcating
B’s share, one forget about partition and note that B is dead and his 1/6 interest as
demarcated by the notional partition will go by succession (A, C or BS do not get any
share. They continue to remain joint in the remaining 5/6).
The next step is to divide 1/6 among B’s heirs in accordance with the H.S.A.
A is his father who is in Class II, C is his brother who is also in Class II, and BS
and BD are his son and daughter who are in Class I. Class I heirs are preferred over
Class II heirs. Thus, BS and BD will take 1/12 each.
When a notional partition is effected, and there are females entided to a share,
they too are to be allotted their shares. For example, A dies leaving behind two sons
422. W hen a p erso n tra c e s h is r e la tio n s h ip w ith a n o th e r w holly th ro u g h m a le s, he or

sh e is:
(a ) A n a g n a te .
(b) A c o g n a te .
(c) A c o lla te ra l.
(d ) N one o f th e above.
423. W hich se c tio n o f th e H indu S uccessio n Act d e f in e s 'a g n a t e s ' a n d 'c o g n a te s '?
(a ) Sec. 3 (a) a n d (c).
(b ) Sec. 2 (7) a n d (8 ).
(c) Sec. 1 (4) a n d (5 ).
(d) Sec. 3 (b) a n d (c).
424. W henever in th e re la tio n s h ip o f a p e rso n w ith a n o th e r, a f e m a le ( o r fe m a le s)
in te rv e n e s anyw here in th e lin e , o n e is:
(a) A g n ate to a n o th e r.
(b) C o g nate to a n o th e r.
(c) C ollateral to a n o th e r.
(d) N one of th e above.
425. W hen tw o p e rso n s have th e sam e f a th e r b u t d if f e r e n t m o th e rs, t h e y a re r e la te d to
each o th e r by:
(a) Full blood.

(b) Half blood.
(c) Uterine blood.
(d) Siblings.
B and C and a widow W On notional partition i.e. when A is alive, and so A’s widow
(his wife), each o f them will take 1/4 share (In partition, father’s wife, mother and
grandmother are entitled to a share). A’s 1/4 share will go by succession and in
remaining 3 /4 share family will continue to be joint. In the notional partition
neither 13 nor C takes anything, nor does W takes anything.
In Rangubai v Laxman (1966 Bom 160), a Hindu A died leaving behind his
widow W and adopted son S. He and his son constituted a coparcenary. A’s share
was to devolve by succession, since A died leaving behind W Then what was his
share? O n this, two Hews have emerged:
(a) Bombay school - Widow, in fact, takes a share when notional partition takes
place, and she will take her 1/3 share (so notional partition becomes a
real partition for her), and in addition to this, she will take 1/2 o f 1/3
i.e. 1/6 as her share as a heir. Thus, she will take 1/3 + 1/6 = 1/Z
(b) The other view is that, she, like other co-sharers, does not actually take
share in a notional partition. So, she takes only 1/6 share by succession.
In Rangnbai's case, Patel J. enunciated the first view. This view has been confirmed
in Gurupad v Hirabai (AIR 1978 SC 1239). In this case, one Khandappa died in 1960
leaving behind his widow (Hirabai), two sons and three daughters. Hirabai filed a
suit for partition and a separate possession of a 7/24 share in the properties o f
Khandappa. The suit was challenged by Gurupad, a son o f the deceased coparcener.
Held that the widow (Hirabai) is entitled to a 1/4 share plus 1/24 share t.e. 7/24
share.
Khandappa — Hirabai (W)
I
i-------- t-------- r — (— !----------1
Gurupad Biyawwa Bhagirathi Dhandubai Shivpad
(S) (D) (D) (D) (S)
In a partition (notional) of the coparcenary property, Khandappa would have

obtained a 1/4 share (the three other shares being his two sons and his wife). The
widow will get a 1/6 share in 1/4 share of her husband as a heir, thus she will get
a 1/24 share (the other five sharers being two sons and three daughters). The
widow would get a 1/4 share also along with her 1/24 share i.e. 7/24 share in all.
The court observed: The fact that it is a mere notional partition should not
“boggle” our imaginauon. The Explanation to Sec. 6 i.e. legal fiction should be
given its due and full effect. The assumption which the statute requires to be made
‘that a partition had infact taken place’ must permeate the entire process of ascertainment
of ultimate shares o f heirs through all its stages. Thus, the heir will get his or her
share in the interest which the deceased had in the coparcenary property at the time
of his death, in addition to the share which he or she received or must be deemed
to have received in the notional partition.
The court further observed: Sec. 6 is a measure to ameliorate or improve the
lot o f Hindu women. The interpretation which we are placing upon the provisions
o f Sec. 6 will further the legislative intention with regard to the enlargement o f the
sliare o f the female heirs, qualitatively and quantitatively. In Sushila v Nanryanrao
[AIR 1975 Bom 257 (F.B.)], it was observed: “We are merely affirming the right
which the mother has when partition takes place between father and son. Such right
is conferred by pure (Shastric) Hindu law and as the notional partition takes place
she has to be given her share as a result of that partition.”
160 Hindu Law
In jR angubai's case, W will end at 1/6, as there is no possibility of her getting

any share in a real partition. On death o f A, S becomes sole surviving coparcener
and there is no question of any other coparcener asking for partition. This may be
hard for W Had her husband died leaving behind 2 sons, she could get a share
(equal to son’s) whenever her sons partitioned. The sbastrakars allowed her a share
only in the event o f a partition, not otherwise. If a partition does not take place,
no female will ever get a share in JFP. Thus, by virtue o f Sec. 6 , in some cases
women may be losers and in some gainers.
Explanation II to Sec. 6
Divided coparceners and their heirs not entitled to succeed under Sec. 6 - “Nothing contained
in the proviso to this section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any
o f his heirs to claim on intestacy a share in the interest referred to therein.”
For example, a coparcenary consists o f P, and his two sons B and C. B
partitions and takes away his 1/3 share, in remaining 2/3 share P and C continues
to be joint. Later P dies, leaving behind C and a daughter D. P’s 1/3 share will be
taken by C and D, each taking 1/ 6 . B will be totally excluded. Similarly, heirs e.g. son
of a separated son, though born before the death o f the deceased (e.g. P), can’t
claim under S.6 . Similarly, widow o f a separated son can’t claim under Sec. 6 ,
however in some cases it has been held that the explanation to S.6 refers to a
coparcener and not to a female heir, so she can claim.
426. 'A' m arries 'Q'; a son 'B' is born to him from 'Q'. Later, 'Q' d ie s and 'A' m arries 'R'; a
d a u g h te r 'C' is bom to him from 'R'. TV divorces 'R' and m arries 'S ' th ro u g h w hom 'D'
is born to h im . 'B', V and 'O' are re la te d to each o th e r a s b ro th e rs an d s is te rs by:
(a) Full blood.
(b) Half blood.
(c) Uterine blood.
(d) Siblings.
427. The d e c e a s e d H indu in t h e H indu Law o f S u c c essio n is know n a s:
(a) Propositus.
(b) Agnate.
(c) Cognate.
(d) Intestate.
428. The o rd e r o f su c c essio n in re s p e c t o f a H indu m ale d y in g i n t e s t a t e , a s la id down
u n d e r Sec. 8 o f t h e H indu S u ccessio n Act is :
(a) Class I heirs; if there is no Class I heir, then upon the Class II heirs; then upon
the agnates, and; lastly upon the cognates of the deceased.
(b) Class I heirs; if there is no Class I heir, then upon the Class II heirs; then upon
the cognates, and; lastly upon the agnates of the deceased.
(c) Class I heirs; then upon the agnates; then upon the cognates, and; lastly upon
the Class II heirs of th e deceased.
(d) Class I heirs; then upon the cognates; then upon the agnates, and; lastly upon
the Class II heirs of the deceased.
429. Class I an d C lass II h e irs are a lso c a lle d as:
(a) Ascendants.
(b) Descendants.
(c) Preferential heirs.
(d) Enumerated heirs.
Partition o f Ancestral Property under the Various Sub-schools of Mitakshara

( 1) Benaras, and Mithila sub-schools of Mitakshara- follow the above noted
general principles. Delhi school also follows them.
(2) In Madras school no share is given to any female at the time of partition
and the only right is that of maintenance.
(3) The Kerala school follows the Benaras school i.e. females were given a
share. But the Kerala Joint Hindu Family (Abolition) Act; 1976, changed the
position.
According to Sec. 4, all members of undivided Hindu family, holding an£
coparcenary property, with the day this Act comes into force shall be deemed as
tenants-in-common, as if partition had taken place among all members and as if
each o f them is holding his /her share separately as full owner thereof. Proviso to
Sec. 4 provides that nothing in this section shall affect the right to maintenance,
marriage or funeral expenses out of coparcenary property, or right of residence (if
any) o f members others than the persons entided to held shares separately.
(4) In Andhra Pradesh, females get a share. The position has undergone a change
with the Hindu Succession Act (Andhra Pradesh) Amendment Act, 1985, which
came into force on from 5th September, 1985.
According to Sec. 29-A of this Act, notwithstanding anything contained in
Sec. 6 , H.S.A., in a joint Hindu family, the daughter of a coparcener shall by birth
become a coparcener in the same manner as the son. Thus on a partition, the
daughter is to be allotted the same share as is allotted to son. However, nothing
contained in this provision shall apply to a daughter married prior to, or to a partition
effected before the commencement of this amended Act.
Recendy, in Maharashtra, also, the coparcenary rights were conferred on the
daughter. She would be able to claim property by survivorship, just like a son. She
would also have a right to claim partition, even if she is married.
[2 ] INTESTATE SUCCESSION TO PROPERTY OF A HINDU FEMALE
The order o f succession to the property - whole of it being separate - o f a Hindu

female, dying intestate (i.e. without making a will), is not the same as in case o f a
Hindu male. Although Hindu woman’s limited estate has been abolished and, so
long as the woman is alive, she has absolute power over all types o f property, yet
for the purpose of intestate succession the source of property is still material. For
the purpose of succession, the property of a Hindu female falls under the following
three heads (Sec. 15):w
(a) Property inherited by a female from her father or mother;
(b) Property inhcnted by a female from her husband or father-in-law; and
(c) Property obtained from any other source, by inhentance or otherwise.
[It may be noted that if female has her children, than the first two heads
would not become operative.)61
61. W hat are the g en e ra l rules o f succession to property in th e c a se o f a fe m a le

H in d u dying in testa te ? [R#- J-S. /5 W )
162 Hindu Law
Sec. 16 lays down the order of succession and manner of distribution among
the heirs of a female I lindu.
(i) Property Obtained from Any Other Source, by Inheritance, etc. [Sec. 15 (jjj
The heirs are divided into five categories called ‘entries’; heirs in the earlier entry
excludes that in the latter entries, and those included in the same entry shall take
simultaneously (Sec. 16). If there are no heirs in any of these five entries, property
goes to the government by escheat.
Entry (a) - Sons and daughters, sons and daughters of a predeceased son or daughter
(i.e. grandchildren), and, husband.
These heirs shall succeed simultaneously, sharing equally, to the exclusion of
all other heirs. The ‘sons and daughters’ include son and daughter by natural birth,
legitimate or illegitimate, posthumous children, and adopted children. Children of
void and voidable marriages are also included. However, stepchildren are not included
in the expression.
Sec. 16 lays down that if any son or daughter o f the intestate had predeceased
the intestate, leaving his or her own children alive at the time o f the intestate’s
death, the children of such son or daughter shall take between them the share which
such son or daughter would have taken if living at the intestate’s death.
‘Husband’ means the last lawfully married husband, not divorced one. Similarly,
the husband of a void or of an annulled voidable marriage is not included. The ■
‘grand-children’ does not include illegitimate/ step/ children o f a void/voidable
(annulled) marriage (Sec. 16, Hindu Marriage Act provides that such children can
inherit the property of their parents alone).
430. Class 1 h eirs are also c alled :

(a) Preferential heirs.
(b) Simultaneous heirs.
(d) Only (a).
431. Class I h eirs sp e c ifie d in th e S ched u le are:
(a) Six females and four males.
(b) Six males and four females.
(c) Eight females and four males.
(d) Eight males and four females.
432. Which o f th e follow ing is th e only n e a re s t h e ir w ho is n o t a C lass I h e ir?
(a) Widow.
(b) Daughter.
(c) Son.
(d) Father.
433. Which of th e follow ing is n o t in clu d ed in th e e x p ressio n 's o n ':
(a) Separated son.
(b) Dattaka putra.
(c) Posthumous son.
(d) Step-son.
434. Which o f th e follow in g is n o t e n title d to in h e rit under th e H indu S u c c e ss io n Act?
(a) A son/ daughter of a voidable marriage.
(b) Adopted son/ daughter.
(c) A son/ daughter of void marriage.
(d) Step-son/ daughter.
I
pjitry (b) - Heirs of husband.
O n the failure of heirs in entry (a) the property will devolve upon the heirs
o f the husband. Since the property is deemed to be that o f her husband the
inheritance will be determined by the law relating to succession to the property o f
a Hindu male.
Entry (c) — Father and mother of the proposita (Le. deceased female).
Mother does not include a stepmother; adoptive mother is included. Even if
the proposita was an illegitimate daughter of the mother, mother will inherit; however
putative father will not inherit.
Entry (d) - Heirs of the father.
Entry (e) — Heirs of the mother.
(ii) Property Inherited from Father or Mother [Sec. 15 (2) (o)]
It may be noted that gifted property is not equal to inhented property. Any property
gifted at the time o f marriage is her stridhan and succession to it is governed by Sec.
15 (1) (Meyappa v Kannappa AIR 1976 Mad 184). Similarly, if she has converted the
property she inherited from her parent into some other property succession will not
be governed under Sec. 15 (2) (Emana v Gudistva AIR 1976 A.P. 337).
If she had inherited property from father or mother, the heirs fall under the
two categories:
Category (/): Sons, daughters, sons and daughters of predeceased son or daughter.
In this category, husband is not an heir.
Category (2): Heirs of the father. Here, there seems to be a defect in drafting o f
the Act. Even if father is alive his property will not go to him but to his heirs. The
clause should be read, “upon the father and in default o f the father, upon his heirs.”
(iii) Property inherited from husband or father-in-law [Sec. 15(2) (b)]
The heirs to such property are:
Category (/): Sons, daughters, sons and daughters of predeceased son or daughter.
Category (2): Heirs of the husband.
Here, if the female had been married more than once, the properues inherited
by her from her respective husbands and their fathers should go to heirs o f respective
husbands. Here also the property received by the female from her surviving husband
and from his father will not go to the surviving husband but to his heirs - again
an anomaly or defect in drafting of the Act.
[No* - If the female dies ‘without leaving any children’, then in respect o f property
inherited by her from her father or mother, that property will go the heirs o f the
father; in respect of property inherited by her from her husband or father-in-law,
that property will go to the heirs of the husband.)
Problem - At the time of M’s marriage, her father presented her with a Fixed Deposit Receipt
ot Rs. 25,000. M died two years later. M’s husband 11 and her brother B claims the amount
as her sole heir under the H.S.A., 1956. How will you decide? What will be your answer if
M had been survived by her husband 11, a son S and illegitimate daughter of predeceased
illegiumate daughter D?
Answer- T h e gifted property is not equal to inherited property, thus Sec. 15 (1) and
not Sec. 15 (2) will apply^n such a case. A female’s husband is an heir tn entry (a)
of Sec. 15 (1), while a female’s brother is an heir in entry (d) (‘heirs o f father’) o f
164 Hindu Law
Sec. 15 (1). As the heirs in an earlier entry exclude those in the later entry, the
husband will succeed in the present case.
The heirs in Sec. 15 (1), entry (a) includes ‘sons, daughters, sons and daughters
of a predeceased son or daughter and husband’. All these heirs succeed simultaneously,
sharing equally. Thus, if M were survived by H, S and D, these three heirs would
all take one-third of her property each. It may be noted that illegitimate children
are deemed to be related to their mothers.
Problem - In 1992, W a female Hindu died leaving behind her husband H as her sole heir.
Discuss the rights of H in the following properties of W: (i) a house which W had inherited
from her father in 1989, and (ii) some movable properties, which she got by way of gift from
her, father after her marriage. Will your answer be different if W had been survived by her
husband H and a minor daughter D?
Answer —The house, which W inherited from her father, will go by succession to
the heirs o f the father [Sec. 15 (2) (a)], if she has no child and H is the sole heir
of the house. As to the gifted property, Sec. 15 (1) applies and the husband would
take it. If W had a child, the house, which she inherited from her father, would go
to her minor child, the child being in an earlier category than the heirs o f the father,
under Sec. 15 (2) (a). In the second case, the child and the husband would share the
gifted property equally [Sec. 15 (1), entry (a)].
435. W hich o f th e follow ing fe m a le s is not a C lass I h e ir?

(a) Widow of an annulled voidable marriage.
(b) Divorced wife.
(c) Unchaste widow.
436. W hich se c tio n o f th e H indu S u ccession Act lays dow n t h e o r d e r o f su c c e ss io n
am ong th e h eirs:
(a) Sec. 6.
(b) Sec. 7.
(c) Sec. 8.
(d) Sec. 9.
437. Which sectio n of th e Hindu S uccession Act lays dow n t h e ru le s o f d is t r ib u t i o n of
p ro p o situ s' p ro p erty am ong th e Class I h e irs:
(a) Sec. 6.
(b) Sec. 7.
(c) Sec. 8.
(d) Sec. 10.
438. Which sectio n of th e Hindu S uccession Act lays dow n t h e ru le s o f d i s t r ib u t i o n of
prop erty of an i n te s ta te am ong h e irs in Class II:
(a) Sec. 6.
(b) Sec. 8.
(c) Sec. 11.
(d) Sec. 12.
[3 ] DISQUALIFICATIONS UNDER THE HINDU SUCCESSION ACT62
In old Hindu law (i.e. before 1956), several ‘disqualifications’ were recognized which
prevented a heir from inheriting property viz. physical disability/ congenital idiots
and lunatics, murderers, unchaste female (propositus’ own widow), remarried widow,
a convert to another religion (but this disqualification was removed by the Caste
Disabilities Removal Act, 1850), and, ascetics and others who abandoned the world.
Some disqualifications were removed by the Hindu Inheritance (Removal o f
Disabilities) Act, 1928. This Act removed physical disability as a ground for
disqualification.
It has been held that if the disqualified heir recovered from his disqualification
subsequent to the opening of the inheritance, he could recover his share and divest
the estate already vested in other heirs (Kailash v Kishan, Pat 154).
Secs. 24-28 o f the H.S.A. enumerates certain grounds as to the disqualification
of heirs. Sec. 28 makes it clear that no person shall be disqualified on any other
ground whatsoever.
(1) Disease, deformity and unchastity of a widow are no longer disqualifications
(Sec. 28).
(2 ) Mental disability is no disqualification under this Act because it has not
been specified anywhere in this Act.
(3) Remarriage of three widows, before succession opens, disentitles them
from inheritance. These widows are son’s widow, son’s son’s widow and
brother’s widow (Sec. 24). She will be disqualified even if her second
husband has died or she has been divorced.
The widowed mother/ stepmother is not disqualified from inheritance even if
they have remarried (however, if she has remarried after divorcing her husband, she
has ceased to be his wife and therefore will not be his widow when propositus dies).
(4) A Hindu male/ female who converts is not disqualified, but his/ her
children are disqualified. So also the descendants o f the children cannot
inherit, unless such children or descendants are Hindus at the time
when the succession opens (Sec. 26). It does not matter that the convert
ceased to be Hindu before or after the commencement o f the Act.
For instance, P died leaving behind the sons A, B and C. B had earlier
converted to Islam, but he will take his 1/3 share. But B1, son o f B, cannot inherit.
However, if B 1 was born before B’s conversion, then he can inherit.
(5) Sec. 25 disqualifies two sets of murderers, (i) if a heir himself murdered
or abetted the murder of propositus in furtherance o f succession, (ii) if
a heir has murdered/ abetted the murder of someone other than the
propositus in furtherance of succession. This was also the old Hindu law.
The section applies to both testamentary and uitestate succession. The m urder
must be in “furtherance o f succession”. For instance, there was a faction-fight
among 5 brothers A, B, C, D and E. Father sided with one o f the brothers. T he
father got accidentally killed by a blow from A. A will succeed to the property along
with B, C, D and E, as A did not kill his father in furtherance o f the succession.
62. What are the grounds of exclusion from inheritance under die Hindu Succession
Act? Can a lunatic inherit property? [l/.P. PCS Q) 1985]
166 Hindu Law
It is not necessary that such a person should have been convicted o f murder.
If an heir is not convicted under S. 302, IPC, but by giving him benefit o f doubt
he is convicted under S. 324, the disqualification attaches to him. But if he is
acquitted o f the murder charge even on the basis o f benefit o f doubt, the
disqualification does not attach to him ('Cbamanlal v Mohan La! AIR 1977 Del 97).
(6) When succession takes place in terms o f proviso to Sec. 6 , separated sons
are not entided to take any share.
Effect of disqualification — Sec. 27 lays down that “if any person is disqualified from
inheriting any property under this Act, it shall devolve as if such person had died
before the intestate.” Thus, a disqualified person should be treated as non-existent,
and no tide or right to succeed can be traced through him. For instance, P, a Hindu
dies leaving behind a widow W and a widow o f predeceased son, SW, who had
remarried before P died. W will take the entire property as if SW was dead.
[4 ] GENERAL RULES OF SUCCESSION ACT
(1) H alf blood andfull blood (Sec. I S ) - Heirs related to the propositus by full blood
shall be preferred to heirs related by half blood, if the nature o f relationship
is same in every other respect. It cannot be evoked when a particular heir
is to be preferred to another.
(2) Per stripes andper capita rules (Sec. 19)- I f two or more heirs succeed together
to the property of an intestate, they shall take the property per capita (i.e.
439. W hich s e c tio n o f th e H indu S u c c essio n Act lays dow n t h e o rd e r o f su c c e ss io n

am o n g a g n a te s an d c o g n a te s :
(a) Sec. 8.
(b) Sec. 12.
(c) Sec. 13.
(d) Sec. 14.
440. Class II h e irs a re d iv id ed in to how m any c a te g o rie s :
(a) 6.
(b) 9.
(c) 11.
(d) 12.
441. A ste p -m o th e r com es in to th e c ateg o ry of:
(a) Class I heir.
(b) Class II heir.
(c) Agnate.
(d) Cognate.
442. A Hindu widow could be d iv e s te d o f h e r p ro p e rty i n h e r ite d by h e r fro m h e r
h u sb an d if she:
(a) Becomes unchaste.
(b) Re-marries.
(c) Converts to another religion.
per head) and not per stripes (unless otherwise provided in the Act), and as
tenants-in-common and not as joint tenants.
If A dies, leaving B, his son, and C and D (sons o f a predeceased son, X),
then, according to per capita- there will be three shares and eacfy heir (B, C and D)
will get one share i.e. 1/3 each; according to per stripes- there will be two shares o f
B and X and B would get Vi share and C and D will get '/< each.
In both tenants-in-common and joint tenants, property is held joindy, but
there arc vital differences in the incidence of both. ‘Joint tenancy’ means that the
shares o f joint owners are not specified and in the event of the death o f one, the
other takes his interest by survivorship. Tenants-in-common’ means that the share
of each co-owner is a specified share and on his death it devolves on his heirs (thus,
the property in such case will be treated as separate property). So, if two widows
succeed together to the property of the (same) husband, the property in their hands
will be their separate property.
(3) Posthumous child (Sec. 20) - Such child is an heir, but the child must be in
the womb (Justo matrimonio i.e. moment of conception) at the time o f the
death o f intestate and the child must be bom alive.6364
(4) Presumption in case of simultaneous death {Sec. 21) —Where two persons have
died in circumstances rendering it uncertain whether either o f them, and if
so which, survived the other, then for all purposes affecting succession to
property, it shall be presumed, until contrary is proved, that the younger
survived the older. For instance, a father F and a son S die in an air crash.
8 will be presumed to have survived F. This means that F’s property' will
pass to S, and will go to S’s heirs. Younger means younger in relationship,
not necessarily in age.
(5) Preferential right or right of pre-emption {Sec. 22) - When heirs simultaneously
succeed to immovable property/ business of a Hindu male as Class I heirs
and if any of heirs wants to dispose of his or her share in the immovable
property/ business, the other heirs will have a preferential right to acquire
that share. Any transfer in derogation of that right would be voidable, at
the instance o f the co-heirs, who are denied their preferential right.
(6) Partition of dwelling houseM {Sec. 2J) - “Where a Hindu dying intestate has
left surviving him or her both male and female heirs (Class 1) and his or
her property includes a dwelling house wholly occupied by members o f his
or her family, then, notwithstanding anything contained m this Act, the
right of any such female heir to claim partition of house shalln’t arise until
63. W h at is the rig h t o f a child in w om b u n d er the H in d u S u ccessio n A ct?

[Raj. J.S. t999\
64. W h at are the r ig h ts o f a fem ale heir in a dw elling h o u se o c c u p ie d by m e m b e rs
o f H in d u U n d iv id e d family? \Raj. J.S. 1994]
A H indu male d ie d in 1974 leaving behind a widow, two sons and a m arried d a u g h te r.
H e owned only o n e dwelling house in which he was living with his family. H e d id n o t
m ake any will. A fte r his death, his m arried daughter filed a suit for the p a rtitio n o f
house to claim h e r share therein. T he other legal representatives o f the d e c e a s e d
contested the c a s e on various grounds and denied that she had in herited any sh a re in
the house or she w as entitled to a decree o f partition. D ecide. \Deltn J.S. I9V9\
168 Hindu Law
the male heirs choose to divide dicir respective shares therein; but the
female heir shall be cntided to a riglH of residence therein.
Provided that where female heir is a daughter she shall be entitled to residence
right only if she is unmarried or has been deserted by or has separated from her
husband, or is a widow” (It may be noted that a married daughter who left her
husband o f her own accord is not endded to such right).
Hindu tenets treasured the house of family as an impartible asset between a
female and male member. The object of Sec. 23 is to prevent fragmentation o f house
to the prejudice o f males or to prevent compulsion to alienate/ sold house, if it is
incapable of division. Sec 23 will not apply if all heirs are males or females. The rule
enacted in this section has been called a “statutory novelty”.
In Janabcn v T.S. Palani (AIR 1981 Mad 62), the question was whether Sec. 23
restricts the right of female heir to demand partition of house even in cases where there
is only one male heiroi intestate The Orissa High Court has held that if restriction would
, operate even in a case of single male heir, the right of a female to claim partition of
her share would practically be defeated, as single heir may not exercise his claim for
partition while in occupation of house (Hemaatha v Uma AIR 1975 Ori 208).
The Calcutta High Court, however, took the view that Sec. 23 applies even
when there is a single male heir. If he chooses to sell it or in some way rent it or
lease it, then the house will be liable to partition (A;run Kumar v Jnanendra AIR 1975
Cal 232). In Janabai case, the Madras High Court has also opined that if Parliament
had intended that Sec. 23 would not apply in case o f single male heir it could have
added a proviso and in view of the wording o f the section it must be held that
female cannot ask for partition in this case.

(a) A Hindu widow if there are more than one, shall take one share for all the
widows.
(b) The surviving sons, daughters and the mother of the Hindu dying in testate shall
take one share each.
(c) The heirs of the branches of predeceased so n / daughter of a Hindu dying
intestate shall take one share each branch.
444. According to Sec. 6, H.S.A., read w ith t h e p ro v iso , i f a m ale H indu d ie s , his
und iv id ed in te r e s t in th e coparcen ary p ro p e rty s h a ll d ev o lv e by s u rv iv o rs h ip upon
th e surviving m em bers o f th e c o p arc en a ry a n d n o t in a c c o rd a n c e w ith t h e Hindu
Succession A c t However, even in such a case, th e i n te r e s t s h a ll d ev o lv e by i n t e s t a t e /
te s ta m e n ta ry su ccession if:
(a) The deceased had left him surviving a female relative or a male claiming through
such female relative in Class II.
(b) The deceased had left him surviving a female relative or a male claiming through
such female relative in Class I.
(c) The deceased had left him surviving a male relative or a female claiming through
such male relative in Class II.
(d) The deceased had left him surviving a male relative or a female claiming through
such male relative in Class I.
The words ‘wholly occupied’ in Sec. 23 means completely, totally and fully
occupied. Thus, if part of the house is rented out the female will have right to
partition {Usha v Smnti AIR 1988 Cal 115). Further, if the house is unoccupied, then
also the female will have right to partition.
(7 ) Failure o f heirs {Escheat) - The lapsing of property' to the Government in
default o f heirs on the death of the intestate is provided for by Sec. 29 of
the Act. However, the Government will take such property subject to all the
obligations and liabilities to which an heir would have been subject.
Escheat is not very common, as all persons generally make wills, and even
when they do not, some remote relative is bound to come to claim. This section
applies not only to a case where there are no heirs at all, but also to cases where
there are heirs who are disqualified.
[5 ] NOTABLE FEATURES OF THE HINDU SUCCESSION ACT
When a male Hindu dies intestate (without making a will) after 17th June, 1956, and
leaves behind property', which is capable of devolution by succession, the provisions
of Hindu Succession Act, 1956 comes mto operation. The Act is, thus, not
retrospective in operation.
The Act not only codifies the law relating to the intestate succession but also
amends it. The Act purports to override all existing laws whether in the shape o f
texts, enactments, custom or usage (Sec. 4). The Act lays down a uniform system o f
inheritance, applicable to both Mitakshara and Dayabhaga Schools, as also to persons
in certain parts of South India, who were previously governed by the Marumakkatyam,
Alijasantana and Nam budi systems of law. The following are some o f the
distinguishing features of the Act
(1) The Act shall apply to all intestate Hindu succession, except to the
property o f a person to whose marriage provisions o f the Special
Marriage Act, 1954 apply, and to the impartible estates o f Rulers o f
Indian States, succession to which is regulated by special covenants or
agreements or any existing enactments (Sec. 5). With the exception o f
these estates, all other impartible estates are abolished by the Act.
An ‘impartible property’ is one which descends to one member only, either by
custom, or under any provision of law or by the terms of its grant. It may be noted
that if two Hindus marry under the Special Marriage Act, the property o f the
spouses devolves as per the Indian Succession Act, 1925. If, however, they prefer
to marry under the Hindu Marriage Act, their property will be governed by the
H.S.A., 1956.
(2) The Act will not apply to a Mitakshara coparcenary property except
when a coparcener dies leaving behind female heirs mentioned in Sec
6 . The Act lays down new provisions for the devolution o f the property
of a male Hindu (Sec. 8) and of a female Hindu (Sec. 15), dying intestate
i.e. without making a wall or making an invalid will.
170 Hindu Law
(3) H .S.A. and theJoint Family Properif5 - The Act modifies in certain respects
law relating to J FI3. Now the undivided interest of a Mitakshara coparcener
in the JFP on his death does not necessarily devolve by an absolute rule
of survivorship, but may go by any of the following modes:
(a) try testamentary disposition —A Mitakshara coparcener may dispose of
his undivided share through a will (Sec. 30).
(b) by survivorship - In case he does not make a will o f his share, it will
devolve on the surviving coparceners by rule o f survivorship, except
when he dies leaving behind female heirs, etc. under Sec. 6 .
(c) by rule of intestate succession - In case he dies intestate survived by
one or more of Class I female heirs or a male heir claiming through
a female, his undivided interest in the JFP shall not devolve by
survivorship but by intestate succession to the separate property
o f a Hindu male (Sec. 6).
(4) The Act abolishes Hindu Women’s limited estate and confers on her
absolute property right (Sec. 14).
(5) Sec. 23 gives right of residence to a female heir in the dwelling house
o f his intestate family, if she is unmarried or is married but discarded
or is a widow.
(6) No person shall be disqualified from succeeding on the ground o f any disease,
defect or deformity or on any other ground not provided in the Act (Sec 28).
65. D iscu ss th e legislative in ro ad s m a d e in th e law o f c o p a rc e n a ry .

[Punjab C. S. {J. B.) 199b]
445. E x p lan atio n I to Sec. 6 o f th e H indu S u c c essio n Act lays d o w n t h a t : "F o r th e

p u rp o se o f t h is s e c tio n , th e i n te r e s t o f a c o p a rc e n e r s h a ll b e d e e m e d t o b e th e
sh a re in p ro p e rty t h a t w ould have b e e n a llo tte d to h im i f a p a r ti t io n h ad tak e n
p lac e b e fo re h is d e a th , irre s p e c tiv e o f w h e th e r h e w as e n ti t le d t o c la im p a rtitio n
o r n o t." The p a rtitio n re fe rre d to in t h is s e c tio n is:
(a) Notional partition.
(b) Partial partition.
(c) De fa e fo partition.
(d) De ju re partition.
446. Mark th e incorrect s ta te m e n t in le la tio n to Sec. 6, H. S. Act:
(a) The proviso to Sec. 6 imports deemed partition for specific purpose.
(b) The deemed or notional partition effects a severance of status.
(c) The deemed or notional partition demarcates the interest of th e deceased
coparcener.
(d) On the death of a coparcener, neither the separated coparcener nor his heirs are
entitled to claim a share in interest of the deceased coparcener.
447. In w hich o f th e follow ing cases, th e S u p rem e C ourt had o b s e rv e d : "S e c . 6 o f th e
Hindu Succession Act is a m easu re to a m e lio ra te or im p ro v e t h e lo t o f Hindu
w om en. The in te rp re ta tio n w hich we are p lacin g upo n t h e p r o v is io n s o f S ec. 6 will
fu rth e r th e leg isla tiv e in te n tio n w ith reg ard to th e e n la r g e m e n t o f t h e s h a r e o f th e
fe m a le h e irs, q u a lita tiv e ly a n d q u a n tita tiv e ly " :
(a) Gurupad v Hirabai.
(b) V. Tulsamma v V. Shesha Reddy.
(c) Gumpha v Jaibai.
Testamentary Succession (Sec. 30)

B e fo re 1956, a Mitakshara coparcener could not bequeath his undivided interest in
]FP bv will, even if the other coparceners agreed to such disposition. But under Sec.
30, H.S.A., a coparcener can dispose of by will (or other testamentary disposition)
any property which is capable of so being disposed by him in accordance with the
provisions o f the Indian Succession Act or any other law applicable to Hindus. The
Dayabhaga law also provided for such a disposition.
The Explanation to Sec. 30 provides that the interest of a male Hindu in a
Mitakshara coparcenary property or the interest in the property o f tarwad, tavasfi.
Mom, kutnmba or kavam can be disposed of by will.
If a coparcener had died without making a will then his wife would get this property
because she is a female Class I heir and proviso to Sec 6, H.SA. would apply to the
devolution of coparcenary interest of the deceased. If coparcener had died without
making a will, before 1956, then she would get a limited estate in his coparcenary interest
If coparcener had died in 1952 after executing a will, then such will would be
invalid because the H.S.A. (which validates such wills) came mto operation m 1956.
But, here also, his wife would get a limited estate in his coparcenary interest due to
the provisions o f the Hindu Women’s Right to Property Act, 1937.
Nature of Property Inherited from Father under the H.S.A

Under the traditional Hindu law, when a son mhents separate property from his
father, vis-a-vis his own sons, he takes it as JFP. But, under the H.S.A., the property
which devolved on a Hindu on the death of his divided father (in other words, the
separate property o f father) dying intestate after the coming into force o f the
H.S.A., 1956 did not constitute Hindu JFP but his separate property.
Since the H.S. Act has introduced a new set of heirs, when a Hindu inherits
property from his father under Sec. 8 , he takes it as his separate property vis-a-vis
his sons. As Sec. 8 excludes grandson and son alone inherits property. The Parliament
wanted to make a clean break from the old Hindu law in certain respects consistent
with modern and egalitarian concepts (welfare for all) and Sec. 4 o f the Act makes
it very clear that one should look to the Act in case of doubt, and not to the pre
existing Hindu law (ClFT v Chandra Sen AIR 1986 1753).
Circum stances in Which a Coparcener Does Not take by Survivorship

In the following cases, the right of the surviving coparceners to take the interest
of a deceased coparcener by survivorship will be defeated:
(i) Where the deceased coparcener has left male issues, they represent his right
to a share on partition.
(ii) Where the deceased coparcener has left behind a female relative specified
in Sec. 6 , H.S.A.
(iii) Where he has disposed of his interest by a will (Sec. 30, H.SA.).
(iv) Where he has sold or mortgaged his interest with the consent of other coparceners,
(v) Where his interest has been attached in execuuon of a decree against him
during his lifetime.
(vi) Where, on his becoming insolvent, his interest has been vested in the
Official Assignee/ Receiver.
172 Hindu Law
[6] HINDU WOMAN’S PROPERTY': SEC. 1466
Before 1956, woman’s property was divided into:

(a) ‘Stridhatf is her ‘absolute’ property over which she has full rights o f disposal
or alienation e.g. gifts from relations/ strangers; property acquired by self
exertion; property acquired by compromise; property obtained in lieu of
maintenance.
(b) ‘Woman’s/ widow’s estate’ - She is a ‘limited’ owner o f it, as she can’t ordinarily
alienate it (like karta, she can alienate it only in exceptional cases); and on
her death it devolves upon the reversioners (viz. husband’s brother) e.g.
property obtained by inheritance and a share obtained on partition (Sec. 3
Hindu Women’s Right to Property Act, 1937).
While the limited owner has the right of possession, right o f management and
right o f exclusive enjoyment, such owner do not have the right o f disposal by an
act inter vivos (e.g. sale, gift, will) which only an absolute owner possess. Further, on
the death of the limited owner, the property goes to reversioners (heirs o f the last
66. E x a m in e th e scope o f th e b en e fits c o n fe rre d o n H in d u w o m a n b y Sec. 14 of

th e H .S . Act. R efer to d e c id e d c a se s. [HP. PCS (J) 1987]
E lu c id a te and illustrate th e law o n w id o w ’s rig h t to h e r h u s b a n d ’s e sta te in
lig h t o f Sec. 14 o f the H . S. A ct. [Delhi J.S.2000]
448. P, a coparcener, d ie d le a v in g b e h in d h is m o th e r M a n d w idow W. T h e re a fte r, W

a d o p te d X as h is so n . X s u e d f o r p a r titio n a n d c la im e d 1 /2 .
(a) The court will allow 1/4, as on P's death, M and W each will take 1/2.
(b) The court will allow 1 /2 , as on Fs death, M and W each will take 1/4.
(c) The court will allow 1 /3 , as on Fs death, M and W each will take 1/3.
(d) The court will allow 1/2, as on Fs death, M and W each will take 1/2.
449. Mark th e correct m a tc h in g in re la tio n to Sec. 6:
(a) Number of female relatives in Class I of the Schedule, of a male Hindu: 8.
(b) Number of male relatives, claiming through a female, in Class I of th e Schedule,
of a male Hindu: 1.
(d) Only (a).
450. In w hich se c tio n o f th e H indu S u c c essio n Act, 1 9 5 6 g e n e r a l r u le s o f s u c c e s s io n in
t h e c ase o f fe m a le H indus is p ro v id ed ?
(a) Sec. 15.
(b) Sec. 14.
(c) Sec. 18.
(d) Sec. 16. [U ttaranchal PCS (J ) (Prel .) 2002]
451. U nder Sec. 15 (1 ) o f th e H. S. Act, t h e h e irs o f a H indu fe m a le d y in g i n te s t a te
are g ro u p ed in to :
(a) Three categories.

(b) Five categories.
(c) Six categories.
(d) Eight categories.
full owner); while on the death of absolute owner, property (viz. stridhan) devolves
to one’s own heirs (son, daughter, etc) by succession.
A female, however, could alienate her (limited) woman’s estate in exceptional
cases, e.g. legal necessity (marriage of daughter, maintenance of members of family,
obsequial acts/ religious ceremonies of her deceased husband, payments of the
husband’s debts, etc.). The alienation made by her in such cases will be binding on
the reversioners/ coparceners. If a widow, even before her death, hands over the
property to the nearest reversioner, it is known as ‘surrender1.
Stridhan47
According to Mitakshara, ‘stridhan’ is the property given by bride’s father, mother,
husband, brother, father-in-law or mother-in-law (Pritidatta) or anybody else. “What
was given (to a woman) by the father, or received by her before the nuptial fire, or
presented to her at her husband’s marriage, to another wife and the rest (adya) is
denominated stridhan. So also, that which is given by kindred, as well as her marriage-
fee (sit/kd) and anything bestowed after marriage” (Yajnavalkya).
Property inherited by a woman, whether from a male or a female, is not her
stridhan. Property obtained by a woman by adverse possession has been held to be
stridhan. Likewise, unrealized rents and profits accruing from property bequeathed
to a female during her widowhood is her stridhan. So also, property purchased from
stridhan is stridhan. The stridhan property is just like the property o f a coparcener.
According to Dayabhaga, any property which does not confer a limited estate
on a woman is known as stridhan. The following properties give limited estate:
Property acquired by inheritance; Purchase; Partition; Seizure.
Succession to stridhan-. (i) Unmarried woman - first to uterine brothers, then mother,
father, etc. (ii) Married woman - In respect of sulka (a gratuity or marriage-fee for
which a girl is given in marriage), first to uterine brother, then mother, father, and,
heirs o f father. In respect of other stridhan, first to unmarried daughter, then
married daughter, daughter’s daughter, daughter’s son, son, and, son’s son.
C hanges Brought About by the H. S. Act

Sec. 14, H.S.A., 1956 introduced fundamental changes in the concept of woman’s
property:
(1) Any property possessed by a female Hindu, whether acquired before or after
the commencement of this Act, shall be held by her as a full owner thereof
and not as a limited owner.
Explanation - The term “property” includes both movable and immovable property
acquired by a female Hindu by inheritance or device/or at partidon/or in lieu o f
maintenance or arrears o f maintenance/or by gift from any person, before, at or
after her marriage/or by her own skill or exertion/or by purchase or prescription/
or in any other manner/and also any such property held by her as stridhan immediately
before the commencement o f this Act.67
67. W hat is stridhan? [Raj. J .S . 1999]
W hat are the various m o d e s o f a c q u irin g strid h a n u n d e r H in d u law ?

[% • J-S. 1 9 9 2 )
174 Hindu Law
(2) Properly given with limitations - Nothing contained in Sub-sec. (1) shall appl
to any property acquired by gift/ will/ or any other instrum ent/ under a
decree or order of court/ or under an award, where the terms of gift>
other instrument, decree or award prescribe a restricted estate in such property
[Ne/c: There is nothing in Sec. 14 (2) or other sections to qualify the absolute
ownership or led to forfeiture of estate on her ‘remarriage’. The H.S.A. override the
Widow Remarriage Act or any other Act. Once her limited (woman’s) estate becomes
her full or absolute estate (i.e. stridhan) by virtue of Sec. 14, a Hindu female can
alienate it by gift or otherwise.]
Pre-Act Woman's Estate
Sec. 14 has been given retrospective effect. Two conditions are necessary for this:
(a) ownership of property must vest in her, and
(b) she must be in possession of the estate when the Act came in force.
She must be owner of the property Le. she must have acquired title to it. The
property must be in her possession legally. The term “possession” has very wide
connotation, and includes actual (physical) as well as symbolic or constructive
possession e.g. where she is entitled to possession of property, such as when the
property is in possession of a trespasser; property is in possession o f mortgagee,
lessee or licensee.
The term “possession” is co-extensive with the “ownership”. Thus, wherever woman
has ownership of property vested in her she will be deemed to be in possession. In
Mangla Singh v Rattno (AIR 1967 SC 1786), a widow who had entered into possession
452. The h e irs o f a H indu fe m a le u n d e r S ec. 15 (1 ) a re k n o w n a s :

(a) Entries.
(b) P ro p o situ s.
(c) C ollaterals.
(d ) C ognates.
4 5 3 . U n d er Sec. 15 (1 ) (a ), 'h u s b a n d ' d o e s not in c lu d e :
(a) The la st law fully m a rrie d h u sb a n d .
(b) A divorced h u sb an d .
(c) A h u sb an d a g a in st w hom a d e c re e o f ju d ic ia l s e p a ra tio n h a s b e e n p a s s e d an d it
h as b e e n c o m p lied w ith .
4 5 4 . The p ro p e rty th a t a fe m a le H ind u in h e r its fro m h e r f a th e r o r m o th e r is included
in :
(a) Sec. 15 (1 ) (a ).
(b) Sec. 15 (2 ) (a).
(c) Sec. 15 (3) (b).
(d) Sec. 14.
4 5 5 . In re s p e c t o f th e in t e s ta te s u c c e s sio n to th e p ro p e rty o f a H in d u f e m a le (in h e rite d
by h e r from h e r f a th e r o r m o th e r), w h ich o f th e fo llo w in g p e r s o n s w ill b e p referred
firs t:
(a) Son.
(b) H usband.
(c) H eirs o f fa th er.
(d) F ather.
of land belonging to her husband in 1946, and had been illegally dispossessed by her
h u s b a n d ’s brothers in 1954, brought a suit for possession. During the pendency o f
suit, H-S.A. came into force, and widow died in 1958 and her legal representatives
carried on the battle. Held that since the land was possessed by the widow (in a
constructive sense) when she died in 1958, her legal representative succeeds.
Rights o f reversioners - Reversioners are the heirs of the last full owner. Had the
female not intervened h e/ they would have inherited the property in question. Their
rights are as follows:
(i) They can sue for a declaration that alienation by widow is void, and will not
be binding on them after the death of widow.
(ii) They can, after the death of widow or after termination of estate, file a suit
for the possession of ‘improper’ alienation made by widow, from alienee.
The rights o f alienee are co-extensive with that of the widow; the alienee can
retain property so long as the widow is alive. It is important to note that a suit filed
by reversioners before 1956 can be continued and a fresh suit can be filed after
1956. Sec. 14 has abolished the woman’s estate, but the reversioners are still relevant
in respect o f the woman’s estate alienated by her before 1956.
In Teja Singh v Jagat Singh (AIR 1970 P & H 309), a Hindu female alienated
properties before the Act came into force, but alienation is held invalid, consequent
to which the possession is reconveyed to her. Here, the ‘defect’ is cured and the widow
becomes absolute owner, by virtue of Sec. 14 (1). So, the rights o f reversioners
defeated here. By the reversal of transaction no right of reversioner affected, for
he had merely a spes successions or a chance of succession, which may or may not
accrue to him .68
Thus, if a woman make a gift before 1956, and there had been a gift back to
her in 1954 (or in 1959), the ‘defect’ is cured. If reconveyance had taken place before
1956, the female would be deemed to be in possession of property, thus Sec. 14 will
apply. Even if reconveyance occurs after 1956, it would become her absolute property
as Sec. 14 also uses the phrase ‘propern- acquired after the commencement o f this
Act’ (Jagannathan v Kjtnjithapadam Pi/lai AIR 1987 SC 1493).
The Supreme Court observed: The H.S.A. applies even to properties possessed
by a Hindu female which are acquired 'after1 the commencement o f Act, it is futile
to contend that the female shall be in possession of property ‘before’ the coming
68. A w idow o f last H in d u m ale ho ld er gifted a pro p erty to ‘B ’ in 1946. A d e c re e

w as o b ta in e d by the reversioners th a t the said alien atio n w o u ld n o t affect th e ir
rev ersio n ary rights. Subsequently, she validly a d o p te d ‘B’ as so n in 1959. O n
h e r d e a th , th e reversioners filed a su it for p o ssessio n o f th e p ro p e rty a g a in s t
‘B ’. ‘B’ co n tested the su it p leading th at he at any rate has in h e rite d the p ro p erty .
D e c id e . [Delhi J.S. t9S4[
\s4ns. Succession opens on the death of the limited owner i.e. widow. The law then
in force would govern the succession. As on that day, ‘IV being the validly adopted
son, would succeed to estate in preference to the reversioners. However, ‘B ’ would
succeed to estate only as heir to widow’s deceased husband; a son adopted by a widow
is also an adopted son of her deceased husband (‘doctrine of relating back’, as
applied by the Supreme Court in Samin Ram v Kalawali AIR 1967 SC 1961).)
176 Hindu Law
into operation of the Act. If the property itself is acquired after the commencement
o f Act, there could be no question of property being cither in physical or constructive
possession o f female before the coming into operation o f the Act.
Post-Act Woman's Estate69
Any property acquired by a Hindu female after the coming into force o f the Act
will be her absolute property, unless given to her with limitations as mentioned in Sec
14 (2). Sec. 14 (2) enacts a well-established principle o f law viz. if grant is given
subject to some restrictions, the grantee will take the grant subject to these restrictions.
According to Sec. 14, H.S.A., all property in which a woman has a pre-existing
right gets transformed into her absolute estate. However, where a property’ is acquired
under a document which prescribes a restrictive estate, it does not get converted to
absolute estate [Sec. 14 (2)]. In Manna L ai v Raj Kumar AIR 1962 SC 1493), held
that Sec 14 (2) applies where grant itself is the source or origin o f interest created
and not where grant is merely declaratory or definitive o f pre-existing right. If the
source o f right is the document, Sec. 14 (2) will apply; if the document merely
reaffirms a pre-existing right. Sec. 14 (2 ) will not apply ( V\ Tulsamma v V. Shesha
Reddy AIR 1977 SC 1944). The application o f Sec. 14 (2) is limited to only those
cases where a female acquired a title for the first time.
69. A H in d u fem ale a fte r th e p ro m u lg a tio n o f H in d u S u c c e ssio n A ct, 1956 becom es

th e full o w ner o f th e p ro p e rty in h e rite d by h e r in h e r p o s s e s s io n . A re th e re any
ex cep tio n s to th is ru le ? [U.P. PCS (J) 1984\
456. In re sp ec t o f th e in te s ta te succession to th e property o f a Hindu fe m a le (in h erited by her

from h e r husband or father-in-law ), which o f th e follow ing p ersons w ill be preferred first
(a ) D a u g h te r.
(b ) H u sb a n d .
(c ) H eirs o f h u sb a n d .
(d ) F ath er.
(a ) Sec. 15 (2 ) o f th e H. S. A ct is in th e n a tu r e o f e x c e p tio n t o S ec. 15 (1 ).
(b) Sec. 15 (2 ) b e c o m e s o p e ra tiv e w h e n th e fe m a le H in d u d ie s w ith o u t le a v in g any
issu e.
(c) A ste p -so n c an in h e r it to h is s te p - m o th e r a s a n h e ir o f h e r h u s b a n d u n d e r Sec.
15 (1 ) (b ).
458. U nder Sec. 15 ( 2 ) , w hen a H indu fe m a le d ie s i n t e s t a t e w i t h o u t le a v in g any issue
an d leav in g b e h in d p ro p e rty in h e r ite d fro m h e r f a t h e r o r m o th e r, su c h property
sh a ll devolve upon th e :
(a ) H u sb an d.
(b ) H eirs o f th e h u sb a n d .
(c) H eirs o f th e fa th e r.
(d ) H eirs o f th e m o th e r.
459. In c ase o f a fe m a le i n te s t a te dying w ith o u t i s s u e b u t le a v in g h e r h u sb a n d :
(a ) T he h u sb a n d is e n title d to a ll h e r p ro p e rty .
(b ) T he h u sb a n d is n o t e n title d to h e r p ro p e rty .
(c) T he h u sb a n d is e n title d to a ll h e r p ro p e rty e x c e p t p ro p e r ty in h e r it e d fro m her
m o th e r o r fa th e r.
Examples
(i) Where under an agreement, widow took a share in the estate o f joint family
as a life-estate with a vested remainder in favour of others and there was
no indication to show that she took those properties for her maintenance
the case falls under Sec. 14 (2) (Kuftji v Meenakshi AIR 1970 Ker 284).
(ii) A share obtained by a Hindu female in a partition is a type of property
falling under Sec. 14 (1), even though her share is described as a limited
estate in decree/award. Rules of succession laid down in Sec. 15 do not
apply to property acquired by a female Hindu under Sec. 14 (2).
(iii) Where a will confers a life estate. Sec. 14 (2) applies, and where will confer
a full estate, Sec. 14 (1) applies.
(iv) Where no property is given in lieu of maintenance and only a sum o f
money given, then Sec. 14 does not apply.
(v)
If she has only a charge on the property that property does not get converted
into her full estate.
In K Tttlsamma v V, Shesha Reddy™ (AIR 1977 SC 1944), a Hindu widow got
a house as limited owner under a decree of the court, in lieu of her maintenance
out o f JFP, in 1950. She had taken only a life-interest in the properties and there
was clear restriction prohibiting her from alienating her properties. Despite these
restrictions, she continued to be in possession of properties till 1956; and she made
alienations in 1960-61 on the plea that she had acquired an absolute interest in
properties. Thus the question is: What happens when a female Hindu is given some
properties as a settlement recorded in a decree, which prescribes as one of the
conditions that the properties will revert to her reversioners. Held that the widow
is the absolute owner and the restrictions mentioned in the decree to be ignored.
The court observed: The right of the widow to be maintained is of course
not a ju s in remy it doesn’t give her any interest in JFP, but it is certainly jus ad rent
i.e. a right against JFP. Therefore, when specific property allotted to the widow in
‘lieu o f her claim for maintenance’, the allotment would be in satisfaction o f her
jus ad rent - the right to be maintained out of the JFP. It would not be a grant for
the first time, without any pre-existing right in widow. The instrument giving the
property is merely a document effectuating a pre-existing right.
The court held: The Act of 1956 has made revolutionary changes in the
Hindu society' so as to emancipate women in India. Provisions of Sec. 14 must be
•'' v .
f w\
i
70. D e s c r ib e th e f a c ts a n d p rin cip les o f law laid d o w n in V. Tulsanim a v S h e s h a

R eddy. l&y* 1989\
W , a H i n d u w id o w , g o t a h o u se as lim ite d o w n e r u n d e r a d e c re e o f th e c o u r t,
in lie u o f h e r m a in te n a n c e o u t o f J F P in 1950. N o w sh e w a n ts to m a k e g ift o f
th e h o u s e in fa v o u r o f h e r bro th er. C an sh e d o so? D is c u s s in th e lig h t o f S e c .
14 (2) o f th e H . S . A ct, 1956. R efer to c ase law, if any. [Punjab C S. (J. B.) 1999\
[Ans. W g o t the h o u se in recognition o f her pre cxisung nght. In such a case, she
acquires absolute right in the house on the com m encem ent o f the Act. She can m ake
valid gift o f this h o u se in favour o f her brother.)
178 Hindu Law
liberally construed so as to advance the object of the Act which is to enlarge the
limited interest o f widow. Sec. 14 (2) is merely a proviso to Sec. 14 (1). The use of
express terms like “property acquired by a female at a partition”, “or in lieu of
maintenance" or “arrears of maintenance” in Explanation to Sec. 14 (1) clearly
makes Sec. 14 (2) inapplicable to these categories.
In GumpbavJaibai (1994) 2 SCC 511, the question was: If testamentary disposition
of property by a male Hindu by a will which comes into operation after 1956, creating
life interest in favour of his widow, subsists as such after his death or she becomes
an absolute owner by operation of S. 14 (1) read with explanation. Held that Sec. 14
(2) applies because right of maintenance has come to an end after 1956 as a right to
property has been created in favour of woman. The expressions “in lieu of
maintenance” and “arrears of maintenance” have lose their meaning today.
Sec. 30 creates absolute power in a Hindu to dispose o f his property by a will
and includes the right to create limited or restricted estate in favour o f a female.
Thus, if a will gives a female only a limited estate (or life interest), she would be
entitled only to a limited estate under S. 14 (2) and not absolute estate under S. 14
(1). The right of maintenance under a will would be covered by S. 14 (2), as it is
not a pre-existing right.

(a) S ec. 10 (2 ) o f th e H. S. A ct la y s d o w n p e r c a p ita ru le.
(b ) S ec. 10 (3 ) o f th e H. S. A ct lay s d o w n p e r s tr ip e s ru le.
(c) Sec. 19 la y s dow n th a t if tw o o r m o re h e irs su c c e e d to g e th e r to t h e p ro p e rty
o f a n in te s ta te , th e y s h a ll ta k e th e p ro p e r ty p e r c a p ita .
(d ) Sec. 19 lays dow n th a t if tw o o r m o re h e irs su c c e e d to g e th e r to t h e p ro p e rty
o f a n in te s ta te , th e y sh a ll ta k e th e p ro p e rty a s jo i n t te n a n ts .
461. Which of th e following is not a ground o f disqualification under th e Hindu Succession Act?
(a ) M en tal d isab ility .
(b ) U n c h a stity o f a w idow .
(c) A H ind u m a le / fem ale w h o c o n v e rts to a n o th e r re lig io n .
(d ) All of th e above.
462. Which of the following sets o f m urd erers is d isq u a lifie d u n d e r the H indu Succession
Act?
(a) If a n h eir h im se lf m u rd e re d o r a b e tte d th e m u rd e r o f p ro p o s itu s (d e c e a se d ) in

fu rth e ra n c e o f su ccessio n .
(b ) If a n h eir h as m u rd e re d / a b e tte d th e m u rd er of so m eo n e o th e r th a n th e propositus
in fu rth e ra n c e o f su c c essio n .
(c) B o th (a ) a n d (b ).
(d ) Only (a ).
463. Mark th e correct s ta te m e n t:
(a) A m u rd erer is d isq u a lified as a h e ir o n c o n v ic tio n .
(b ) D isq u alificatio n u n d e r Sec. 25 is n o t c o n fin e d to m u rd e re r a lo n e a n d e x te n d s to
th e p erso n s claim ing th ro u g h h im .
(c) C hildren b o rn to th e c o n v e rt b efo re c o n v e rsio n a re n o t d is q u a lifie d a s a heir.
(d) All o f th e above.
[7 ] DISTINCTION BETWEEN MITAKSHARA AND DAYABHAGA SCHOOLS'1
The important points of distinction between the Mitakshara and Dayabbqgi Schools
are:
(1) Regarding joint propern; according to Mitakshara, right to propern- arises by
birth. Therefore, the son is a co-owner with the father in ancestral property.
But in Dayabhaga, right to property arises by death; therefore, son has no
right to ancestral property during fathers lifetime. He can acquire an interest
in the ancestral property only with the consent o f the father. The doctrine
o f pious obligation of son is, thus, not recognized under the Dayabhaga.
(2) The Mitakshara school classifies propern* mainly under two Heads: aprutibandha
daya (unobstructed heritage) and sapratibandisa daya (obstructed heritage).
The Dayabhaga school does not recognize unobstructed heritage.
(3) Partition under the Mitakshara consists merely in severance o f joint status;
it is not necessary to effect partition that there should be an actual division
o f property by metes and bounds.
But in Dayabhaga, partition consists in dividing the property by metes and
bounds among the several co-sharers. Thus, while the family remains
undivided, each coparcener has a certain definite share (specified and fixed)
in the joint property (this is unlike Mitakshara where no member o f the
joint family can predicate a definite share of the joint property as his own).
(4) Unlike Mitakshara, expression of intention to separate is not enough in
Dayabhaga. There must be a separation of the shares and the specific
assignment to a member.
(5) In Mitakshara, son can claim partinon even against the father.
But in Dayabhaga, the son cannot claim partition or even maintenance
during the life of his father. Father has an absolute right to dispose o f the
ancestral property. He can dispose of it by sale, gift or will (in both schools,
the Karta’s power of alienation of ancestral property is the same). On the
father’s death, the sons take the ancestral property' as tenants in common.
Partition consists in splitting up joint possession.
(6 ) In Mitaksfrara coparcenary, there is a community of interest.
But in Dayabhaga, there is a unity' of possession.
Under the Mitaks/kira, a female cannot be a coparcener at ail, and is not
entitled to partition.
But in Dayabhagi, every adult coparcener, whether male or female, can enforce
a partition of the coparcenary property. Further, in Dayabhaga, there cannot
be a coparcenary of father and son, but between uncles and nephews.
71. U n d er M itakshara School there is a recognized tw in m o d e o f d e v o lu tio n o f

p ro p erty by survivorship an d inheritance, while u n d er th e D a y a b h a g a S ch o o l,
on e inode o f devolution o f property is recognized. D iscu ss. [U P PCS (J) t9 9 t\
H o w docs partition differ in D ayabhaga and M itak sh ara Schools?
(UP. PCS (J) /V92]
180 Hindu Law
In both schools, a coparcenary consisting exclusively o f females is not possible.

(7) In Mitakshara, the interest of a member of the joint family would, on his
death, pass to the other members by survivorship.
But in Dayabhaga, the interest of every person would, on a death, pass by
inheritance (succession) to his heirs, like widow or daughter. It does not
recognize the principle of survivorship.
(8) As regards alienation, the Mitakshara members o f joint family cannot dispose
of their shares while undivided.
But in Dcyabhaga, any member of a joint family may sell or give away his
share even when undivided.
(9) As regards inheritance, the principle of inheritance is blood relationship in
Mitakshara, but cognates are postponed to agnates.
But in Dayabhaga, the principle o f inheritance is spiritual efficacy i.e. offering
of pindas. Some cognates like sister's sons are preferred to many agnates.
(10) If a Mitakshara coparcener is given away in adoption, his interest in the
joint family property ceases to exist on his adoption.
While in the case of a Dayabhaga coparcener, the interest continues to vest
in him together with any liabilities attached thereto.
464. R em arriage o f w hich o f th e fo llow ing w idow s, b e fo re s u c c e s s io n o p e n s , d is e n title s

h e r from in h e rita n c e :
(a) Son's widow.
(b) Son's son's widow.
(c) Brother's widow.
465. Mark th e incorrect m atching:
(a) Disqualification on the ground of murder: Sec. 25.
(b) Disqualification on the ground of remarriage: Sec. 24.
(c) Disqualification on the ground of disease and deformity: Sec. 27.
(d) Disqualification on the ground of conversion: Sec. 26.
466. A d isq u a lified p erso n , as p e r Sec. 27 o f th e H. S. Act:
(a) Is treated as non-existent for all purposes.
(b) Transmits no interest to his or her own heir.
(d) Only (b) is correct.
467. A fa th e r F and a son S d ie in an a ir c rash . S w ill b e p re s u m e d t o h a v e survived
F. This m eans t h a t F's p ro p e rty w ill p a ss to S, an d w ill g o t o S's h e irs . Which
se c tio n o f th e Hindu S u ccession Act lay s dow n t h is p r e s u m p tio n in c ase of
sim u lta n eo u s d e ath ?
(a) Sec. 22.

(b) Sec. 21.
(c) Sec. 23.
(d) Sec. 30.
Hindu Law of Succession (Questions/Problems) (Contd.)
468. The p resu m p tio n t h a t th e younger survived th e etder under S e c 21 of th e H. S. Act is a:

(a) Presumption of law.
(b) Presumption of fact.
(c) Rebuttable presumption of law.
(d) Irrebuttable presumption of law.
469. W h en h e ir s s im u lta n e o u s ly su cceed to im m ovable p r o p e rty / b u s in e s s o f a H in d u
m a le a s C lass I h e ir s an d i f any o f h e irs w a n ts to d is p o s e o f h is o r h e r s h a r e in
t h e im m o v a b le p r o p e r t y / b u sin e ss, th e o th e r h e irs w ill h av e a p r e f e r e n ti a l r i g h t t o
a c q u ir e t h a t s h a re . T his rig h t, u n d e r Sec. 2 2 o f th e H. S. A c t is a ls o k n o w n a s:
(a) Right of pre-emption.
(b) Coparcenary right.
(c) S p e s succession is.
470. In r e s p e c t o f t h e p a r titio n o f a dw elling h o u se , a f e m a le h a s:
(a) An absolute right to claim partition.
(b) An absolute right of residence.
(d) No right.
471. In w h ic h o f t h e fo llo w in g c ases, a fe m a le w ill h av e a r ig h t t o c la im p a r t i t i o n o f
a d w e llin g h o u se :
(a) Where there is only one male heir of intestate.
(b) If part of th e house is rented out.
(c) If th e house is unoccupied.
472. T he la p s in g o f p ro p e rty to th e G o v ern m en t in d e f a u lt o f h e irs o n t h e d e a t h o f t h e
i n t e s t a t e is p ro v id ed fo r by Sec. 2 9 o f th e H indu S u c c essio n A ct. T his i s k n o w n a s:
(a) Escheat.
(b) Estoppel.
(c) Deemed partition.
473. M ark t h e incorrect s ta te m e n t:
(a) The Hindu Succession Act is retrospective in operation.
(b) The Act overrides all existing laws whether in th e shape of texts, enactm ents,
custom or usage.
(c) The Act lays down a uniform system of inheritance, applicable to both Mitakshara
and Dayabhaga Schools.
(d) The Act shall apply to all intestate Hindu succession, except to th e property of
a person to whose marriage provisions of the Special Marriage Act, 1954 apply.
474. U n d e r w h ich se c tio n o f th e H indu S uccessio n Act, a c o p a rc e n e r c a n d i s p o s e o f by
w ill (o r o th e r te s ta m e n ta r y d is p o s itio n ) any p ro p e rty w hich is c a p a b le o f so b e in g
d is p o s e d by him in a cc o rd an c e w ith th e p ro v isio n s o f t h e I n d ia n S u c c e s s io n A ct o r
a n y o th e r law a p p lic a b le to H indus?
(a) Sec. 28.

(b) Sec. 27.
(c) Sec. 30.
(d) Sec. 31.
475. The s tr id h a n im p lie s :
(a) Woman's/ widow's estate.
(b) Absolute property of a woman.
(c) Limited estate.
Hindu Law
1B2
476. Which o f the follow ing is not a stridhan?

(a) Property in h e rite d by a w om an, w h eth er from a m ale o r a fem ale.
(b) Property o b ta in ed by a w om an by adverse p ossession.
(c) Gifts from re la tio n s / stran g ers.
(d) P roperty acquired by self-ex ertio n .
4 7 7 . Which section o f th e Hindu Succession Act, 1 9 5 6 has introduced fundamental
changes in th e con cep t o f woman's property?
(a) Sec. 12.
(b) Sec. 16.
(•c) Sec. 19.
(d) Sec. 14. *. .
4 7 8 . Which o f th e follow in g are e ssen tia l con d ition s for th e ap p lication o f Sec. 14 :
I. A Hindu female must have the ownership of the property vested in her.
II. A Hindu female must have acquired some kind of title to the property.
III. A Hindu female must have been in possession of the property.
IV. The acquisition of the property by a female Hindu must be either prior to
after the H. S. Act came into force.
Codes:
(a) I, m and IV.
(b) n , IH and IV.
(c) H i and IV.
(d) I, H, m and IV.
4 7 9 . Any property acquired by a Hindu fem ale after th e com ing in to force o f th e Hindu
Succession Act, w ill be her:
(a) A bsolute property.
(b) Absolute property unless given to her w ith lim itations as m en tio n ed in Sec. 14 (2).
(c) Absolute property unless given to h er w ith lim itations as m en tio n ed in Sec. 14 (1).
(d) Lim ited property.
4 8 0 . In which o f the follow ing cases, Sec. 14 w ill apply:
(a) W here a Hindu fem ale a lie n ated p ro p erties before th e H. S. A ct cam e in to force,
b u t th e court held a lien atio n invalid.
(b) Where a Hindu female has no valid possession of property before th e Act came into force
(c) Where a Hindu fem ale is in possession o f p ro p erty b u t h as n ev e r acquired the
property a t all.
4 8 1 . Mark the incorrect statem ent:
(a) Sec. 14 of th e H. S. Act h as a qualified retro sp ectiv e o p e ra tio n .
(b) Sec. 14 only applies to im m ovable property.
(c) The object of Sec. 14 (2) is to rem ove th e d isab ility on w om en im po sed by law.
(d) Sec. 14 (2) has no application w here th e p ro p erty is acquired b y a H indu female
. *s lim ited e state a t a p artitio n or in lieu of m ain ten an ce.
<•8 2 . which o f the follow ing is not a leading case on wom an's property?
(a) V. Tulsamma v V. Shesha Reddy.
(b) Gumpha v Jaibai.
(c) Munna Lai v Raj Kumar.
(d) Pedasubhayya v Akkam m a.
4 8 3. A reversioner:
(a) Is heir of th e last full ow ner i.e. th e h u sband
(b)
orceSL o ° ^ , t C,arn 10n *U enation bV widow before th e A ct cam e into
(c )
answ ers
(H IN D U LAW)
Chap. 1 38. (b) 77. (d) 116. (d) 154. (a) 193. (d)
1. (d) 39. (c) 78. (c) 117. (d) 155. (c) 194. (d)
2.(d) 40. (a) 79- (b) 118. (c) 156. (a) 195. (c)
3- (a) 41. (b) 80. (a) Chap. 3 157. (a) 196. (a)
4. (c) 42. (c) 81. (d) 119. (a) 158. (c) 197. (c)
5. (d) 43. (c) 82. (c) 120. (c) 159. (d) 198. (b)
6. (c) 44. (d) 83. (d) 121. (c) 160. (d) 199- (a)
7. (d) 45. (d) 84. (c) 122. (d) 161. (c) 200. (d)
8. (d) 46. (a) 85. (b) 123. (b) 162. (c) 201. (b)
9- (a) 47. (a) 86. (d) 124. (d) 163. (a) 202.(c)
10. (d) 48. (d) 87. (a) 125. (d) 164. (d) 203. (c)
11. (c) 49- (d) 88. (a) 126. (d) 165. (d) 204. (d)
12. (d) 50. (c) 89. (b) 127. (d) 166 . (c) 205. (d)
13. (b) 90. (c) 128. (c) 167. (c) 206. (a)
51. (a) 207. (c)
14. (b) 52. (b) 91. (c) 129-(a) 168. (c)
15. (d) 92. (c) 130. (a) 169. (a) 208. (b)
53. (b) 209-(c)
Chap. 2 54. (c) 93. (d) 131. (a) 170. (b)
16 . (a) 94. (b) 132. (a) 171. (d) 210. (c)
55. (d) 211. (c)
17. (a) 56. (d) 95. (d) 133. (b) 172. (a)
18. (c) 96. (b) 134.(c) 173. (c) 212. (d)
57. (c) 174. (d) 213. (d)
19. (d) 58. (d) 97. (0 135. (d)
20. (c) 98. (a) 136. (b) 175. (a) 214. (a)
59. (d) 176. (b) 215. (d)
21. (c) 60. (b) 99. (b) 137. (c)
22. (c) 100. (c) 138. (d) 177. (d) 216. (c)
61. (d) 178. (a) 217. (d)
23. (d) 62. (a) 101. (c) 139. (b)
102. (c) 140.(c) 179. (c) 218. (c)
24. (a) 63. (c)
103. (a) 141. (d) 180. (a) 219. (0
25. (d) 64. (a) 220. (a)
26. (d) 104.(c) 142. (c) 181. (b)
65. (d) 143. (d) 182. (d) 221. (a)
27. (c) 66. (d) 105. (a)
106. (d) 144. (d) 183. (d) 222. (b)
28. (b) 67. (b) 184. (d) 223. (b)
29. (a) 107. (c) 145. (c)
68. (a) 146. (c) 185. (a) 224. (b)
30. (a) 69. (d) 108. (d)
109. (d) 147. (a) 186. (b) 225. (d)
31. (c) 70. (d) 148. (a) 187. (c) 226. (a)
32. (d) 71. (b) 110. (a)
!11. (c) 149.(b) 188. (d) 227. (b)
33. (d) 72. (d) 150. (b) 189. (b) 228. (d)
34. (c) 112. (a)
73. (a) 151. (d) 190. (a) 229. (c)
35. (a) 74. (d) 113. (a) 230. (d)
114. (c) 152. (d) 191. (c)
36. (a) 75. (c) 192. (b) 231. (b)
37. (d) 115. (d) 153- (c)
76. (b)
[ 183)
184 Hindu Law
232. (c) 274. (d) 317. (c) 359. (d) 401. (a) 444. (b)
233. (d) 275. (b) 318. (c) 360. (d) 402. (b) 445. (a)
234. (b) 276. (a) 319. (a) 361. (c) 403. (d) 446. (b)
235. (0 277. (d) 320. (c) 362. (a) 404. (b) 447. (a)
236. (d) 278. (d) 321. (c) 363. (b) 405. (d) 448. (a)
237. (b) 279. (b) 322. (a) 364. (d) 406. (c) 449. (c)
238. (c) 280. (c) 323. (c) 365. (d) 407. (c) 450. (a)
Chap. 4 281. (b) 324. (a) 366. (a) 408. (c) 451. (b)
239- (b) 282. (b) Chap. 7 367. (d) 409. (d) 452. (a)
240. (d) 283. (d) 325. (c) 368. (b) Chap. 11 453. (b)
241. (a) 284. (c) 326. (d) 369. (a) 410. (a) 454. (b)
242. (a) 285. (d) 327. (b) 370. (b) 411. (c) 455. (a)
243. (d) 286. (c) 328. (d) 371. (d) 412. (b) 456. (a)
244.(c) 287. (a) 329. (d) 372. (c) 413. (c) 457. (d)
245. (a) 288. (d) 330. (c) 373. (b) 414. (b) 458. (c)
246.(d) 289. (c) 331. (d) 374. (c) 415. (b) 459. (c)
247. (a) 290. (d) 332. (a) 375. (d) 416. (b) 460. (d)
248. (a) 291. (c) 333. (c) 376. (d) 417. (a) 461. (d)
249. (a) 292. (b) 334. (d) 377. (a) 418. (c) 462. (c)
250. (b) 293. (b) 335. (b) 378.(d) 419. (b) 463. (d)
251. (d) 294. (a) 336. (a) 379. (d) 420. (a) 464. (d)
252. (b) 295. (b) 337. (d) 380. (d) 421. (d) ■ 465. (c)
253. (b) 296. (d) 338. (c) 381. (d) 422. (a) 466. (c)
254. (b) 297. (c) 339. (d) 382. (c) 423. (a) 467. (b)
255. (c) 298. (d) 340. (a) Chap. 9 424. (b) 468. (c)
256. (c) 299- (b) 341. (a) 383. (c) 425. (b) 469. (a)
257. (a) 300. (b) 342. (d) 384. (c) 426. (b) 470. (b)
258. (c) 301. (c) 343. (a) 385. (c) 427. (a) 471. (d)
259. (d) 302. (c) 344. (a) 386. (c) 428. (a) 472. (a)
260. (b) 303. (c) Chap. 8 387. (a) 429. (d) 473. (a)
261. (d) 304. (d) 345. (b) 388. (d) 430. (c) 474. (c)
262. (b) 305. (b) 346. (d) 389. (a) 431. (c) 475. (b)
263. (d) 306. (d) 347. (d) 390. (d) 432. (d) 476. (a)
264. (d) 307. (c) 348. (c) 391. (a) 433. (d) 477. (d)
265. (a) 308. (b) 349. (d) 392. (d) 434. (d) 478. (d)
266. (a) 309. (c) 350. (a) Chap. 10 435. (d) 479- (b)
267. (a) 310. (b) 351. (d) 393. (c) 436. (d) 480. (a)
268. (c) 311. (c) 352. (b) 394. (a) 481. (b)
437. (d)
269. (d) 312. (d) 353. (d) 395. (a) 482. (d)
438. (c)
270. (a) 313. (c) 354. (d) 396. (d) 48.3. (c)
439. (b)
Chap. 5 314. (a) 355. (b) 397.(a) 440. (b)
271. (a) . 315. (d) 356. (d) 398. (d) 441. (b)
272. (c) Chap. 6 357. (a) 399. (d) 442. (d)
273. (a) 316. (b) 358. (d) 400. (d) 443. (d)
HINDU & MUSLIM LAW
RECENT CASES & AMENDMENTS
HINDU LAW
VOID AND VOIDABLE MARRIAGES
Bigamy
Lily Thomas v Union of India (AIR 2000 SC 1650) - This case deals with the,
situation created when a non-Muslim man, married according to religious rites
stipulating monogamy, renounces his religion, converts to Islam and solemnizes a
second marriage according to Islamic rites, without divordng'his first wife. It also
deals with petitions seeking review of the decision in SarUi M u d s /tl’s case; the primary
contention being that the decision resulted in deprivation of the fundamental right
to freedom of religion.
The apex court observed and held as follows:
(i) It is under the Hindu Marriage Act, 1955 that it has to be seen whether the
husband, who has married a second wife, has committed the offence of
bigamy or not.
(ii) If a Hindu wife tiles a complaint for the offence under Sec. 494, IPC, the
offence of bigamy pleaded by her would have to be investigated and tried
in accordance with the provisions of the H.M. Act.
(iii) Conversion or apostasy does n o t automatically dissolve a marriage already
solemnized under the H.M. Act; they continue to be “husband and wife”.
Conversion only provides a ground for divorce under Sec. 13, H.M. Act. So
long as a marriage subsists, another marriage cannot be performed, not even
under any other personal law.
(iv) If the marriage takes place in spite of the fact that a party to that marriage had
a spouse living, such marriage would be vo id under Sec. 11, H.M. Act. Such a
marriage is also void under Sec. 17, H.M. Act under which an offence of bigamy
has been created. This offence has been created by reference. By providing in
Sec. 17 that provisions of Secs. 494-495 would be applicable to such a marriage,
the legislature has bodily lifted the provisions of Secs. 495-495, IPC and placed
them in Sec. 17, H.M. Act. This is a well-known legislative device.
(v) The words "husband and wife" used in Sec. 494, IPC are important in the
sense that they indicate the personal law applicable to them which would
continue to be applicable to them so long as the marriage subsists and they
remain "husband and wife”.
(vi) A person who mockingly adopts another religion where plurality of marriage
is permitted so as to renounce the previous marriage and desert the wife, he
1185)
186 Hindu 8. Muslim Law- Recent Cases & Amendments
cannot be permitted to take advantage of his exploitation as religion is not

a commodity to be exploited. The institution of marriage under every personal
law is a sacred institution. Under Hindu law. marriage is a sacrament. Both
have to be preserved.
(vii) The grievance that the judgment in Sarla M udgal v UOI (1995) 3 SCC 635
amounts to violation of the freedom of conscience and free profession
practice and propagation of religion is far-fetched. Under the constitutional
scheme every person has a fundamental right not merely to entertain the
religious belief of his choice but also to exhibit his beliefs and ideas in a
manner which does not infringe the religious right and personal freedom of
others.
(viii) Prosecution under Sec. 494 in respect of a second marriage under Mohammedan
lawcan be avoided only if the first marriage was also under the Mohammedan
law. Sec. 494 forms part of a substantive law and is applicable to all unless
specifically excluded.
The interpretation of a provision of law relates back to the date of the law itself
and cannot be prospective from the date of the judgment because concededly the
court does not legislate but only gives an interpretation to an exisdng law. The
argument that the second marriage by a convert male Muslim has been made an
offence only by judicial pronouncement is not correct.
Mental Disorder
In R. Lakshm i Narayan v S anthi (AIR2001 SC2110), it was held that to brand the wife
as unfit for marriage and procreation of children on account of the mental disorder
[Sec. 12(l)(b) and Sec. 5 (ii)(b)[, it needs to be established that the ailment suffered
by her is of such a kind or such an extent that it is impossible for her to lead a
normal married life. The standard of proof is strut. Such an inference could not
be drawn from the fact that the wife had been under treatment for some mental
problem before marriage and that there was no cohabitation between the parties
for a short period of one month during which thev stayed together.
Fraud
In Asha Qureshi v A faq Q ureshi (AIR2002 M.P. 263), it was held that suppression and
active concealment of the tact of her earlier marriage and she being a widow b)
the wife amounts to material misrepresentation i.c. exercise of ‘fraud’.
Children of Void and Voidable Marriage
In Rameshwari Devi v S ta te o f Bihar (AIR 2000 SC 735), the court stated that under
Sec. 16 ot the II.M. Act, children of void anti voidable marriage are legitimate'
JUDICIAL SEPARATION AND DIVORCE
In Ram Lakhan v Prem Kumari (AIR2003 Raj 115), it was held: Sec. 13,1I.M. Act does n<<
envisage luxury. The provisions are meant to preserve the meaning of life. Personal la"*
may be different from Laws of equity nonetheless they are based on equitable juditi011''
perception and appreciation of facts and circumstances in their light.
Hindu & Muslim Law- Recent Cases & Amendments 187
Mental Cruelty
Samar Ghosh v Jaya Ghosh [2007(3) SCJ 253] - The case pertains to an unfortunate
matrimonial dispute which has shattered the 22-year old matrimonial bond between
the parties. T he parties are admittedly living separately for more than sixteen and
half rears, the irresistible conclusion would be that matrimonial bond has been
ruptured beyond repair because of the mental cruelty caused by the respondent
wife. When the appellant husband had to go by-pass surgery, even on that occasion,
neither her nor any member of her family bothered to enquire about the appellant’s
healdi.
Observations —The concept of cruelty as summari2 ed in Halsbury’s Laws of lingland
[Vol. 13, 4 '1’ Ed., para 1296] is that in all cases of cruelty (especially mental cruelty),
the entire matrimonial relationship must be considered. Whether one spouse has
been guilty o f cruelty to the other is essentially a question of fact and previously
decides cases have little value. It is undesirable to categorize certain categories o f
acts or conduct as having or lacking the nature or quality which renders them
capable or incapable in all circumstances of amounting to cruelty; for it is the effect
of the conduct rather than its nature which is of paramount importance in assessing the
complaint o f cruelty. Personality and social status, capacity for endurance and the
extent to which that capacity is known to the other party, are relevant factors to
assess the incidents and quarrels between the spouses. Malevolent intention is not
essential to cruelty but it is an important element where it exists.
In 24 American jurisprudence 2d, the “mental cruelty” has been defined as a
course o f unprovoked conduct towards one’s spouse which causes embarrassment,
humiliation, and anguish so as to render the spouses life miserable and unendurable.
The plaintiff must show a course of conduct on the part of the defendant... the
plaintiff need not establish actual instances o f physical abuse.
In j\ ’.G . Oastane v S. Dastane (1975) 2 SCC 326, and, Shobha Ritni v Madhukar
Reddi (1988) 1 SCC 105, it was observed that a reasonable apprehension in the mind
of one spouse that it would be harmful or m|unous to live with the other, is crucial.
Where the conduct complained of itself is bad enough and per se unlawful or illegal,
then the impact or the injurious effect on the other spouse need not be considered.
In such cases, the cruelty will be established if the conduct itself is proved or
admitted. Intention is not a necessary element in cruelty. The relief to the party cannot
be denied on die ground that there has been no deliberate or wilful ill-treatment.
In Parreen Mehta v Inderjit Mehta (2002) 5 SCC 706, the court noted that
‘mental cruelty’ is a state of mind and feeling with one of the spouses due to the
behaviour or behavioural pattern by the other. Unlike the physical cruelty, mental
cruelty is difficult to establish by direct evidence. It is necessarily a matter o f
inference to be drawn from the facts and circumstances of the case.
In -1. Jayachandra v Ante! Kaur (2005) 2 SCC 22. the court observed that the
concept ‘proof beyond the shadow of doubt’, is to be applied to criminal trials
and not to civil matters and certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore, one has to see what the
probabilities in a case are anti legal cruelty has to be found out, not merely as a
matter o f fact, but as the effect on the mind ot the complainant spouse. Cruelty
*n matrimonial life may be of unfounded variety, which can be subtle or brutal.
However, to constitute cruelty, the conduct complained o f should be “grave and
weighty”. It is for the court to weigh the gravity.
188 Hindu & Muslim Law- Recent Cases & Amendments
In I 7nita Suxenu v Punka) Pandit (2006) 3 SCC 788, the court observed: “As
to what constitutes the required mental cruelty will not depend upon the numerical
count of such incidents or only on the continuous course of such conduct but really
on the intensity, gravity and stigmatic impact of it when meted out even once and
the deleterious effect of it on the mental attitude, necessary lor maintaining a
conducive matrimonial home”.
The court, in the present case, observed that there cannot be any comprehensive
definition of die concept of ‘mental cruelty’ within which all kinds of cases of
mental cruelty can be covered. “No court in our considered view should even
attempt to give a comprehensive definition of mental cruelty.” In Shohha Ranis case,
this court observed that “new type of cruelty may crop up in any case depending
upon the human behaviour, capacity and incapacity to tolerate the conduct complained
of. Such is the wonderful (sic) realm of cruelty”.
The court further observed: In case the marriage has ceased to exist in substance
and in reality, there is no reason for denying divorce, then, the parries alone can
decide whether their mutual relationship provides the fulfilment which they seek.
Divorce should be seen as a solution and an escape route out o f a difficult
situation. Such divorce is unconcerned with the wrongs of the past, but is concerned
with bringing the parries and the children to terms with the new situation and
developments by working out the most satisfactory basis upon which they may
regulate their relationship in the changed circumstances.
The court, no doubt, should seriously make an endeavour to reconcile the
parries; yet, if it is found that the breakdown is irreparable, then, divorce should
not be withheld. The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are bound to be a source o f greater
misery for the parties. Law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be proved; divorce
courts are presented concrete instances of human behaviour as bring the institution
of marriage into disrepute.)
In Navten Koh/i v AW// Kobli (2006) 4 SCC 558, the Court observed: “We have
been principally impressed by the consideration that once the marriage has broken
down beyond repair, it would be unrealistic for the law not to take notice of that
fact, and it would be harmful to society and injurious to the interests o f the parries.
Public interest demands not only that the married status should, as far as possible,
as long as possible, and whenever possible, be maintained, but where a marriage
has been wrecked beyond the hope of salvage, public interest lies in the recognition
of that fact. Since there is no acceptable way in which a spouse can be compelled
to resume life with the consort, nothing is gained by trying to keep the parties tied
forever to a marriage that in fact has ceased to exist.
The Court further observed: “Some jurists have also expressed their
apprehension for introduction of irretrievable breakdown of marriage as a ground
for grant of the decree of divorce. In their opinion, such an amendment in the Act
would put human ingenuity at a premium and throw wide open the doors to
litigation, and will create more problems then are sought to be solved. The other
majority view, which is shared by most jurists, according to the Law Commission
Report, is that human life has a short span and situations causing misery cannot be
allowed to continue indefinitely. A halt has to he called at some stage. Law cannot
turn a blind eye to such situations, nor can it decline to give adequate response to
the necessities arising therefrom.”
H indu & Muslim Law- Recent Cases & Amendments 189
Cruelty is a feeling which one forms in view of the conduct of the other
part)* [Madhavi Ramesh Dudani v Ramesh K. Dudam ArfR 2006 Bom 94). Aspersion
questioning character o f wife as regards her faithfulness as an ideal Hindu wife is
sufficient to form ingredients to constitute cruelty of moral/ mental nature [Rup
Jyoti Das v heron Saikia AIR 2006 Gau 125).
Desertion
Savttri Pandey v Prem Chandra Pandey (AIR 2002 SC 591) - In the present case,
the marriage o f the appellant wife with the respondent was solemnized on 6-5-
1987; they lived together till 21-6-87. According to the appellant, the marriage was
not consummated. After 21-6-87, they began living separately. Sometime thereafter
S, the wife, filed a petition for divorce under Sec 13, H.M. Act on the grounds
o f crueltv and desertion.
Before the Supreme Court, the wife alleged that since it had been proved she
was living separately from the respondent, it ought to have been presumed that he
had deserted her. It was also submitted that S had remarned after the decree of
divorce was granted by the Family Judge and now had a child also; the marriage
ought to be dissolved in the interest of justice. The record showed that S had
remarned during the pendency of P’s appeal against the decree.
The apex court observed: “Desertion”, for the purpose o f seeking divorce
under the Act, means the intentional permanent forsaking and abandonment o f one
spouse by the other without that other’s consent and without reasonable cause. It
means withdrawing from the matrimonial obligation i.e. not permitting or allowing
and facilitating cohabitation between the parties. Cohabitation by the parties is an
essential o f a valid marriage as the object of the marriage is to further the
perpetuation o f the race by permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children.
In other words, there can be no desertion without previous cohabitation by
the parties. The basis for diis theory is built upon the recognized position o f law
in matrimonial matters that no one can desert who does not actively or willfully
bring to an end the existing state of cohabitation. However, such a rule is subject
to just exceptions which may be found in a case on the ground of mental or
physical incapacity or other peculiar circumstances of the case. However, the party
seeking divorce on the ground of desertion is required to show that he or she was
not taking the advantage of his or her own wrong.
Desertion is not a single act complete in itself, it is a continuous course o f
conduct to be determined under the facts and circumstances of each case. In the
present case, the appellant wife herself pleaded that there had not been cohabitation
between the parties after the marriage. She neither assigned any reason nor attributed
the non-resumption o f cohabitation to the respondent. In fact, it was she who did
not permit the respondent to have cohabitation for consummating the marriage.
Thus, in the absence o f cohabitauon and consummation of marriage, the appellant
was disentitled to claim divorce on the ground ot desertion.
Further, the marriage between the parties cannot be dissolved only on the
averments made bv one of the parties that as the marriage between them has
broken down, no useful purpose would be served to keep it alive. Ihc legislature,
in its wisdom, despite observation of the Supreme Court has not diought it proper
to provide for dissolution of the marriage on such averments. The sanctity o f the
marriage cannot be left at the whims of one of the annoying spouses. “Irretrievable
breakdown of the marriage is not a ground by itself to dissolve if'.
M utual d e sertio n is n o ground u n d e r th e H.M. A c t
In Guru Bachan Kaur v P reeta m Singh (AIR 1998 All. 140), it was held that there is no
such ground like “mutual desertion” in the IIM . Act. The Family Court incorrectly
held that both the parties have deserted each other. It has been judicially doubted
that there can be a mutual desertion. One party has to be held as guilty.
“The view that two spouses in respect of the same parting may each be guilty
of desertion at the same time has, however, been judicially doubted, and expressly
disapproved. The difficulty about the idea of mutual desertion is that it is not
distinguishable easily, if at all, from divorce by a consensual separation for the statutory
period” (Ravden’s Law Practice in Divorce I 'amily Matters, 14th Ed. Page 253).
In the present case, die husband initiated divorce proceedings seven years after
the alleged desertion bv die wife. 'Hie husband never made efforts to accede reasonable
wishes of the serving wife. The wife was ready to live with husband in her flat at
die place of her service (Both husband and wife are in service at Varanasi and
Allahabad respectively). 'Hie husband failed to make a mutual adjustment to maintain
conjugal relations by visiting each other on weekends or as suits them by mutual
adjustment and understanding, when die distance between Varanasi and Allahabad is
125 Kms only. It was held that husband cannot be allowed to take advantage of his
wrong, and therefore the divorce decree granted to him to be set aside.
Irretrievable Breakdown of Marriage

Chetan Das v Kamla Devi (AIR 2001 SC 1709) - In this case, it was held diat adultery
by a spouse seeking divorce on the ground of desertion is adequate justification for
refusing to live with such spouse. Where a party seeking divorce is found in die course
of judicial proceedings to have committed matrimonial offences (viz. adulter)') and has
been unable to establish any allegation against the spouse, a decree of divorce on die
ground of irretrievable breakdown of marriage cannot be granted, llie erring party
cannot be permitted to break the marital bond by taking advantage of his own wrong.
The apex court observed: Matrimonial matters are matters o f delicate human
and emotional relationship. It demands mutual trust, regard, respect, love and
affection with sufficient play for reasonable adjustments with the spouse. The
relationship has to conform to the social norms as well. The matrimonial conduct
has now come to be governed by statute framed, keeping in view such norms and
changed social order. It is sought to be controlled in the interest o f the individuals
as well as in broader perspective, for regulating matrimonial norms for making of
a well-knit, healthy and not a disturbed and porous society.
The institution of marriage occupies an important place and role to play in
the society, in general. Therefore, it would not be appropriate to apply any submission
of “irretrievably broken marriage” as a strait-jacket formula for grant o f relief of
divorce. This aspect has to be considered in the background of the other facts and
circumstances of the case.
It is submitted that this case again brings to the fore the legal position in India
that irretrievable breakdown of marriage is nor in itself a ground for divorce,
though it may well be a factor to be borne in mind when a case is decided.
Hirachand Srinivas Managaonkar v Sunanda (AIR 2001 SC 1285) - In this case, the
respondent wife obtained a decree for judicial separation against her husband, the
appellant, on the ground of adultery. The court had also ordered husband to pay
maintenance to wife and daughter. The appellant did not pay even one instalment
of maintenance and continued to live in adultery. On die other hand, he filed a
petition for divorce under Sec. 13(l-A)(i), I I.M. Act, on the ground that there had
been no resumption o f cohabitation between the parties for a period o f more than
one year after the date on which the decree for judicial separation was passed.
The contention o f the appellant was that any “wrong” committed by him
would not be relevant for purposes of obtaining the relief of divorce under Sec.
13 (1-A); thus. Sec. 23(1) (a) would not be applicable in such a situation.
Dismissing the husband's appeal, the apex court observed and held
(i) The contention that the right conferred by Sec. 13 (1-A) is absolute and
unqualified and is not subject to the provisions of Sec. 23 is fallacious. The
object of sub-sec. (I-A) was merely to enlarge the right to apply for divorce
and not to make it compulsory that a petition for divorce presented under it
must be allowed on mere proof that there was no cohabitation or restitution
for the requisite period.
(ii) After the decree for judicial separation was passed, it was the duty of both
the spouses to do their part for cohabitation. The husband was expected to
act as a dutiful husband towards the wife and the wife was to act as a
devoted wife towards the husband. So it can reasonably be said that in the
facts and circumstances of the case the husband in refusing to pay maintenance
to the wife failed to act as a husband. Thereby he committed a “wrong" within
the meaning of Sec. 23.
(iii) Under Sec. 13(1-A) read with Sec. 23(1) (a) the petitioner does n o t have a
vested right for getting the relief of a decree of divorce against the other party
merely on showing that the ground in Support of the relief sought as stated
in the petition exists.
(iv) ‘Living in adultery’ on the part of the husband is a c o n tin u in g matrimonial
offence. The offence does not get frozen or wiped out merely on passing of
a decree for judicial separation which merely suspends certain duties and
obligations of the spouses in connection with their marriage and does not
snap the matrimonial tie. Accepting the contention that matrimonial offence
of adultery would be deemed to be exhausted once a decree of judicial
separation is passed, would defeat the very purpose of passing the decree
for judicial separation under Sec. 10.
(v) Adecree ofjudicial separation does not sever or dissolve the bond of marriage,
but rather provides an opportunity to the spouses for reconciliation and
readjustment. It would, therefore, be wrong to infer that under Sec. 10(2) the
petitioner has a vested right to a decree of divorce, even if he has made no
attempt at reconciliation or has behaved in a manner to actively prevent it.
(vi) The object and purpose of the Act is to maintain the marital relationship
between the spouses and not to encourage snapping of such relationship.
It has to be kept in mind that human relationship between spouses is a matter
concerning human life. H u m a n life d o c s n o t r u n on d o tte d lin e s o r c h a r te r
c o u rs e la id d o w n b y th e s ta tu te Every attempt should be made to maintain
the sanctity of the relationship which is of importance not only for the
individuals or their children but also for the society. It would be too hazardous
to lay down a general principle of universal application.]
In Buffi v Culab Cband (AIR 2(X)2 M.P. 123), it \vns held that second marriage of
husband docs not mean and cannot be ground of irretrievable breakdown of marriage
In Neeta Kirit Desai v Bino Samuel George (AIR 2003 Bom 7), it was held that
frivolous and vexatious litigation instituted and fought under the pressure of some
family members cannot be used as a ground to contend that the marriage has irretrievably
broken down and it is, for all practical purposes, dead. Acceptance ot such argument
will mean, that in all matters wherever matrimonial litigation went on for 5-10 years, the
divorce must follow. The marriage cannot be dissolved on diis solitary ground.
MAINTENANCE UNDER THE H. M. ACT
In Padmja Sharma v Ratan Lai Sharma (AIR 2000 SC 1398), it was held that an order
under Sec. 26, H.M. Act, in respect of maintenance of children, is never final and a
decree passed thereunder is always subject to modification. In changed circumstances,
the applicant can approach Family Court again for enhancement of maintenance.
REGISTRATION OF MARRIAGES
Seema v Ashwani Kumar (2006) 2 SCC 578 - In this case, the Supreme Court, while
emphasizing the need for ‘Registration of Marriages’ in the country, gave directions
to the Central and State Governments in this regard. The court noted with concern
that in large number of cases, some unscrupulous persons are denying the existence
of marriage taking advantage of the siaiation that in most of the States there is no
official record of the marriage. All the States and the Union Territories indicated their
stand to die effect that registration of marriages is highly desirable. It has been pointed
out diat compulsory registration of marriages would be a step in the right dirccuon
for the prevention of child marriages still prevalent in many parts of the country.
The Apex Court observed:
(i) From the compilation of relevant legislations in respect of registration of
marriages, it appears that there are four statutes which provide for compulsory
registration of marriages. They are: ( I ) The B o m b a y R e g istra tio n o f M arriages
Act, 1953 (applicable to Maharashtra and Gujarat), (2) T he K arnataka
M arriages (R egistration a n d M iscellaneous P ro v isio n s) A ct, 1 9 7 6 , (3) The
H im achal P radesh R egistration o f M arriages Act, 1996, and (4) T he A ndhra
P radesh C om pulsory R egistration o f M arriages A c t , 2002. In all other States,
the registration of marriage is not compulsory.
(ii) In Uttar Pradesh also it appears that the State Government has announced
a policy providing for compulsory registration of marriages by the Panchayats
and maintenance of its records relating to births and deaths.
(iii) Under the S p ecia l M arriage Act, 1954 which applies to Indian citizens
irrespective of religion each marriage is registered by the Marriage Officer
specially appointed for the purpose. The registration of marriage is compulsory
under the Indian C hristian M arriage Act, IH72, Under the said Act, entries
/ are made in the marriage register of the concerned Church soon after the
marriage ceremony along with the signatures of bride and bridegroom, the
officiating priest and the witnesses. The P arsi M arriage a n d D iv o rc e Act,
1936 makes registration of marriages compulsory. The F o r e ig n M arriages
Act, 1969 also provides for registration of marriages.
Hindu & M uslim Law- Recent Cases & Am endments 193
(iv) Under Sec. 8 of the H in d u M a rria g e Act. 1055 . certain provisions exist for
registration of marriages. However, it is left to the discretion of the contracting
parties to either solemnize the marriage before the Sub-Registrar or register it
after performing the marriage ceremony in confomiity with the customary beliefs.
However, the Act makes it clear that the validity of the marriage in no way w ill
be affected by omission to make the entry in the register. The Act also enables
the State Government to make rules with regard to the registration of marriages.
Under Sec. 8 (2), if the State Government is of the opinion that such registration
should be compulsory it can so provide. In that event, the person contravening
any rule made in this regard shall be punishable with fine.
(v) In exercise of powers conferred by Sec. 8 of the H.M. Act the State of U.P. has
framed UP H indu M arriage Registration Rule:;. 10^3 which have been notified
in 1973. In the affidavit filed by the State Government it is stated that the marriages
are being registered after enactment of the Rules. In the State of Hary ana, the
H a rya n a H im fu M arriage Registration Rules. 2001 have been notified.
(vi) The Natidnal Commission for Women is of the opinion that non-registration of
marriages affects the women to a great measure and hence has since its inception
supported the proposal for legislation on compulsory registration of marriages.
Such a law would be of critical importance to various women related issues:
(a) Prevention of child marriages and to ensure minimum age of marriage.
(b) Prevention of marriages without the consent of the parties.
(c) Check illegal bigamy/polygamy.
(d) Enabling married women to claim their right to live in the matrimonial
house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights and other benefits and
privileges which thev are entitled to after the death of their husband.
(t) Deterring men from deserting women after marriage.
(g) Deterring parents/guardians from selling daughter/young girls to any person
including a foreigner, under the grab of marriage.
(vii) Most of the States have framed rules regarding registration of marriages, but
registration of marriage is not compulsory in several States. If the record of
marriage is kept, to a large extent, the dispute concerning solemnization of
marriages between two persons is avoided. If the marriage is registered it also
provides evidence of the marriage having taken place and would provide a
rebuttable presumption of the marriage having taken place. Though, the
registration itself cannot be a proof of valid marriage p e r s e %and would not be
the determinative factor regarding validity of a marriage, yet it has a great
evidentiary value in the matters of custody of children, rights of children bom
from the wedlock of the two persons whose marriage is registered and the age
of parties to the marriage. That being so, it would be in the interest of the
society if marriages are made compulsoril> registrable. The legislative intent in
enacting Sec. 8 of the H.M. Act is apparent from the use of the expression “for
the purpose of facilitating the proof of Hindu Marriages". As a natural
consequence, the effect of non registration would be that the presumption
which is available from registration of marriages would be denied to a person
whose marriage is not registered. Thus, marriages of all persons who are
citizens of India belonging to various religions should be made compulsorily
registrable in their respective Stales, where the marriage is solemnized.
RECENT AMENDMENTS TO THE HINDU SUCCESSION ACT
'Hie 1956 Hindu Succession Act (USA) could not remove completely the persisting
inequalities in favour of women. 1 The sons as coparceners in the joint family
property can additionally claim a direct birth right to an independent share, besides
a claim in the deceased man’s notional partition. A female could not be a coparcener.
The female heirs (e.g. daughter, widow, mother) could claim only in the deceased
man’s notional partition. Consequently, in every joint family, a daughter got a much
smaller share than her brother because she shared equally with him in the father’s
property, whereas the brother in addition had a share in his own right. In this way,
a son can effectively inherit at least three times as much of the ancestral property
as a daughter. Also, sons could demand partition daughters could not [See Secs. 6
and 8].
Further, no female heir can claim partition of a dwelling house until the male
heirs choose to divide their respective shares (Sec. 23). Still further, certain categories
of widows were not entided to inherit the intestate’s property if, on the date of
opening of succession, they have re-married (Sec. 24).
The Law Commission in its 174r!l Report (2000) - ‘Property- Rights of
Women- Proposed Reforms Under Hindu Law’ - recommended for amending
the Hindu Succession Act, 1956." Its primary aim was to remove gender inequalities
under the Act, as it stood before the amendment. The Hindu Succession {.Amendment)
Act, 2005, assented by President of India on September 5, 2005, came into force
on 9th September 2005. It has effected some significant changes in the concept of
Mitakshara coparcenary/JFP, parental dwelling house, and certain widow’s rights.
'The main significant change making all daughters (including married ones) coparceners
in joint family property is of great importance for women, both economically and
symbolically. The amendment abolishes the doctrine of survivorship, modifies the
provisions relating to devolution of interest in Mitakshara coparcenary, the provisions
relating to intestate succession, the category of class I heirs, rules relating to
disqualification of heirs and marginally touches the provision relating to testamentary
succession.
The amendment had also become necessary in view of the changes in I Iindu
Succession Act 1956, in five Indian States namely, Kerala, Andhra Pradesh, Tamil
Nadu, Karnataka and Maharashtra. These States gave daughters, including married
daughters, an equal share in the father’s ancestral property. These States (excluding
Kerala) have granted daughters the right by birth to the family property. In
Maharashtra, the amendment came into force in 1994 and allows a daughter who
married after that date to get her due share in the ancestral property. Kerala has
adopted a more radical course by abolishing the right by birth to the family
property altogether.12
1 When the USA was passed in 1956. the Miiakshura coparcenary system was retained in spite o!
protest by the All India Women's Conference.
2 Ihe Law Commission said that granting daughters equal coparcenary rights with sons in joint
family properly should be made applicable to women who marry after the new amendment comes
into force and not to those who married before the change. It fell that women received quite a lot
dowry at the time ol their marriage However, the said suggestion of the Commission did not find a
place in the 2005 Amendment Act
The 2005 Amendment Act is reportedly similar to the laws enacted in Andhra
Pradesh and Kerala.3 Both the Central and State laws will now co-exist But if there
1S anv repugnancy or contradicuon in a State law, then that will be overtaken. The
Union Act will prevail over an existing or even future law.
[I] Sec. 6. Devolution of Interest in Coparcenary Property

The amended See. 6 reads:
(1) On a m i from the commencement o f the I I.S ..1 . (Am endm ent) .*
*let, 2 0 0 5 , in a jo in t I hndu
family governed by the M ita k sh a ra law . the daughter o f a coparcener shall:
(a) b y b ir th b e c o m e a c o p a rc e n e r in h e r o w n rig h t in th e sa m e m a n n e r a s th e
son:
(b) h a v e th e s a m e rig h ts in th e coparcenary r p r o p e r ty a s s h e w o u ld h a v e h a d
i f s h e h a d b e e n a son:
(c) b e s u b je c t to th e sa m e lia b ilitie s in resp ect o j th e s a id c o p a rc e n a r y p r o p e r ty
a s th a t o f a son.
and any reference to a I lindit M itakshara coparcener shall be deemed to indude a reference to
a daughter of a coparcener.
Provided th a t nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition o f property which had taken place
before the 2 0 th day o f December 2004.
Daughter as Coparcener/Karta
One o f the major changes brought in by the amendment is that in a Hindu joint
family, the exclusive prerogative of males to be coparceners has been changed
altogether and the right by birth in the coparcenary property has been conferred
in favour o f a daughter as well. This radical change has fundamentally altered the
character o f a Mitakshara coparcenary. Now, the daughters have been made
coparceners in the Mitakshara joint family property, with the same rights as sons to
shares, to claim partition and (by presumption) to become Karta (Manager), while
also sharing the liabilities. The discrimination against daughter has been brought to
an end, as her rights and liabilities are the same as that of a son.
Hurdler, daughters would not only be empowered to form a coparcenary along
with their other siblings (irrespective of gender), but would also be competent to start
a joint family herself She can even lx* a Karta, throw her self-acquired earnings into the
joint familv fund, something that was not possible before the amendment, lhe rule that
females cannot form or start a joint family on their own but can continue it even on
the death of a male member in die family but provided they have the capacity to add
a male member to it by birth or through adoption, stands abrogated now.4
It may be noted that the daughters have been made coparceners irrespective of
their marital status. Thus, after the marriage of a daughter, she will continue to be a
' It is noteworth) that while in Kerala, the joint family concept and the pious obligation ol the son
to pay his father’s debts were abolished, the other lour Stales retained both, additionally, introducing
an unmarried daughter as a coparcener. The present Amendment Act incorporates changes that are a
combination of the Andhra and the Kerala model It retains the concept of joint famil) and introduces
daughters as coparceners but abolishes the pious obligation of the son to pa> the debts o f his father.
See. P. Pradii an Saxenu. Family Low II. Lexis Nexis liuiterwonhs. p. 338 (2006).
*I' Hradhan Suxena. Family Law It. Lexis Nexis Uuitcrworihs. p 343 (2006).
coparcener as well as member of joint I Iintlu family because all the members of a
coparcenary arc necessarily the members of a joint Hindu family too (coparcenary
being a narrower body than the joint family), ilvat means, after marriage, the daughter
will be a member of two joint Hindu families. Similarly, children born to her will be
members as well as coparceners in their maternal family as well as paternal family
According to Sec. 6 , after the amendment, daughters become coparceners in the sanie
manner as a son implies not only the daughter but also her children will be coparceners.5
It may further be noted that after the amendment, a female can become Karta
where the family is joint and if she happens to be the senior-most member. She
will continue to be Karta even after her marriage. I Iowever, she may face practical
difficulties in managing the affairs of joint family comprising her natal family
members after her marriage. As a Karta, a female will be entitled to represent the
family and can even acquire the status of the head of the family.67
It needs to be clarified that after the 2005 Amendment, a daughter has been
introduced as a coparcener. A mother and all females who become members of
a Hindu joint family upon their marriage to male coparceners are not coparceners
themselves. Therefore, a distinction has been created between female members of
joint family in relation to their rights over the joint family property*. The two classes
of females are one, who are born in the family and secondly, those who become
members of tliis joint family by marriage to the coparceners. Females, who are
born in die family i.e. daughters, sisters possess a right by birth in the coparcenary
property and those who become members of the joint family by marriage to a
coparcener, are subject to the same law as it stood before the amendment. Their
rights over the joint family property continue to be the same, like maintenance out
of its funds, a right of residence in family house, etc.
Proviso to Sec. 6(1)
Under the Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra amendments to
the Hindu Succession Act 1956, daughters of coparceners, who were married on the
day the amendment was enforced in each State respectively, could not become
coparceners. Only daughters who were “unmarried on such date” could become
coparceners (diey, however, condnued to be coparceners even after marriage). It was
considered necessary as a contrary stand would have disturbed settled claims and titles.
Under the 2005 Amendment, a daughter of a coparcener is included as a
coparcener herself without any reference or limitarion with respect to her marital
status. Therefore, after 6 th September 2005, a daughter who was married even
before this date would be a coparcener. However, to avoid unnecessary confusion
and litigauon, proviso to Sec. 6(1) states: ‘Provided that nothing contained in this
sub-secdon shall affect or invalidate any disposition or alienation including any
parudon or testamentary disposition effected before 20rl' December 2004’. This
was necessary so that setded rights should not be disturbed. The /named daughter,
even though might have been a coparcener, would not be entitled to reopen the
partition already effected, nor would be empowered to challenge the alienation
effected before such date i.e. 20th December 2004. She could succeed if the male
members have not effected a parudon before such date.8
'Id., pp. 136-138.

"Ibid.
7Id., p. 343.
■Id., p. 344.
(7) Any properly to which a female Hindu becomes entitled by virtue 0/ sub-section (I) shall be
held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law for the time betno in force, as property capable
of beino disposed of by her ly testamentan disposition.
Female Coparcener to hold property with incidents of coparcenary ownershiplto
make testamentary disposition
'That means that a female Hindu is not only coparcener but she is also entitled to
bequeath her share in the coparcenary propern, like her male counter-part [for this
reason a change has been made under Sec. 30, by 2005 .Vmendment Act, by substituting
words ‘disposed of bv him or her for the words ‘disposed of by him’]. I lowever,
even before the 2005 Amendment Act, both men and women had full rights to will
away their property, including their shares in joint family property.
(3) Where a Hindu dies after the commencement of the I I.S^ l. (Amendment) Art, 2005, his interest
in the property of ajoint Hindufamily optrrned by the Mitaksbaru law, shad devolve by testamentary
or intestate succession, as the case may be, under this It/ and not by survivorship, and the coparcenary
property shall be deemed to Ikive been divided as if a partition kid taken place and -
(a) th e d a u g h te r is a llo tte d the sa m e sh a re as is a llo tte d to a son;
(b) th e sh a r e o f th e p re -d e c e a se d so n o r a p re-d ecea sed daughter, as th e y w o u ld
h a v e g o t h a d th e y b e e n alive at th e tim e o f partition, s h a ll b e a llo tte d to
th e s u r v iv in g c h ild o f s u c h p r e -d e c e a s e d su n o r o f su c h p r e - d e c e a s e d
d a u g h te r ;
(c) th e s h a r e o f th e p re-d ecea sed ch ild o f a pre-d ecea sed so n o r o f a p re -d e c e a se d
daughter, a s su c h c h ild w ould have got h a d he or sh e been a live at th e tim e
o f p a rtitio n , sh a ll be a llo tted to the ch ild o f such p re -d e c e a se d c h ild o f the
p r e -d e c e a s e d so n o r a p re-deceased daughter, as the case m a y be.
Explanation - I ‘or the purposes of this subsection, the interest of a Hindu Mitaksbaru
coparcener shall be deemed to be the sham in the ptvperty that would have been allotted to him
if a partition of the property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
Abolition of Doctrine of Survivorship/Retention of Notional Partition
The 2005 Act, thus, abolishes the incidents of survivorship - one of the primary
incidents of coparcenary - when a male coparcener dies. Further, in all cases where
a I Iindu male dies, his interest in the Nlitakshara coparcenary would be ascertained
with the help o f a deemed/ notional paruuon. The amendment retains the concept
of notional partition but modifies its application. Pnor to this amendment, notional
partition was effected only if the undivided male coparcener had died leaving
behind any o f the eight Class I female heirs or the son of a predeceased daughter
and did not apply generally in every case of death of a male coparcener.;
v From the use o f the term “his interest” in Sec. 6(3), it appears that the doctrine o f survivorship has
been abolished for male coparceners but has been retained for •females.’ Because according to Sec.
6(2), a female would hold the property with incidents of coparcenary ownership and survivorship
is one o f the basic incidents of coparcenary
further, the present Act provides in detail the calculation of shares while effecting a notional
partition. At present, if a minor child dies, irrespective of the sex. his or her share would be calculated
after effecting notional partition and such share would go b> intestate or testamentary succession, as
the case may be. See, P. Pradhan Saxena. Family Law II, Lexis Nexis Butterworths. pp 346-347
(2006).
Survivorship implies that on the death o f a corparccner, his interest was taken
by the surviving coparceners and nothing remained for his female dependents. This
rule was first modified by the Act of 1937, where the coparceners widow was
permitted to hold on to his share for the rest ot her life, and only on her death
the doctrine of survivorship applied and the male collateral could take the proper^.
The rule was further diluted in 1956, when the I lindu Succession Act was enacted.
The Act confined the application of survivorship only to cases where a male Hindu
died as a member of Mitakshara coparcenary, having an undivided interest in the
property’ and did not leave behind him, a class 1 female heir or the son of his
predeceased daughter [seey proviso. Sec. 6(1)|. In such cases, the application of
doctrine of survivorship was defeated and the interest of the male 1 lindu in the
Mitakshara coparcenary, calculated after effecting a notional partition, went by
intestate succession in accordance with the Act. 10
Thus, practically, the rule of survivorship did not apply because generally a
Hindu male, on his death, leaves behind a female relative specified in Class I or a
male relative who claims through such female relative. *11 It should be noted that
with the retention of doctrine of survivorship, the legislature in 1955, had not
distorted the concept and incidents of coparcenary, and at the same time had not
given the females an unfair deal. This doctrine was applicable only when none of
the class I female heirs was present.
As per the 2005 Act, the doctrine of survivorship has been abolished
unconditionally. Now, if any male Hindu dies, having at the time of his death an
undivided interest in Mitakshara coparcenary, the rule of survivorship would not
apply at all. The abolition of the doctrine might create unequal rights between
surviving coparceners vis-a-vis each other, which is contrary to the basic concept
of coparcenary. For example, a Hindu family comprises of a father F, and two
sons SI and S2 who form an undivided coparcenary. Fach o f them would have
a one-third share in the joint family property. On the death o f S2, the surviving
coparceners would have taken his share by survivorship and their share would have
increased to a half each. After the amendment, the share of S2 would be calculated
after effecting a notional partition, and that would come to one-third. This one-
third would not go by doctrine of survivorship and would go by testamentary (via
Will) or intestate succession. If there is no Will, then this one-third would go
according to the Hindu Succession Act, as per which as between the father and the
brother, the father will be preferred and the brother will be excluded from inheritance
in his presence. Therefore, the father will get two-third of the total property and
the brother would take one-third.1-
Another implication of the abolition of the doctrine of survivorship would be
that a ‘separated* son after having taken his share from the joint family property
would again claim a share, if and when any member of the coparcenary dies intestate.
Hnder the old law, 13 if a son sought partition during the lifetime of father, and
,MP. Pradhan Saxena. i 'amilyLaw II. Lexis Ncxis Uiitiei worths, pp. 340-341 (2006).
11 lor example, a Hindu joint family comprises father 1\ his wife W. and two sons SI and S2. If any
of the male members died between 1956 to September 2005. the doctrine o f survivorship. even
though expressl) retained by and not abolished by the legislature, would not have applied, due to the
presence of W. who is a class I female heir
'* I*. Pradhan Saxena. l ami/v Law II. Lexis Nexis liulterworths. pp. 341-342 (2006).
n l:xplanalion II. Sec. 6 ( Divided coparceners and their heirs not entitled to succeed under Sec. 6 )
has been deleted by the 2005 Amendment.
H indu & Muslim Law- Recent Cases & Amendments 199
separated from the family after taking his share, the remaining family continuing and
maintaining the joint status, on the death of the father, neither such separated son nor
anv o f his heirs were eligible to stake any claim out of the share of the father because
die surviving coparceners would be there to take the fathers share. After die amendment,
if the separated son dies before the father and the father dies later, even then the heirs
of the separated son (viz. his widow and the son) could stake a claim out of the
share o f the (grand) father in the capacity of widow of a predeceased son and son
of a predeceased son. It appears not only anomalous but inequitable too. 14
Allotm ent o f Shares on Partition
As noted above, after the amendment, a daughter is allotted the same share as is
allotted 10 a son. Further, the surviving child of the predeceased son or daughter
would get the share of his or her predeceased father or mother, as the case may
be. Thus, son as well as daughter of the daughters and son as well as daughter of
the predeceased son will get the share of their predeceased mother or hither at
notional partition, irrespective of whether such a child is entitled to claim parution
or not. Similarly, the child of pre-deceased child of the pre-deceased son or a pre
deceased daughter i.e. grand-child is entitled to a share on partition.
Thus, for example, if a 1lindu joint family consists of father, one son and his
wife, wife o f the father and a daughter, on partition, bejon 2005 Amendment, the
father, his wife, and his son will get l/3 rc* share each. The daughter and the son’s
wife will not get any share. After the 2005 Amendment, the daughter too will be
entitled to a share on partition; thus, the father, his wife, his son, and, the daughter
will get l / 4 fl’ sh are each.
Succession to Property of a Hindu Male
Lixtwipie. (fie fo n 2 0 0 5 .-I,maulment )
A Hindu joint family consisting of Father (1*), his Wife (W), his Son (S) having two
children (i.e. grandchildren - SI and Dl); his Daughter (D) having a daughter (i.e.
granddaughter D4); and, a predeceased Daughter (D3) having a son (S2) and a
daughter (D2).
On death of F, by notional partition, the property will be divided into three
shares, one each for F, \V and S. F’s l/3 a share will devolve by succession on all Class
I heirs viz. W (widow), S, D, predeceased D3 (represented by a son and daughter)
—thus, four shares. Therefore, 1/121*1 falling to shares of \\^ S, D and D3 each. Since
D3 is dead, her l/1 2 th share will be divided equally between S2 and D2, each getting
1/24'1’. D4, SI and D l will not get anything as they are not Class I heirs. Only son
and daughter of predeceased son and daughter are Class I heirs.
The shares will be as follows:
W - 1/3 + |/|2 i.e. 5/12.
S - 1/3 + 1/12 i.e. 5/12.
D - 1/12.
S2 & D2 - 1/24 each (total 1/12).
(■'If/er 2 0 0 5 Xmtndmcnf)
On death of F, by notional partition, the property will be divided into five shares,
one each for F, W, S, D and D3. F’s 1/5™ share will devolve by succession on all
14 F Pradhan Saxena. f am i tv law //. Lexis Nexis Puller worths, p. 349 (2006).
Class I heirs viz. W (widow), S, D, predeceased D3 (represented by a son and

daughter) - thus, four shares. Therefore, 1/20 t*1 falling to shares o f VC' S, D and
D3 each. Since D3 is dead, her 1/ 51*' plus 1/201*' i.e. 1/4'1' share wiD be divided
equally between S2 and D2, each getting l/H1*'. D4, SI and D1 will not get
anything as they are not Class I heirs.
The shares will be as follows:
W - 1/5 + 1/20 i.e. 1/4.
S - 1/5+ 1/20 i.e. 1/4/
D - 1/5+ 1/20 i.e. 1/4.
S2 & D2 - 1/8 each (total 1/4).
Succession to Property of a Hindu Female
In the aforesaid example, the succession to the property of predeceased daughter
D3 survived by her husband (II) and a son (S2) and a daughter (D2) will be as
follows:
As noted above, D3’s share in the coparcenary property was l / 5 tl\ This share
of hers is coparcenary property even against her son and daughter because Sec. 6(2)
provides that any property to which a female Hindu becomes entitled by virtue of
Sec. 6(1) shall be held by her with the incidents of coparcenary ownership. Thus,
her interest in coparcenary property will be divided as per notional partition between
her and her son S2 and daughter D2. Thus, D3, S2 and D2, each will get l/1 5 r,\
This 1/15th -will go by intestate succession to her heirs under Sec. 15(1), as
provided in Sec. 6(3) that ‘his interest in the property of a joint Hindu family
governed by the Mitakshara, shall devolve by testamentary or intestate succession
and not by survivorship/ Here portion of Sec. 6(1) which provides ‘any reference
to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener* becomes important. Thus, the expression ‘his* applies to
‘her* too. Therefore, this l/1 5 rl1 is treated at par with her separate property which
thus is her absolute property. According to Sec. 15(1), this 1/15r^ will be divided
in three parts equally between her husband H, her son S2 and her daughter D2,
each getting 1/45 1*1 share. 15
ITie shares will be as follows:
F - 1/5.
W - 1/5.
S - 1/5.
D - 1/5.
D2- 1/15 + 1/45.
S2-1/15+ 1/45.
H - 1/45.
15 h may he noted that in case of a female dying intestate, her interest as determined under Sec. 6(3)
will be succeeded to by her heirs in accordance with Sec. 15(1). Sec. 15(2) cannot apply here because
the interest calculated under Sec. 6(3) is not a share which she inherits from her father. See, Dr. N.
Bharihoke. Modern Hindu Law. Delhi Law Mouse, p. 333. 336-337 (2007).
It may be clarified that a coparcenary interest is acquired b> a daughter by birth and though it comes
from the family of her father, it is not an interest that she has inherited from her parents. In such a
situation, her heirs would be her husband, her children and children of predeceased children. These
heirs would succeed to her properly whether she dies without seeking partition or she dies after
partition.
(4) After the commencement of the H .SA . (.Amendment) Act. 2005. no court shall recognise
any right to proceed against a son, grandson or great-grandson for the recovery of any debt due
from his father, grandfather orgreat-grandfather solely on theground of the pious obligation under
the Hindu law. of such son, grandson or great-grandson to discharge any such debt.
provided that in the case of any debt contracted before the commencement of life H.S~'1
(Amendment) Act\ 2005. the creditor shall have a right to proceed against the son, grandson or
great-grandson [born or adopted prior to the H .SA. (Amendment) Act, 2005]; or. any
alienation made in respect of or in satisfaction of. an) such debt, such right or alienation shall
be enforceable under the rule of pious obligation.
Abolition o f pious obligation of son to pay the debts of father
One o f the features of classical Hindu Law that imposed upon a son, grandson or
great grandson the liability to pay their fathers debts (Tious obligation of son1), has
been abrogated by the 2005 amendment At present, the repayment of debts contracted
by any Hindu would be his personal responsibility and the male descendants would
not be liable to the creditor. Only the debts contracted before the enforcement of
die amendment are subject to the rules of classical Hindu law. The sub-clause is
prospective and thus the liability of son, grandson, etc. under pious obligations for debts
contracted before die Act of 2005 continues.
(5) Nothing contained in this section shall apply to a partition, which had been effected before the
20th day of December 2004.
Explanation - For the purposes of this section. ‘partition ” means any partition made by
execution of a deed of partition duly registered under the Registration .‘let 1908 or partition
effected by a decree of a court.
Partition to be Registered
The Amending Act is prospective in applicauon and therefore its provisions would
not apply to any paruuon that was effected before 20rh December 2004. \
Under the classical law, parddon can be even oral or in writing (unregistered).
The 2005 Amendment does not recognize oral partition for the purposes of Sec. 6 .
The amending Act clearly says that the term 'partition’ used in this whole section (Lc.
Sec. 6) means a partition that is in writing and duly registered or the one that is
effected by a decree of court, in essence, proving which would be easy.
[II] Sec. 8 and Schedule. Definition of Class I Heirs
In tr o d u c tio n o f fo u r n e w h e ir s in C la ss I c a te g o r y
The H.S.A. (Amendment) Act, 2005 does not touch ‘separate property’ except
broadening the Class 1 heirs. The Act makes the heirs of predeceased sons and
daughters more equal, bv including as ('lass 1 heirs two generations o f children of
pre-deceased daughters, as was already the case for sons. Hie Schedule menuoned
in Sec. 8 of the Act has been modified in this respect. This change has been brought
into only in case o f a male intestate, while the category of heirs to a female intestate
has not been touched at all.
In the list of Class 1 heirs, the following heirs have been added (total number
16 now):
(i) Son of predeceased daughter of predeceased daughter (daughter's daughter's
son);
(ii) Daughter of the predeceased daughter of a predeceased daughter (daughter’s

daughter's daughter);
(iii) Daughter of predeceased son of predeceased daughter (daughter's son’s
daughter);
(iv) Daughter of predeceased daughter of predeceased son (son’s daughter’s
daughter).
These four heirs can broadly be described as the great grand children of the
intestate, three through the daughter and one through the son. All these newly
introduced heirs were Class II heirs prior to their elevation to the Class I category.
[III] Sec. 23. Family Dwelling House

Abolition of special rules relating to dwelling house
Under Sec. 23 of the un-amended H.S.A., 1956, in a dwelling house wholly occupied
by members of the deceased's family, no female heir can claim partition until the
male heirs choose to divide their respective shares. Daughters only have rights of
residence, and only if unmarried, or deserted, separated or widowed. A married
daughter had no right of residence in it.
The fragmentation of the dwelling house at the instance of male heirs only
was permissible despite the fact that they might be die owners of a fractional share
(for example, a joint family consisdng of coparcener’s widow, his three daughters
and a son). The practical implication of this statutory interdict on a female heir to
claim partidon of the house till the male heir decides otherwise, resulted in the
denial of any claim over the house. They had its ownership but no right to ascertain
which pordon of the house had come as their share. 16
This section has been deleted by the 2005 Amendment. The married daughters
will also benefit by the deletion of Sec. 23, since now they will have residence and
parudon rights in the parental dwelling house. This will benefit women facing
spousal violence. The unmarried daughters too have the same rights as sons to
reside in and to claim partidon of the parental dwelling house. The deletion of Sec.
23 is a positive step towards gender parity in inheritance laws.
Now, daughters are eligible to inherit and enjoy the property of the father or
the mother in the same manner as the son. Further, irrespective of the nature of
property, whether it is a house, cash, jewellery, shares and stocks, or commercial
ventures, they have not only an ecjual right to own their share, but they can seek
its partition and enjoy it without any impediment. 17
[IV] Sec. 24. Certain Categories of Widows and Inheritance

Under Sec. 24 of the un-amended H.S.A., 1956, the widow of a predeceased son,
or of a predeceased son of a predeceased son or of a brother, is not entitled to
inherit the intestate’s property as a widow, if on the date the succession opens she
has re-married. The 2005 Amendment Act has deleted this section. I Iowever, the
effect of the deletion has not been clarified.
That means the above-mentioned categories of widows can inherit even il they
have re-married. It may, however, be noted that even without Sec. 24 being on paper,
P. Pradhan Saxena. Family Law II. Lexis Ncxis Butlerworths, pp. 352-353 (2006).
17 Ibid.
the situation with respect to these widows has remained the same. Sec. 24 was
superfluous and its deletion therefore would not alter the situation at all. The
disqualification o f remarriage is attached to diose heirs who entered the family “by
marriage,” became widows on die death of the respective male members to whom
diev were married, and went out of the family again by a remarriage. Marriage or
remarriage o f “blood relatives” such as daughters, sisters, mother, is of no consequence,
but remarriage o f son’s widow, son’s son’s widow, or brodier’s widow would mean
that they cease to be members of the intestate’s family, and their inhcntance rights
would be created in the family they are married into 8
[V] Sec. 4(2). Inheritance of Agricultural Land
Deletion of provisions exempting application of the Act to agricultural holdings

Inheritance o f agricultural land is subject to State-level tenunal laws10 and not to
the Hindu Succession Act (it is only if a particular State did not have any such law,
then the 1Iindu Succession Act applied by default)', Many of the tenurial laws
specify inheritance rules that are highly gender unequal.
Sec. 4 (2) prior to the Amendment Act, 2005 laid down that ‘nothing contained
in this Act shall be deemed to affect the provision of any law for the time being
in force providing for the prevention of fragmentation of agricultural holdings or
for the fixation o f ceilings or for the devolunon of tenancy rights in respect o f
such holdings.’
The 2005 Amendment Act has deleted this sub-section i.e. the provision
exempting application of the Act to agricultural holdings. Now, inheritance rights
in all agricultural land are subject to the I iindu Succession Act (overriding State law’s
inconsistent with the Act) and so effectively arc gender equal.
However, by deleting Sec. 4 (2), confusion has been created. State laws, which
provide for prevention of fragmentation of agncultural holdings, fixation o f
ceilings and devolution of tenancy rights, apply to the inhabitants of the State
uniformly, irrespective of their religion. The deletion of Sec. 4 (2), and an implied
presumption that after the amendment, the Hindu Succession Act applies to all
kinds o f property including rights in agricultural land, would mean that now
diversity would exist State-wise with respect to law’s governing agricultural property.
All inhabitants of a particular State, to whom Hindu Succession Act does not
apply, such as non-Hindus, would still be governed by the State laws, while property'
o f those subject to Hindu Succession Act would devolve in a different manner. An
exception therefore would be created in favour of Hindus, generally diversifying^
the application o f laws governing agricultural property."0
G en eral C o m m e n ts on 2005 A m endm ents
H ie recent amendments to the Hindu Succession Act arc quite significant. They are
important steps towards gender equality and abolinon of the patrilineal system of
,M /</.. pp. 3 5 3 -3 5 4 .
w State laws exist in Delhi. U P., M.P., Punjab and Haryana. See, Dr. N Bharihoke. Modern Hindu
Law, Delhi Law House, p. 287 (2007).
20 P. Pradhan Saxena, Family Law //, Lexis Nexis Butterworths. pp. 339-340 (2006).
inheritance prevailing among I Iindus. They can enhance women’s security by giving
them birthrights in property that cannot be willed away by man. In a patriarchal
society where wills (testamentary disposition) often disinherit women, this is a
substantial gain.”1 Also, women can become Kartas of the property'. This will
enhance her confidence and social worth and give her greater bargaining power for
herself and her children, in both parental and marital families.
However, some critics are of the view that what the 2005 Amendment will
achieve is only a marginal improvement on the existing state of affairs. A major
drawback of the Amendment is that it covers only ancestral property’. It does not
take a father’s self-accjuired property into account. The bulk of property and wealth
at least in urban areas (increasingly dominated by nuclear families) falls outside joint
family property addressed by the law (Amendment).~~
There will be hurdles in the implementation of the amendments on account
of opposition from die men. It may lead to an increase in disputes amongst
brodiers and sisters. Some people are worried that the move could fuel female
infanticide. Kvcn the enhanced rights enjoyed by women in some States like
Maharashtra are largely on paper. The mindset in Indian society still has to change.25
It is suggested that the concept o f joint family property should be abolished
altogether as has been done in the State o f Kerala. Making daughters coparceners
will decrease the shares of other Class I female heirs, such as the deceased’s widow
and mother, since the coparcenary share of the deceased male from whom they
inhent will decline. In States where the wife takes a share on partition, as in
Maharashtra, the widow’s potential share will now ecjual the sons and daughters.
But where the wife takes no share on partition, as in Tamil Nadu or Andhra
Pradesh, the widow’s potential share will fall below the daughters.24
Abolishing the Mitakshara system altogether would have been more egalitarian.
But such abolition needed to be dovetailed with partially restricting the right to will
(say to 1/3 of the property). Such restrictions are common in several European
countries. Otherwise women may inherit little, as will often disinherit them. I Iowever,
since the 2005 Act does not touch testamentary freedom, retaining the Mitakshara
system and making daughters coparceners, while not the ideal solution, at least
provides women assured shares in joint family property.25
*' See. 30 ol the MSA allows any Hindu to dispose oil'his properly including his share in the IIUI*
property by a Will. I his section can and has been used to disinherit women. It has been recommended
b) mans that a limitation should be placed on the right to will. Such a provision exists in Muslim law
where a Muslim can only will awa\ up to a maximum ol one-third of Ins property.
The Hindustan Tunes. New Delhi. 19 l ebruai) 2005.
The Tunes of India. New Delhi. 10 March 2005.
N U.P.I). Kesari. Modern Hindu Law. Central I.aw Publications, p. 269 (2006).
'-'Ibid.
RECENTCASESON
HINDUJFP& SUCCESSION
Test for Determination of Joint Family Property (JFP)

In Kesar Bai v Ran Singh (AIR 2003 P&II 289), the deceased coparcener had
inherited propern' from his collateral, which in his lifetime, he never intended to
keep as separate property. It was held to be joint family property as per the
doctrine o f blending.
Mere use of die JFP by the Karta as a business premise for running his
separate business cannot be said to be detrimental to the JFP and therefore earnings
or property acquired through those earnings are his separate property [P.S. Sairam
v P.S. Ramarao Pise) AIR 2004 SC 1619]. In this case, Karta started business by
taking loan from market, in the premises of JFP. This property was not only used
by the Karta bur also by junior members of the family.
Makhan Singh v Kulwant Singh (AIR 2007 SC 1808) - In this case, the issues were
whether a property purchased in the name of a member of a family could be
presumed to be a Joint Hindu Family property merely because of the existence of a
Joint Hindu Family, and, who is required to prove the nature of property whether it
is joint Hindu Family property or self-acquired property. It has been pleaded that the
finding of the High Court that the 11 Marlas purchased by Dula Singh in his own name
which devolved on his sons after his deadi in 1966 too had the character of JFP was
also an erroneous assumption in die light of the judgment in Commr. of Wraith Tax,
Kanpur v Chancier Sen (1986) 3 SCC 567, in winch it has been held that there could be
no presumpdon diat if the property purchased by a father fell to his son by inheritance
it was deemed to be in his position as a Karta of a I Iindu Undivided Family.
In D.S. Lakshmaiah v L. Balasubramanyum (2003) 10 SCC.' 310, it had been
observed that a property could not be presumed to be a Joint FIindu Family property
merely because of the existence of a Joint I Iindu Family. T he one who asserts has
to prove that the property is a JFP. If, however, the person so asserting proves that
there was nucleus with which the JFP could be acquired, there would be presumption
of the property being joint and the onus would shift on the person who claims it
to be self-acquired property to prove that he purchased die property widi his own
funds and not out of joint family nucleus that was available.
The court, in the present case, held: There was no presumption that the property
owned by the members of the joint Hindu Family could a fortiori be deemed to be
of the same character and to prove such a status it had to be established by the
propounder that a nucleus of Joint Hindu Family income was available and that the
said property had been purchased from the said nucleus and that the burden to prove
such a situation lay on the party* who so asserted it. In the present case, certain land
had been purchased bv Dula Singh from his income as an employee of the Railways
and it was therefore his self-acquired property. Such a property falling to his sons by
succession could not be said to be the property ol the Joint Hindu Family.
Property held by a Sole Surviving Coparcener

In Smt. Dipo v IY'assan Singh (AIR 1983 SC 846), two brothers inherited die property'
from their father. A partition took place between them. One brother ‘X* had a
daughter and a son. Flis son took the Xs properties by survivorship on Xs death.
but the son died without leaving any male descendants. Therefore, his sister (Xs
daughter) claimed the properties by succession. I lowever, the sons of other brother
<Y> raised a dispute that they were the rightful owners of the X’s property. They
contended that the properties in the hands of X’s son were ancestral property and
in Punjab, a female cannot own ancestral property.
The Supreme Court held that the proper ty held by a sole surviving coparcener
may constitute his separate property and on his death it will devolve by succession
on his heirs, and any custom giving preference to collateral would be void. The
court observed that the character of the property varies, depending upon who the
claimant is. In the absence of any male issue, X’s son held it during his lifetime as
a sole surviving coparcener and its character with respect to both his sister and the
collaterals (sons of <Y>) was that of a separate property, which will go by inheritance
to the nearest heir (his sister).
If Xs son had the male issues, the character of the property would have been
ancestral. In the absence of male issues, though he holds it as a sole surviving
coparcener and is entitled to treat it as his separate property, its character as a
coparcenary property will revive the moment he gets a son. Thus, in the absence
of any surviving member of joint family be it a descendant or otherwise, who
could take the property by survivorship, his property was not ancestral or coparcenary,
but was his separate or absolute property.
The sole surviving coparcener holds the family property as his separate property,
but it would be subject to its becoming coparcenary at any moment when he has
male issue or when an adoption is made by or to him or to a predeceased
coparcener in the family [Mohinder Singh v Gurbax Singh (2004) 138 P.L.R. 154].
Similarly, in Fateh Singh v Lakhbir Singh (2004) 136 P.L.R. 881, it was held that the
sole surviving coparcener can deal with such property in the manner he deems fit
and can also bequeath the same by way of will.
Alienation of Joint Family Property
M/s. Nopany Investments (?) Ltd. v Santokh Singh (HUF)> 2007 (13) JT 448 - In
this case, the issue was whether a younger coparcener could file the suit for eviction,
in the capacity of the Karra of a HUF, when, admittedly, an elder member of the
aforesaid HUF was alive.
The court observed: In Sunil Kumar v Ram Prakash (1988) 2 SCC 77, it was
laid down that, in general, the father of a family, if alive, and in his absence the
senior member of the family would be entitled to manage the joint family property.
In Tribhovan Das v Gujarat Revenue Tribunal (1991) 3 SCC 442, the court observed
that a younger member of the joint Hindu family can deal with the joint family
property as manager in the following circumstances:
(i) if the senior member or the Karta is not available;
(ii) where the Karta relinquishes his right expressly or by necessary
implication;
(iii) in die absence of the manager in exceptional and extra ordinary
circumstances such as distress or calamity affecting the whole family
and for supporting the family;
(iv) in the absence of the father: (a) whose whereabouts were not
known or (b) who was away in a remote place due to compelling
circumstances and his return within a reasonable time was unlikely
or not anticipated.
The trial court rebed upon the law discussed in the books namely; *!Principles o f
Hindu Law” by Mulla and Mulla and Shn SV. Gupta on “Hindu Luw'\ wherein it has
been observed that ordinarily, die right to act as the Karta of HUF is vested in the
senior-most male member but in his absence, the junior members can also act as Karta.
The High Court rejected die argument of the appellant that Jasraj Singh could
not have acted as the Karta of the family as his elder brother, namely, Dhuman Raj
Singh, being the senior-most member of the HUH, was alive. It is true that in view
of the decisions o f this court in Sunil Kumars case and Tribhoiunduss case, it is only
in exceptional circumstances that a junior member can act as the Karta of the family.
But we venture to mention here that Dhuman Raj Singh, the senior member o f the
HUF, admittedly, has been staying permanendy in the United Kingdom for a king
time. In Tribhovandas case itself, it was held that if die Karta of the HUF was away
in a remote place (in diis case in a foreign country) and his return within a reasonable
time was unlikely, a junior member could act as the Karta of the family.
Sunil Kumar v Ram Prakash (1988) 2 SCC 77 - In this case, the issue was whether
a suit for permanent injunction by a coparcener against the father for restraining
him from ahenating the house property belonging to die joint Hindu family for
legal necessity’ was maintainable.
The court observed: At the outset it is to be nouced that in a suit for
permanent injuncuon under Section 38 of the Specific Relief Act by a coparcener
against the father or Manager of the joint Hindu family property, an injunction
cannot he granted as the coparcener has got equally efficacious remedy to get the
sale set aside and recover possession of the property. Thus, a suit for permanent
injunction by a coparcener against the father for restraining him from ahenating the
house property- belonging to the joint Hindu family for legal necessity’ was not
maintainable because the coparcener had got the remedy of the challenging the sale
and getting it set aside in a suit subsequent to the completion o f the sale.
The Supreme Court observed: It is true that a coparcener takes by birth an
interest in the ancestral property, but he is not entitled to separate possession of the
coparcenary estate. His rights are not independent of the control of the Karta. It
would be for the Karta to consider the actual pressure on the joint family estate.
And it would be for him to examine as to how best the joint family estate could
be beneficially put into use to sub-serve the interests of the family. A coparcener
cannot interfere in these acts of management. If there is no such need or benefit,
the purchaser takes risk and the right and interest of coparcener will remain
unimpaired in the alienated property.
No doubt die law confers a right on the coparcener to challenge the alienation
made by Karta, but that right is not inclusive of the right to obstruct alienation. For
the right to obstruct alienation could be considered as incidental to the right to
challenge the alienation. These are two distinct rights. One is the right to claim a
share in the joint family estate free from unnecessary and unwanted encumbrance.
The other is a right to interfere with the act of management of the joint family
affairs. The coparcener cannot claim the latter right and indeed, he is not entitled
to it. Therefore, he cannot move the court to grant relief by injuncuon restraining
the Karta from alienating the coparcenary property. An injunction cannot be granted
when a party could obtain an efficacious relief by any other usual m ode o f
proceeding (except in case of breach of trust). The coparcener has adequate remedy
to impeach the alienation made by the Karta. If it is held that such a suit would
be competent the result would be that each time the manager or the Karta wants
to sell property, the coparcener would file a suit which may take number o f years
for its disposal. The legal necessity or the purpose of the proposed sale which may
be o f pressing and urgent nature, would in most cases be frustrated bv the time
the suit is disposed of.)
In Stibbodkiwiar v Bhu°mwt Numdeoruo Me/jefne (AIR 2007 SC 1324), the court
observed: A Karra has power to alienate for value the joint family property either for
necessity or for benefit of the estate. I le can alienate with the consent of all the
coparceners of die family. When he alienates for legal necessity he alienates an interest
which is Larger than his undivided interest. When the Karta, however, conveys by way
of imprudent transaction, the alienation is voidable to the extent of the undivided
share of the non-consenting coparcener.
Where the Karta alienated the joint family property without the consent of
other coparceners and without any legal necessity or for the benefit of estate it was
held that such alienation was invalid even for the share of the Karta |Situ/ Sinqfj v
Jumna Bui (2004) 138 P.L.R. 565).
Dev Kishan v Ram Kishan (AIR 2002 Raj 370) - In this case, die validity of alienation
of certain properties belonging to the joint family by the Karta of the family was in
issue. The substantial question of law was whether the taking of the debt by a major
member of the family for the marriage of a minor member of the family is a debt
incurred for a legal necessity or is for illegal purpose? The Karta of the family
executed a mortgage, a sub-mortgage and a sale of two houses (JFP) worth around
Rs. 8,000-9,000 for a consideration of Rs. 400-900 for the alleged necessity of
marriage of his three minor children who were in the age group of 8 -1 2 years.
The court held that where the marriage of the minor was performed in
violation of the provisions of the Child Marriage Restraint Act, 1929, the debt
having been incurred for that purpose, which was not lawful, cannot be regarded
as a lawful debt and alienation on that ground cannot be regarded as a lawful
alienation binding upon the minors. If the property was mortgaged or sold for the
purpose of marrying minors, such transactions would be opposed to public policy,
in view of the prohibition of child marriage under the Act of 1929. The Bombay
High Court in Wumbbuu Gunjuram and the Orissa High Court in Mabesbwar Dus v
Sakhi Dei (AIR 1978 Ori 84) case similarly opined.
'Hie court did not found the view taken by the Allahabad High Court in
Rurusram v Smt. Nuruini Dei/i (AIR 1972 All 357) and that by the Punjab and
Haryana High Court in Ru/ia v Jugdish (AIR 1973 P&f I 335) to be correct. In the
latter case, it was held that where the Karta effected sale of the ancestral land to
make provision for the marriage of his son who was nearing the age when he
could have been lawfully married, the sale was a valid sale for necessity.
Gift of Love and Affection by Father

In R Kuppuyee v Raja Gounder (2004) 1 SCC 295, the issue was whether the gift/
setdement made by the father in favour of his married daughter out o f natural love
and affection of a reasonable extent of immovable property (one-twentysixth) out
of the joint family property is valid. The trial court held that since the property in
dispute was ancestral in nature, the respondent father had no power/authority to
make a gift of a part of the ancestral property in favour of his daughter. The I Iigh
Court also took the similar view.
'Hie father had executed a registered deed of settlement in favour of his
married daughter and had delivered possession to her. Later, he himself wanted to
vitiate the settlement. He took the ground that this being a joint family property,
he was incapable o f making a gift in favour of the daughter and even if he were
so capable, the gift was bad as it was not of a small portion. The Supreme Court,
however, upheld the validity of the gift.
T he Apex Court held that the father can make a gift of ancestral immovable
property to his daughter within reasonable limits. The question as to whether a
particular gift is within reasonable limits or not has to be judged according to the
status o f the family and the extent of the property gifted. If a gift was not within
reasonable limits, such a gift would not be upheld as gift.
Rights of Alienee
In Prem Singh v Dharam Singh (2005) 139 P.J-R. 334, die vendor (alienor) required
money for the treatment of a medical disorder. The vendee (alienee) proved that
the vendor needed money for legal necessity. It was held that the vendee had
discharged his onus and just because the vendor was shown to having money in
the bank account is not enough to disprove die fact of legal necessity.
Partition
Merc fact that the parucs are living separately and culuvadng land separately will not
prove partition [Run/u Nugfippa Mahar v A'. Siallappa Mahar AIR 2006 Kamt. 31 j.
M.L. Subbaraya Setty v M.L. Nagappa Setty (AIR 2002 SC 2066) - In this case, the
court observed: On a parddon by severance of the joint status, the members of
the family become tenants-in-common of the family property. If one o f the
members remains in possession of the entire properdes of the family, there is no
presumption that the property, which as acquired by him after severance o f the
status, must be regarded as acquired for the family. 'The pardes were not liable to
give account to each other for the profits earned by them respectively in their own
business or for the acquisitions made by them in that business. Property acquired
by a member o f the joint family after severance of the joint status had to be treated
as his individual property and the said property could not be regarded as one
acquired for the family. However, where rents and profits are received by the
member in possession, he would be liable to account for the rents and profits
received by him. But the funds in the hands of that member do not become
impressed with any trust in favour of the other members. Therefore, if such a
member acquired some propern' with the funds in his possession, the other members
could claim no share in that property.
The court further observed: If die joint family properties consist of movable and
immovable properties then each part)' must necessarily be given a share in all movable
and immovable properties. I lowever, while effecting partition of joint family properties,
it may not be possible to divide ever)' property by metes and bounds. The allocation
of properties of unequal value may come to the share of a member of a joint family
at the time of effecting partition but for thai necessary adjustments have to be made.
It can also happen that some of the co-sharers on partition may not get any share in
immovable property. No hard-and-fast rule can be hud. It depends upon the facts o f
each case. It depends upon the nature of die immovable property and number o f such
properties as also die number of members amongst whom it is required to be divided
Properties of a large value may go to one member. Projierty of lesser value may go
to another. Wliat is necessary, however, is the adjustment o f the value by providing for
payment by one who gets property of higher value. In short, there has to be equalization
of shares. The property allotted to each co-sharer should bear approximately the same
value as corresponds to lus share.
Another question to be determined is as to the date ot valuation of the
properties in a suit for partition. The court observed: Ordinarily, it has to be the
date of the passing of the final decree and not the date of filing of the suit for
partition. In a given case, however, there may be exception to this general rule. The
legal position is well setded that on mere severance of status o f joint family, the
character of any joint family property does not change with such severance. It
retains the character of joint family property till partition (Wbagvant P. Sulakhe v
Digambar GopalSulakhe AIR 1986 SC 79). The actual partition is effected by passing
of the final decree. The valuation has, thus, to be as on the date o f final decree.
'Hie value of the property is to be ascertained as on the date o f the partition.
Namdev Vyankot Ghad<?e v Chandrakant Ganpot Ghadge (2003) 4 SCC 71 - In this
case, the only question that arises for consideration is whether the adopted son
could divest the property; which devolved on the heirs o f a sole surviving coparcener
and vested in them prior to his adoption so as to claim share in the suit property.
In other words, the issue was whether adopuon of a son, after the death of the
sole surviving coparcener, makes any difference in determining the rights of the
adopted son in relation to the family properties. If the adoption had taken place
during the lifetime of sole surviving coparcener, the adopted son became a member
of the coparcenary to claim the share, as held in Dharma Sbamrao Agalarn v Panclurang
Miragu Agalawe (AIR 1988 SC 845).
This Court in the case of Dharma observed: “The joint family property does
not cease to be joint family property when it passes to the hands of a sole surviving
coparcener. If a son is born to the sole surviving coparcener, the said properties
become the joint family properties in his hands and in the hands of his son. The
only difference between the right of a manager of a joint Hindu family over the
joint family properties where there arc two or more coparceners and the right of
a sole surviving coparcener in respect of the joint family properties is that while
the former can alienate the joint family properties only for legal necessity or for
family benefit, the latter is entitled to dispose o f the coparcenary property as if it
were his separate property as long as he remains a sole surviving coparcener and
he may sell or mortgage the coparcenary property even though there is no legal
necessity or family benefit or may even make a gift of the coparcenary property.
If a son is subsequently born to or adopted by the sole surviving coparcener or
a new coparcener is inducted into the family on an adoption made by a widow
of a deceased coparcener an alienation made by the sole surviving coparcener
before the birth of a new coparcener or the induction of a coparcener by adoption
into the family, whether by way of sale, mortgage or gift would however stand,
for the coparcener who is born or adopted after the alienation cannot object to
alienations made before he was begotten or adopted.”
It is plain and clear that an adopted child shall be deemed to be the child of
his or her adopted father or mother for all purposes with effect from the date oj
adoption as is evident from the main part of Section 12, IIAMA. Proviso (c) to Sec.
12 in clear terms states that ‘the adopted child shall not divest any person of any
estate, which vested in him or her before the adoption.* Thus, in the present case,
Defendant 6 , after having been adopted after the death of sole surviving coparcener
and after the properties vested in his heirs, is not entitled for share in the suit
properties.]
Succession
Application of Sec. 4(2)

In Anudbttr v Chandrupali (AIR 2003 SC 4389), the Supreme Court observed that
where the tenancy law is involved, the succession would be governed by special
mode o f succession in tenancy law and not by the personal law i.e. Hindu law.
Succession to Property of a Male Hindu
Vellikannu v R. Sinâperumal (2005) 6 SCC 622 - In this case, the question was
when the sole male survivor had incurred the disqualification under the Hindu
Succession Act (USA) by murdering his own father, can he still claim the property
by virtue of Mitakshara school of Hindu law? If he cannot get the property by
way o f survivorship, then the question is whether his wife who succeeds through
the husband can succeed to the property?
The appellant's contention was that she being the sole female survivor o f the
joint Hindu family property as her husband stands disqualified, she under proviso
to Sec. 6 o f the Act, is entided to the whole of the estate as a sole surviving
member o f the coparcenary property read with Sec. 8 of the Act as a Class I heir.
The respondent-defendant submitted that this disqualification which was attached
to die son equally applies in the case of the wife as she is claiming the estate because
of her marriage with the respondent and if he is disqualified, then she is also equally
disqualified to claim any property being a coparcener from the estate of her
deceased father-in-law.
The court observed: Sec. 25, HSA, 1956, clearly enunciates that a person who
commits murder or abets the commission of murder shall be disqualified from
inheriting the property of the person murdered, or any other property in furtherance
o f the succession to which he or she committed or abetted the commission o f the
murder. The objects and reasons for enacting Sec. 25 read as under: “A murderer,
even if not disqualified under Hindu law from succeeding to the estate of the
person whom he has murdered, is so disqualified upon principles of justice, equity'
and good conscience. The murderer is not to be regarded as the stock of a fresh
line o f descent but should be regarded as non-existent when the succession opens."
That means that a person who is guilty of committing the murder cannot be
treated to have any relationship whatsoever with the deceased's estate.
Sec. 27, HSA, makes it further clear that if any person is disqualified from
inheriting any property under this Act, it shall be deemed as if such person had died
before the intestate. That shows that a person who has murdered a person through
whom he wants to inherit the property stands disqualified on that account. That
means he will be deemed to have predeceased him.
This position of law was enunciated by the Pnvv Council in 1924 in Kcnchava
Kom Scwyellappii biosmuni v Ginmallappa Chunnuppu Sumasugir (AIR 1924 PC 209): “A
murderer must for the purpose of the inheritance, be treated as it he were dead
when the inheritance opened and as not being a fresh stock of descent; the exclusion
extends to the legal as well as beneficial estate, so that neither he can himself
succeed nor can the succession be claimed through him.”
Thus, once the son is totally dismhented then his whole stock stands disinherited
i.e. wife or son. When the son cannot succeed then the wife who succeeds to the
property through the husband cannot also lay a claim to the property* of her tathcr-
m-law.
212 Hindu & M uslim Law - R ecent C ases & A m en d m e n ts
Partition of Family Dwelling House

S. Noroyonon v Meenakshi (AIR 2006 Ker. 143) - T he questions o f law involved
in this case arc the following:
(1) W hether a suit for partition at the instance o t a daughter o f the
deceased could be defeated by invoking Sec. 23 o f the H indu
Succession Act by the legal representatives o f a deceased son o f
die intestate?
(2) W hether Sec. 23 would be applicable in a case where the deceased
intestate has left behind him only one male issue and w hether it is
necessary that there must be more than one male issues to invoke
Sec. 23?'
(3) W hether die protection in favour o f the male heir under Sec. 23
would be available if he inducts a third party in the dwelling house
or any pordon thereof?
(4) W hether omission of Sec. 23 by the Hindu Succession (Amendment)
Act, 2005 would have any impact on a suit for pardtion or appeal
therefrom pending on the date o f the com m encem ent o f the
Amendment Act?
The property sought to be parti boned was owned by Ramayi who died on 12-9-
1979. Ramayi left behind her four daughters including the plaintiff and a son, the
defendant. After the death o f Ramayi, plaintiff obtained purchase certificate from
the Land Tribunal in her name, but on behalf o f the other co-owners as well. The
three sisters o f the plaintiff released their fractional rights in the property to die
plainuff. Thus the plaintiff claimed 4 /5 share and contended that the defendant has
only 1/5 share. The plainuff also raised a contention that the defendant unauthorisedly
allowed a stranger to occupy a portion o f the house for conducting soda business.
The trial court held that in view o f Sec. 23, the plaintiff cannot claim parduon. On
appeal by the plainuff, the Appellate Court held that Sec. 23 does not apply since
there is only one male heir.
Regarding the second quesdon, held that Sec. 23 would apply even if the
deceased is survived by only one male heir along with female heir or heirs. The
Supreme Court in Narasbimahu Murlhy v Smt. Susheelabai (AIR 1996 SC 1826)
considered the scope and object o f Sec. 23 and held that the object is to prevent
fragmentauon or disintegration o f the family dwelling house at the instance o f the
female heir to the prejudice o f male heirs. Though the words ‘the male heirs choose
to divide their respective shares,’ suggest that at least two such male heirs m ust exist
and decide not to pardtion the dwelling house in which event the right o f the
female heir is postponed and kept in abeyance until the male heir or heirs o f the
Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable
conclusion that the operation o f Sec. 23 m ust stand excluded in the case o f the
Hindu intestate leaving behind him /her surviving only son and daughter.... It looks
nebulous that if there are two males, partition at the instance o f female heir could
be resisted. But if there is one male, it would not.
The next quesdon to be considered is whether the protection available to the
male heir under Sec. 23 would be lost if he inducts a third party in a portion o f the
dwelling house. The expression used in Sec. 23 is “includes a dwelling house wholly
occupied bv members o f his or her family”. The Supreme C ourt in Kantsbimaha
Murthy's case held that if strangers are inducted into the dwelling house it must be
taken that die male heir had lost his <////>////.» possedendi. Hie Supreme C ourt held: It the
H in d u & M u s lim L aw - R ecent C ases & A m en dm ents 213
male heirs derive the right under die provision to resist partition o f the dwelling house
unless they chose to divide their respective shares therein, then correspondingly it is
incum bent on the male heirs to keep the property well arranged, inhabited or occupied
by themselves keeping the property available for the female heirs to enforce the right
to residence therein. But if the latter nght is frustrated on creation o f third party rights
or a contractual o r statutory tenancy, there remains no nght with the males to resist
partition. T he protection under Sec. 23 is not indefeasible. Where a portion o f the
dwelling house is put in the possession o f a stranger, it cannot be said that the
dwelling house is wholly occupied by die members o f the family o f the intestate.
Regarding the fourth question: The right to claim the benefit o f Sec. 23 is
personal to the male heir o f the deceased Hindu intestate. Such a right is not hentable
or alienable. Therefore, whenever the personal nght o f a male heir under Sec. 23
comes to an end, the nght o f the female heir to claim partition cannot be defeated.
In other words, a dcfaceable right of a male heir would get defeated the m om ent
the personal right o f a male heir is taken away by the omission o f Sec. 23 by the
Am endm ent Act, 2005. 'ITie effect o f such omission would be retroactive. Thus, the
omission o f Sec. 23 by the 2005 Amendment would have retroactive effect and
the changed law could be taken note o f and applied in pending litigations. Therefore,
by the om ission o f Sec. 23, the right o f the male heir to claim the benefit o f Sec.
23 would get defeated even in pending litigations.)
Succession to Property of a Female Hindu

In Bhdjp/ Rum v Teju Singh (AIR 2002 SC I), a female I Imdu inherited property
from her m other on the latter's death. After inheriting the property she died issueless.
The question arose whether on her death the said property would devolve on the
legal heirs o f the father (her sister in the present case) o r on the heirs o f her
predeceased husband (husband's brother in the present case). T he court held that
under Sec. 15(l)(b) o f the H.S. Act, if female Hindu dying intestate and issueless,
the devolution o f property has to be on the basis o f the source from which
property was inherited by female.
If the property held by a female was inherited from her father o r m other,
in the absence o f any son or daughter o f the deceased including the children o f
any predeceased son or daughter, it would only devolve upon the heirs o f the
father and in this case her sister, who was the only legal heir o f the father o f the
deceased female I lindu, admittedly inherited the property because the intent o f the
legislature is clear that the property, if originally belonged to the parents o f die
deceased female should go to the legal heirs o f the tadier. Thus, a sale o f such
property by the sister o f the female 1luidu is valid.
In Ugre Cowdu v Nuge Gowda (AIR 2004 SC 3974), the Apex C ourt o b serv ed
that an adoption o f son does not deprive the adoptive m other o f the pow er to
dispose o f her separate property by transfer or b\ will. Hence, such adoption
would not divest the widow o f the suit property which vested in her by succession
on the death o f h er husband.

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Introduction

[1] SOURCES OF HINDU LAW1

1. Give th e m ain sources o f H in d u law. [Ra;. JS . 1991]

Justice, Equity and Good Conscience

Customs and Usages

[2] SCHOOLS OF HINDU LAW3

3. Write a sh o rt note on: M itak sh ara an d D a y ab h ag a Schools. [Bihar J.S. 1991}

5. In respect of family relations, the law applicable in India is:

[3] WHO ARE HINDUS?4

[4] EXTENT AND APPLICATION OF THE H. M. ACT, 1955

Overriding Effect of the Act

Territories to which the H. M. Act Extends

10. Mark the incorrect statem ent:

[1] CONCEPT OF HINDU MARRIAGE: SACRAMENT OR CONTRACT5

5. D e fin e th e n a tu re o f H in d u m a rria g e u n d e r H in d u law. W h a t a re th e

[2] FORMS AND CEREMONIES OF MARRIAGE

14. In which of the following cases, a child could not be a 'Hindu':

by the girl’s father, in lieu of the ‘dakshina’ payable to the priest. It is

[3] VALIDITY OF HINDU MARRIAGE7

(a) is incapable of giving a valid consent owing to unsoundness of mind, or

20. The Hindu Marriage Act, 1955:

(ii) Mental Capacity (Soundness of Mind)

8. Is the follow ing m arria g e valid u n d e r the H . M . A ct a n d w h a t re m e d y is o p e n

(iii) Child Marriage7

(Iv) & (v) Prohibition on Account of Relationship by Blood or Affinity

10. W hat d o you m ean by ‘Sapinda-Relationship’ under the H in d u law?

(i) if one is a lineal ascendant of the other, or

29. A marriage without requisite ceremonies under the H. M. Act is:

A marriage in violation of the requirement of sapinda relationship and degree

Since G is not a sapinda to the common ancestor, even though A is (being

[4] NULLITY OF MARRIAGE

38. Mark the incorrect statement:

impotency can be cured by medical treatment or surgery, it would not amount to

o f ceremony or any material fact or circumstance concerning the respondent (it is

The requirements of the ground under Sec. 12 (1) (d) are:

[5] CHILDREN OF VOID AND VOIDABLE MARRIAGES:

Although distinction between legitimate and illegitimate children is still maintained,

45. Mark the incorrect statem ent:

Position of Illegitimate Children Under the Modern Hindu Law

49. Mark the incorrect statem ent:

[6] RESTITUTION OF CONJUGAL RIGHTS16

Effect of Non-compliance of Decree of Restitution

Right to Set up Matrimonial Home (Case of Working Ladies)

57. Mark the correct statem ent(s):

Hindu Law of Marriage (Questions/Problems) (Contd.)

H indu Law o f M a rria g e (Q uestions/Problem s) ( Contd.)

80. W h ich o f t h e fo llo w in g r e n d e rs t h e m a rria g e v o id a b le u n d e r Sec. 12 ( 1 ) (c) o f th e

Hindu Law of M arriage (Questions/Problems) (Contd.)

91. U nder th e Hindu law:

Hindu Law of Marriage (Questions/Problems) (Contd.)

98. In w hich o f t h e fo llo w in g c a s e s, t h e ap ex c o u rt laid dow n i m p o r ta n t p r in c ip le s in

Hindu Law o f M arriage (Q uestlons/Problem s) (Contd.)

110. A w i t h d r a w s fro m t h e s o c i e t y o f B, w h ile B w a n te d t o r e m a in w ith A. B c a n g e t

) (a) Sexual abuse.

117. M ark t h e incorrect s t a te m e n t :

Problem. A, a H in d u boy, a g e d 18, m a rrie d B , a S ik h g irl a g e d 17, in 1990 a c c o rd in g

Hindu Law o f Divorce

opportunities o f mutual adjustment after a decree of judicial separation. Similarly,

(a) Offence or Guilt or Fault Theory

(b) Consent Theory (Free Divorce)

(c) Breakdown Theory

12 2 . Sec. 13-A: A ltern ate re lie f in divorce p ro c ee d in g s lays down th a t:

Sometimes the determination of the question whether in fact a marriage has