Lectures of Hindu Law

Lectures of Hindu Law

MAINS QUESTIONS

  1. Who is Hindu as per Hindu Marriage Act, 1955? Explain

     

  1. What is the concept of Hindu Law? Point out the position of Hindu Law in Modern Times.

     

  1. Who is a Hindu? Define and explain the position under Modern Hindu law.

     

  1. Define the term Hindu. Can a person be a Hindu by conversion or Reconversion.

     

HINDU?

     

Who are Hindus?

There is no precise definition of term “Hindu” available either in any statute or in any judicial decision. However, since Hindu law applies to all those are Hindus, It is necessary to know who are Hindus. The answer lies in question: to whom does Hindu law apply? The persons to whom Hindu law applies may be put in the following three categories:

  • Any person who is Hindu, Jain, Sikh or Buddhist by religion i.e. Hindu by religion.
  • Any person who is born of Hindu parents (both or even one of the parties) i.e. Hindus by birth.
  • Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law.
  • The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’ with reverence, recognition of the fact that the number of Gods to be worshiped at large, that indeed is the distinguishing feature of Hindu religion.

    In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus.

    If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian

    Presumption of Section 2 (1)(C) This provision raise a presumption that a person who is not known to be a Muslim, Christian, Parsi or Jew shall be considered to be a Hindu for the purpose of this Act. But it is a rebuttable presumption as contemplated in section 2 (1)(c) itself. A person who does not know the religion to which he belongs but it brought up in India as Hindu will be governed by this Act.

    Hindus by Birth

    Under Modern Hindu law, a person will be a Hindu by birth if:

    1. Both of his parents are Hindu, or
        1. One of the parents is a Hindu and he is brought up as a Hindu.

           

        Such child is Hindu irrespective of fact he/she is legitimate or illegitimate. In case after the birth of the child both or one of the parents convert to another religion, the child will continue to be a Hindu unless, in the exercise of their parental right, they also convert the child into the religion in which either or both of the parents have converted.

        Time for determination of Religion

        1. Where both the parents are Hindu, the time for determination of the religion of the child is the time of its birth.
        1. Where only the parents is a Hindu, the time for determination of the religion of the child is not the time of birth but it is determined by how he is brought up. Thus, the determination of religion is dependent on two factors, whether the child is legitimate or illegitimate, viz.,

        (a) One of the parents is a Hindu, and

        (b) The child is being brought up as a part of Hindu parent’s Community.

        A relevant judgment in this context is Maneka Gandhi’s Case (Air 1984 Del 428), wherein the Honorable Court held that Sanjay Gandhi was a Hindu because: (a) one of the parents, namely his mother was a Hindu and (b) he was openly brought up as a Hindu.

        Hindus by Religion

        This category includes two types of persons:

        (a) Those who are originally Hindus, Jain, Sikhs, Buddhist by religion.

        The Hon’ble Supreme Court in Chandarsekhar v.Kulandaivela (AIR, 1963, SC185): Any person who is Hindu, Jain, Buddhist or Sikh by a religion is a Hindu if:

          (i) he practices, professes or follows any of these religions, and

          (ii) He remains a Hindu even if he does not practice, profess or follow the tenets of any one of these religions.

        Thus a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from orthodox practices, or adopts western way of life, or eats beef.

        (b) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion.

        A person who ceases to be a Hindu by converting to a non-Hindu religion will again become Hindu if he reconverts to any of the four religions of Hindus.

        A non-Hindu will become a Hindu by conversion:

        (1) If he undergoes a formal ceremony of conversion or reconversion prescribe by the caste or community to which he converts; or

        (2) If he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing that intension coupled with the acceptance of him as a member of the community into the fold of which he was ushered into (Perumal v. Poonuswami AIR 1971 SC 1352)

        Further when a person declares that he is a follower of Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intension, it amounts to his having accepted the Hindu approach to God. He become a Hindu by conversion (Mohandas v. Deaswon Board, 1975 K.L.T. 55.)

        Scheduled Tribes [Section 2(2)]

        Section 2(2) excludes the application of this Act to the Scheduled Tribes. It provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by Notification in the Official Gazette, otherwise directs. Most of the Scheduled Tribes are still governed by customs.

        To whom Hindu Law apply

        1. Hindus by birth

        2. Off shoots of Hinduism

        3. Persons who are not Muslims, Christians, Parsis or Jews

        4. Converts to Hinduism

        5. Reconverts to Hinduism

        6. Harijans

        7. Aboriginal Tribes

        To whom Hindu law does not apply

         to converts from the Hindu to the Mohammedan faith

         to the Hindu converts to Christianity

         to the illegitimate children of a Hindu father by Christian mother and who are brought up as Christians

        Constitution of India and the Enactments under the Hindu Law

        Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956

        Constitutional enactments are:

         Hindu Women’s Rights to Property Act, 1937

         Hindu Succession Act, 1956

        Impact of Hindu Law Enactments in Fundamental Rights

        Several principles of Hindu Law have been held invalid on the ground that they infringe the Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution and as such would be void under Article 13(1).

           

        HINDU LAW

        Pre-Questions

        1. A person may be a Hindu by ………..

        (a) Birth

        (b) Conversion

        (c) Both (a) and (b)

        (d) None of these

           

        1. A mere theoretical allegiance to the Hindu faith by a person born in another faith ………. convert him into a Hindu.

        (a) Does

        (b) Does not

        (c) May

        (d) None of the above

           

        1. A bare declaration that one is a Hindu ………. sufficient to convert him to Hinduism.

        (a) Is

        (b) Is not

        (c) May be

        (d) None of the above

           

        1. Hindus are categorized into ……… ..

        (a) Brahmins

        (b) Kshatriyas

        (c) Vaishyas

        (d) Shudras

        (e) All of the above

         

        1. In which of the following cases did the Supreme Court observe as follows: ‘Unilateral act of one party cannot be easily taken to prove that the claim for the higher status which particular acts reports to make is established and hence a person belonging to a scheduled caste cannot, by the mere act of becoming an offer in the army, be raised to the status of Kshatriya.’

        (a) S P Mittal v Union of India

        (b) V V Giri v Shri Dora

        (c) Jaya Lekshmi v T Prakash Rao

        (d) Both (a) and (b)

         

        1. ‘What the Court is really concerned with is the determination of the social and political consequences of a conversion, if it can be said that a conversion takes place when a person born in a particular caste becomes an Arya Samajist’. This was held in

        (a) V V Giri v Shri Dora

        (b) Jaya Lekshmi v T Prakash Rao

        (c) B Shyamsunder v Shankar Deo Vedalankar

        (d) None of the above

         

        1. While determining social and political consequences of a conversion, the question must be decided with common sense and a practical way, rather than on theoretical and theoretical grounds.’ This was held in

        (a) Perumal Nadar v Ponu Swami

        (b) Jaya Lekshmi v T Prakash Rao

        (c) Raman Nadar v Snehapoo

        (d) None of the above

         

        1. In which case did the Supreme Court hold as follows: ‘Hinduism is a way of life in the subcontinent. It is not limited to narrow limits of religion’?

        (a) V V Giri v Shri Dora

        (b) Jaya Lekshmi v T Prakash Rao

        (c) Ramesh Yeshwant Prabho v Prabhakar Kashinath Kunte

        (d) None of the above

         

        1. Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term ”Hindu” with precision. There is very little common in the diverse forms of beliefs except a vague faith in what may be called the fundamental of Hindu religion.’ This was held in …………. ..

        (a) V V Giri v Shri Dora

        (b) Jaya Lekshmi v T Prakash Rao

        (c) CWT v R Shridharan

        (d) None of the above

         

        1. Any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a” Hindu.’ This was held by the Supreme Court in ……….. ..

        (a) V V Giri v Shri Dora

        (b) Jaya Lekshmi v T Prakash Rao

        (c) C W T v R Shridharan

        (d) Both (a) and (b)

       

     

     

    REGISTRATION OF MARRIAGE [Section 8]

    There is no provision for compulsory registration of a marriage under the Hindu Marriage Act, 1955. Section 8 of HMA makes registration optional and Section 8(5) specifically states that validity of any marriage is not affected by failure to register it. A plea for compulsory registration of marriages has been made by the courts in several cases.

    In a judgment by the supreme court in Seema v Ashwani Kumar [SC 2006] , the court has issued directions that the marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in the respective States where the marriage solemnised. If the marriage is registered, the dispute concerning solemnization of marriage is avoided. It protects the women’s rights relating to marriage to a great extent; it has great evidentiary value in the matters of custody of children, rights of children, and age of parties to the marriage. The Supreme Court has directed the states and Central Government to take concrete steps in this direction.

    Even where registration is compulsory, non entry in the marriage register cannot invalidate the marriage. It is to be noted that though the state government are given power to make it compulsory for making entries in the marriage register, they cannot make any provision invalidating a marriage for omitting to make an entry in the marriage register as it would be repugnant to Section 8(5). The state registration of marriage rules cannot travel beyond the mandate of the section. It is explicitly laid down in this act that no registration does not affect the validity of marriage.

    PUNARJANI CHARITABLE TRUST vs. State of Kerala(2019 )The Kerala High Court has upheld the circulars issued by Local Self Government Authorities of Kerala Government making under-age marriages also compulsorily registerable observing that it would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act.

    The Madras High Court has directed the Inspector General of Registration to issue a circular making the physical presence of the parties to the marriage mandatory for the registration of their marriage. The bench comprising Justice KK Sasidharan and Justice PD Audikesavalu observed that it shall be incumbent upon the parties applying for the registration of marriage to establish that the marriage between them has been performed in accordance with their personal laws or custom or usage or tradition.

    Nowadays, men and women of this land to whom different personal laws are applicable are frequently relocating to different countries either for their permanent abode or temporary residence. However, this relocation, temporary or permanent, has its own side effects on the matrimonial relationships, creating various kinds of matrimonial disputes ruining the family and peace. The problems faced by the NRI women in foreign jurisdictions include instances of abandonment of wife by the NRI husband on a foreign land, the woman being alone on the foreign land, is assaulted and abused both physically and mentally and is malnourished, confined arid ill-treated by the husband and/or his relatives, the woman harassed for dowry. In most of the cases, the husband obtains an ex-parte divorce decree in the foreign country behind her back and may also not give her the custody of her children. The woman is denied maintenance on the ground that her marriage has been dissolved by a foreign court. She may also face various other legal impediments relating to the issues of private international law such as those relating to jurisdictional issues, service of notice, enforcement of orders and decrees etc. Recently, prompted by increasing numbers of reports of Indian women being trapped in fraudulent marriages with NRIs, an initiative has been taken by the External Affairs Minister, Ms. Sushma Swaraj, to combat these problems, by introducing a Bill in Rajya Sabha titled as “The Registration of Marriage of Non-Resident Indian Bill, 2019”.

    JUDICIAL SEPARATION [Section 10]

    There was no concept of judicial separation under Shastric Hindu law. Although in certain cases British Indian courts permitted the wife maintenance and separate residence from husband. Later on, the Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946 gave statutory right to Hindu married woman to claim separation and maintenance from her husband. This enactment keeps resemblance with judicial separation incorporated under section 10 of HMA, 1955.

    A decree of judicial separation does not terminate the marriage but put an end to the obligation of conjugal duties. After the decree neither spouse is under an obligation to cohabit with each other.

    Section has also the retrospective effect.

    The marriage laws amendment act 1976 enables either party to a marriage to move for a decree of judicial separation on any of the grounds specified in section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) as grounds on which a petition for divorce might have been presented.

    A valid marriage is a sine quo non for decree of judicial separation.

    Judicial separation and Rape.

  • Section 376B IPC,1860
  • Rescission of decree of judicial separation [Section 10(2)].

  • Section 10(2) provides that the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
  • Thus the decree of judicial separation is reversible and may be rescinded.
  • The decree is not automatically rescinded by a short lived cohabitation.
  • If the cohabitation lasts long the decree stands rescinded.
  • THE HINDU MARRIAGE ACT, 1955

    BIGAMY [SECTION 5(i)]

    Bigamy’ means having two wives or two husbands at a time. Bigamy includes polygamy and polyandry. Section 5(i) Hindu Marriage Act 1955 lays down that neither party should have a spouse living at the time of marriage. This is a condition precedent to every marriage. Monogamy means that one is permitted to have only one wife or one husband at a time. Bigamy is the reverse of monogamy. Section 5(i) of Hindu Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void and section 17 makes it a penal offence for both Hindu males and females under section 494 and 495 of IPC.

    Conditions for bigamous marriage

    1. The first marriage should be perfectly valid.
    1. The second marriage should have been solemnized

     

    Whether a person can be prosecuted for bigamy if the first marriage is voidable.

    Whether the first wife can get the second marriage annulled under section 11 of HMA, 1955.

    Whether the first wife or husband can ask for injunction from the court.

    What are the remedies available to second wife in bigamous marriage?

     

    In Priya v Suresh the SC held that the second marriage cannot be taken to be proved by the mere admission of the parties; essentials rites and ceremonies must be proved to have taken place. In Yamunabai v Anantrao SC held that second wife has no status of wife.

     

    Dr. N.A.Mukerji v State the Allahabad high court held that-three ceremonies-one was moon ceremony-second was exchange of garland in kali temple after walking seven steps , an imitation of saptpadi-third performed before Guru Granth Sahab, an imitation of sikh ceremony-such mock ceremonies of marriage does not constitute valid ceremonies-mere intention will not make them husband and wife. Whether the conversion to Islam entitles the husband to have more than a wife at a time.

     

  • Sarla Mudgal v Union of India SC 1995 the apex court held that a marriage performed under this Act cannot be dissolved except on the grounds available under section 13. The parties who have solemnized the marriage under this act remain married even when the husband embraces Islam in pursuit of another wife.
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  • Lily Thomas v Union of India SC 2000
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  • Polygamy is not encouraged in Islam and is an exception and not a Rule. It is for the maulvis and Muslim men to ensure that they do not abuse the Quranic injunctions to justify the heinously patriarchal act of polygamy in self-interest, the court observed. Gujarat High Court held that a Muslim cannot be prosecuted be prosecuted for Bigamy [S.494 IPC] in the absence of a Uniform Civil Code.
  • The Supreme Court in 2019 acquitted a 65 year old man from Kerala accused of ‘bigamy’ after recording the compromise arrived between him and his ‘first’ wife. His ‘first’ wife, who married him in the year 1993, had filed the complaint alleging that, in 1994, he married another woman and started residing with her after abandoning her and their four children. In the year 2000, the Trial Court convicted the man under Section 494 of Indian Penal Code and sentenced him to undergo imprisonment of one year. The revision petition he had filed before the High court in the year 2003 was disposed only last year. The High Court took note of the birth certificate of the son born to him to his second wife, to hold that the second marriage is proved. The high court, while affirming the conviction, had observed: “The four children born in the wedlock have now grown up, and the first child must be now aged about 25 years. A reconciliation and reunion is not possible at all. It appears that the revision petitioner is now happy with the second wife and children. Anyway, the wrong or the offence committed by him cannot be condoned. He went for a second marriage without getting the first marriage dissolved. He must get some sentence for what he did.” Reducing the sentence to one month imprisonment, the Justice P Ubaid had said: “Still I feel that a harsh sentence may not be justifiable in the present circumstances. He must be now aged about 65 years. I feel that a nominal jail sentence for a month, and a direction to pay adequate amount of compensation to the complainant will do justice to both sides. The complainant has been residing separately from the accused for years, and one can imagine the sufferings undergone by her to look after the children; four in number. Let her be paid adequate compensation.” He filed appeal before the Apex Court. During the pendency of the appeal, he arrived at a compromise with his first wife. The wife filed an affidavit before the Court that they have settled the matter. The police report also stated that they have settled the matter and are living together with their children. Then the bench comprising of Justice R. Banumathi and Justice Dinesh Maheshwari recorded the compromise and set aside the sentence of imprisonment and acquitted him.
  • No Compassionate Appointment to children born out of bigamous marriage. M. Muthuraj vs. The Deputy General of Police Tamil Nadu Police Department.
  • Draupada @ Draupadi Jaydeo Pawar and Others … vs. Indubai d/o. Kashinath Shivram Chavan and AnotherSecond ‘Wife’ in bigamous marriage cannot claim to be a ‘widow’ entitled to pension: Bombay HC https://www.livelaw.in/second-wife-in-bigamous-marriage-cannot-claim-to-be-a-widow-entitled-to-pension-bombay-hc/
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    SECTION (7, 7A) AND SECTION 5(I)

    Bhaurao Shankar Lokhande v State of Maharashtra SC 1965 , the court held that the essential ceremonies of Hindu marriage are (i) invocation before the sacred fire and (ii) saptapadi. These ceremonies can be dispensed with only if custom permits. Unless the marriage is celebrated or performed with proper ceremonies and due from it cannot be said to be solemnized. Proper solemnization is essential to constitute the offence of bigamy. Thus, a marriage without the performance of essential ceremonies laid down in section 7 is not a valid marriage.

     

    S. Nagalingam v Sivagami SC 2001, in this case the second marriage was performed in accordance with provision of s.7A HMA, 1955. The Supreme Court holding the appellant guilty of bigamy held that saptapadi is an essential ceremony for a valid marriage only in cases where it is admitted by the parties that it is an essential ritual to be performed for the marriage as per the personal law or form of marriage applicable to them.

     

     

     

     

    Adultery [sec. 13(1)(i)]

  • Prior to 1976, there were two reliefs available to petitioner
    1. Judicial separation: for judicial separation, the petitioner had to prove the single act of adultery of the respondent.
    1. Divorce: the petitioner had to prove that the respondent was living in adultery.
  • Now, one single act of adultery is enough for divorce or judicial separation.
  • Adultery in matrimonial jurisprudence is voluntary sexual intercourse between a married person and a person of opposite sex , the two persons not being married to each other.
  • Lately defines adultery as, willing sexual intercourse between a husband or wife and one of the opposite sex while the marriage subsits.
  • If the second marriage is void, then intercourse with the second wife will amount to extra marital intercourse within the meaning of sec. 13(1)(i).
  • It may be noted that mere attempt at sexual intercourse will not amount to adultery.
  • Sex act is necessary.
  • Artificially inseminated with semen provided by a person other than her husband not guilty of adultery [Oxford v. Oxford (1921)]
  • If the act is not voluntary and committed under intoxication or unconsciousness (or lack of mental capacity to consent) or by force/fraud (e.g. kidnapped and raped) the spouse will not be guilty of adultery.
  • Circumstantial evidence is accepted.
  • Circumstantial evidence which establishes preponderance of probabilities is enough.
  • According to section 23(1)(a), if the petitioner has been accessory to or connives of condones the guilt of erring spouse, than the petition fails.
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  • Anandi v. Raja AIR 1973 Raj 94.
  • – Mere admission of the respondent in cross examination is not enough to prove adultery.

     

  • Tripat v. Bimla, AIR 1959 J&K 72
  • – A married woman who has been seen more than once with a stranger with explanation leads to an irresistible conclusion that she had committed adultery.

     

  • White & White AIR 1958 SC 441.
  • – The wife stayed in a hotel room with other person who, later, managed to erase evidence of entry in hotel’s visitor’s book. This fact becomes an evidence for adultery.

  • Adultery as a ground of divorce or judicial separation under different enactments:
    • &nbs;

    PICTURE01

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  • The Supreme Court has struck down 158 year old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional.Section 497 punished a married man for having sex with wife of another man. However, the sexual act is exempted from punishment if it is performed with the consent or connivance of the husband of the other woman. Also, the provision exempts the wife from punishment, and states that wife should not be even treated as an abettor.The judgment of CJI Misra held that Section 497 violated a woman’s right to dignity, resulting in infringement of Article 21 of the Constitution of India. The judgment borrows from the findings of Justice Nariman’s judgment in Triple Talaq case. (Joseph Shine vs UOI 2018)
  • The adultery has been still retained as ground of divorce and only the criminal liability has been held unconstitutional. Also for the divorce the husband has to make adulterer as a party in the case then only he will get the remedy.
  • The Madras High Court, in M.Chinna Karuppasamy Vs. Kanimozhi , has held that a divorced wife is living in ‘illicit relationship’ with man other than her former husband is disqualified from claiming maintenance from her former husband. Justice Nagamutthu further held that “The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived.”
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  • CRUELTY
  • Cruelty is a ground for matrimonial relief under all the matrimonial law statutes in India.
  • Out of all matrimonial offences, it is most difficult to define cruelty.
  • It is also not possible to define it as it depends upon the imponderables of human behavior.
  • The apex court in Ravi Kumar v Julmi Devi held that cruelty has no definition and in fact it is not possible to define it. In other words, the concept is very subjective varying with time , place and persons.
  • Thus, according to Blackstone , under the old English law, a husband could correct his wife even by beating.
  • According to Manu, a husband should beat his wife only with a rope or split bamboo, so that no bones are broken in process.
  • There is , however , a great change in the attitude of courts towards cruelty by husband against his wife.
  • The Punjab court held in the case of Gurdev Kaur v Sarwan Singh that cruelty has to be defined with regard to social conditions as they exist at present day , and not according to the rigid tenets of Manu and other law givers of bygone ages.
  • It may be physical or mental.
  • It may be by words ,gestures or by mere silence.
  • In matrimonial relationships, cruelty means absence of mutual respect and understanding between spouses which embitters relationship.
  • Prior to 1976, cruelty was only the ground of Judicial Separation but now it is ground of Judicial Separation as well as Divorce.
  • Earlier , it was confined to ‘such cruelty so as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party
  • However, now the petitioner has simply to establish that the respondent has treated the petitioner with cruelty.
  • What would constitute cruelty would depend on a number of factors the social and cultural background of the parties, their mental and physical conditions, the quality and length of their married life and so on.
  • Also, cruelty can assume a variety of forms and could be infinite in its species. It could be physical or mental, direct or indirect, intended or unintended.
  • The supreme court in Vishwanath Sitaram Agarwal v Sarla held that the expression cruelty has an inseparable Nexus with human conduct or human behaviour. It is always dependent on the social Strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditions by their social status.
  • To constitute cruelty it must be something more serious than ordinary wear and tear of married life.
  • Russell v Russell
  • Dastane v Dastane
  • Bhagat v Bhagat
  • Praveen Mehta v Inderjeet Mehta
  • Williams v Williams
  • Bhagwat v Bhagwat
  • Nijhawan v Nijhawan
  • Neelu Kohli v Naveen Kohli
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  • Whether refusal to have children amount to cruelty
  • – Fowler v Fowler

    – Forbes v Forbes

    – Satya v Siri Ram

    – Sushil Kumar Verma v Usha

    – K. Bhavani v K.Lakshmana Swamy

       

    PICTURE01

       

  • What are the defences of cuelty?
  • Does only a Wife get divorce on the ground of Cruelty? Do Husbands get Divorce from a ‘cruel’ wife? Delhi High Court recently witnessed such a case, when a wife appealed against the Divorce decree granted by the Family Court on the ground that she treated her husband with cruelty. The Delhi High Court, by dismissing her appeal and upholding the view adopted by the family court, also said that wife taunting and assaulting husband for not being able to satisfy sexual desire are grave and weighty matrimonial offences/misconducts.“It has come on record that the appellant taunted the respondent for not being able to satiate her sexual desire on account of his being heavy weight. When the parents and other people from Ghaziabad came and fought with the respondent; abused him and even assaulted him is also a serious incident, and each of this aforesaid incidents are grave and weighty matrimonial offences/misconducts by the appellant, which cannot be described as events relating to normal wear and tear of a marriage. Such events are clearly destructive of the matrimonial bond and would naturally give rise to a bonafide and genuine belief and apprehension in the mind of the respondent that it is not safe for him to peacefully and mentally continue the relationship with the appellant.“
  • Mere aggressive behaviour and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home, remarked the High Court of Punjab and Haryana while dismissing a matrimonial appeal filed by a husband.
  • [Rupali Devi vs. State of UP] In this case, three Judge bench comprising CJI Ranjan Gogoi, Justice L. Nageswara Rao and Justice Sanjay Kishan Kaul considered the following question: “Whether in a case where cruelty had been committed in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the courts situated at the place of the parental home of the wife have jurisdiction to entertain the complaint under Section 498A, in a situation where no overt act of cruelty or harassment is alleged to have been committed by the husband at the parental home where the wife had taken shelter? The bench observed that mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place. Thus, it held that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.
  • [Rashmi Chopra vs. State of UP]
  • Here, the bench comprising Justice Ashok Bhushan and Justice KM Joseph was considering the submission that since complaint is not made by the woman, but filed by her father, it is not maintainable. Rejecting this contention, it held that the Section 498A of the Indian Penal Code does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative.There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected, it said.

  • [Social Action Forum For Manav Adhikar vs. UoI]
  • In September 2018, a three judge bench modified the directions issued in Rajesh Sharma case for preventing misuse of Section 498A of Indian Penal Code. It recalled the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police. Other directions issued by the two judge bench were not interfered with.

    Sheenu Mahendru Versus Sangeeta @ Soniya–Wife Expected To Be With Husband’s Family; Cannot Compel To Stay Separated From Mother-In-Law Without ‘Justifiable’ Reason: U’khand

       

    DESERTION

  • Living together is the essence of marriage and living apart is its negation.
  • This negation of the very essence of marriage is what law terms as desertion.
  • Halsbury’s laws of England
  • – Desertion id total repudiation of obligations of marriage.

  • It is a withdrawal not only from place , but also from a state of things. Thus, there may be desertion under the same roof.
  • Explanation to section 13 (1) defines desertion.
  • If all the essentials of desertion are once established , there is no obligation on the part of the deserted spouse to persuade the deserting spouse to change his or her mind.
  • Previous cohabitation by the parties is an essential element of a valid marriage. But this rule is subject to just exceptions.
  • Prior to 1976 , it was only a ground of judicial separation but by the amendment of 1976 it is now the ground for divorce as well as judicial separation.
  • Desertion my be (i) actual or (ii) constructive (willful neglect).
  • Actual Desertion:
  • – The sine quo non of actual desertion are as follows:

    1. Spouses must have parted or terminated all joint living
    1. The deserting spouse must have intention to desert the other spouse.
    1. The deserted spouse must not have agreed to the separation.
    1. The desertion must have been without reasonable cause.
    1. The desertion must continue for the requisite statutory period of 2 years.
    1. Factum and animus need not commence at the same time.
  • Constructive desertion or Wilful Neglect:
  • – Desertion is not withdrawal from place but from a state of things(cohabitation).

    – The supreme court in Savitri Pandey v Prem Chand Pandey held that desertion means withdrawing from matrimonial obligations and not withdrawal from place.

    – If a spouse creates a situation or conducts in a manner that the other spouse is compelled to leave the matrimonial home, then the spouse who forced the other to leave the matrimonial home is the deserter and not the spouse who left the matrimonial home.

    – Lang v Lang

    – Bowron v Bowron

    – Jyotish Chandra v Meera

    – Dinshaw v Dinshaw

     

    PICTURE03

     

    – In the words of Subharao ,j. ,” willful neglect is designed to cover constructive desertion and thus it must satisfy the ingredients of desertion.

    – It adds new dimension to the notion of desertion .

    – It will amount to willful neglect if a person consciously acts in a reprehensible manner in discharge of these obligations.

    – Failure to fulfil basic marital obligations, such as denial of company or denial of marital intercourse, or denial to provide maintenance will amount to willful neglect.

    – Termination of desertion

    – 1. Resumption of cohabitation

    – 2. Resumption of marital intercourse

    – 3. Supervening animus revertendi, or offer of reconciliation.

     

    • Burden of proof

    – Bipinchandra v Prabhavati

    – Laxman v Meena

    – Dastane v Dastane

       

    CONVERSION:

       

    PICTURE04

       

    PICTURE05

       

    The apex court in Bipinchandra v Prabhavati clearly brings out the following ingredients of desertion as a ground for matrimonial relief:

    (i) Factum of desertion by deserting spouse.

    (ii) Animus deserendi or intention to bring cohabitation permanently to an end.

    (iii) Absence of consent to such separation by the deserted spouse.

    (iv) Absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. If the spouse who withdraws from the other has reasonable excuse for so doing, he or she cannot be charged with desertion.

    (v) The desertion must have continued at least for the prescribed statutory period immediately before the presentation of the petition.

    (vi) The deserting spouse may put an end to desertion by coming back to the deserted spouse before the statutory period is over or even after that period, but before proceedings for divorce have been filed.

    (vii) If the deserted spouse unreasonably refuses the offer of the deserting spouse, then the latter will be in desertion and not the former.

    (viii) The offence of desertion has to be proved by the plaintiff who alleges desertion by the respondent.

    (ix) The offence of desertion commences when the fact of separation and animus deserendi co-exist. It is, however, not necessary that they should commence at the same time.

    (x) The party leaving the matrimonial home may not necessarily be the one guilty of desertion. Quite often, it is the other party who creates a situation that impels the spouse to leave the house. This is known as constructive desertion. In this situation, it is the party who creates such situation who is guilty of desertion.

    (xi) To prove desertion in matrimonial cases, it is not always necessary that one of the spouses should have left the company of the other, as desertion could be proved while living under the same roof also. In other words, desertion may not be withdrawal from a place but withdrawal from a state of things. It may not be unlikely that the parties are living in the same house, and yet one might have deserted the other, and conversely, they may be living physically apart and yet not in desertion. ‘Desertion cannot be equated with separate living by the parties to the marriage.’

    HINDU LAW OF MAINTENANCE


    MAINS QUESTIONS
     

       

      1. When is a Hindu wife entitled to claim maintenance? Discuss
      1. Can an unchaste Hindu wife claim maintenance from her husband?
      1. “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?
      1. W files petition for restitution of conjugal rights against her husband, H, and applies for maintenance pendente lite. 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.
      1. 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?
      1. H and W were married, three years after the marriage, H obtained a divorce on the ground of W’s adultery. W is illiterate and has no hope of any financial assistance from any of her relatives. H is a Government officer drawing Rs. 12,000 per month as salary. His father and mother are his dependants. W makes an application for maintenance Under Sec. 25 of the Hindu Marriage Act, 1955. What are the chances of success? Discuss and decide.

         

      HINDU LAW OF MAINTENANCE

         

      Under Hindu law, a person has personal obligation to maintain his wife, children and aged and infirm parents. It arises from the very nature of the relationship and exists whether he possess property or not.

         

      Right of maintenance of a Hindu wife:

      Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. This liability of the husband flows from the bond of matrimony. A wife is entitled to claim maintenance under the personal laws as well as under the provisions of the Code of Criminal Procedure, 1973.

    • A Hindu wife can claim maintenance under three different legislations./li>
      1. Provisions under Code of Criminal Procedure, 1973.
      1. Provisions under the Hindu Marriage Act, 1955.
      1. Provisions under the Hindu Adoptions and Maintenance Act, 1956.

         

      Provisions under the Hindu Marriage Act, 1955

      •  

      1. Interim Maintenance(s.24)

      – It is known as maintenance pendente lite, interim or temporary maintenance.

      – It can be claimed either by husband or wife.

      – It can be made both at trial court as well as appellate court.

      – Claim may be made for

      (1) personal maintenance of the claimant, and

      (2) expenses of proceedings.

      Only requirement is that the claimant should establish that he/ she has no independent income sufficient for his/ her maintenance and support

        – If the respondent has no means and no income, then the court need not fix any amount of maintenance.

        – Once these averments are prima facie established , the court will pass an order requiring the other party to pay the complainant some monthly or periodic or lump sum amount to meet the expenses.

        – It is bounden duty of the court to decide the application as expeditiously as possible.

        – A proviso has been inserted by the 2001 Amendment Act: The application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as practicable, be disposed of within 60 days from the date of service of notice on the wife or the husband, as the case may be.

        – In fixing interim maintenance, applicant’s conduct is immaterial. That there is an accusation of adultery is immaterial. In fixing the quantum of maintenance the court takes into consideration several factors viz., income and means of applicant and respondent, , number of members to be maintained and other factors the court may deem necessary.

        – The fact that the applicant is being supported by relatives or friends is no reason for not awarding maintenance to applicant. No court can deny maintenance to the wife with the object of coercing her into reconciliation. Such an order tantamount to misuse of power by the court.

        – An application under Sec. 24 can be made either before or after the filing of the written statement. The respondent cannot defeat the application for maintenance ‘by’ withdrawing his petition in the matrimonial cause. He has to provide the interim maintenance and expenses of the proceedings as ordered by the court. Interim maintenance under Sec. 24 can be awarded from the date of the petition in the matrimonial cause and till the final disposal of the petition.

        – Conflict among different high courts.

        – If the petition is dismissed, no application for interim maintenance is maintainable thereafter.

        – 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.

        – Sec. 24 does not limit the jurisdiction of the court to award the maintenance. Maintenance pendente lite and the litigation expenses are once fixed, can be enhanced or reduced depending on the nature of change of circumstances.

        – After the amendment of section 28,as an order under Sec. 24 is an interlocutory order and no appeal lies against it. An order passed under Sec. 25 is appealable generally.

        – Disposal of application for enhancement of maintenance would take priority over the suit if divorce.

        – When the court can stay the proceedings or striking out the defence?

        – Even though there is no explicit provision for ad interim maintenance in maintenance application under the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956, the same can be granted by the court.” It is settled law that once a court has jurisdiction to grant complete relief, the court itself has got the jurisdiction to grant interim relief as well keeping in view the facts and circumstances of the case.” Ad interim maintenance, however, can be granted only when the status of parties is not in dispute.

        – Passing an ex parte decree in favour of a husband who does not comply with maintenance order “would be nothing but doing mockery with the procedure provided for that purpose”, the court held.‘ Non-payment of interim maintenance was construed as a ‘wrong’ Within the meaning of section 23 of the Act thereby disentitling the husband to a decree of divorce.

        – In Shashikala Pandey v. Ramesh Pandey, a husband obtained a decree of divorce on the ground of wife’s mental disorder. The wife filed an appeal against the trial court order; she also filed an application for maintenance pendente lite under section 24 which was ordered. However, in view of his deliberate non- compliance of this order, not only was his defense against wife’s appeal struck down but also the divorce decree was set aside by allowing the wife’s appeal.

        – In T.P. Sudheesh Balm v. Sherly P., the issue was, whether section 24 is applicable when the proceedings before the court are under section 12 for declaration of nullity of the marriage. The court held that section 24 applies to “any proceeding” under the Act and no exception can be carved out for proceedings under section 12 of the Hindu Marriage Act, 1955. However since maintenance pending litigation can be granted only during pendency of proceedings. Once these are disposed of arrangement as to payment of maintenance also comes to an end and the party cannot insist on payment beyond date of disposal of the main proceedings.

        – Maintenance pendente lite can be granted even before first making effort for reconciliation.

        – In the case of ajay kumar versus lata Brother In Law Can Be Ordered To Pay Maintenance To Widow Under Domestic Violence Act, Says SC

        – Bhagwant s/o Pandurang Narnawre VERSUS :: Radhika w/o Bhagwant Narnawre, The Bombay High Court has held that pension granted by the government can be attached in order to recover the amount of maintenance for the wife.

        Manish Jain Vs Akansha Jain (Supreme Court 2017)– An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month.

        Neelam Kadyan V. Naveen Dalal (2017 Delhi High Court) – maintenance to the wife was refused on the ground that she is working and earning 80000 per month. but for the education of his children was granted.

        In Shail Kumari Devi v. Krishan Bhagwan Pathak [(2008) 9 SCC 632, paras 39-41 his Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such order. Thus, such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. In the case before us, the High Court has not given any reason for not granting maintenance from the date of the application. We are of the view that the circumstances eminently justified grant of maintenance with effect from the date of the application in view of the finding that the appellant had worked before marriage and had not done so during her marriage. There was no evidence of her income during the period the parties lived as man and wife. We, therefore reverse the order. Also this cannot be a ground of rejecting the maintenance that the wife used to work before the marriage.

           

        1. Permanent Maintenance ( S.25)

        – Under Sec. 25 (1), on the application of either spouse, the court may pass an order for permanent alimony and maintenance at the time of passing any decree granting the petition or at any time subsequent thereto.

        The mode of payment = gross sum or monthly or periodical sum not exceeding the life of the applicant, having regard to the income and other property of respondent and applicant, the conduct of 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).

        – 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 the court for maintenance in case of matrimonial proceedings between them.

        Chand Dhawan v Jawaharlal Dhawan the supreme court held that the decree of nullity is covered under section 25.

        – 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 pendent lire 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.

        – Ordinarily, the wife is entitled to an amount which enables her to maintain the standard of living to which she was used to before the break-down of the marriage. A husband cannot get rid of the wife’s claim of maintenance on the ground that he is not able to get a good job , or the wife is living with her father, or ‘that the wife is sufficiently qualified to get a job, or is supported by her father. Even if husband is not earning but is able-bodied he should pay maintenance to his wife. If the claimant has independent and sufficient means of maintaining herself, no amount of maintenance can be granted to her (Rampal v. Nisha AIR 1994 Raj. 204).

        – There can be no rigid, nor any, mathematical rule as to the entitlement or quantum of maintenance; nonetheless there are certain guidelines laid down by judicial pronouncements which are significant in deciding applications for maintenance both pendente lite and permanent.

        – It is pertinent to note at the outset that applications under section 24 of HMA and ones under section 125 of the CrPC are independent of each other though the amount awarded in one can be taken into consideration while disposing the application under the other, depending on the circumstances and facts of the case.

        In Amutha @ Syamaladevi v. Thiromoorthy, an application for maintenance granted under section 125 Cr PC was held to be no bar for an application under section 24 HMA; nor for an application under section 25.

        – In Shambhunath Pathak v. Kanti Devi, however, the court held that a wife could not be entitled to double bonanza under section 25 of the HMA and 125 of C rPC. It would all however, depend on the circumstances of each case.

        – Rejection of an application under section 125 Cr PC was held to have no bearing on the application under section 24 of the HMA. Both proceedings are different, the court held; likewise an award of maintenance under section 125 would not come in the Way of awarding maintenance under section 18 of the HAMA.

        – In Nagendrappa Natikar v. Neelamma, the wife filed a maintenance petition under section 125 Cr PC pending proceedings, on application of both the parties a compromise was arrived at where under an amount of Rupees 8,000 was awarded as full and final settlement. When after a few years the wife filed an application under section 18 of the HAMA claiming Rupees 2,000/- p.m. as maintenance, the same was opposed by the husband, on ground of the earlier settlement. He lost at the trial court as well as High Court. Hence, the appeal. It was held that proceedings under section 125 CrPC are summary, and intended to provide speedy remedy to the wife and any order passed there under by compromise or otherwise cannot foreclose the remedy available to her under section 18(2) of the HAMA.

        – The means and capacity of a person against whom the award has to be made is very important. Infact, in case of a husband it is not only the actual earning but also his potential earning capacity which must be considered. There is a presumption that every able bodied person has a capacity to earn and maintain his wife.

        – Income of the non-applicant is a significant factor to be considered by the court in fixing the quantum. It is the disposable income and not the gross income, which must be considered. Voluntary deposits like insurance premium, or other voluntary savings are not to be deducted. Only such items of expenditure are to be deducted over which the respondent has no control such as direct taxes like income tax.”

        – In Reeta Sharan v. Shelendra Sharan, the court held that it has to assess the carry home salary of the husband after compulsory deductions. It specified that while deductions by way of provident fund, group insurance, income tax, union fee and professional tax are compulsory deductions, amounts deducted from salary towards repayment of loans such as housing loan, provident fund loan, festival advance, conveyance, loan, premium on private insurance policy, are not compulsory deductions.

        – A husband who voluntarily incapacitates himself cannot be absolved of his liability to maintain his wife and children.”

        – Also where a husband was carrying on an illegal bigamous relationship his expenses towards that relationship could not be taken into consideration. Likewise, he cannot challenge the wife’s claim for maintenance under section 125 of CrPC on the plea that he has another wife to maintain which is legally permitted under his personal law.

        – Income of the Applicant

        – The idea behind maintenance provision is to prevent destitution of the wife. It is in no way meant to be a penalty for one and a reward for the other. The personal law statutes clearly provide this as a factor in deciding maintenance. The wife’s income, however, should be sufficient to maintain herself and live in same comfort as she would if she had lived with her husband.

        – A small income or the fact that she is maintained by any relative would not disentitle her to claim maintenance from the husband. Wife being supported by her parents or son does not discharge the husband of his liability to support her for that is not her independent income. Similarly, where a wife was impelled to sell her ornaments and deposit the amount in the bank because she had to somehow sustain herself and her four daughters, the court held that such amount cannot be taken into account in deciding her claim for maintenance.

        – The fact that the wife is carrying on some business can be taken into consideration while fixing the amount but cannot be a complete bar to her claim for maintenance. Thus, in Madhu v. P.S. Pundir, rejecting the husband’s argument that the wife having her own business has no right to claim maintenance, the Court observed: ‘To make an effort to live better life cannot be used as an instrument to deprive the wife of such benefits which she would he entitled to in the normal course of life.’

        – Likewise in Prem Kumari v. Om Prakash, where the wife who was a B.Ed. and earning some money by way of tuition’s, filed an application for maintenance pendente lite under section 24 of the Hindu Marriage Act, the court held that the fact of her earning some amount would not disentitle her from claiming maintenance for herself as well as for the child because she is entitled to live the same life in terms of social and financial status in which she would have lived if she had continued to live with her husband.

        – So also in Sanghamitra Singh v. Kailash Chandra Singh, where the wife’s consolidated salary was Rupees 1,457 and the husband was drawing Rupees 7,000 per month, the court awarded maintenance to the wife on her application under section 25, Hindu Marriage Act, I955.

        – Similarly in Mukesh Teli v. Bharti Teli, (a case under Hindu Adoptions and Maintenance Act, 1956) the court held that the mere fact that the wife was getting some income would not disentitle her to claim maintenance. It is not sine qua non that the wife must be incapable of maintaining herself so as to claim maintenance from husband, however, while computing, the quantum, income if any, of the wife will be taken into consideration.

        – In Manokaran v. M. Devake, however, a wife’s petition for maintenance pendente lite under section 24 of Hindu Marriage Act, was refused as the wife had herself admitted that she was working in a private firm and drawing a salary of Rupees 4,500 per month whereas the husband was earning only Rupees 70 per day. The family court’s order granting maintenance was set aside on the ground that it was not a case where the wife was not having sufficient independent income.

        – While potential earning capacity of the applicant wife would not generally defeat or dilute her claim for maintenance, there have been cases where this factor weighed with the courts. In E. Shanti v. Vasudev, the petitioner wife was a doctor and working before marriage. Her application for maintenance pendent lite under section 24 of the Hindu Marriage Act, 1955 was dismissed as, according to the court, she is a qualified doctor and can get job and continue in her profession.

        – Reference may be made to the not so charitable observations of the court in Mamta Jaiswal v. Rajesh Jaiswal. This was an application for maintenance pendent lite by a highly educated lady with M.Sc., M.C., and M.ed., degrees, wherein the court remarked, that section 24 is not meant for creating an army of such persons who would be sitting idle waiting for a ‘dole’ to be awarded by the husband who has got a grievance against wife and who has gone to court for seeking relief against her. Section 24 has been enacted for such spouses who are incapable of supporting themselves inspite of sincere efforts. Spouse qualified to get service immediately with less efforts is not expected to squeeze out his/her purse by cut in nature of pendente lite.

        – A different, rather a diametrically opposite, approach can be seen in some other cases. Mention may be specially made of the following observations of the court in Swaran Singh v. Raj Kumar:

        – The status of equality guaranteed under law entitles the wife to claim an equal share in the husband’s earnings like his fortunes and misfortunes. Even if the wife would have been qualified but would have chosen not to work, it would be immaterial for the purposes of this petition…. If a wife chooses to divert her energies to the household work that will not deprive the wife from claiming her share of husband’s income.

        – Reference may be made of the following remarks of Justice Roshan Dalvi of the Bombay High Court where a husband appealed against the grant of maintenance to his educated wife and who, according to him could earn as well:

        – There is yet no legislation which compels the wife to cam. A wife is entitled not to work and to claim maintenance if she has not been provided sufficient support and if the husband has failed and neglected to maintain her.

        – The needs of the wife and the status and standard she was used to in her husband’s house is to be kept in mind while awarding maintenance. In Jasbir Kaur Sehgal v. District Judge, the court held that the amount fixed should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed should not be excessive or extortionate. It is the status of the husband and not the applicant wife’s parents which should be considered while fixing the amount.

        – Though section 24 refers to maintenance of the wife during pendency of proceedings, it cannot be restrictively construed to hold that the wife alone would be entitled to maintenance. The court in Jasbir Kaur held that a wife’s application under section 24 would include her own maintenance as well as that of her daughters. If interim maintenance under section 24 were to be granted to the spouse only, it would be meaningless if it does not provide for maintenance of the children living with such spouse, the Court held in Vikrant Arora v. Shruti Mehra, Court is bound to pass interim order under section 24 with regard to maintenance of children as contemplated under section 26; no separate application under section 26 is required to be made.

           

        Conduct of the Applicant

        – In an application for grant of maintenance under section 24, the only consideration is the inability of the applicant spouse to maintain herself/himself for want of finances and not her or his conduct. Thus, where the family court denied maintenance to a wife on the ground of ‘misconduct’ of refusing to join the matrimonial home, the high court,” on appeal by the wife, held that the reason given by the family is ‘fully fallacious and cannot be sustained’. It is obvious that in any matrimonial litigation there would always be allegations of matrimonial misconduct and if this were to be made a relevant consideration then in no matrimonial litigation would the opposing spouse be entitled to maintenance. Granting relief under section 24 is a matter of discretion but like all discretions, it has to be exercised judicially.

        – Likewise in Munnibai v. Jagdish Rathorejg where the trial court rejected a wife’s claim for interim maintenance on the ground that her conduct of refusing to live with her husband was such that it would not justify the grant of maintenance, the same was set aside in appeal. The court observed: ‘Proceedings under section 24 of the Act provide neither the occasion nor the stage for the court to enquire into the veracity or the weight to be attached to the allegations and counter-allegations of the parties in the pleadings relating to the merits of the claim regarding the decree sought for under sections 9 to 13 of the Act by the plaintiff, and to go into such allegations would clearly introduce extraneous considerations and amount to pre-judging the main issue.’

        – Right of maintenance cannot be defeated on mere allegations by husband that the wife was living in adultery.

        – In Debanarayan Halder v. Anushree Halder, the trial court, in proceedings under section 125, Code of Criminal Procedure, gave a finding (which was also upheld by the Supreme Court) that the wife had no reasonable ground to stay away from the husband and demand maintenance. Later when on the husband’s petition for restitution of conjugal rights, the wife sought maintenance under section 24, Hindu Marriage Act, 1955 , the husband sought support from these finding that the wife having left the matrimonial home without just cause, she was not entitled to maintenance. After considering the contentions on both the sides, the court came to the conclusion that the criteria laid down in the provision of section 125 of the Code of Criminal Procedure, 1973 and the observation of the Supreme Court that the wife did not have any sufficient reason not to live with the husband cannot have any impact whatsoever on Wife’s claim under section 24 of the Hindu Marriage Act, 1955.

        – In suits for maintenance under section 25, however, conduct of the applicant was considered to be an important consideration in Sudha Suhas Nandanvankar v. Suhas Ram Rao Nandanvankar. The marriage in this case was annulled by a decree of nullity in 1996 on the ground that the wife was suffering from epilepsy at the time of marriage, which fact was not disclosed and hence a fraud was committed on the husband. Prior to 1999 epilepsy was a ground for relief. This conduct was considered to be enough to refuse maintenance claimed by the wife. The court observed: ‘Even though the law permits the right of alimony in favour of the appellant [i.e. even if a decree of nullity is passed] however, the conduct and circumstances involved in the case does not permit us to pass an order of permanent alimony in favour of the appellant.

        – Amar Kanta Sen v Sovana Sen

        – Even though there is no explicit provision for ad interim maintenance in maintenance application under the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956, the same can be granted by the court.” It is settled law that once a court has jurisdiction to grant complete relief, the court itself has got the jurisdiction to grant interim relief as well keeping in view the facts and circumstances of the case.” Ad interim maintenance, however, can be granted only when the status of parties is not in dispute. In Satyavir Vasisht v. Asha Gambhirgl where the trial court granted ad interim maintenance to the applicant under section 18 of the Hindu Adoptions and Maintenance Act, 1956 even where the relationship of husband and wife was disputed and it was yet to be established by way of evidence that such relationship existed, the order granting maintenance was set aside.

           

        Change in Circumstances

        – Under sub-section (2) of section 25 of the Hindu Marriage Act, 1955, the court has power to vary, modify or rescind a maintenance order made under sub-section (1) if it is satisfied that there is a change in the circumstances of the parties.

        – This clause, however, would not apply to proceedings pending for execution of the maintenance order. In K. Srinivasa Kumar v. K. Sharvani, parties had obtained a divorce by mutual consent on 21 July, 2003 and it was agreed that the husband would pay an amount of Rupees 1,80,000 to the wife towards alimony. Initially, Rupees 90,000 was to be paid and the balance was payable within six months. The court however, granted one year time to the husband, to make the payment by 20 July, 2004. The husband not paying the amount, the wife filed execution petition in the family court. During pendency of execution proceedings, the wife remarried. Thereupon the husband filed a memo requesting that the maintenance order be rescinded in terms of cl. (2) of section 25 in view of the wife’s remarriage. The family court rescinded the order; on appeal by the wife, however, the court held that the wife’s right had accrued on 21 July, 2003 when the order was made. It was the husband who defaulted in paying the balance amount and so the wife filed execution proceedings in 2005. This according to the court was no change in circumstances of either party at any time after the court order. The change, if any, in circumstances subsequent to court order was created by the husband himself who committed the default of the original order. ‘Therefore having committed default and created the circumstances… the same cannot be taken to advantage of defaulter himself, the court observed.

        – Where after the original award of maintenance under section 25, the wife acquires property which fetches her monthly rent, the court would be justified in cancelling the earlier maintenance order.

        – In S.S. Bindra v. Tarvinder Kaurf which was an application under section 24 of the Hindu Marriage Act, the husband’s income was less at the time of wife’s application but later increased manifold and so the District Court awarded a sum which was higher than what the wife had initially claimed. On appeal against it by the husband, the High Court found no illegality in this.

        -Unchastity is a bar to maintenance claim amongst all the personal laws. Thus in Sunita Singh v. Raj Bahadurf a husband obtained divorce on the ground of adultery and cruelty of the wife. The court also awarded maintenance of Rupees 300 per month to the wife on her application. In revision, the maintenance order was set aside under section 25(3) of the Hindu Marriage Act, 1955 as there was a clear finding of illicit relations against the wife.

           

        Maintenance only when ‘decree’ and not when main petition dismissed

        – An application for maintenance under section 25, Hindu Marriage Act, 1955 can be made at the time of the passing of any decree or at any time subsequent thereto. The expression ‘at the time of passing of any decree’ as used in the section includes a decree of nullity. It encompasses within the expression all kinds of decrees such as restitution of conjugal rights under section 9, judicial separation under section 10, declaring a marriage as null and void under section 11, annulment of marriage as voidable under section 12 and divorce under section 13.

        – ‘Any decree’ however, would not include an order of dismissal of the main petition. Thus, where a wife withdraws her consent to a divorce petition and consequently the same is dismissed, the wife is not entitled to maintenance under section 25 of the Act. An order of dismissal of a petition does not disturb the marriage nor confers or takes away any legal character or status. According to the court: ‘Without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act, 1955, the claim of permanent alimony was not to be valid as ancillary or incident to such affectation or disruption.’

        – Likewise in Homeshwar Singh v. Mira Singh it was held that payment of permanent alimony could not be ordered where suit for dissolution of marriage is dismissed.

           

        Appeal against main decree: no bar

        – The fact that an appeal against a divorce decree is pending, is no bar to a claim for maintenance.

        – In Surendra Kumar Bhansali v. Judge, Family Court, a husband obtained a divorce decree against his wife. After the decree, the wife filed an application for permanent alimony under section 25. She also filed an appeal against the divorce decree. The husband challenged the maintenance application on the ground that an appeal against divorce was pending. Maintenance was however, allowed. The husband then filed a writ petition in the High Court under Arts. 226 and 227 of the Constitution of India with a prayer that the order of maintenance passed by the family court be quashed. The husband’s appeal was dismissed and it was held that an application under section 25 can be made at the time of passing of the decree or at any time subsequent thereto. In this case, since the divorce was decreed and the marriage dissolved, the wife’s application was tenable. If however, the main petition for divorce had been dismissed then the relief by way of maintenance could have been refused as per the Supreme Court judgment in Chand Dhawan v. Jawaharlal Dhawan. Simply because an appeal against divorce is pending is no bar to maintenance claim, the court clarified.

           

        No Waiver of Right Even by Consent

        – A wife who agrees to give up her claim for any maintenance in future in terms of a consent divorce decree is not debarred from claiming maintenance thereafter. In Geeta Satish Gokarna v. Satish Shankar Rao Gokarna, two years after the consent divorce decree, whereunder she had agreed not to claim any alimony from the husband, she filed an application for maintenance under section 25 of the Hindu Marriage Act, 1955. The same was allowed. On appeal by the husband the High Court held that the power to grant maintenance has been conferred on the court by Parliament under the Act and the parties cannot, by agreement oust the court’s jurisdiction; it was further held that permanent alimony and maintenance are a larger part of the right to life, ‘therefore any clause in a contract or consent terms providing to the contrary would be against public policy’. Permanent alimony and maintenance were thus construed as an integral part of right to life.

        P. Archana @ Atchamamba v. V.S. Rama Krishna, was a wife’s claim for enhancement of maintenance, where the husband took the plea that there was a settlement between them under which she agreed not to make any further claim. The plea was dismissed as, according to the court, such interpretation would defeat the very object of section. 25.

        – However, where there was a “full and final” settlement made by the parties in a civil court in 1983, the wife’s subsequent application for maintenance in 2002 was held to be not bonafide.

           

        Death of husband does not extinguish alimony order

        – The issue whether an order for alimony gets extinguished with the death of the judgment debtor was raised in Aruna Basu v. Dorothea Mitra, a case under the Special Marriage Act, 1954. A wife had obtained decree under section 37 of the Act where under she was awarded a maintenance of Rupees 300 per month. In execution, the decree was compromised and the husband agreed to pay the arrears in installments. On 31 March, 1965, he executed a will but made no provision for satisfaction of the maintenance decree; on 3 April, 1965 he died without making any provision for the satisfaction of the maintenance decree. The appellant, who was the executrix under the will, got it duly probated. She paid maintenance in December 1975 for some period after the death of the judgment debtor but thereafter since no payment was made, the wife filed a suit for recovery of arrears of Rupees 19,500. The appellant filed an objection stating that the order of alimony was not a charge and so the liability was extinguished on the death of the judgment debtor. The executing court overruled the objection whereupon the appellant went in revision. A Division Bench of the Calcutta High Court agreed with the executing court but granted a certificate of appeal and hence the appeal to the Supreme Court. On behalf of the appellant, reference was made to certain English authorities in support that no cause of action subsists after the death of the husband and so an order for alimony would be extinguished. The Supreme Court, however, did not agree with this argument and held that the Special Marriage Act, 1954 was an Indian statute passed after Independence and there was no warrant to be guided by English decisions in the interpretation of its provisions.

        – The same view was reiterated in Nandarani Mazumdar v. Indian Airlines, wherein the Supreme Court, confining the Calcutta High Court’s judgment, held that the estate of the deceased husband is liable for the satisfaction of a maintenance decree.

           

        Date of Order

        – There is no stipulation in section 24 as to the date from which an order under this section can be made. It could thus be either from the date of application or from date of order or from any other date. It would all depend on the facts and circumstances of each case. Thus in Kalpana Das v. Sarat Kumar Das, in view of its facts maintenance was awarded from the date of the appearance of the husband. In Deepak Mishra v. Bindiya, maintenance order from the date of application and not from date of order was upheld. In Rasmi Chatterjee v. Udayan, however, alimony under section 24 was ordered to be paid from the date of order and not from the date of the application, in view of the facts of the case.

        – A judge granting maintenance from the date of application need not state special reasons for the same. No fault can be found in such order.

        – Where an applicant prays for maintenance from a date prior to the application, he/she has to satisfy the court as to circumstances for the delay in applying.

        – In Jaspal Singh v. Harjinder Kaur, an order for maintenance under section 24 was made from the date of filing of the divorce petition; the husband was also directed to pay interest at the rate of 9% in case the maintenance allowance and litigation expenses are not paid within one month from the date of the order. The order was upheld by the High Court.

           

        Provisions under the Cr. P.C., 1973

        – The Code of Criminal Procedure, 1973 also provides for maintenance of wives.

        – Unlike the personal laws which are applicable only to persons belonging to particular religions, the provisions of the Code of Criminal Procedure, 1973 are applicable to all irrespective of religion. Relief under this Code is speedy and is available irrespective of whether or not any matrimonial proceedings are pending.

        – The salient features of the provision are:

        1. A wife includes a divorced wife.
          Only lawful wife is entitled to maintenance under this section.
          A wife may seek maintenance even without any matrimonial litigation.
          She may stay separate if there are sufficient grounds justifying that and yet get maintenance.
          There must be neglect or refusal on part of husband to maintain her.
          Wife must be unable to maintain herself.
          The court can grant interim maintenance also.
          The amount may be varied or cancelled if there is change in circumstances.
          In certain situations a wife may be debarred from claiming maintenance.
          Her right terminates on remarriage.
          The proceedings are summary and expeditious.

        – Mode of divorce is immaterial to a wife’s claim for maintenance under section 125 CrPC. Thus, even if the divorce is obtained by mutual consent, the wife is not debarred from claiming maintenance.

        – Also under this section, a woman cannot stake the claim for past maintenance. The court has jurisdiction under section 125 Code of Criminal Procedure only to direct payment of future maintenance i.e. maintenance from the date of petition.” Maintenance under this provision may be ordered from the date of order or from the date of application. It would depend on the facts and circumstances of the case. Thus in Dilip Kumar v. State of U.P., where an application for maintenance remained pending for 21 years due to the husband’s delaying tactics, it was held that he was liable to pay from the date of wife’s application.

        In Bhuwan Mohan Singh v. Meena, where, in a wife’s petition for maintenance under section 125 CrPC, there were adjournments in the case for nine years by the Family for which at times, the husband was responsible and at times, it was due to laxity on the part of the Court, the High Court order granting maintenance from the date of application was upheld by the Apex Court.

        – A wife seeking maintenance under this section has to prove neglect on the part of the husband to maintain her.” A wife living apart from the husband on reasonable grounds does not lose her right.

        – The Supreme Court, in Rajathi v. C. Ganesan, in a case under section 125 of the Code of Criminal Procedure, 1973 the court is to take a prima facie view of the matter and it is not necessary to go into the matrimonial disputes between the parties in detail.

        – Procreation is one of the most important objects of marriage. Therefore, if one of the parties undergoes sterilization without the consent of the other, it ‘is an act of grave cruelty entitling the other to obtain relief.

        – The right of the applicant to get maintenance and the liability of the respondent to give maintenance is not absolute and several considerations weigh in the making of a maintenance order. A very significant consideration is the capacity of the respondent. An able bodied young man, however, is presumed to be capable of earning so as to be able to maintain his wife. If he wants to be absolved of his liability he has to show to the court cogent reason for holding that he is unable for reasons beyond his control to earn enough to discharge his legal obligation.[ Bhuwan Mohan Singh v. Meena,]

        – The fact that the husband has renounced the world and become a sadhu is no ground to absolve him of his duty to maintain his wife and children.

        – In Kuldip Kaur v. Surinder Singh, a husband was imprisoned for non-payment of maintenance. The wife moved an application for recovery of arrears which was rejected by the trial magistrate on the ground that the claim for arrears stood satisfied upon the husband being sent to jail. The wife’s revision application in the High Court was summarily rejected without a speaking order; hence the present appeal. It was held that undergoing a term of imprisonment does not absolve the person of his liability to pay maintenance which has been decreed against him. The purpose of sending a judgment debtor to jail was not to wipe out the liability which he had failed to discharge; it was only a means of achieving the end of enforcing the order, the court clarified.

        – That imprisonment for non-payment of maintenance is not a “sufficient cause” for non-payment of maintenance was reiterated recently by the Kerala High Court in Ajith Kumar v. Shaima. Imprisonment does not and cannot absolve the husband of liability to pay maintenance, the court held.

        – As clarified by the Supreme Court in Subrata Roy Sahara v. Union of India, in a different context though, there is difference between mode of enforcing recovery on one hand and effecting actual recovery of the amount; detention is only a device for satisfaction of liability, it does not wipe out liability to pay.

        – In P.T. Ramankutly v. Kalyankuttysg however, the court took a very realistic view and held that there is nothing in the section to indicate that in fixing the monthly allowance the magistrate should consider the means of the husband alone and shut his eyes to the means of wife. The Code of Criminal Procedure, as amended in 1973 however, specifically lays down that only a wife who is unable to maintain herself is entitled to maintenance.

        – The Supreme Court ruling in Bhagwan Dutt v. Kama Deviand the statutory clause in section 125(1) of the Code of Criminal Procedure, 1973 have set all doubts at rest by making it clear that only a wife unable to maintain herself is entitled to seek maintenance under the provisions of this statute.

        – There cannot be an award of a lump sum amount under the provisions of section 125. Thus, in Minati Binati Nayak v. Goaranga Charan Nayak, where a lump sum award of Rupees 12,500 by way of maintenance under this section was awarded by the magistrate, the same was quashed in appeal. It was held that such award is not supported by any provision of the statute. The object of the summary proceedings under the section is to prevent vagrancy and that object is achieved by directing provisions of lodging, food and clothing. The magistrate while fixing the quantum has to strike a balance; he should not fix an amount which would enable the wife to live in luxury and also impede any future reconciliation.

        – Elucidating the phrase “unable to maintain herself” the Supreme Court reiterated in Chaturbhuj v. Sitabai, that the wife need not be an absolute destitute(extremely poor) so as to be entitled to claim maintenance. The parties in this case were married for forty years and living separately for about twenty years. On wife’s application for maintenance under section 125 the trial court took note of the respective incomes of the parties and awarded Rupees 1,500 per month to the respondent wife. The husband’s revision against this order was dismissed by the revision court; and so also his application under section 482 before the High Court. Hence the present appeal. The Apex Court emphasized that the provision under section 125 Code of Criminal Procedure is a measure of social justice specially enacted to protect women and children; it does not aim to punish a person for his past neglect but to prevent vagrancy(homelessness) and destitution by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to such support; it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. The provision has two inseparable related conditions — the burden is placed on the wife to show that the husband has enough means, and secondly, that she is unable to maintain herself.

        – Efforts made by a wife after desertion to somehow survive would also not defeat her claim to maintenance. In Rewati Bai v. Jageshwar, the lived with her husband for 40 years. She had no means of livelihood while living with him. After being deserted she started working as a laborer at the age of 50. The trial court held that she was not unable to maintain herself. The High Court, however, orders maintenance. It observed: ‘The only fact that she was compelled to work as a labour to survive was by itself not sufficient to establish that that applicant was able to maintain herself.’

        – The fact that a wife is working can be taken into account in fixing the quantum of maintenance but that would not debar her from claiming it.

        – In Minakshi Gaur v. Chitranjan Gaur, a magistrate had dismissed wife’s petition under section 125 CrPC on the ground that she was working and also had income from properties. On appeal, it was argued that the husband, who was an engineering graduate had an income of Rupees 20,000/- while the wife was getting less than Rupees 9,000/- Husband was directed to pay Rupees 5,000/- per month to the wife as, according to the court, with her income it was not possible for her to maintain herself in a town like Agra, where both the parties lived.

        – Potential earning capacity of a wife cannot be taken into account in deciding maintenance under section 125 CrPC. The mere fact that the wife was highly educated with an MBA degree was held to be no ground to refuse her maintenance in Tejaswani v. Arvind Tejas Chandra. Unless an educated wife is actually employed and earning enough for herself, it cannot be said that she is capable of maintaining herself.

        – In this context, a reference may be made of a case decided by a metropolitan magistrate in Delhi. The complaint wife sought interim maintenance under the Domestic Violence Act, 2005, alleging that she had been subjected to various forms of torture by the husband. She was a well-educated lady and earning approximately Rupees 50,000 per month from her last job which she gave up. She contended that she was facing extreme hardship as she was enjoining a lavish life-style and therefore needs a suitable maintenance for food, clothing, and residence apart from other basic necessities”. Dismissing her application, the court remarked: “If she has chosen not to work…. she cannot be permitted to take advantage of her own deed…. When the complainant is an able bodied person having capacity to earn and has actually been earning in the past [she] is not entitled to receive any maintenance. When she could sustain herself by earning a handsome salary in the past, she would be able to get a job if she earnestly tries to search for one now”.

        – Thus, the court held that even if she was not earning anything presently, she was still not eligible for maintenance.

        – In Muraleedharan v. Vijaylakshmi, the claimant wife was a law graduate and yet she was held to be entitled to maintenance. According to the court, the expression able to maintain in section 125 of the Code of Criminal Procedure, 1973 must receive a dynamic and realistic interpretation in the light of the indisputable plight of the Indian woman. The mere fact that she has a qualification is not sufficient ipso facto to conclude that she is in a position to maintain herself. Possession of qualification of law is such that it cannot immediately be converted into work and earning.

        – The husband’s liability to pay maintenance to the wife is not affected by an apprehension that the amount would not be used by her but misappropriated by her brother and other relatives with whom she was putting up. According to the court, it is none of the husband’s business to see to the proper utilization of the amount so paid by him. Cohabitation subsequent to a maintenance decree passed under section 125 of the Code of Criminal Procedure, 1973 or under section 18 of the Hindu Adoptions and Maintenance Act, 1956 does not affect the decree unless the same is set aside or modified by a competent court, more so when a compromise maintenance decree itself has a clause enabling the wife to claim maintenance after such cohabitation.

        – The section lays down that a wife would be disentitled to maintenance from her husband if she lives in adultery, or if, without any sufficient reason she refused to live with her husband, or if they are living separately by mutual consent. Post- divorce separate living cannot be construed as separate living by mutual consent within the meaning of section 125(4) of the Cr PC.

        – ‘Living in adultery’ is a present continuous tense. Hence if she is not presently living in adultery, the husband cannot refuse her maintenance.

        – A wife’s right to maintenance under this section comes to an end upon her remarriage. However, in a case where a wife files an application for maintenance and then marries after some time, the court may grant her maintenance from the date of the application to the date of her marriage, provided other requirements of the provision are satisfied.

        – A maintenance allowance fixed under section 125 can be enhanced, varied or cancelled if there is a change in the circumstances of the parties and an application to that effect is made. Thus, husband’s retirement subsequent to the award of maintenance would amount to change of circumstances affecting his paying capacity. So also fact of inflation resulting in fall in purchasing power of money and consequent rising prices is a factor which court would take note of, in application for alteration or enhancement of maintenence allowance.

        – Until the Code of Criminal Procedure, (Amendment) Act, 2001 there was no provision in the Code of Criminal Procedure, 1973 for the granting of interim maintenance in application under section 125 of the Code of Criminal Procedure, 1973. However, since disposal of these applications takes quite some time, many applicants without means of subsistence suffered grave hardship. In view of this, the Supreme Court, in Savitri v. Govind Singh, in a special leave petition filed by the wife under Art. 136 of the Constitution of India held that in the absence of any express prohibition preventing a magistrate to pass an interim order of maintenance, it is appropriate to construe the provisions in Ch. IX (viz. maintenance provisions in the Code of Criminal Procedure, 1973) as conferring an implied power on the magistrate to direct the non-applicant to pay a reasonable amount pending final disposal of an application under section 125.

        – After this case, in cases of claims under section 125, invariably applications for interim maintenance were also being filed. The Amendment of 2001 has however, now statutorily empowered the magistrate to order interim maintenance.

           

        Husband’s Estate cannot be burdened beyond Death

        – An order of maintenance obtained by a wife can be enforced against the husband’s estate if he dies but only for the period till his death. In other words, the husband’s estate cannot be burdened with enforceability of the maintenance order for any period beyond the date of his death.

        – In Prithviraj Singh v. Pavanvir Singh the husband had bequeathed all his properties to his nephew. The wife filed execution proceedings for recovery of arrears of maintenance. The nephew approached the court saying that after the death of the deceased he became the sole owner and therefore the process of recovery of arrears of maintenance had become invalid. The magistrate thereupon called back the warrants of attachment and dismissed the wife’s application. In revision filed by her, it was held that the amount of maintenance allowance for a period for which the husband was alive could be realized by the wife as provided under section 42l(l)(b) of the Code of Criminal Procedure, 1973 and restored the wife’s application. Against this, the deceased husband’s nephew filed the present revision, where it was held that the estate of the husband could not be burdened with enforceability of maintenance order under the Code for any period beyond the date of husband’s death but was enforceable against it only till his death.

        – The bar of limitation of one year as provided under the proviso to section 125(3) of the CrPC does not apply when the decree holder has already initiated execution proceedings within time and that execution application is still pending.

           

        Maintenance when Marriage Void

        – So, far as the Hindu Marriage Act, 1955 is concerned, courts have in some earlier cases granted maintenance under section 24 and 25 to wives of void or bigamous marriage.

        – For instance, in Govindrao v. Anandibai, notwithstanding that the marriage was a nullity being a void marriage, the wife was held to be entitled to maintenance.

        – In Dayal Singh v. Bhajan Kaur, the wife had been made to go through a mock marriage, i.e. there was no legal marriage yet she was treated as a wife for purpose of grant of maintenance.

        – In Rameshchandra Rampratapji Daga v. Rameshwari Rameschandra Daga,[sc 2005] the issue came up again before the Bombay High Court and later before the Supreme Court. The wife filed a petition for judicial separation under section 10 of the Hindu Marriage Act, 1955 and also for maintenance for herself and the minor daughter under section 25. The husband filed a counter claim for annulment of the marriage. He denied the marriage itself. The wife was, however, able to establish the factum of marriage by oral and documentary evidence. The husband then alleged that the marriage was void under section 11 read with section 5(i) of the Act as the Wife’s earlier marriage was subsisting. Against this, the wife averred that she had obtained a divorce by a compromise deed. The court however, did not accept this. It held that a marriage could be dissolved only by decree, in the absence of any custom to the contrary. She did not lead any evidence as to any such custom. It was therefore accepted that the marriage was void. The husband therefore, contended that the marriage being void, she was not entitled to any maintenance from him.

        – It was, accordingly held in Rameshchandra Rampratapji Daga that despite the marriage being null and void, the wife is entitled to claim maintenance from her husband in this case. It is significant to note that both parties appealed against the High Court order- the wife against declaration of the marriage as null and void and the husband against order granting maintenance to the wife of a void marriage. After detailed analysis of case law, it dismissed the appeal of both. The voidness of marriage was upheld and so also the grant of maintenance. The Supreme Court held: ‘Keeping in view the present state of statutory Hindu law, a bigamous marriage may be declared illegal being in contravention of the provision of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent’.

        – In Suresh Khullar v. Vijay Kumar Khullar where at the time of marriage the husband was competent to marry as his first marriage had ended by an ex parte divorce decree, a sudden revival of the first marriage by the first wife, by having the divorce decree set aside after four years was held not to invalidate the second marriage. The second wife was held to be entitled to maintenance under section 18 of the Hindu Adoptions and Maintenance Act, 1956. The court, in this case, also observed that even the Protection of Women from Domestic Violence Act, 2005, entitles a woman living in intimate physical partnership, to maintenance. A second wife’s right to maintenance was upheld in another case from Delhi in the same year.

        – In Narender Pal Kaur Chawla v. Manjit Singh Chawla, the court held that a husband, who defrauds and misrepresents that he is a bachelor when infact he is already married, is estopped from challenging the validity of the second marriage. The court was of the opinion that the legislature never intended that a woman, who is in the position of a second wife, be not treated as the “wife”, at least for the purpose of section 18 of the Hindu Adoptions and Maintenance Act, 1956, and be deprived of her right to seek maintenance. The court in this case also drew support from the provision in section l8(2)(d) of the Hindu Adoptions and Maintenance Act, 1956; it was argued that this Act came in 1956 whereas the Hindu Marriage Act, imposing monogamy came in 1955; if the legislators had intended to deny maintenance to a wife of a second marriage they would not have included a provision like clause (d) or would have at least clarified that the clause was added to take care of those second marriages performed before the Act of 1955. After analysis of the legal provisions, the court founded its order on the inherent powers of the court under section 151 of the Civil Procedure Code, 1908 which empowers a court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

        – In Abboyolla M. Subba Reddy v. Padmamma however a woman who was allegedly defrauded into marriage with an already married man was held not to be entitled to maintenance under section 18 of the Hindu Adoptions and Maintenance Act, 1956 as the marriage was legally void. The court remarked:

        – While a legislative enactment may be liberally construed the liberty cannot over step the legislative limits of interpretation, putting to the legislation something which is not there. If it is felt that a particular enactment causes hardship or inconvenience, it is for legislature to redress it, but it is not open to the court to ignore the legislative intention.And further:If the bigamous relationship should be recognised for the purpose of maintenance of a woman, the very purpose of introducing the provision in the Hindu Marriage Act, while introducing monogamy among the Hindus will be defeated.

        – Reference was made to Yamuna Bai v. Anant Rao where the Supreme Court clearly held that marriage in contravention of the provision imposing monogamy, is null and void and such wife is not entitled to maintenance under section 125 cr.p.c.

        Mangala Bhivaj Lad v. Dhondiba Rambhau Aher is a significant judgment on the point by the Bombay High Court, where the court analysed various judgments and the statutory provisions, including section 151 of the Civil Procedure Code, and came to the conclusion that a woman marrying a Hindu male having a legally wedded wife after coming of the Hindu Marriage Act, is not entitled to maintenance. Such a marriage is void ipso jure and the woman cannot be termed as “wife” within the meaning of the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, 1956 and section 125 of the Cr PC. The wife alleged that the “marriage” was duly performed and registered with the Registrar of Marriage and they stayed together for 17 years, and further, that the husband had deceived her into the marriage by declaring himself to be a divorcee at the time of registration of the marriage. The husband in this case had sought declaration that this marriage was void. The family court found that the marriage was indeed void but refused the declaration as sought by him, in view of section 23(a) and (d) of the Hindu Marriage Act, on the ground that he cannot be allowed to take advantage of his own wrong. The wife’s claim for maintenance however, was rejected. Hence her appeal. The court dismissed the same holding that the marriage being void she was not entitled to maintenance. The institution of marriage and the very relationship of husband and wife, originates from the personal law applicable to the parties. As Hindus are governed by the Hindu Marriage Act, the marriage needs to be in accordance with its provisions and unless the marriage is valid under its provisions, the parties cannot, describe themselves as ‘husband’ and ‘wife’ for purposes of application of different statutes or for deriving benefits under different statutes.

        – The counsel for the wife referred to the Delhi High Court judgment in Narinder Pal Kaur v. Manjit Chawla, in which relief was given to a second ‘wife’ in exercise of inherent powers of the court under section 151 of the Civil Procedure Code. The Bombay High Court in the present case, however, was not inclined to do so. It observed:…. inherent powers are required to be exercised by the court only in the absence of statutory provisions and not to circumvent a statutory provision. Besides, inherent power of section 151 is only a source of power to the court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the court. It cannot be a source of right to claim maintenance…

        – The claim of appellant wife for maintenance under section 18 of the Hindu Adoptions and Maintenance Act, 1956 was consequently dismissed. Apart from this, the court also observed that the claimant had sufficient means by her own.

        – Under the Code of Criminal Procedure, 1973, only a legally wedded wife can claim maintenance. Where a marriage suffers from a legal law, which goes to the roots of the validity of the relationship, the wife is not entitled to maintenance under its provisions. In Naurang Singh v. Sapla, a man took a second wife during the subsistence of the first marriage. The court held that the second marriage being void, she cannot claim maintenance.

        – There have been unfortunate situations where even a woman who has been defrauded by the man to enter into a bigamous relationship has had to suffer. Her status being that of an illegitimate wife, she was held to be not entitled to claim maintenance. In view of the Supreme Court rulings in Yamunabai v. Anant Rao and Bakulbai v. Gangaram, this is the settled law. In both these cases, the court held that a wife, whose marriage is void because of the subsistence of the husband’s earlier marriage, could not claim maintenance.

        – However, in view of the Supreme Court rulings in Yamunabai and Bakulbai, that continues to be the law. Savitaben Samabhai Bhatiya v. State of Gujarat, was a wife’s application for maintenance under section 125 of the Code of Criminal Procedure, 1973. The husband was already a married man when he married the applicant. The Supreme Court reiterated and held that the marriage being void, the applicant wife was not entitled to maintenance. The court conceded.

        – The rigour of such technical approach has been done away with by the apex court, vide its recent judgment in Badshdh v. Urmila Badshah Godse. This was a wife’s petition for maintenance for herself and her child, under section 125 Cr PC. The husband resisted the same on the ground that there was no legal marriage and hence he was not liable. The marriage was performed when the husband already had a subsisting marriage which fact was concealed from the wife and she was duped into marriage by pretending that he was single. The courts below granted her petition against which the husband filed the present appeal. The court took a very holistic and constructive view and held that there is a difference between a situation where the claimant is innocent and has no knowledge and is defrauded and one where knowing fully well and aware of the facts enters into a marriage which is legally not valid. It observed:

        – While dealing with an application of destitute wife and hapless children or parents under this provision, the court is dealing with marginalised sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision enshrined in the preamble of the Constitution of India…Therefore, it becomes the bounden duty of the courts to advance the cause of social justice…we should avoid a construction which would reduce the legislation to futility and accept the….. construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of section 125 Cr PC such a woman is to be treated as a legally wedded wife.

        – There have, however been cases where courts have taken a liberal view even where marriage was denied. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit the Supreme Court held that the validity of the marriage for the purpose of summary proceeding under section 125 of the Code of Criminal Procedure, 1973 is to be determined on the basis of evidence brought on record by the parties; that the standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under section 494 of the Indian Penal Code, 1860. The court held that once it is admitted that the marriage procedure was followed, then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under section 125 of the Code of Criminal Procedure, 1973 and if from the evidence which is led, the Magistrate is prima facie satisfied with regard to the performance of marriage, strict proof of performance of essential rites is not required.

        – Similarly in Sou Sunita alias Kavita Vivekananda More v. Vivekanand Shripati More where the validity of marriage and marital status was denied by the husband but the trial court after appreciation of evidence found that the claimant was married wife and entitled to maintenance, she was held to be entitled to maintenance. The court held that the magistrate is not competent to decide the question of validity of marriage. The proper course in such case is to grant maintenance, leaving the husband to establish invalidity of marriage in competent court.

        Deoki Panjhiyara v. Shashi Bhushan, was a wife’s application for, inter alia, maintenance under the provisions of Protection-of Women from Domestic Violence Act, 2005. The husband challenged her marriage on the ground that she had been married earlier under the Special Marriage Act, 1954 and so the marriage being void she was not entitled to claim maintenance as evidence in support of her first marriage, he also produced a certificate of that marriage under section 13 of the Act. The court however, refused to concede to the husband’s case and held that even though it is optional for the parties to seek a declaration of nullity of the marriage under section 11 of the HMA but it cannot be understood in all situations to be voluntary. Besides if the husband knew that the marriage was void on account of the wife’s previous marriage, he ought to have obtained the necessary declaration from the competent court and “in the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage… Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.

        – The Protection of Women from Domestic Violence Act, 2005 not only provides for, inter alia, maintenance for women living in a domestic relationship but has also added a new dimension to relationships in the nature of marriage. Reference may be made to a few significant judgments in the context of maintenance where women have made claims based on such relationships. In Chanmuniya v. Virendra Kumar, the significant issue involved was as to the interpretation of the term ‘wife’ for purposes of maintenance to a woman in a live-in-relationship. The court, after a detailed analysis of case law and statutory provisions, held that a broad and expansive interpretation should be given to the tenn ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage vide section 7 of the HMA should not be a pre-condition for maintenance under section 125 CrPC. Thus, a man who lived with a woman for a long time even though without having undergone legal necessities of a valid marriage, should be made liable to pay if he deserts her. However, in view of the divergence of judicial opinion on the interpretation of the word “wife”, the court requested the Chief Justice to refer the issue to a larger bench.

        – In D. Velusamy v. D. Patehaiammal, the Supreme Court has clearly laid down that such relationships should be within the parameters of law in order to be given a legal sanctity and certain conditions need to be complied with viz, the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

        – In Indra Sarma v. K. V. Sarma, the appellant, an unmarried female, and the non-appellant, a married male with wife and two children, started living together in a shared household; the relationship was opposed by families of both but they continued to live together for about 18 years. After they fell out, the appellant sought protection orders, residence order, maintenance, etc. While the Trial Court and the Sessions Court decreed her claim for maintenance, the High Court set aside the order; hence the appeal. The Apex Court analyzed the case in great length and came to the conclusion that the relationship between the parties would not fall within the ambit of “relationship in the nature of marriage” and the tests laid down by the Court in D. Velusamy, had not been satisfied. According to the Court, live-in-relationship with a married person cannot be a relationship in the nature of marriage. Party to such relationship would either be concubine or one practicing polygamy or person having adulterous relationship. Where a person knowingly enters into a relationship with other knowing that he was married, the generic proposition that where a man and a woman are proved to have lived together in consequence of a valid marriage, will not apply, hence the relationship would not be relationship in the nature of marriage and the status of the lady would be of a concubine. The appeal was consequently, dismissed.

           

        1. Provisions under the Hindu Adoptions and Maintenance Act, 1956

        – A Hindu wife has the advantage of an additional statute viz. the Hindu Adoptions and Maintenance Act, 1956. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, provided her separate living is justified which means that the husband:

        (i) has treated her with cruelty;

        (ii) is guilty of desertion;

        (iii) is suffering from a virulent form of leprosy;

        (iv) has any other wife living;

        (v) keeps a concubine in the same house, or is living or habitually resides with a concubine elsewhere;

        (vi) has ceased to be a Hindu by conversion to another religion; or

        (vii) if there is any other cause justifying living separately.

        – The section provides two specific bars which would disentitle a wife from claiming maintenance under this Act, viz., (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.

        – It is pertinent to note that a claim for separate maintenance under this provision can be made only when there is a subsisting marriage. A divorced wife is not entitled to maintenance under the provisions of section 18 of this Act.

        Merubhai Mandanbhai Odedara v. Raniben, is a case on point. It is significant to note however, that the case had come up when there was a ceiling of Rupees 500 under section 125 Cr PC. The wife in this case got maintenance under section 125 Cr PC but because of the ceiling, she approached the court under the provisions of HAMA for accord of a reasonable sum. She claimed Rupees 1000/- each by way of maintenance both from the husband as well as from the son under section 18 and 20 respectively of the HAMA. An appeal was filed by both. The son challenged the order on the ground that where the husband (i.e. his father in this case) is alive and in a position to support his wife (i.e. his mother in this case), the son is not liable. For the husband it was contended, inter alia, that the amount ordered under section 125 Cr PC was not given a set off. Rebutting these contentions, the counsel for the wife argued that a son was equally liable to maintain his mother, and secondly, that an amount awarded under section 125 Cr PC cannot be given a set off as that is an independent right. The Court dismissed these arguments and held that under section 18 of HAMA, the primary duty to maintain the wife rests on the husband and section 29 which provides for maintenance of parents by children carves out an exception which will apply only in a case where the husband is not alive or is otherwise not in a position to maintain his wife. Sub-section 3 of section 20 clearly says that the obligation of children to maintain parents arises only when the parent is unable to maintain himself/herself and in this case, the husband of the applicant being alive and in position to maintain, the order of the trial court directing the son to pay maintenance to the mother was “wholly perverse”, and set aside.

      HINDU LAW OF MAINTENANCE

      PRELIMINARY QUESTIONS

      1. To claim maintenance under Sec. 24 of the H.M. Act, what is required is:

      (a) Applicant’s good conduct.

      (b) The claimant should establish that he/ she has no independent income sufficient for his/ her maintenance and support.

      (c) Both (a) and (b)

      (d) None of the above.

         

      1. An application for maintenance can be made to:

      (a) High court or Supreme Court

      (b) Appellate Court

      (c) Trial Court

      (d) Both (b) and (c)

         

      1. Under Sec. 25 (1) of H.M. Act, on the application of either spouse, the court may pass an order for permanent alimony and maintenance at the time of passing any decree of:

      (a) Nullity i.e. void/ voidable marriage

      (b) Judicial separation and restitution of conjugal rights.

      (c) Divorce

      (d) All of the above.

         

      1. In granting maintenance under Sec. 25 of the Hindu Marriage Act, the court takes into consideration:

      I. Income and other property of the respondent.

      II. Age and physical condition of the applicant.

      III. Whether the non-applicant has dependent parents, brothers and sisters.

      IV. Conduct of the parties.

      (a) I, II and IV

      (b) II, III and IV

      (c) I, III and IV

      (d) None of the above.

       

      1. No wife shall be entitled to receive an allowance from her husband U/s. 125 if:

      (a) She is living separately by mutual consent.

      (b) She is living in adultery.

      (c) Without any sufficient reason, she refuses to live with her husband.

      (d) All of the above.

       

      1. A Hindu wife shall not be entitled to ‘separate residence and maintenance’ from her husband if:

      (a) She is unchaste.

      (b) She ceases to be a Hindu.

      (c) Both (a) and (b)

      (d) Only (b).

       

      1. A man (married) lived with a woman for several years and wrongly led her believe that she was his wife and also had children from her. Can the women’s petition for maintenance Under Sec. 18 of HAMA is maintainable?

      (a) Yes, under certain circumstances.

      (b) Yes

      (c) No.

      (d) None of the above.

       

      1. An illegitimate minor child as per Sec. 20 of the H.A.M.A. is entitled to claim maintenance during his minority from:

      (a) Grandfather

      (b) Mother

      (c) Father

      (d) Both (b) and (c).

       

      1. Aged or infirm parents can claim maintenance under which section of the H.A.M.A.:

      (a) Sec. 24

      (b) Sec. 19

      (c) Sec. 20

      (d) Sec. 22

       

      1. The liability of the parents to maintain their unmarried daughter continues:

      (a) So long as the daughter is unable to maintain herself.

      (b) Till the time she attains majority by 18 years.

      (c) Till the time she gets married.

      (d) Any of the above.

       

      1. The debts contracted or payable by a deceased Hindu:

      (a) Does not have priority over the claims of his dependants for maintenance.

      (b) Are to have priority over the claims of his dependants for maintenance.

      (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) 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.

       

      1. A ‘divorced’ wife can claim maintenance under the

      (a) Hindu marriage Act, H.A.M.A. & Cr.P.C.

      (b) Hindu Marriage Act only.

      (c) Hindu marriage Act and H.A.M.A.

      (d) Hindu marriage Act and Cr.P.C.

       

      1. A decree for restitution of conjugal rights enables the aggrieved spouse for

      (a) maintenance under section 25 of Hindu Marriage Act, 1955

      (b) maintenance pendente lite under section 24 of Hindu Marriage Act, 1955

      (c) both (a) and (b)

      (d) either (a) or (b).

       

      1. An order under section 25 of Hindu Marriage Act, 1955 can be

      (a) modified

      (b) varied

      (c) rescinded

      (d) either (a) or (b) or (c).

       

      1. Order of permanent alimony under section 25 of Hindu Marriage Act, 1955 can be varied, modified or rescinded

      (a) if the party in whose favour the order has been passed re-marries

      (b) if the party in whose favour the order has been passed is the wife, she has not remained chaste

      (c) if the party in whose favour the order has been passed is the husband, he has had sexual intercourse with any other woman

      (d) all the above.

       

      1. Provision contained in section 25 of Hindu Marriage Act, 1955 are controlled by

      (a) section 125 of Criminal Procedure Code, 1973

      (b) section 18 of Hindu Adoption & Maintenance Act, 1956

      (c) both (a) and (b)

      (d) neither (a) nor (b).

       

      1. Section 25 of Hindu Marriage Act, 1955 confers on a spouse

      (a) a special right

      (b) an absolute right

      (c) a discretionary right

      (d) all the above.

       

     

     

       

    HINDU MINORITY & GUARDIANSHIP ACT, 1956

    MAINS QUESTIONS

       

    1. Discuss the duties and power of testamentary guardians as per section 9 of Hindu Minority & Guardianship Act, 1956 and how natural guardian different from testamentary guardian?

       

    1. “No person shall be entitled to dispose of or deal with the property of a Hindu Minor merely on the ground of his or her being the de facto guardian of the minor”

       

    1. Does natural guardian having the power of mortgage or charge or transfer by sale minor’s property? Enumerate with relevant provisions under HMGA, 1956.

       

    HINDU MINORITY & GUARDIANSHIP ACT, 1956

       

    II. Guardian- Meaning of-Section 4(b)

    Clause (b) of Section 4 defines a ‘guardian’, which means a person having the care of the person of a minor or of his property or of both his person and property and includes:

    (i) A natural guardian,

    (ii) A guardian appointed by will of the minor’s father or mother,

    (iii) A guardian appointed or declared by a court, and

    (iv) A person empowered to act as such by or under any enactment relating to any Court of Wards.

       

    Further, clause (c) of this section provides that a natural guardian means a guardian mentioned in Section 6. The Kerala High Court has held that after the Act came into force, no person can claim to be the legal guardian of minor unless that person comes within one of the four classes of persons mentioned in clause (b) of Section 4. The word ‘includes’ in Section 4 (b) is used to enumerate the different classes of persons coming under the definition. But dissenting from this decision Bombay High Court in Ratan vs. Bisan, has held that the definition of ‘guardian’ under Section 4 (b) having an inclusive definition, there is no reason why a person who acts as a de facto guardian should not fall within this definition. The mere fact that a person gifts some property to the minor, he does not become entitled to be appoint another person a guardian of minor. But if the property is gifted with a condition to act as manager of the property, the acceptance of gift with such condition in the eye of law would amount to recognition of the natural guardian (manager agent) of the minor. But a sister is not natural guardian.

       

    A guardian appointed by Court cannot deal with the property of the minor without permission of the Court. In such case the transaction is voidable.

       

    (A) Natural Guardian- Section 6

    Hindu Law placed stress on duties so any person who took care of the minor for his benefit was recognized a guardianship. It did not make any distinction between de jure and de facto guardians. Under old Hindu Law there is no mention of natural guardian. King was the supreme guardian. It was during British period that idea of natural guardianship first of father and then mother was developed. Before 1956 the position of father was superior and he could exclude even the mother by appointing a person as guardian by making a will. Mother was considered to be the natural guardian of the illegitimate children and after her guardianship vested with the putative father. But in case of dasi- putra the position was not clear. The husband was considered to be natural guardian of his minor wife but he could not claim her custody before she attained puberty. Even a minor husband could act as guardian of his minor wife. The guardianship of the adopted child belonged to the father and then to the mother. Step- parents had no claim to guardianship over the step-children.

       

    By virtue of explanation attached to the section, step- parents are not empowered to act as natural guardians.

    Guardianship being in the nature of a scared trust so a natural guardian cannot, during his lifetime, substitute another in his/ her place. Where he has in his discretion entrusted the custody and education of his children to another, the authority conferred is essentially revocable. In case of divorced parents, there having no special provisions to this effect, the father does not cease to be natural guardian of his children. Father being the natural guardian he does not require the support of order as to his right to file an original petition praying for Letters of Administration. In view of provision of Section 6, sister is not natural guardian of her minor sister. Where father died leaving behind two daughters, M, a major and S, who was a minor M sold property purportedly acting as guardian of S. the sale was held to be void. In Raj Kumar vs. Barbara, where the mother left the matrimonial home taking the child who was below the age of 3 years, it was held that mother being natural guardian, it does not amount to removing the child within the meaning of Section 25 of Guardians and Wards Act. But where the mother, in presence of father disposed of property of the minor, the Patna High Court held that although the provisions of Section 11 of the Act are not attracted yet she will derive no authority whatsoever for the purposes of disposing of the property of the minor as she is the natural guardian only after the father. Similarly, where father and the sons owned property jointly, sale of property by the mother acting as guardian was held to be void. But the case is different where father is alive but is not taking any interest in the affairs of the minor. He can be considered as good as non- existent and the mother can be considered as natural guardian of the minor.

       

    After him, the mother

    The word ‘after’ occurring in Section 6 (a) of the Act on a cursory glance gives the impression that mother can be considered to be natural guardian only after the lifetime of the father. These words came for interpretation before the Supreme Court in Githa Hariharan vs. Reserve Bank of India. There were two writ petitions heard together by the Apex Court. In the first case the parents applied to the Reserve Bank of India for 9% Relief Bonds in the name of their minor child and expressly stated that the mother should act as guardian of the child for the purpose of investment. The Reserve Bank of India replied that either the application form should be signed by the father or there should be certificate of guardianship from a competent authority in favour of the mother. This led to the filing of the petition challenging for constitutionality of Section 6(a) of Hindu Minority and Guardianship Act. It was held by the Supreme Court that if the section is understood in its normal sense then it has to be struck down as unconstitutional as it undoubtedly violates gender equality. The Court observed:

       

    “The word ‘after’ need not necessarily mean ‘after the lifetime’. In the context in which it appears in Section 6 (a), it means ‘in the absence of’, the word ‘absence’ referring to the father’s absence from the care of the minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between father and the mother, the latter is put exclusively in charge of the minor or if the father is physically unable to take care of the minor either because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of Hindu Minority and Guardianship Act without causing any violence to the language of Section 6 (a)”.

       

    In absence of father, mother is the natural guardian of both person and property of the minor. The remarriage of mother is not a disqualification to act as guardian of the child. Therefore, unless the mother is unfit no other person can be appointed as guardian. It is abundantly clear from the provision of Section 13 of the Act that welfare of the minor is of such paramount consideration that Section 6 must be read subject to Section 13. Section 19 (b) of the Guardians and Wards Act provides that unless the father is unfit to act as guardian the Court has no power to appoint the guardian of the minor.

       

    Guardian of illegitimate child

    Clause (b) of Section 6 provides that in case of an illegitimate child the mother and after her, the father shall be the natural guardian. In a case under Section 9 of Hindu Marriage Act for restitution of conjugal rights, the marriage between the parties was declared void as the parties were within the degree of prohibited relationship, the court held that the children being illegitimate, the mother would to entitled to custody, Section 16 of the Hindu Marriage Act would not apply and children cannot be deemed to be legitimate. It is submitted that by virtue of Section 16(1) of the Hindu Marriage Act, the children of a void marriage are deemed to be legitimate and the claim of the father should have been considered.

       

    Guardian of minor wife

    Clause (c) of Section 6 provides that for a married minor girl, husband is the natural guardian of her person and property. Now, if the wife is unwilling to join the husband the Court would not enforce her to join him. But if the minor girl is unwilling to go the her parents, custody can be given to her husband. Otherwise also, the marriage of a minor girls is against the provisions of Child Marriage Restraint Act, 1929 which provides that the age of marriage for a boy and girl is 21 and 18 years, respectively, and where a girl is given in marriage before she attained the age of 15 years, she can under the provisions of Hindu Marriage Act, repudiate the marriage of her attaining the age of 15 years and can get divorce.

     

    Guardian of Adopted child

    Section 7 of the Act makes provision that natural guardian of adopted son would he adoptive father and after him the adoptive mother. Section makes a mention only of an adopted son, and not of an adoptive daughter. The reason for the same may be that the Hindu Adoption and Maintenance Act which makes provision for the adoption of both of a son and a daughter was passed after the passing of this Act. Under old Hindu law only a son could be adopted, so there is no mention of guardianship of an adopted daughter. By virtue of Section 12 of the Hindu Adoption and Maintenance Act, after the adoption, the ties of natural parents are replaced by those of daughter would be the adoptive father and after him the adoptive mother. A Division Branch of Andhra Pradesh High Court has held that once an adoption is made the natural parents become strangers, hence alienation made by the natural father is void. The term ‘adoptive father’ and ‘adoptive mother’ does not include step parents. Thus, where an unmarried person adopts a child and subsequently marries, his wife/ husband would be a step- parent and would not become natural guardian of the minor child.

       

    Custody of the minor of tender years

    In the 19th century children were viewed as the property of the father. Now, the continued influence of psycho- analytic theory, maternal deprivation research and the continued division of sex rules have perpetuated the practice of awarding women custody of children. The concept of hizanat under Mohammedan Law best illustrates this concept. Section 6(a) of the Act lays down that ‘the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’. Unless there are special circumstances disentitling the mother of the custody of the child. The child should ordinarily remain with the mother. Where the mother removed the child who was below the age of 3 years. The court held that she is lawful guardian and I does not amount to removing under Section 25 of Guardians and Wards Act. After the child completes the age of 5 years father can also claim custody. In Prakash Chandra vs. Chandrawati, the father had not neglected the child and he was in a better position to provide better facilities to the child, the custody of child of 9 years was granted to father.

       

    Disqualifications to act as Guardian

    There are following disqualifications due to which a person may be disqualified to act as a natural guardian:

    (i) Conversion to another religion- provision (a) to Section 6.

    (ii) Becoming a Sannyasi- provision (b) to Section 6

    (iii) Minority of the guardian- Section 10 of the Act.

       

    Testamentary guardian- Section 9

    Before the statutory recognition of wills by the Hindu Wills Act, 1870, wills were practically unknown to Hindus. But the father’s power of appointing a Testamentary guardian was recognized and he could even exclude the mother from guardianship. But he was not competent to appoint testamentary guardian in respect of the joint family property of the minor. A mother was not competent to appoint a testamentary guardian.

       

    Power of testamentary guardian

    A testamentary guardian has all the powers which a natural guardian has under the Act subject to such restriction which might have been imposed by the will. Section 9 (5) of the Act dealing with the powers of a guardian appointed by will states that the guardian has the right to act as the minor’s guardian after the death of the father or mother and to exercise all the rights of a natural guardian under the Act, ‘to such extent and subject to such restrictions if any, as are specified in the Act and in the will”, One of the restrictions imposed on a natural guardian in respect of sale of minor’s property is contained in Section 8 (2) of the Act which requires the previous permission of the court for alienating the minor’s property. The testamentary guardian therefore, cannot sell the property of the minor without prior sanction of the court. Testamentary guardian can be removed by the court like a natural guardian. Section 39 of the Guardians and Wards Act lays down t e circumstances under which a testamentary guardian can be removed.

       

    De facto guardian- Section 11

    When the minor has no legal guardian or the legal guardian is absent or is not discharging his responsibility as a guardian and a stranger or a near relative takes up responsibility of the management of minor’s estate he is called a de facto guardian. The term ‘de facto’ is used in contradistinction of a ‘de jure’ guardian. He is neither a natural guardian nor testamentary guardian or a guardian appointed by the Court. Both these expressions imply a relationship to the minor which is regular and continuous and not casual or one which acts by fits and starts. In other words what the de facto guardian lacks as compared to a de jure guardian is legal authority to act for the minor. In all other respects there is practically little or no distinction between them. A representation made by the mother in the presence of father is wholly void and inoperative and even an application for a permit filed under-the Motor Vehicles Act, 1938 on behalf of the minor was held to be incompetent.

       

    Powers of Natural Guardian-Section 8

       

    Section 8 of the Act lays down that, natural guardian of a Hindu minor has power to do all acts which are reasonable and necessary for the protection, realization or benefit of the minor’s estate but in any case, he cannot bind the minor by a personal covenant. The question of necessity or benefit justifying alienation has to be considered according to the circumstances of the case. Where the only house belonging to the minor was mortgaged by father and there was no possibility of redemption of the same, alienation by the mother was held to be justified. In case of necessity, the guardian has no alternative but to alienate. For instance, the maintenance of the minor, the repairs of the property, the performance of father’s funeral ceremonies or the payment of debts are held to be necessities. But in case of benefit, it implies discretion, not only of form but also as to whether alienation should be made or not. For example, if the minor has an unproductive property and the guardian sells it to purchase a productive one, the sale will be valid and binding. A natural guardian can bind the estate of a minor by executing a promissory note on his behalf but not by any personal covenant. The Apex Court in Manik Chand v. Ramchandra has held that the natural guardian of minor has requisite authority of law to enter into contract on behalf of the minor provided the condition in Section 8 are complied with. In the instant case contract to purchase house on behalf of minor by his other as natural guardian was upheld as valid and enforceable in law.

       

    In M.C. Nagalakshmi v. M.A. Farook, an agreement for the sale of property was executed and the defendant was minor at that time and the agreement provided that sale-deed would be executed when the minor would become major. In a suit for specific performance of contract which was filed after the defendant attained majority, the contract was held to be enforceable as the defendant, after attaining majority failed to repudiate the contract rather admitted the contract. Sale of property of minor by the father in violation of mandatory provisions of Section 8 is void.

       

    In K.R. Sudha v. P.R. Sasi kumar, the mother of the minor children made application before the court for the sale of separate property of the minors “in the wake of the -need to generate more funds for the continued education of the children.” In the petition the father was made a party. It was held that in absence of the father the mother is the natural guardian and in the present case the father is made a respondent who has not opposed the application.

       

    Where minor’s property is alienated b mother when father was alive, with t the permission of the Court is void.

       

    Section 8 (2).-Sub-Section 2 of Section 8 of the Act places restrictions on the powers of the natural guardian while alienating the property of the minor by way of sale, gift, exchange, mortgage or otherwise, any immoveable property of the minor. But this restriction does not apply to undivided interest of minor in the joint family property. The interest of the minor in the joint family property is kept outside the reach of Section 8 by virtue of the provisions of Sections 6 and 12 of the Act, leaving it to the natural guardian (Karta) to deal with it in accordance with customary Hindu Law. Section 8 Will ha e to be viewed and interpreted keeping in view these basic features of the Act.

       

    Coparcenary property-Section 12

    Section 12 of the Act provides that where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. Thus, where a person executed a gift deed of joint family property in favour of his sons who were minors, thus disclaiming his rights as a guardian, the mother becomes the adult member of the family within the meaning of Section 12 and there is no need to appoint a guardian of property by the court. Where the mother sold joint family property of minors including her own share, permission of the court is not required Section 12 further says that nothing in Section 12 would affect the inherent power of the High Court to appoint a guardian in respect of undivided interest of minor in the joint family. Every High Court does not have inherent power nor does the provision of Section 12 of the Act confer any such power on the High Courts. So Mysore High Court has held that since it does not exercise any original jurisdiction, it cannot entertain a petition for appointment of such guardian.

     

    Consequences of alienation without permission-Section 8 (3)

    If the guardian disposes of the property of the minor in violation of provisions of sub-section (1) and (2) of Section 8, then such transaction is voidable at the instance of minor or any person claiming under him. A Division Bench of Kerala High Court had held that transaction in violation of Section 8 (2) is a transaction in violation of a status and consequently void.

     

    Person claiming under him

    Sub-section (3) of Section 8 gives the right to avoid the transaction entered into by the guardian without sanction of the court by the minor himself or “any person claiming under him”. It has been held that the words “any person claiming under him’ occurring in Section 8 (3) seem to apply to any person who derives from the minor the right to avoid the guardians alienations. He might derive the right by inheritance, under testamentary disposition, by transfer inter vivos or by devolution by law. In all cases, he would be a person “claiming under’ the minor”.

     

    Where a person is appointed by court to represent the minor in a suit having authority to exercise option, it is not imperative on the minor to exercise option himself.

     

    Permission-Section 8(4), (5), (6)

    Sub-sections (4) and (5) of Section 8 provide the procedure for the grant of permission to the guardian to do acts provided in Section 8 (2) of the Act. The “guiding principle is that court would not grant permission unless it is a case of necessity or for an evident advantage of the minor. In such cases the court is to be guided by the provision of Section 29 of the Guardians and Wards Act. The ‘Court’ in the section means a City Civil Court or District Court or Court empowered under Section 4A of Guardians and Wards Act within the local limits of whose jurisdiction the immovable property or portion of property is situate.

    The effect of permission clothes the transaction with the validity which cannot be impeached by minor or any other person unless it is vitiated by fraud or deliberate mistake. Where in a case the alienation of property of minor is held void benefits received by the minor must be surrendered. Natural guardian alone can apply for permission. Therefore, application for sanction cannot be made by the intending purchases.

     

    • The Supreme Court in perry kansagra versus smriti madan kansagra (2019) has held that a report submitted by child-counsellor about his interaction with the child, can be relied upon by the Courts (in Delhi) to determine custody/guardianship issues.”All custody and guardianship issues are resolved on the touchstone or parameter of “best interest of the child”. In custody and guardianship disputes between two parties, a minor child is in a peculiar situation. At times, both sides are busy fighting legal battles and the court is called upon in parens patriae to decide what is in the best interest of the child. In order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules.”

    • The Supreme Court in MURUGAN and ors versus Kesaava Gounder (2019) has held that a sale of minor’s property by guardian can be avoided only by filing a suit to set aside the deed within the period of limitation prescribed under Article 60 of the Limitation Act, which is three years from the date of attaining majority by the minor. In case the minor has died before attaining majority, as it happened in the case before the SC, the legal representatives of the minor should bring the suit within 3 years from the date on which the minor would have attained majority.The Court noted that as per Section 8(2) of the Hindu Minority and Guardianship Act 1956, permission of the Court was necessary for the guardian to sell minor’s property. Sale in violation of Section 8(2) is voidable as per Section 8(3). Therefore, the sale remains valid until set aside by the Court. A document which is voidable has to be actually set aside before taking its legal effect Therefore, the Court ruled : The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed.

     

    Considerations while appointing a guardian- Section 13

    • Under old law the father had absolute rights of custody, upbringing and of controlling the .religion and education of children and mother was only entitled “to reverence and respect”. Gradually the trend has shifted from parents right to custody and guardianship of the child to “child’s right to be in custody of the parent. Under English law, Section 1 of the Guardianship of Infants Act, 1925 provided that where the question of custody or upbringing of child is before the court it ‘shall regard the welfare of the infant as first and paramount consideration’ and shall treat the claim of father and mother on equal footing. Now Section 1 of Guardianship of Minor’s Act, 1971 places both the parents on equal footing’. In India, Section 13 of Hindu Minority and Guardianship Act also lays down the cardinal principle- The welfare of minor as paramount consideration. It provides that while appointing or declaring a person as guardian, the welfare of the minor shall be paramount consideration. Similarly, Sections 7, 17 and 25 of Guardians and Wards Act also make the welfare of minor a guiding factor while granting or appointing a person a guardian or While granting custody of minor.

     

    • Decision of foreign courts

    • Now-a-days some cases have come before the court where parents who are living in foreign countries, run away from the foreign country and sometimes in violation of an order of foreign court. In such cases also the paramount consideration before the court is Welfare of the minor. But the Indian Courts respect the foreign judgments and it has been held by the Supreme Court that in matters relating to matrimony and custody, the law of that place must govern which has the closer concern with the well being of the spouses as well as the offspring of marriage’s In Jacqueline Kapoor v. Surinder Pal Kapoor, where custody was given to the mother by the foreign court and the husband forcibly took the child in India, the writ filed by the mother was allowed by the mother was allowed by the High Court.

     

    HINDU MINORITY & GUARDIANSHIP ACT, 1956

    PRELIMINARY QUESTIONS

    1. The word “Guardian” has been defined under

    (a)Section 4(a)

    (b)Section 4(b)

    (c)Section 4(c)

    (d)Section 4(d)

     

    1. An alienation of the minor’s property by a natural guardian without the permission of the Court is-

    (a) Invalid

    (b) Voidable

    (c) Void

    (d) Valid

     

    1. Which of the following is empowered to appoint Guardians?

    (a) District Court

    (b) High Court

    (c) Both (a) and (b)

    (d) None of the above

     

    1. In which of the following cases it was held when a minor brings a suit against the father to set aside improper alienation, the Mother can act as a guardian of minor even without seeking permission of Court?

    (a) Rajendra Kumar vs. Deepak Makhana

    (b) Banke vs. Banke

    (c) Lalita vs. Ganga

    (d) Sojabai vs. Pathan

     

    1. The Hindu are governed by-

    (a) Guardian and Ward Act, 1890

    (b) Hindu Minority and Guardianship Act, 1956

    (c) Both (a) and (b)

    (d) None of the above

     

    1. Testamentary Guardian can be appointed-

    (a) Orally

    (b) Only by a Will

    (c) Both (a) and (b)

    (d) None of the above

     

    1. In which of the following section deals with de- facto Guardian-

    (a) Section 9

    (b) Section 10

    (c) Section 11

    (d) Section 12

     

    1. In which of the following sections talks about Welfare of minor to be paramount consideration-

    (a) Section 10

    (b) Section 11

    (c) Section 12

    (d) Section 13

     

       

       

    ADOPTION

    MAINS QUESTIONS

     

    1. Enumerate the procedure laid down under Section 9 of HAMA for a person capable of giving in adoption?

     

    1. Is a Hindu wife entitled to seek maintenance from father in law after the death of her husband discusses it with relevant provision?

     

    1. Who are the dependent under Hindu Adoption and Maintenance Act by which provision of the said act they can claim maintenance.

       

       

    ADOPTION

       

    Hindu Law

    In India, adoption has been recognised for centuries, but being a part of personal laws, there is no uniformity among the different communities. The variations range from treating an adopted child exactly like a natural born child, to not recognising the status of adoption at all. Hindu law is the only law which recognises adoption in the true sense of taking of a son as a substitute for a natural born one. The reason for this is partly due to the belief that a son is indispensable for spiritual as well as material welfare of the family, particularly that of the father. In Bal Gangadhar Tilak v. Shrinivas Pandit, the Privy

     

    Council observed that adoption among the Hindus is necessary not only for the continuation of the childless father’s name, but also as a religious means to make those obligations and saciifices which would permit the soul of the deceased (father) passing from Hades to Paradise. Similarly, in Amarendra

     

    Mansingh v. Sanatan Singh the Privy Council observed: “The foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites.’

     

    Salient features, analysis and cases

    Salient features and some pertinent issues and cases under the Act are as follows:

     

    Old law vis-a-vis new law.-Significant changes in the Act are as follows:

    (i) Females have been given a right to ta.ke and give in adoption.

    (ii) A female whose husband is living can adopt with his consent.

    (iii) A widow can adopt to herself unlike earlier law where she could adopt only to her deceased husband.

    (iv) A married male Hindu who wants to adopt has to take consent of the wife/wives.

    (v) A female may also be adopted which was not permissible under pre-Act law.

    (vi) Only a major can adopt; prior t -the Act even a minor who had reached the age of discretion could adopt.

       

    Capacity to Adopt

    Any adult male Hindu of sound mind may adopt a child. If he is a married man, he needs to take his wife’s consent. Such consent, however, is not required if his wife is of unsound mind, or has renounced the world or has ceased to be a Hindu by conversion. If a person has more than one wife at the time of adoption, the consent of all of them is necessary, unless they are suffering from any of the disabilities mentioned above.

    Prior to the Personal Laws (Amendment) Act 2010, a female adult Hindu of sound mind could adopt a child under the following situations, viz., she is:

    (i) unmarried;

    (ii) divorced;

    (iii) widowed; or

    (iv) her husband suffers from certain disabilities viz., he has:

    (a) ceased to be a Hindu;

    (b) has renounced the world; or

    (c) has been declared to be of unsound mind by a court.

     

    After the above mentioned Amendment t, however, a female’s right to adopt has been brought at par with the male’s right.

     

    Capacity to give in Adoption

    As regards the capacity of persons who could give in adoption, the Act prior to 2010 provided that if the father was alive, then he alone could give in adoption, though the mother’s consent was required. Such consent was not required if the mother was of unsound mind, or had renounced the world, or had ceased to be a Hindu. However, if the father was not alive or suffered from any of these legal disabilities, then the mother had a right to give the child in adoption. Where both the parents are dead, or are legally incompetent to give in adoption, then in that case, the guardian of the child may give the child in adoption with the previous permission of the court, to any person, including the guardian himself. Before granting such permission to a guardian, the court has to satisfy itself that: (i) the adoption is for the Welfare of the child; (ii) the child’s wishes have been ascertained; (iii) there is no financial consideration in the transaction.

     

    Who can be adopted

    The Act also provides that a person who is to be adopted should be a Hindu and normally below the age of 15 and unmarried, unless there is a custom or usage applicable to the parties which permits adoption of those who have completed the age of 15 or those who are married also, the child to be adopted should not have been already adopted.

     

    A person, who has a Hindu son, son’s son, or son’s son’s son, either by blood or by adoption, cannot adopt a son. Likewise, a person who has a Hindu daughter or son’s daughter cannot adopt a daughter. In case the adopter and adoptee belong to opposite gender, the Act requires an age difference of 21 years. Thus, if a male wants to adopt a female, he must be at least 21 years older than the child to be adopted. Similarly, a female wishing to adopt a male child must be 21 years older than the child to be adopted. In Hanmant Laxman Salunke v. Shrirang Narayan Kanse, while a custom permitting adoption of a child over 15 years was established but the age difference between the adoptive mother and the adopted son was less than 21 ye s. This condition being mandatory its breach was held to be fatal to the adoption.

       

    Effect of Adoption

    Upon adoption, the adoptive child severs all his connections with the natural family and becomes part and parcel of the adoptive family with effect from the date of adoption. All rights and obligations of a natural born child of the family fall on him. However, there are three exceptions to this, viz.:

    (i) The child cannot marry any person whom he or she could not have married had he/she not been taken in adoption.

    (ii) Any property vesting in the adopted child before adoption continues to vest in him subject to the obligation, if any, attaching with the ownership of the property, including the obligations to maintain relations of his or her birth.

    (iii) The adoptive child cannot divest any person of any estate which vested in him or her before adoption.

     

    While it is true that the adopted child gets property rights in his new family, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will, unless there is an agreement imposing such restriction.

    The wife of a Hindu male, who adopts, is deemed to be the adoptive mother; where an adoption is made with the consent of more than one wife, the senior most in marriage is deemed to be adoptive mother and others as stepmother. In the case of adoption by a widower or bachelor, any woman whom he subsequently marries is the stepmother of the child Similarly, in case of adoption by a widow or an unmarried woman, any man whom she marries is deemed to be the step-father of the child. In this context an issue that came up before the Supreme Court was whether, in case of an adoption by a widow, would the adopted child be deemed to be the child of the deceased husband as well, so as to be his heir? The case involved succession to the properties of the widow`s husband-the widow, too, had died within two months after adoption. The dispute was between the adopted son and the reversioner of the deceased husband. For the reversioner, it was argued that the adopted son could not succeed to the properties of widow`s husband, since he (the adopted son) was not the son of the deceased husband. The Hindu Adoptions and Maintenance Act, 1956, having conferred an independent right of adoption on a female Hindu, if a widow adopts a son he becomes the son of the widow only, and cannot be deemed to be the son of the deceased husband as the doctrine of relation back has been abrogated by the Act. The courts did not accept this argument. It was held, that the words used in s. 5(l) are adoption “by or to a Hindu”. Adoption to a Hindu was intended, according to the count, to cover cases where an adoption is made by one person while the adopted child becomes the child of another person also. So, if a widow adopts a son, the actual adoption is by the female, but the adoption would not only be to herself, but also to her deceased husband. Referring to s. 12 of the Act, the court pointed out that from the date of the adoption all ties of the child in the family of birth are severed and new ties created in the adoptive family; it is well recognised that a married female belonged to the family of her husband and accordingly, the adopted child must also belong to the same family, the court said. lt is pertinent to note that s. 14 of the Hindu Adoptions and Maintenance Act, 1956 deals with four situations in which a child adopted by one person becomes the adopted or stepchild of another. There is, however, no mention as to whether a child adopted by a widow would also become the child of the deceased husband, and conversely, if the court’s interpretation were to be accepted, would on Widower’s adopting a child, the child become the child of the deceased mother as well? Suppose a widow, after adopting a child, remarries. Would the child have one adoptive father (the deceased husband of the widow) and one step- father (husband she marries)? This needs to be clarified to avoid anomalous interpretations.

     

    Adoption once made cannot be cancelled by the parents, nor can e adopted child renounce his/her status and return to the family of his/her birth.

     

    Gender Bias

    While the Act had considerably improved and enlarged the rights of females in regard to giving and taking in adoption, yet there was a bias against females in some respects. For instance, a married female Hindu could not adopt a child, not even with the consent of her husband. Thus whereas, a husband, after the wife’s consent could adopt, a wife, even after husband`s consent could not adopt. A married woman could adopt only if her marriage had been dissolved, or she was a widow, or if the husband has ceased to be a Hindu, or has renounced the world or has been declared by a competent court to be of unsound mind. Thus, an unmarried woman, a divorcee or a widow had more freedom in the matter than a married woman.

     

    Similarly, in the matter of giving a child in adoption also, the father had a better right. If he is alive, he alone could give away the child, though with his wife’s permission. The mother could not do so. Her right to give in adoption was restricted, and she could exercise the same only when the father was dead, or had completely renounced the world, or had been declared by a court of competent jurisdiction to be of unsound mind. Thus, where a mother had given her son in adoption while the father was alive and the female who adopted the son was only 19 years older than the adopted child, the adoption was held to be invalid on both these counts. In the context of gender bias as it existed prior to 2010 Malti Roy Chowdhury v. Sudhindranath Majumdar, is a significant and disappointing judgment, which had judicially reiterated and endorsed the legislative gender discrimination against a married female’s right to adopt. The deceased female had adopted a female child while she (the deceased) was in a married state. The physical handing over of the child and the ceremony of adoption was performed in the presence of the deceased’s husband, without his raising any objection whatsoever, and yet, the court held that the adoption was not valid. The court remarked: Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife has no capacity to adopt even with the consent of the husband…’

     

    While one was hoping that the Apex Court would, arises over-rule this and adopt a more pragmatic and humane approach, Brijendra Singh v. State of M.P., came as a disappointment. A crippled disabled lady was married because under the village custom if was imperative for a virgin girl to get married; the husband left her immediately after the marriage which was not even consummated; she adopted a son (the appellant) after 22 years of the so-called marriage so that she has someone by her side to look after her, and which he did. In view of some disputes under the agricultural land ceiling law, she sought a declaration that the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first appellate court. On second appeal to the High Court (Madhya Pradesh) it was held that in view of the provisions of s. 8(c) of the Hindu Adoptions & Maintenance Act, 1956, the adoption was not valid. The argument that she was leading life like a divorced woman was not accepted. “… there was a great deal of difference between a female Hindu who is divorced and one who is leading life like a divorced woman”, the court observed. Hence the present appeal. Dismissing the appeal the Court made the following opening observations in its order:

     

    The present appeal involves a very simple issue but when the background facts are considered, it projects some highly emotional and sensitive aspects of human life.

    Nonetheless, no relief was given.

    &nbsp’

    While law has taken of the gender discrimination in the Act and hence passed the Personal Laws (Amendment) Act 2010, giving right to married females to adopt with husband’s consent but that is not likely to change the fate of married females placed in the position of the disabled, deserted, “divorced-like” lady in Brijendra Singh ‘s cases.

     

    Factum and Proof of Adoption

    Though the law does not prescribe too many formalities for adoption, yet, some ceremony of giving and taking of the child needs to be established in support of a valid adoption. In this context, the Supreme Court judgment in Ram Das v. Gandiabai, is significant. The petitioner filed a suit for partition against the deceased father’s brother. The latter alleged that the petitioner had no right over the properties, as he was no longer a member of the family, because he had been given away in adoption to a man whom his mother later married and who maintained him.

    &nbsp’

    The court did not accept this plea. It held that simply because the step-father spent money on his maintenance does not by itself imply that he had been adopted by the step father. It was accordingly held that even though he was brought up by the step-father, he continued to be the member of his deceased father’s family, with all the rights of a son of that family.

    &nbsp’

    In Nilima Mukherjee v. Kanta Bhushan Ghosh, where plea of adoption was taken on the basis of a joint account with the alleged adoptive father, the court held that mere fact of having a joint account is no proof of adoption.

    &nbsp’

    Age Requirement

    Under the provision of the Act, a child to be adopted must not, ordinarily be above the age of 15. There is, however, an exception to this rule, if parties are able to establish that under the customs and usages governing them, adoption of a child above 15 years is permissible. In Uma Prasad v. Padmavati, the claim of an adopted son to properties was sought to be challenged on grounds, inter alia, that the boy was above the age of 15 when he was adopted, and so the adoption was not valid. The parties, who were Agrawals by caste, however, succeeded in proving that they were governed by an ancient and well-established custom and usage, which permitted adoption of boys over the age of 15. The adoption was, consequently, held to be valid. Similarly, in Khagenbam Sadhu v. Khagembam Ibotial Singh, where the fact of adoption was proved, the challenge that the child was above 15 years, and Manipuri custom did not allow such adoption, was held to be not sustainable as the alleged Manipuri such against such adoption was not proved. Adoption was therefore held to be valid.

    &nbsp’

    Adopted Child to be Hindu

    As is obvious from the title of the Act that, all parties, in the context of adoption must be Hindus. In Kumar Sursen v. State of Bihar the issue of adoption of a Muslim child came up before the court. The child was admittedly brought up by Hindu parents since his very tender age and they also treated him like their son. The court however, declined to give him t status of an adopted child in view of the specific provision of section 10(i) of the Act.

     

    Consent of Wife

    Under the provisions of the Act, a Hindu male adopting a child needs his wife’s consent, and if he has more than one wife, the consent of all the wives is required. It is no excuse for the male adopter to say that his other wife was living separately from him, and so the consent was not obtained. Thus, an adoption made with the consent of one wife only was held to be invalid in Bhoaloram v. RamlaI. Similarly, in Siddaramappa v. Gourawa, the court invalidated an alleged adoption by a male without seeking his wife`s consent. The plea that the relations between the huşband and wife were strained. and therefore her consent could not be taken was not accepted, as there was documentary evidence to establish that they were living together at the time of the alleged adoption. There was nothing to indicate that it was impossible to have wife’s consent. Apart from that, when conditions under which such consent may be dispensed with are specified in the Act, taking any other plea would be adding words to the statute. Moreover, the words in the proviso ‘he shall not adopt except with the consent of his wife” are emphatic and render the provision mandatory.

     

    Thus, a wife’s mere presence as a spectator in the assembly of people gathered at the place where ceremonies were performed was held to be of no proof of her consent. An adoption allegedly made 51 years back was consequently invalidated. This undoubtedly is bound to hugely impact property transactions made during this long period but the point has been made explicit enough, not leaving any scope for interpretation. The mother’s consent is equally mandatory in giving and taking of a child in adoption. Thus, an adoption, even though registered, where child was given in adoption by the natural father but with t consent of the mother, was held to be invalid in Deen Dayal v. Sanjeev Kumar.

     

    Consent of the Father

    Consent of the father is equally necessary when the mother wants to give or take a child in adoption unless he suffers from the statutory disabilities mentioned in ss. 8 and 9 of the Act. Teesta Chattoraj v. Union of India is an important case in this context though not a very happy one. The parents had a divorce by mutual consent and as per the settlement the father gave up all claims and duties qua their daughter. Two years later, the mother remarried and by a registered adoption deed gave the daughter to the second husband without seeking consent of the biological father. When the child applied for passport with step father’s name as the father, the application was turned down on the ground that the adoption was invalid. Hence, the child’s petition through her mother under article 226 of the Constitution. Her plea that the natural father had, in a way “finally renounced” the petitioner’s world since, at the time of obtaining divorce by mutual consent, he gave up all his rights, responsibilities and claims over the child, was not accepted. On the other hand a Government Circular of 2009 by the Ministry of External Affairs which provides that relationship of the child with his biological parents subsists even after divorce and the name of the step parent cannot be written in the passport of the children from the previous marriage was relied upon. While there is logic to this provision, too technical an interpretation may go against the interest of the child. A recalcitrant parent may have abdicated himself/herself of all responsibilities towards the child yet out of sheer vindictiveness may hold requisite consent which could cause psychological, emotional, social and practical problems as also embarrassment to the child. Each case needs to be assessed on its own merits and facts.

     

    Consent of Co-widow

    There is, however, no such requirement or restriction on a widow’s right to take in adoption with the consent of her co-widows. In Vijaylakshmamma v. B.T. Shankan, a senior widow took a male child in adoption without consulting the junior widow. The adoption was challenged as being invalid. It was contended that the stipulation in the proviso to section 7 with the explanation, requiring consent of all wives, should be read into section 8 as well, which refers to the capacity of female Hindu to take in adoption. The court, however, did not accept this plea and held that the deliberate omission as regards requirement of consent from a co-widow was an indication of the Parliament’s intention to give independent authority to a female in this matter. This is in keeping with the changed social set-up, recognising equal rights and status for women.

     

    Widow’s Rights

    Prior to 1956, a Hindu widow required consent of the sapindas or permission of the deceased husband-if he had given such permission before death-to adopt a child; this restriction has been done away with and the Act specifically entitles a widow to adopt a child. After the 2010 amendment however, there is no distinction between a mother’s right to give in adoption and the father’s right. Both have equal right. It is unfortunate, however, that despite this, there have been anomalous judicial pronouncements on a widow’s right to adopt. In Ashabai Kate v. Vithal Bhika Nade, a father and son died in quick succession. both leaving behind their widows. The widowed daughter-in-law delivered a posthumous female child and remarried. The widowed mother-in-law adopted a son soon after the remarriage of the daughter-in-law, but the same was held not to be valid. According to the court, in the presence of the daughter-in-law, the widowed mother-in-law had no right to adopt and this right did not revive even on the daughter-in-law’s remarriage.

     

    In Ningaappa v. Shivappa, also, the same view was held. This was a property dispute where the validity of an adoption was a crucial issue in determining the rights of the parties. The issue involved was whether a widow, whose widowed daughter-in-law was alive, was competent to adopt. Relying on the Supreme Court judgment in Gurunath v. Kamlabai, and on some other High Court cases, the court came to the conclusion that the widow has no right to adopt when the daughter-in-law is alive. The following dictum of the Supreme Court in Gurunath was relied upon: ‘The interposition of a grandson or the son`s widow, compete to Continue the line by adoption brings the mother’s power of adoption to an end.

     

    Adoption Effective only from Date Adoption

    As poi ted out above, a child gets the status of adopted child in the family only from the date of adoption. In other words, the Doctrine of Relation Back has been abrogated. In this context, an interesting case came up before the Allahabad High Court in Abhishek Sharma v. State of U.P. The issue was in regard to adopted child’s right to the family pension of his freedom fighter father who had died long before the adoption. The freedom fighter died in 1952 and as per the Rules, the widow received family pension. She died in 1998, but little before her death she adopted the seven year old son of her daughter through registered adoption deed. After the widow’s (i.e. adoptive mother’s) death, this child applied for grant of the family pension. The court rightly rejected his claim on the ground that the child was born 45 years after the death of the freedom fighter and the legal fiction of doctrine of relation back is not applicable. The court also observed how this case was a glaring example of n effort to defeat the very object of the freedom fighter’s family pension Rules.

     

    Multiple Adoption of Same Gender

    As has en pointed out above, under the provisions of the Act, adoption of more than one child of the same gender is not permissible. Infact, even when one has a biological child of that gender, adoption is not legal. In this context, the Bombay High Court ruling in Sandhya v. Union of India, is significant. The petitioners, who had already adopted a daughter, were prevented from taking another female child in adoption, in view of the provision of section 11(i) and (ii). The validity of this section was challenged on the ground that it violated Arts. 14 and 21 of the Constitution of India, since it discriminated: (i) between parents with unlimited number of children and parents without children; (ii) between a child adopted and a child to be adopted; and (m) between parents with any number of children of same sex and parents prevented from taking any child of same sex in adoption. The court, however, dismissed this argument and observed that ‘the classification as carved out has not been created by the impugned provisions’. As to the challenge under Art. 21, it Was argued that the right to have a family size according to one’s choice, is a component of the concept of human dignity and the courts having recognised the right to live with human dignity as a fundamental right, there should be no restriction as to the number of children one can adopt. The court conceded that while the right to life does have many facets and numerous dimensions have been added by judicial interpretation during the last few years that could not be stretched to accommodate every personal desire, howsoever, laudable. According to the court, doing so would be ‘seriously wrong and totally inappropriate’.

     

    Same gender multiple adoption vis-à-vis Juvenile Justice Act

    In this context a recent judgment of the Bombay High Court is extremely significant. The issue involved was the interpretation of the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 in the context of adoption of abandoned children. The Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted to provide for rehabilitation of orphaned, abandoned and surrendered children and adoption is one of the ways recognised by the Parliament to facilitate the object of rehabilitation. In this case, the petitioners already had a daughter; they obtained guardianship rights in respect of a surrendered female baby about five months old, after complying with all the requirements. The child remained with them for 4 years and thereafter, the petitioners filed an application to legally adopt that child. The court referred to various provisions in the Constitution, the Hindu Adoptions and Maintenance Act, 1956, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Convention on the Rights of Child which was ratified by India in 1992, and analysed them in great detail.

     

    Prohibition of Consideration in respect of Adoption

    In order to check trafficking of children, the Act prohibits taking or giving of any payments or rewards in consideration of adoption. This issue came up for consideration before the Supreme Court in J.V. Vijaya Bhastiar v. J. Kesava Rao. The validity of an ante-adoption agreement between the plaintiff, i.e., adopted son and the adoptive parents, was sought to be challenged. Under the terms of the agreement, it was provided that the adopted son will not set up any claim with regard to certain properties belonging to the adoptive family. Prior to adoption, the son had no right, whatsoever in these properties. In fact, the plaintiff was being fostered by the adoptive father and his wife for five years prior to the adoption.

     

    The wife of the adoptive father had transferred various properties in favour of the adopted son about five years prior to adoption. By an agreement prior to adoption, the plaintiff agreed not to claim any interest in some properties of his adoptive father. Subsequently, the plaintiff filed a suit for partition in respect of these properties also, which were mentioned in the ante-adoption agreement. The plaintiff being a major at the time of adoption, the genuineness of the agreement was not challenged-the challenge was, as to the validity of the agreement, on the ground that it was hit by section 17 of the Hindu Adoptions and Maintenance Act, 1956. It was argued, that giving up of a right in property to which the plaintiff would have otherwise been entitled to after adoption, would amount to payment or reward, or plaintiff agreeing to make the payment or reward to his prospective adoptive father. This argument was, however, rejected by the court. It was held, that the plaintiff had no right in those properties at the time of the agreement, so there was no question of any payment or agreement to make payment by the plaintiff to his would be adoptive father. Such question would have arisen only if the plaintiff had any right in the property. There was, thus, n question of any trafficking and the ante-adoption agreement was held to be valid.

    • In the case of Ramesh Gajanan Rege vs Gauri Ramesh Rege (2019)Bombay High Court Bench comprising of Justice A.P. Bhangale and Justice A.S. Oka has upheld the constitutional validity of subsection 3 of section 20 of the Hindu Adoption and Maintenance Act, 1956. It is also held that the applicability of Hindu Adoption and Maintenance Act, 1956 does not depend upon the nationality of the child or domicile of the child. If both the parents of the child are either Hindu or Buddhist or Jain or Sikh by religion, the said Act becomes applicable to such children.

    • The Supreme Court in Saheb Reddy vs. Sharanappa, has reiterated the legal position that an adopted child cannot divest any person of any estate which was vested in him or her before the adoption. In the instant case, the property of one Sharnappa, upon his death in 1957, was vested in his widow and three daughters. His widow adopted a son in 1971. In a suit for partition by one of the heirs, the trial court held that the adoption would not take away right and interest of other members of the family, which they had received prior to the date of adoption by virtue of the provisions of Section 12(c) of the Adoption Act. The Bench comprising Justice Anil R Dave and Justice L Nageswara Rao, in the facts of the case, observed that the property, which had been vested in the widow and three daughters of the late Shri Sharnappa Gaded in 1957, would not be disturbed because of adoption of defendant No.1, which had taken place on 9th February, 1971. Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, clearly states that the adopted child shall not divest any person of any estate which was vested in him or her before the adoption.

    • sukhwinder kaur versus state of punjab Punjab and Haryana High Court has recently held that an adopted son is entitled to compassionate appointment though he was adopted after the death of the sole bread-winner of the family. The Court was considering a Writ Petition filed by the Widow of Gurcharan Singh, retired from BSF who along with his minor son were killed by the CRPF on account of their mistaken identity.

     

     

    ADOPTION

    PRELIMINARY QUESTION

     

    1. Who can adopt by virtue of sections 7 & 8 of the Hindu Adoption and Maintenance Act?

    (a) Male and female Hindu can adopt a son or daughter

    (b) Male Hindu can only adopt, only a son

    (C) Female Hindu can adopt, only a daughter

    (d) Male and female Hindu can adopt only a son

     

    1. Whether consent of the wife is essential for adoption under the Hindu adoption and Maintenance Act?

    (a) Yes

    (b) No

    (c) Some times

    (d) All of the above are wrong

     

    1. Under the Hindu Adoption and Maintenance Act, 1956, whether an unmarried girl can adopt?

    (a) Yes

    (b) No

    (c) In certain situation

    (d) None of the above

     

    1. What are the circumstances under which a wife can adopt without consent of her husband?

    (a) He has completely renounced the world

    (b) He ceased to be a Hindu

    (c) He has been declared to be of unsound mind by a competent court

    (d) All of the above are correct

     

    1. Whether consent of father and mother is necessary in adoption?

    (a) Yes

    (b) No

    (c) Some times

    (d) none of the above

     

    1. When can a minor’s guardian give the child in adoption?

    (a) Where both the parents of the child are dead

    (b) Where the parents of the child become incapable of giving consent

    (c) Both (a) and (b) are correct

    (d) None of the above

     

    1. Who can be adopted as per Hindu Adoption and Maintenance Act, 1956?

    (a) Only male

    (b) Male and Female

    (c) Only female

    (d) None of the above

     

    1. Whether an orphan can be adopted?

    (a) Yes

    (b) No

    (c) Never

    (d) As per the order of court only

     

    1. Does the person adopted necessarily have to belong to the same caste as the adopter?

    (a) Yes

    (b) No

    (c) Yes, as per custom

    (d) None of the above

     

    1. Whether a stranger can be adopted if there a near relatives?

    (a) Yes

    (b) No

    (c) Never

    (d) None of the above

     

    1. Under section 10 of the Hindu adoption and Maintenance Act, adopted child must be under …………………years of age unless there exist a custom or usage applicable to such an adoption.

    (a) 11 Years

    (b) 13 Years

    (c) 15 years

    (d) 17 Years

     

    1. Does illegitimacy, physical or mental incapacity disqualify a child for adoption?

    (a) Yes

    (b) No

    (c) Invalid adoption

    (d) None of the above

     

    1. Which statement is correct?

    (a) Boy or girl to be adopted must not be a married person unless there is a custom or usage to the contrary

    (b) Boy or girl to be adopted may be a married person

    (c) Boy or girl to be adopted must be married person unless there is a custom or usage to the contrary

    (d) All of the above are incorrect

     

    1. Whether simultaneous adoption (dwayamushayayana), a form of adoption of a child by two or more persons, is permissible?

    (a) yes

    (b) No

    (c) No restriction

    (d) None of the above

     

    1. Under the Hindu adoption and Maintenance Act, 1956, The person adopted must be at least………………Years younger than yhe adopter if the latter be of the opposite sex?

    (a) 18

    (b) 21

    (c) 25

    (d) 28

     

    1. Under section 12, an adopted son shares………….with the after born natural son.

    (a) Equally

    (b) Not equally

    (c) Half

    (d) Nothing

     

    1. Whether a valid adoption by a widow divests her husband’s estate?

    (a) Yes

    (b) No

    (c) Always

    (d) None of the above

     

    1. By section………of the Hindu Adoption and Maintenance Act, all adoptions made after the commencement of this Act are to be regulated by the provisions contained in this Act.

    (a) Section 2

    (b) Section 3

    (c) Section 4

    (d) Section 5

     

    1. Is dattahoma an essential ceremony for adoption under the Hindu Adoption and Maintenance Act?

    (a) Yes

    (b) No

    (c) Depends

    (d) None of the above

     

    1. In which case did the Supreme Court observe, ‘Adoption by a married male Hindu will be considered to be an adoption to his wife also. Adoption by an unmarried man or woman is adoption to none else than the adopter’.

    (a) Krishna Singh v Mathura Ahir

    (b) Lachman Singh v Kripa Singh

    (c) L D A v MK Gupta

    (d) Sawan Ram v Kalawati

       

       

    MAINS QUESTIONS

     

    1. Write a note on the Rights of an Illegitimate Son as the member of a Joint Family and what is the position of a child born out of a Live-in-Relationship?

     

    1. Point out at least 6 differences between Mitakshara Coparcenary and Dayabhaga Coparcenary.

     

    1. What is the Power of a Karta in alienating Joint Family Property?

     

    1. Write Short Notes on any two of the following:
    2. (i) Doctrine of Relation Back

      (ii) Severance of Status in case of a Minor

      (iii) Revocation of Partition

     

    1. Differentiate between De Jure and De Facto Partition.

     

    HINDU JOINT FAMILY

     

    HINDU JOINT FAMILY: CLASSICAL CONCEPT

     

    – A ‘Hindu Joint Family’ consists of all male members descended lineally from a common male ancestor together with their mothers, wives or widows and unmarried daughters.

    – An unmarried daughter on marriage ceases to be a part of her father’s joint family and joins her husband’s joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her father’s house permanently. She again becomes a member of her father’s joint family. Her children however don’t become members of her father’s joint family and continue being members of their father’s joint family.

    – Even a illegitimate son of male descendant would be a member of his father’s joint family.

    – A child in womb till it is born is not a member of the joint family for taxation purposes but is treated as in existence for certain purposes under Hindu law.

    – The existence of the common ancestor is necessary for bringing a joint family into existence, but not necessary for its continuance.

     

    OUSTER OF A MEMBER FROM THE JOINT FAMILY

    – An unmarried daughter ceases to be a part of her father’s joint family on her marriage and may regain her status if she becomes a widow or if on being deserted by the husband comes back to her father’s house permanently.

    – A child male or female born in the family can cease to be a member of this family if he or she is given in adoption to another family by a person competent to do so under the law.

    – The marriage of a lineal male descendant under the Special Marriage Act, 1954 to a non-Hindu will result in his automatic severance from the joint family and he cannot become a member of this family even by agreement.

     

    INCIDENTS OF HINDU JOINT FAMILY

    1. Common male ancestor
    1. Purely a creature of law
      No legal entity distinct or separate from its members.
    1. Ouster of a member from joint family
    1. May continue in perpetuity
    1. All members do not have equal rights

     

    • Presumption of Jointness

    – The general principle is that every Hindu family is presumed to be joint Hindu family and continues to be joint unless contrary is proved.

    – Though every Hindu family is presumed to be a joint Hindu family yet the strength of the presumption necessarily varies in each case. The presumption is peculiarly strong in the case of father and sons, sons of one father and also in the case of brothers than in case of cousins. The further one goes from the founder of the family the presumption becomes weaker and weaker.

     

    – No presumption that the Hindu Joint Family possesses joint Property or any Property at all

    – In law there is no presumption that a joint family possesses joint family property or any property at all or that it should be of value. This has to be shown by affirmative evidence. Similarly, proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of the property was joint to establish the fact. But where it is established that the family possessed some joint family property which from its very nature and relative value may have formed the nucleus from which the property may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. These are not abstract questions of law but questions of facts that have to be determined on the facts and circumstances of each case.

     

    • Position when there is only One Male Member

    – A single male or a female cannot constitute a joint Hindu family individually even if the assets in their hands are purely ancestral. Further, presence of a male member is an essential requisite to start a joint Hindu family. Where the joint family comprises a man, his son, and their wives, all of them together would constitute a joint Hindu family. On the death of the father, the family comprising the son, his wife and his mother would maintain the same status, viz., a single male member with female members of the joint family can constitute a joint Hindu family. Similarly, where two out of three married brothers die, the surviving brother and the widows of the deceased coparceners will continue to constitute a Hindu joint family.

     

    – In Commissioner of Income Tax v. Lakshmi Narayan that the powers of a sole surviving coparcener over disposal of the coparcenary property are subject to well-recognised rights of the female members of a family. The widow of a deceased coparcener has a right to be maintained out of the family property and a right to a due provision for her residence. An unmarried daughter has a right to maintenance and to marriage expenses. Similarly, the disqualified heirs such as of unsound mind have similar rights. If the rights of these persons are threatened or if the holder of the estate is dealing with the property in a manner inconsistent with or endangering the rights of these persons, he may be restrained by a proper action from acting in that manner. Then expenses of religious ceremonies such as ‘Shraddha’ relating to the deceased coparceners also have to be provided from such property. Therefore, only because there is no coparcenary it does not follow that there is no undivided family.

     

    • Continuation of a Joint Family at the Instance of Only Female Members

    – On the question whether there can be a Hindu undivided family comprising only female members, the Apex Court has held that on the disappearance (death) of the last male member, which suggests that a male member was present in the joint family, the other members of the family though not coparceners, continue to be members of an undivided family. The law provided that so long as it is possible in the nature of things to add a male member to the family, a joint family does not come to an end. Accordingly, where the joint family comprises two brothers with their wives, on the death of both the brothers, their two widows have the capability to add a male member to the family if one of them was pregnant or they decide to adopt a male child; in this manner the joint family continues. The test laid down is the potentiality of the widows to bring a male member into existence either by nature or by law.

     

    • Continuation of Joint Family at the Instance of only Daughters

    – Under Hindu law the presence of a male member is not necessary for the continuation of a joint family so long as the females who became members of the family by marriage to lineal male descendants maintain the joint status and have the capability to add a male member to the family either by giving birth to sons or adopting a son to them. However, where a situation is reached when it is not possible to add a male member to the family, the joint family will come to an end.

    On the death of both the widows when the family comprises only two daughters will the joint family come to an end? Under the law as it stood before 1956, a daughter did not have the capability to add a male member to her father’s joint family. Therefore, when only a daughter was left in the family, the joint family of the father ended. After 1956 with the permissibility of adoption of a child, male or female to a single woman including an unmarried daughter, a daughter can have a legitimate son without getting married and while remaining a member of the father’s joint family. The Hindu Adoptions and Maintenance Act, 1956 has granted an unmarried female the ability to carry on her father’s joint family by adding a male member to the family. The reason why the child adopted by the unmarried daughter will be an addition to her father’s family is that a child adopted by a single parent can have only one parent family e.g., where an unmarried woman adopts a son, he will have only a mother and no father and if the mother subsequently marries, her husband will be related to the child as his stepfather.

    After the amendment of the Hindu Succession Act, in 2005, a daughter now is coparcener and can, not only continue a joint family, but also form one with her father and brothers.

     

    • Position when there are only Husband and Wife

    – There is a conflict of judicial opinion on the question whether a husband and wife can form a joint family. The Supreme Court held in TS Srinivasan v. Commissioner Income Tax, that a Hindu undivided family comes into existence only on the birth of a son. The case involved a situation where on the partition of the bigger joint family, the son obtained his share. He filed his returns as an individual until he got married. His status was to be determined when the wife was pregnant. It was held by the court that until the birth of the son, he did not form a joint family and could be assessed only as an individual. This decision that appears to be incorrect was later overruled by the Supreme Court in Surjit Lal’s case.

     

    • COMPOSITE FAMILIES

    – In certain communities particularly in Andhra Pradesh, there is a custom of existence of composite families. The culture of composite families arises by agreement between the families and the primary objective is convenience and efficient management of the family properties. When two or more families live together, work together, pool in their resources and labour and throw their gains of labor into a common stock, they are called composite families. A long duration such as living together of a few generations can in itself raise a presumption of merger of various families into composite families.

     

    CONCEPTOF COPARCENARY: UNDER CLASSICAL LAW

    – The system of coparcenary is a narrower institution within a joint family comprising only male members. This group of persons, unlike the joint family, is related to each other only by blood or through a valid adoption. No person can by marriage and no stranger can by agreement become a member of coparcenary, as it is a creation of law. Under the classical law, no female could be a member of coparcenary. The senior most male member is called the last holder of the property and from him a continuous chain of three generations of male members form the coparcenary.

     

    • WOMEN AS COPARCENERS

    – Under Mitakshara coparcenary, women cannot be coparceners. A wife under Hindu law has a right of maintenance out of her husband’s property yet she is not a coparcener with him. A widow of a deceased coparcener is not a coparcener and therefore cannot be treated as the Karta of the family. Even a widow succeeding to her deceased husband’s share in the joint family under the Hindu Women’s Right to Property Act, 19387 is not a coparcener. However, even though she cannot be a manager of Karta, yet she can be assessed as the head of the joint family for the purposes of income tax.

     

    • WOMEN AS COPARCENERS UNDER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

    – Presently a daughter has been introduced as a coparcener. However, a mother and all females who become members of a Hindu joint family upon their marriage to male coparceners are not coparceners themselves.

     

    • ILLEGITIMATE SONS

    – A Mitakshara coparcenary consist of only the legitimate male offspring of the lineal male descendants. Illegitimate sons are not coparceners but members of joint family, and if a partition takes place between the father and the sons, they can be allotted a share. The father can give an equal share to the illegitimate son. However, after the death of the father, if a partition takes place, the illegitimate son will get half the share of a legitimate son. The Hindu Marriage Act confers legitimacy on children born out of void and voidable marriages to enable them to inherit the property of their parents, but this legitimacy does not enable the children to inherit the property of any other relations of their parents. Children born of live in relationship are akin to the illegitimate children and would not be coparceners.

     

    • COPARCENARY BETWEEN A SANE AND INSANE PERSON

    – There can be a coparcenary between a sane person and an insane person. A coparcener gets his right in the coparcenary property by birth and there is nothing in Hindu law which shows that such a right is irrevocably extinguished on a supervening insanity. Under Hindu law, an insane coparcener has not right to claim partition and has no right to share if partition takes place, but this does not make him cease to be a coparcener. When he is cured of insanity, both his rights revive. In any case his son is not excluded from taking a share in the partition.

     

    • COPARCENARY BETWEEN A HINDU MAN AND HIS SON BORN OF A NON-HINDU WIFE

    – Rosie Marie v. CWT

    – A Hindu male getting married to a non-Hindu female under the Special Marriage Act, 1954 is ousted from the coparcenary. But, can he form a coparcenary with the son born to him from a non-Hindu wife? The High Court of Madras considered this question in Rosie Marie’s case, and held that as such a son is a legitimate son and as per the provision of the Special Marriage Act, 1954 his succession rights on the death of the father will be governed by the Indian Succession Act, 1925 and not by the Hindu Succession Act.

    – Coparcenary between a father and sons born of civil marriage. – If a Hindu performs a marriage under the Special Marriage Act, 1954 with a non-Hindu, his interest in the joint family property is severed. But does it mean that there cannot be a coparcenary between such a Hindu and a son born to him out of the marriage? A coparcenary will come into existence between him and his son provided his son is a Hindu.

     

    • INCIDENTS OF COPARCENARY

    1. Four generation rule
    1. Creation of law
    1. Only males
    1. Acquisition of interest by birth
    1. Unity of possession and community of interests
    1. Fluctuating and not a specific interest
    1. Collective enjoyment
    1. Doctrine of survivorship
    1. Right to ask for partition
    1. Alienation of undivided interests

     

    • DISTINCTION BETWEEN COPARCENARY AND A JOINT FAMILY

    MITAKSHARA SCHOOL

    – Mitakshara literally means a brief compendium.

    – It is commentary on the Yajnavalkya and is written by Vijnaneshwar.

    – Mithakshara is orthodox school whereas Dayabhaga is reformist school of Hindu Law.

     

    DAYABHAGA JOINT FAMILY

    • The Dayabhaga system of law was prevalent in Bengal and parts of Bihar and Orissa, while in rest of India the Mitakshara law prevailed.

    • A joint family under the Dayabhaga law differs from a Mitakshara joint family in certain fundamental aspects, the primary among them is absence of a right by birth of a son.

    • Dayabhaga law does not recognise the doctrine of survivorship.

    • There is no distinction between separate and coparcenary property and the entire concept is based on inheritance, i.e. that the sons inherit the property of the father on his death, as tenants-in-common. Accordingly, when a son inherits the property of the father under a Dayabhaga coparcenary, his own son and grandson do not acquire any right in the property.

    • In a Dayabhaga joint family, the father has absolute powers of management and disposal over the separate as well as the coparcenary property and the sons have only a claim of maintenance. Therefore, the sons under a Dayabhaga coparcenary have neither a right to ask for partition of the property from the father nor a right to even ask for accounts of the joint family property.

     

    • DISTINCTION BETWEEN MITAKSHARA COPARCENARY AND DAYABHAGA COPARCENARY

    1. Formation of Coparcenary

    – A Mitakshara coparcenary is a creation of law and cannot be formed by agreement between the parties. A Dayabhaga coparcenary on the other hand stems from a desire of the coparceners to live together.

    1. Commencement of Coparcenary

    – One of the primary differences between Mitakshara and Dayabhaga law is the commencement or the starting of coparcenary itself.

    – Under the Mitakshara law the starting point of coparcenary is the birth of the son in the family of a person who after inheriting the property from his father or paternal grandfather or paternal great grandfather or obtaining property on partition holds it as a sole surviving coparcener. On the birth of his son the coparcenary comes into existence or is revived if it was in abeyance(temporary suspension). Thus the birth of a son is the starting point or reviving point of Mitakshara coparcenary.

    – Under the Dayabhaga law, the father so long as he is alive holds the property as a sole or exclusive owner of it. On his death if he is survived by two or more sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point of the formation of coparcenary under the Dayabhaga law and not the birth of the son as is the case under Mitakshara law. The sons can bring an end to this coparcenary by effecting a partition among themselves but till it is done, it continues.

    1. Coparcenary between Two Generations of Male Members

    – While under the Mitakshara law a coparcenary may consist of father and son or father and sons, between brothers, grandfather and grandsons or even a father, his sons and grandsons, under the Dayabhaga law a coparcenary cannot consist of a father and son or grandfather and grandsons or a single son.

    1. Absolute Powers of Disposal of Shares

    – The father has an absolute right of disposal over the property that he holds so long as he is alive. Similar is the situation of each coparcener. Since the share of each of the coparceners is a fixed share, his powers of alienation over this share are absolute.

    1. Unity of Possession and Partition under the Dayabhaga Law

    – Under the Dayabhaga law on the death of the father, where he is survived by two or more of his sons, all of them inherit his property jointly and hold it as tenants-in-common. As the doctrine of fluctuating interest is not applicable here, each of them will have a fixed definite share over which they can also exercise full powers of disposal.

    1. Females as Representing Coparceners

    – Another distinguishing feature of Mitakshara and Dayabhaga coparcenary was the inclusion of females as representing the share of the deceased coparceners under Dayabhaga and absolute incapability of females to be representatives of sharers under Mitakshara coparcenary.

    – With the strict application of the doctrine of survivorship under the Mitakshara law, if a coparcener died leaving behind only female dependants including widows and daughters, his interest in the Mitakshara undivided coparcenary was immediately taken by the surviving coparceners while the widows and daughters had a right of maintenance only. Under the Dayabhaga coparcenary on the death of a coparcener, since the shares of such coparceners in absence of application of the doctrine of survivorship will go by way of inheritance, the widow/daughter will inherit the property.

     

    • Difference between Mitakshara and Dayabhaga School

    1. Under Mitakshara, the basis for the law of inheritance is the principle of propinquity, that is, nearness in blood relationship or consanguinity of blood,which means that one who is nearer in blood relationship succeeds.

    The law of succession under Dayabhaga is based on the principle of religious efficacy or spiritual benefits and therefore a person who confers more religious benefit on the deceased is preferred to those who confer less spiritual benefit.

    1. With respect to joint family under Mitakshara. the son, grandson and great grandson have a right by birth in the joint family property having an equal interest with the father.

    Under Dayabhaga. the son or grandson or great grandson has no such right till the father is alive and as he is the master of the property, he can dispose it off at his pleasure. Consequently it does not recognize the right of the son to ask for a partition during the lifetime of the father.

    1. Under Mitakshara law,the coparceners have community of interest and unity of possession. while under the Dayabhaga law coparceners have specified and ascertained shares in the joint family property. The interests do not fluctuate but the coparceners have a unity of possession.
    1. While under the Mitakshara system the brother, and even collaterals so long as they are joint do not have a right to dispose of their shares.

    Under the Dayahhaga system the brother, or other collateral hold their share quasi- severally and while still undivided have a right to dispose of their share.

    1. Under the Mitakshara system, the doctrine of survivorship applies and on the death of a coparcener his share is taken by the surviving coparceners.
    1. Under the Dayahhaga system in the event of a coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on her own account.

     

    KARTA

     Karta is the “senior-most” male member (un-disqualified coparcener) e.g. father, uncle, eldest brother. The presumption is very strong as this position is regulated by seniority (Lalbarani v Bhutnath AIR 1974 Cal 109) and does not depend upon merely the consent of the other family members. In the case of a conflict, the senior-most will be presumed to be and would continue as the Karta.

     So long as father is alive, he is Karta. If he is very old/ infirm or absent for a long period or relinquishes his right, then the order senior-most male member of the family becomes Karta. However, so long as the Karta is alive no one else on his own can be a Karta and if the Karta so desires, he continues to occupy the representative capacity even though he may be unable to look after the family affairs by reason of age or health.

     A temporary absence of the father is not sufficient for the son to become a Karta.

     A senior-most coparcener may not in all cases be the Karta of the family. If all coparceners agree, a junior male can be a Karta, the senior-most member can expressly relinquish his position as a Karta [Nemi Chand v Hira Chand (2000) 1 H&R 250 (Raj)]. However, the fact of assumption of Karta’s power by a junior member has to be proved by cogent evidence (because, the presumption in favour of the senior-most member as the Karta of the family is very strong). Further, junior member owes his appointment as Karta to the agreement or consent of the coparceners; they may withdraw consent at any time.

     It has been held that even a minor can act as Karta and represent the family through the guardian [Sarda Prasad v Umeswar Prasad (1963) ILR Pat 274].

     M/S. Nopany Investments (P) Ltd. v Santokh Singh (Huf)

     The court held that ordinarily, the 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 in exceptional circumstances.

     In Sunil Kumar v Ram Prakash the supreme court 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, the apex 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 the 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.

     

     Whether there can be more than one karta

    – Two persons may look after the management of the property, but the joint family has to be represented only by one Karta. “The existence of two Kartas cannot lead to the smooth management of the property of joint Hindu family and other affairs of the family in view of the powers which the Karta of a Hindu joint family possesses under the Hindu law” (Union of India v Shree Ram AIR 1965 SC 1531).

     

     Female Members as Karta

    – CIT v Seth Govind Ram Sugar Mills

    – The Supreme Court after reviewing the authorities held that the mother or any other female could not be the Karta.

    – Position post 1985 – Beginning with 1985, till 1994, the States of Andhra Pradesh (1985), Tamil Nadu (1989), Maharashtra and Karnataka (1994), introduced the possibility of unmarried daughters being coparceners in the same manner as a son. Since now, in these States, upon marriage, a daughter continues to be a coparcener, she fulfils the requirements for becoming a Karta. Born in the family, she acquired an interest in the coparcenary property and therefore, she can be a Karta, if she is the senior-most member in the family and she will be entitled to represent the family in all legal proceedings.

    – Position post 2005 – After coming into force of 2005 Amendment to the H.S. Act, 1956, a daughter is also a coparcener in the same manner as a son. Therefore, in the father’s absence, she can be a Karta, if she is the senior-most member in the family and she will be entitled to represent the family in all legal proceedings.

     

     Position of Karta

    – In the Hindu Joint Family, Karta or head occupies a pivotal position. The position of Karta is determined by birth and he is not appointed by anyone, nor does the consent of other coparceners is required. He is entitled to be the Karta because he is the senior most. 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. The position of Karta is terminable by resignation and relinquishment but is not indefeasible.

    – The position of Karta is sui generis (of its own kind or unique creation of Hindu jurisprudence). The relationship between him and other members are not that of principal or agent, or partners.

     

     Remuneration for Services

    – The position of a Karta is purely honorary. Thus, he is not entitled to draw or receive any salary for the services rendered, unless there is an agreement to this effect. Therefore, if in pursuance to an agreement, he agrees to receive a salary, the agreement would be valid and the family can show it as ‘expenditure’ in the income tax returns. The Income Tax officer cannot challenge the validity of such an agreement [Jugal Kishore v CIT (1967)(SC)].

     

     POWERS AND RIGHTS OF KARTA

    (i) Power of alienation

    (ii) Power of management of family affairs/property – is absolute, as no one (including the court) can question his management or mismanagement.

    (iii) Right to income and expenditure

    (iv) Right to representation

    (v) Power if compromise

    (vi) Power to contract/acknowledge debts

    (vii) Power to enter into contracts

     

     Karta’s Duties and Liabilities (Responsibilities)

    (i) Maintenance and marriage

    (ii) To pay taxes, etc.

    (iii) To recover debts due to the family

    (iv) Partition

    (v) Liability to account

     

     Alienation of Hindu Joint Family Property

    – A Hindu has unrestricted power to alienate (i.e. transfer) his personal property, but in case of joint family property his competence to alienate is determined by his status in the joint family. Only the Karta father and other coparceners possess the right to alienate the JFP.

     

     Karta’s Power of Allentation

    – Although no individual coparcener, including the Karta, has any power to dispose of the JFP without the consent of others, it is recognized by the Dharmashastra that Joint family property can be alienated by the Karta/coparcener for certain purposes only.

    – It is this ‘need backed authorization’ which empowers the Karta to alienate the property despite the dissent of other coparceners. An absolute denial of permission to the Karta to alienate the property even when the family needs money can be disadvantageous to the family itself. Thus, the Karta can do it when the alienation was unavoidable, where, but for this transfer, the interests of the family would have been adversely affected and to protect or benefit the family members or the property itself.

    – The Karta may alienate the JFP in the following three cases:

    (a) Legal necessity

    (b) Benefit of estate

    (c) Acts of indispensable duty

    – Vijananeshwara recognized three exceptional cases in which alienation of the JFP could be made:

    (i) Apatkale i.e. in the time of distress of emergency (to avert a danger).

    (ii) Kutumbarthe i.e. for the sake of the family (benefit of estate)

    (iii) Dharamarthe i.e. for pious purposes

     

    1. Legal Necessity

    – Broadly speaking, ‘legal necessity’ will include all those things which are deemed necessary for the members of the family. It means a necessity of the family, with respect to its members, and in certain cases, also with respect to its property, that can be justified in law.

    – The concept of legal necessity in Mitakshara refers to apat kale (famine, epidemic, floods, etc). However, this is a very narrow conception of legal necessity. It is now established that ‘necessity’ is not to be understood in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable.

    – In Rani v Shanta (AIR 1971 SC 1028), the Supreme Court has held that for ‘legal necessity’ actual compelling necessity is not the sole test but pressure upon the estate which in law may be regarded as serious and sufficient. If it is shown that the family’s need was for that thing or article, and if property was alienated for the satisfaction of that need, it would be enough. The term is to be interpreted with due regard to the conditions of modern life.

    – For an alienation to be valid under ‘legal necessity’ there must be existence of a need or lawful purpose, and, the family does not possess monetary or alternative resources from which the requirement can be met. Also, the course of action taken by Karta should be such as an ordinary prudent person would have taken with respect to his property.

    – Legal necessity may change its consent with the passage of time. It must therefore depend on the facts and circumstances of each case.

     

    HUNOOMANPRASAD PANDAY v MUSSUMAT BABOOEE

    The Privy Council propounded the following five propositions:-

    (i) The power of the guardian/manager for an infant heir (or the power of 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 of legal necessity or for the benefit of estate.

    (ii) In case a guardian/manager makes alienation as a prudent man, in order to benefit the estate, the bona fide lender or alienee is not affected by the previous mismanagement of estate, provided the lender of alienee was not a party to mismanagement. In other words, he shouldn’t have acted mala fide.

    (iii) The alienee is bound to make proper and bona fide enquiries as to the existence of necessity.

    (iv) If the alienee acts bona fide and makes proper enquiries, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of alienation. In other words, the alienee’s position is not affected by the fact that if the minor’s property were properly and better managed, the danger or necessity would have not arisen.

    (v) The alienee is not bound to see as to the actual application of money for the legal necessity. He is not an administrator of fund.

    (vi) The guardian/manager is under an obligation to make an alienation as a prudent man, but the mere creation of a charge on the minor’s property for securing properly a debt cannot be viewed as imprudent management because money to be secured on any ‘estate’ is likely to be obtained on easier terms than a loan which rests on mere ‘personal security.’

     

    • DEV KISHAN V RAM KISHAN

    – For an alienation to be valid under ‘legal necessity’ there must be existence of a lawful purpose. Thus, a debt incurred for the marriage of a minor child cannot be said to be for lawful purpose, as a child marriage is restrained by law and is opposed to public policy.]

     

    • ARVIND V ANNA

    – Where ancestral property is sold for the purposes of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.

    – Thus, for an alienation to be valid it has to be seen that the consideration received is adequate and that it has been properly utilized i.e. there was legal necessity or benefit to the estate.]

     

    1. • Benefit of Estate

    – According to Mitakshara law, a Karta can alienate the joint family property for the sake of the family i.e. Kutumbarthe. Broadly speaking, ‘benefit of estate’ means anything that is done which will benefit the JFP. The term contemplates ‘defensive transaction’ as well as ‘prudent transaction.’

    • BALMUKAND V KAMLAWATI

    – When the alienation of JFP by the Karta was not for any legal necessity or benefit to estate, the said alienation is voidable at the instance of coparceners.]

    • Indispensable/ Religious Duties

    – The term “indispensable duties” implies performance of those acts which are ‘religious, pious or charitable.’ The indispensable duties include religious ceremonies e.g. shradha, upanayanama, griharpravesam, rithusanti and guana ceremonies, and, performance of other necessary samskars.

    – Performance of marriage is a samskara and therefore performance of marriage of members of joint family, particularly of daughters, is an indispensable duty (also covered under ‘legal necessity’).

    – The ‘totality’ of the property can be alienated for legal necessity or for the benefit of estate or for the performance of indispensable religious ceremonies (e.g. marriage, dealth), but only a ‘small portion’ of the property can be alienated for pious purposes.

     

    • Father’s (Special) Power of Alienation

    – Father is usually the Karta of the family (being the senior most male member), and, possess the same powers of alienating the JFP. However, he also possesses some ‘special powers’ in relation to the JFP. In other words, where the Karta happens to be the father, he has wider powers of alienation:

    (i) Gift of love and affection of a reasonable property to his daughter

    (ii) Sale or mortgage of the property for payment of his antecedent debts (personal) not contracted for illegal or immoral purposes (Chet Ram v Ram Singh AIR 1922 PC 247)

       

       

    HINDU JOINT FAMILY

    PRELIMINARY QUESTIONS

    1. When two persons are the descendants of a common ancestor by the same wife, they are said to be related to each other

    (a) by full blood

    (b) by half blood

    (c) by uterine blood

    (d) either (a) or (b).

     

    1. When two persons are the descendents of a common ancestor but by different wives, they are said to be related to each other by

    (a) half blood

    (b) full blood

    (c) uterine blood

    (d) either (b) or (c).

     

    1. Two persons are said to be related to each other by uterine blood

    (a) when they are descended from a common ancestress by the same husband

    (b) when they are descended from a common ancestress but by different husbands

    (c) when they are descended from a common ancestor by the same wife

    (d) when they are descended from a common ancestor but by different wives.

     

    1. In the ‘Smritis’ the spinda relationship extends, in the line of ascent to

    (a) three degrees through the mother & five degrees through the father

    (b) five degrees through the mother and seven degrees through the father

    (c) four degrees through the mother and six degrees through the father

    (d) two degrees through the mother and four degrees through the father.

     

    1. What are the powers of karta?

    (a) Power of alienation

    (b) Power of management of family affairs/property – is absolute, as no one (including the court) can question his management or mismanagement.

    (c) Right to income and expenditure

    (d) All the above

     

    1. What are the essentials of joint family?

    (a) Power of alienation

    (b) Power of management of family affairs/property – is absolute, as no one (including the court) can question his management or mismanagement.

    (c) Right to income and expenditure

    (d) All the above

     

    1. Whether woman can be karta?

    (a) Yes

    (b) No

    (c) Depends

    (d) None of above

     

    1. Which are the essentials of coparcenary?

    (a) Four generation rule

    (b) Creation of law

    (c) Only males

    (d) All the above

     

    1. Is there any difference between Commencement of Coparcenary?

    (a) Yes

    (b) No

    (c) Depends

    (d) None of above

     

    1. Who can be a Karta?

    (a) Senior

    (b) Minor

    (c) Female

    (d) All the above

     

    1. Whether there can be more then one Karta?

    (a) Senior

    (b) Minor

    (c) Female

    (d) All the above

     

    1. What are the Karta’s Duties and Liabilities (Responsibilities)?

    (a) Maintenance and marriage

    (b) To pay taxes, etc.

    (c) To recover debts due to the family

    (d) all the above

     

    1. Which is the leading case on guardianship?

    (a) BALMUKAND V KAMLAWATI

    (b) ARVIND V ANNA

    (c) HUNOOMANPRASAD PANDAY v MUSSUMAT BABOOEE

    (d) ALL ABOVE

     

    1. Whether Karta can leave Kartaship?

    (a) Yes

    (b) No

    (c) Depends

    (d) None of above

     

    1. Under which situations Karta can leave Kartaship?

    (a) If become old

    (b) Sick

    (c) Both

    (d) None of above.

     

       

       

    PARTITION

    Mains Question

    1. A male Hindu dies intestate leaving behind—

    a) Daughter’s son’s son

    b) Son’s daughter’s son

    c) Sister’s son

     

    1. How will the ancestral property of a deceased Hindu be divided if he leaves a widow, two sons a daughter at the time of his death ?

     

    1. How does the self- acquired property of a Hindu male dying intestate devolves?

     

    1. Discuss the rules governing the devolution of property of Hindu male dying intestate among heirs in class I and II of the schedule appended to the Hindu succession Act, 1956?

     

    1. A Hindu, who has a Hindu wife and children, embraces Islam and marries a Muslim wife and begets children. On his death his Hindu widow and children claim a share in his assets. Are they entitled to a share?

       

    PARTITION

       

    • ‘Partition’ means to divide into parts or to separate, and under Hindu law, it generally means a division or splitting of a joint Hindu family into smaller, separate and independent units, with conferment of separate status on the undivided coparceners.

    • No partition is possible unless there are at least two coparceners in a joint family, as it is not merely the division of the family, but in essence, it is the disruption of the undivided coparcenary in a joint family.

     

    • DE JURE AND DE FACTO PARTITION

    – In an undivided coparcenary, all the coparceners have a joint ownership of the coparcenary property and till a partition takes place, no one can specify the exact share that he owns.

    – Further, due to the application of the doctrine of survivorship, the interest keeps on fluctuating with the deaths and births of other coparceners in the family.

    – Where this community of interest is broken or divided, either at the instance of one of the coparceners or by a mutual agreement among all the coparceners and the shares are clearly specified or demarcated, it means that the probable share is now converted into a fixed share.

    – Unity of possession, the other basic incident of a coparcenary, might be retained, but the moment community of interest is broken or specified, in law, a partition has taken place.

    – The extent of ownership and the shares are now fixed, and are no longer probable or fluctuating, with no scope of the application of the doctrine of survivorship. This is called a de jure partition or a simple severance of status.

    – Thus, unity of possession is maintained even after a severance of status has taken place. This breaking up of or division of this unity of possession is effected by an actual physical division of the property and is, also called a de facto partition or partition by metes and bounds.

    – A partition, strictly speaking is complete the moment the community of interest is severed or severance in status takes place. The actual physical division of the property by metes and bounds may, or may not follow and the members may ‘continue to hold the property in joint possession as tenants-in-common, without the incidents of fluctuation of interest and application of the doctrine of survivorship.

     

    • Persons Entitled to Ask for Partition

    – As a general rule, it is the coparceners who have a right to demand a partition and destruct their joint status. However, a partition can be demanded in certain situations by’ an alienee or a purchaser, in the execution of a decree of court of the undivided share of a coparcener.

    – Where an undivided coparcener alienates his share in states where he is permitted to do so, the alienee can demand a partition.

    – This partition will not have any adverse effect on the status of the rest of the coparceners, who would continue to be members of the joint family as before.

     

    • Coparceners

    – A coparcener, who is major and of sound mind, can, at any time, demand a partition and specification of his share. The person from whom he can demand partition, is the father or the Karta.

    – The minor can file a suit for partition against the Karta, not personally, but through a next friend. In these cases, the court acts as parens partriae.

    – The test would be whether the partition in the circumstances, would be for the benefit of the minor.

    – The court has a discretion and it may order for effecting a partition only when it is satisfied that it would be beneficial to his interests, otherwise, it will not direct a partition.

     

    • Dayabhaga Law

    – In a Dayabhaga coparcenary, the son has no right by birth in the property held by the father and therefore, he does not have a right to ask for its partition from him. Where the property is held jointly by the brothers, having a common enjoyment, each of them has a fixed share, but a partition by metes and bounds can be demanded by any coparcener.

     

    • Conversion

    – Religion is of utmost importance here and a non-Hindu ,therefore, cannot be its member.

    – Coparcenary is an institution within a joint family and therefore, unless and until a person is a member of a Hindu joint family, he cannot be a member of a coparcenary.

    – A coparcener who renounces his religion and converts to the Muslim or Christian faith, immediately ceases to be a coparcener, as an automatic severance of status takes place.

    – Prior to 1850, the conversion of a coparcener to another religion resulted in an expulsion from the joint family and operated as a forfeiture of his rights in the coparcenary property.

    – The Caste Disabilities Removal Act, 1850, protected the rights of a convert and of a person who was ex-communicated from the community and helped them retain their rights that they had in coparcenary property before the conversion or ex-communication.

     

    • Marriage of a Coparcener to a Non-Hindu under The Special Marriage Act, 1954

    – Under the Special Marriage Act, 1872, a coparcener, upon marriage, automatically severed his membership of the coparcenary and of the joint family.

    – The religion of the spouse was immaterial. So, a marriage of a coparcener with a Hindu woman, under the Special Marriage Act, 1872, also resulted in his severance from the coparcenary and the joint family. But the same couple, if they married under the traditional Hindu law, continued as members of the joint family.

    – Post 1976, where a Hindu man marries a non-Hindu woman, under the Special Marriage Act, 1954, such marriage effects his automatic severance from the coparcenary. But where his spouse is a Hindu, he continues to be a member of the coparcenary as before.

     

    • Partition at the Instance of an Adopted Son

    – A male child can become a member of a joint family by a valid adoption. From the moment of adoption, he is deemed dead for the natural family and is presumed to be born in the adoptive family, and acquires a right by birth (from the date of adoption), in the joint family property. He has a right to demand a partition and is entitled to a share equal to that of the adoptive father. He is also entitled to have the benefit of survivorship and on the death of the father, an undivided adopted son takes his share by the doctrine of survivorship.

    – An illegitimate son and, a disqualified coparcener, do not have a right to demand a partition.

     

    • Partition at the instance of a person acquiring an interest in the coparcenary property by virtue of a family arrangement

    – Whereas per a family arrangement a specific property or a share in the property is allocated to a person, such person acquires a right in the joint family property and becomes competent to ask for its partition.

     

    • MODE OF EFFECTING PARTITION

    – Since a major coparcener, who is also of a sound mind, has a right to demand a partition at his pleasure, all that he needs to do is to expressly manifest this demand to the other coparceners. A demand, in order to bring a severance of status, must comprise three essentials, viz.,

    (i) formation of an intention to separate from the joint family;

    (ii) a declaration of this intention; and

    (iii) communication of this intention to the Karta and if he is unavailable, to other coparceners.

     

    • Communication of Intention through a Will

    – A statement in the Will, by a member of the joint family, that he regards himself as a separate member, or that he has been a separate member all along, or that through this Will, he is expressing his clear intention to effect a severance of status, will not be effective at all and will not result in a partition, but where he makes a Will expressing in it, a unequivocal declaration of his intention to separate and brings it to the notice of others who are affected by it, a severance would take place. For example, where a Will containing such declaration, is attested by the Karta and by the other coparceners, the communication would be complete, a severance would take place, and consequently, the Wíll of his specific share would be valid.

     

    • EFFECTIVE DATE OF SEVERANCE OF STATUS

    – What the effective date of the severance of status would be, would depend upon the manner of communication of the intention to separate.

     

    • Doctrine of Relation Back

    – The above said rule can be explained in a different manner. The rule that severance of staus takes place only when it comes to the knowledge of the Karta, is applied strictly. But where the expression of this intention was put in course of transmission at a former date, with the application of the doctrine of relation back, severance would relate back to the former date and settled rights in between these two dates will not be disturbed.

     

    • Communication to be Completed during the Lifetime of the Coparcener

    – For the application of the doctrine of relation back, it is necessary that the communication of intention is complete during the lifetime of the coparcener. Where the communication is sent by the coparcener, but before it reaches the Karta, he dies, his interest will taken by the surviving coparceners and despite the Karta receiving the communication later, no severance of status would take place” As the moment a coparcener dies, he his interest in the coparcener property, the communication of his intention to separate after his death, is meaningless. Therefore, where a coparcener communicates his intention on to separate to the Karta, through a letter, and executes a Will of his share in favour of his friend, the Will, will be valid if he is alive on the day the Karta receives the communication, but void if he dies before its receipt by the Karta.

     

    • Severance of Status through a Suit

    – A coparcener can manifest his unequivocal intention to separate through a partition suit. A suit demanding a partition, is a clear cut evidence of a declaration of his intention separate himself from the family, and unless it is a sham proceeding, it will effect a severance of the status from the date of its institution in a court of law, irrespective of whether he gets a decree from the court or not. If he dies during the pendency of the suit, he dies as a separate member and his legal representatives can continue the suit. This is because the court is held to be in the same position as the Karta.

     

    • severance of status in case of minor

    – In Kakamanu Pedasubhayya v. Kakamanu Akkamma, the Apex Court held that even in the case of a minor coparcener, the effective date for severance of status would be the date of institution of the suit, provided the court actually effects a partition.

    – If the court comes to the conclusion that effecting a partition will benefit the minor, with the application of the doctrine of relation back, such a minor would be deemed to be separate from the date of the institution of the suit.

    – Where the court comes to the conclusion that a partition will not further the interests of the minor it will not order the effecting of a partition and the minor will remain an undivided member. In such a situation, the question as to what is the effective date of the severance of status, would be meaningless.

     

    • REVOCATION OF PARTITION

    – Once a partition is effected, it cannot be revoked by a unilateral withdrawal of the intention to separate, but it is possible for the members of the family, by a mutual agreement, which also includes the member at whose instance the joint status was disrupted, to come together again and reunite. A unilateral declaration can bring about a partition, the a unilateral withdrawal of this intention, where the partition has already been effected cannot result in a revocation of partition or in a reunion, as, for demanding a partition, the consent of the other coparceners is not material, but a reunion is not possible unless there is an agreement between all the members.

     

    • FORMALITIES FOR EFFECTING A PARTITION

    – A partition does not amount to a transfer within the meaning of the Transfer of Property Act, 1882, and can be effected orally or in writing, but if it is reduced to writing and the value of the property partitioned is more than Rs 100, it must be properly attested and registered.

    – Where it is required to be registered and has not been so registered, it will not be admissible in evidence, unless it acknowledges a prior partition, or an intention to separate.

    – A family arrangement can be oral and as it is not required to be registered, can be admitted in evidence as well.

     

    • PARTIAL PARTITION

    – While effecting a partition, it is not necessary that the whole of the joint family property should be divided or that all the members should separate at the same time and it is permissible in law, to effect a partial partition, both with respect to property, as well as its members.

     

    • PERSONS ENTITLED TO GET A SHARE AT THE TIME OF PARTITION

    – Coparcener

    – All coparceners, whether minor or major, are entitled to get a share at the time of partition.

    – Son Born of a Void or Voidable Marriage

    – A child born of a void or voidable marriage, is a legitimate child of the parents and statutorily entitled to inherit their separate property, yet, at the same time, he cannot inherit from any other relation of the parents. His rights are better than those of an illegitimate child, but inferior to those of a child born of a valid marriage. This statutory legitimacy is therefore, different from a perfect legitimacy. There is absolutely no doubt that a perfectly legitimate child would not only inherit the separate property of the parents, but would also have a right by birth, in the coparcenary property held by his father, grandfather (FF) or great-grandfather (FFF) and his rights to inherit the property of his grandfather ther and for that matter, any other relation of the parents, are well-recognised. But a child on whom statutory legitimacy has been conferred, has a right only in the property of his parents and not in any other relation of the parents, which means that he’ cannot inherit the property of the brother who is a legitimate offspring of the father.

     

    – Illegitimate Son

    – Presently, an illegitimate son inherits only from the mother, and not from the father. Under Hindu law, the rights of an illegitimate son to get a share at the time of partition, depends upon his caste. Among the three castes, Brahmins, Kshatriyas and Vaishyas, an illegitimate son is not a coparcener, but a member of his putative father’s joint family, and therefore, though he is not entitled to a share in the property his rights of maintenance out of the joint family funds are recognised. A son of a permanently kept concubine, called Dasiputra, who is a Sudra, is neither entitled to ask for a partition, nor to get share if the father was joint with his collaterals. Where the father was separated from his collaterals, a dasiputra has no right to demand a partition from him, nor to claim a share if a partition takes place between the father and his legitimate sons, but he can validly be given a share by his father. It is totally the discretion of the father, which he can exercise at his pleasure.He also has the power to decide the quantum of the share. It can be less than or even equal to the share of that of his legitimate sons, or there can be no share at all, but if the father is dead and the coparcenary comprises only the brothers, then the position is different. Here, not only is the dasiputra entitled to enforce a partition, but he can also get a share in his own right and not merely at the discretion of the other brother. The extent of his share would be one-fourth of what the other brothers (legitimate sons of his father) would take.

     

    • Disqualified Coparceners

    – Prior to the passing of the Hindu Inheritance (Removal of Disabilities) Act, 1928, a person suffering from congenital and incurable blindness, deafness and dumbness, idiocy or insanity virulent and incurable leprosy and other incurable diseases, that made social intercourse virtually impossible, could not acquire an interest in the Coparcenary property. Under the 1928 Act, except for congenital idiocy or lunacy, all other diseases or deformities ceased to operate as disqualifications.

     

    • Female Members

    – These three categories of females who are entitled to get a share are:

    (i) Father’s Wife,

    (ii) Widowed mother, and

    (iii) Parental grandmother,

     

    • Father’s Wife

    – Where a partition takes place between a father and his sons, the father’s wife or wives (if he was married prior to 1955), are entitled to a share, which is equal to the share of a son. It is irrespective of whether the father himself effects the partition, or it has taken place at the instance of a son. Where the father has more than one wife (as permitted before 1955), each wife is entitled to a share equal to the share of the son. It would irrespective of whether she has a son of her own or not.

    – If the father dies before effecting a partition, the son will take the entire property under the doctrine of survivorship and the wife or wives, will not get anything.

     

    • Widowed Mother

    – On the death of the father, where a partition takes place between or among brothers, the widowed mother is entitled to a share that is equal to the share of the brother. The expression ‘mother’, includes a stepmother also. For example, as shown in Fig. 11.7, a family consists of a father F, mother M, and three sons, S1, S, and S3.

     

    PICTURE06

     

    – On the death of the father, if the three brothers partition the property, the mother and each of the brothers will get one-fourth (1/4th) of the property. In another example illustrate in Fig. 11.8, F had two wives, W, and W, (both valid marriages solemnised before 1955), and two sons, S, and S2, from W2.

     

    PICTURE07

     

    – After the death of the father, where the sons effect a partition among themselves, W1 and W2 both, are entitled to get a share equal to the share of the sons, i.e., W1, W2, S1 and S2 will take one-fourth (1/4th) of the property each, irrespective of the fact that W, is a step-mother and does not have a son. In the above example, if before partition, S2 dies; the family will now consist of W1, W2 and S1. As a sole surviving coparcener, S1 Will take the total property. For a partition, a minimum of two coparceners should be present and therefore, no partition can take place here and W1 and W2 will not get a share.

     

    • Paternal Grandmother

    – A patemal grandmother gets a share equal to the share of a grandson, where the sons are dead and a partition takes place among’ the grandsons. The expression ‘paternal grandmother’, includes a step grandmother.

     

    • RULES FOR CALCULATION OF SHARES IN A PARTITION BY METES AND BOUNDS

    On a partition among the members of a joint family, all the members may effect a division among themselves, or only the branches may separate. The followings rules are to be observed while calculating the shares of the members who separate:

    i. A partition has to be effected between two generations as the first step, for example, between a father and his Sons.

    ii. The shares are to be so calculated that the share of the father on the one hand, and the share of each of the son on the other, are absolutely equal.

    iii. (m) The father takes the share as his exclusive or separate property with respect to the sons, while the son takes it as coparcenary property when he has male issues. In the absence of any male issues, he takes the property as a sole surviving coparcener.

    iv. Where one son dies during the lifetime of the father and leaves behind male issues, the branch of the deceased son takes the share that he would have taken had he been alive, i.e., the benefit of the death of a son will be taken by his male descendants, and not by his collaterals or ascendants.

    v. Where a joint family comprises only brothers, each of them takes an equal share. This is called a per capita distribution.

    vi. Each branch takes the property as per stripes (according to the stock), but the members of each branch will take pre-capita as regards each other.

    vii. When female members, who are entitled to get a share, are present, they must be given a share at the time of partition. The father’s wife takes a share equal to that of a son, the mother’s (widowed) share is equal to that of the brothers and the paternal grandmother’s share is equal to that of a grandson.

       

    PARTITION

    Preliminary Question

     

    1. Under the scheme of Dayabhaga school of Hindu law partition can be demanded by a son in his ancestral property, the above statement is

    (a) Correct

    (b) Incorrect

    (c) Depends on the father

    (d) None of the above

     

    1. It is the obligation of the son to pay off debts of his drunkard and gambler father.

    (a) Yes

    (b) No

    (c) Partly

    (d) None of Above

     

    1. Hindu Law is applied to Hindu who converted the religion from Hindu to Christian?

    (a) Yes

    (b) No

    (c) Partly

    (d) None of Above

     

    1. Devolution under Hindu succession act has been provided under section ………. of Indian succession Act, 1956?

    (a) 3

    (b) 4

    (c) 6

    (d) 5

     

    1. If individual from Joint Hindu family generates his own property, is it treated as his individual property?

    (a) Yes

    (b) No

    (c) Partly

    (d) None of Above

     

    1. The concept of “Antecedent debt” is first of all well described in case of ……

    (a) Brij Narayan Rai v/s Mangal Prasad

    (b) Pannalal v/s Narayan

    (c) Sitaram v/s Harihar

    (d) Girja Shankar v/s Navin Chanandra

     

    1. A Hindu who dies inestate, to whom of the following his property is firstly transferred?

    (a) First Line

    (b) Second Line

    (c) Third Line

    (d) Fourth Line

     

    1. Any Hindu male treat property which he gets in succession from his antecedents as…

    (a) Mother

    (b) Antecedents from mother side

    (c) Antecedents from father side

    (d) None of Above

     

    1. While appointing guardian of the Hindu Minor, court will think first about minor’s ___________

    (a) Development

    (b) Interest

    (c) Welfare

    (d) None of Above

     

    1. Any Hindu Female who have in her possession a property according to Hindu succession Act 1956 adopts it as a

    (a) Limited owner

    (b) Full owner

    (c) Up to her existence

    (d) None of Above

     

     

     

    MAINS QUESTIONS

       

      1. Distinguish Between Coparcenary and Joint Hindu Family.

       

      1. Explain the points of difference between the Mitakshara and the Dayabhaga with regards to law of Coparcenary and partition?

       

      1. Explain the constitution of a Joint Hindu Family giving your views on Hindu Coparcenary?

       

      1. Discuss the concept and characteristics of Joint Hindu Family and Coparcenary?

       

      1. Who are coparceners? Explain the concept of Coparcenary. Can a female be a coparcener?

         

         

      SUCCESSION

        INTRODUCTION

        The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the ancient patriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow, obeyed by everyone on his family, and having an unparallel control over their lives and properties. At the root was general family welfare or promotion of family as a unit for which personal interest of the family members could be sacrificed.

         

        Under Hindu law therefore the joint family system came first in historical order and the individual recognition of a person distinct from the family came later. The ancient system generally treated the property acquired by the members of the family property or the joint property of the family with family members having one or the right over it. With gradual transformation of the society and recognition of the members of the family as indigent in their own right, concept of separate property and rules for its inheritance were developed.

        This dual system, though considerably diluted has survived the lashes of time, the judicial and legislative onslaught and the Hindu society still recognizes the joint family and joint family property as unique having no similar concept alive anywhere else in the world.

         

        COMPOSITION OF HINDU JOINT FAMILY:

        CLASSICAL CONCEPT

        A “Hindu Joint Family” consists of all male members descended lineally from a common male ancestor together with their mothers, wives or widows and unmarried daughter.

        An unmarried daughter on marriage ceases to be a part of her father’s joint family and joint her husband’s joint family as his wife. Is a daughter becomes a widow or is deserted by her husband and returns to her father’s house permanently, she again becomes a member or her father’s joint family. Her children however don’t become member of her father’s joint family and continue being member of their father’s joint family. Even an illegitimate son of a male descendant would be a member of his father’s joint family. A child in womb till it is born is not a member of the joint family for taxation purpose but it treated as in existence for certain purpose under Hindu law.

         

        PICTURE02

         

        In fig. 2.1.A is the senior most male member. He together with his wife, W, his two sons S1 and S2 and their wives W1 and W2 grandson S3 and S4 and their wives W3 and W4 great – grandson S5 and his wife W5 and great-great grandson S6 will form a Hindu joint family. D1, D2 an D6 will be members of the joint family of A till they are unmarried. On their marriage they will cease to be the members of A’s joint family and will be part of their husband’s family. To bring into existence a joint family for the time the presence of the senior most male member is an essential condition. However, once the joint family comes into existence it continues despite the death of this male member. Fresh members are added by marriage of lineal male descendants and birth of children is the family while the existing members may die, as death is a natural phenomenon. The continuation of the joint family is not restricted in point of time and until and until it ends the death of all members of the family capable to form such family, it continues.

        The members of a joint family are bound together by the fundamental principle of sapinda-ship or family relationship, which is the essential feature of this institution. The cord that knits the members of the family is not property but the relationship with one another. The Mitakshara doctrine of joint family property is founded upon the existence of an individual family as a corporate body. The first requisite is the family unit, and the possession by it of family property is the secondary requisite. Such body with its heritages is purely a creature of law and cannot be created by acts of parties save in so far that by adoption a stranger may be affiliated as a member of that corporate family.

         

        OUSTER OF A MEMBER FROM THE JOINT FAMILY

        An unmarried daughter ceases to be a part of her father’s joint family on her marriage and may regain her status.

        If she becomes a widow or if on being deserted by the husband comes back to her father’s house permanently. A child male or female born in the family can ceases to be a member of this family if he or she is given in adoption to another family by a person competent to do so under the law. Since is an irrevocable act, such child cannot become a member of this family again in future. The marriage of a lineal male descendant under the Special marriage act, 1954 to a non-Hindu will result in his automatic severance from the joint family and cannot becomes a members of this family even by agreement. Till the passing of the caste disabilities removal act, 1850, also known as the freedom of religion act, conversation of a Hindu to another faith meant an automatic expulsion from the joint family. Since the act protected and removed the disabilities, imposed earlier on a convent, he or she could not be so expelled from the joint family when they ceased to be Hindus by converting to another faith.

        Yet, since a Hindu joint family is an institution available only to Hindu under Hindu law, such converts can neither form a joint family nor claim the benefits of it for taxation purposes. It has been held that a Hindu father with his Christian wife and a son will form a Hindu joint family. The correctness of the decisions is doubtful, as in a joint family the father and son constitute a Coparcenary. In the Coparcenary, the son has a right by birth. As being Hindu is an essential qualification to be a member of the joint family. The son of a Hindu father by a Christian mother need not be a Hindu in all cases. He will be a Hindu only if he is being brought up as a member of his Hindu parent’s tribe or community. In other words his religion cannot be determined at the time of his birth but is dependent upon his being brought up as a Hindu. As membership of a son in the joint family is to be determined at the time of birth, a son who may not be a Hindu would not be a member of his father’s joint family. In fact, a Hindu man marrying a non-Hindu is incompetent to from a Hindu joint family.

        Presently marriages between a Hindu and a Christian can be validly solemnized under the special marriage act, 1954 and under the Indian Christian marriage act, 1972. If they marry under the former act, a Hindu man will ceases to be a member of the joint family, there is no reason why the consequences should not apply if he marries under the latter act. The concept of a Hindu joint family would mean a Hindu father, having a Hindu wife and Hindu children. It is a Hindu joint family and cannot comprise non-Hindu members let alone a family having only a Hindu father, a non-Hindu wife and children whose religion cannot be determines at birth but is dependent upon the contingency of them being brought up as Hindus.

         

        COPARCENARY

        Coparcenary is a narrower institution within a joint family comprising only male member.

        The primary purpose of understanding the concept of Coparcenary is to determine the group who can offer spiritual ministrations to the father. It signifies a relationship.

        These descendants i.e., son, son of a son, son of a son of a son also have a right a by birth in the property of the father and therefore its incident implications are also property related. Gradually the spiritual aspect as dominated by the understanding of the concept in relation to the property that they can collectively own. With this segregation between the legal purpose and the religious purpose, the concept of Coparcenary, which initially had the dominated objective rooted in relationship, is currently understood to ascertain the right and obligations of the member of the family in the property owned by the joint family which is also called the joint family property or the Coparcenary property. The senior most among the coparceners is called the last holder of the property and from his a continuous chain of three generation of male members forms the Coparcenary. All the coparceners have an interest in the Coparcenary property by birth and have a right to ask for partition of the same. Under the classical law no female could be a member of Coparcenary. A person removed by more than four degrees is not coparceners. An illegitimate son of a lineal descendant is a member of the joint family but is not a coparcener.

         

        PICTURE09

         

        In fig. 2.2, a family comprising the father, F, his wife, his daughters D, three married sons, S1, S2, S3, with their wives W1, W2, W3 and married grandson – S4 and S5 with their wives, W4 and W5 and a great grandson S6 all will be member of a joint family. However, the daughter will be member of this family till she is unmarried but as far as the Coparcenary is concerned father’s wife, as also the lineal descendant’s wives W1, W2, W3, W4 and W5 and the daughter D will not be member of the coparenary and the father, F, his three sons S1, S2, S3 grandson S4 and S5 and great grandson S6 would be members of Coparcenary and will have a right by birth in the ownership of this property.

         

        INCIDENTS OF HINDU JOINT FAMILY

        (i) A common male ancestor is necessary to bring the Hindu joint family in existence but is not necessary for its continuation. After the death of such common male ancestor the rest of the family continues to be a joint Hindu family. It is said that upper links are removed and the lower links are added e.g., in fig. 2.3., the senior most male member A with his wife W and two sons constitute of joint Hindu family. One son S1, is married and has a son S3. On the death of A, the joint family does not end and it continues with W, W1, S1, S2, and S3 as the member.

         

        PICTURE1

         

        (ii) A Hindu joint family is purely a creature of law. This means, it cannot be created by the act of the members or a agreement between the parties. Therefore, a stranger cannot be made a member of Hindu joint family even by agreement among all members. The only exception to that is marriage and adoption. A female can be introduced as a member of the joint family by virtue of her marriage with a lineal male descendant and a child, male or female, can be added to the family by birth or by a valid adoption into the family.

        (iii) A Hindu joint family has o legal entity distinct or separate from its member. It is a unit and is represented by the manager of the joint family who is called. “Karta” in all family matters. It cannot or be sued in its own name. it is neither a juristic person nor a corporation and therefore cannot convey the property in its joint character.

        (iv) A Hindu joint family is not a juristic personality capable or holding property as an entity separate from its members. Therefore when it is said in relation to joint family that it possesses joint family property or Coparcenary property. It literally means that not only the family as a unit but also its members collectively own property.

        (v) To status of joint family members can be lost by conversion to another faith by marriage, to a non-Hindu, on being given in adoption by the competent parents, and for a daughter, on getting married.

        (vi) All member in a joint family do not have equal rights in the family property. Coparceners have an interest in the Coparcenary property while females and male member other than coparceners or disqualified coparceners have a right of maintenance and a right of residence in the joint family house.

        (vii) The continuation of a joint family in not dependent upon the presence of a male member in the family.

        (viii) Plurality of members is necessary for constitution of or continuation of joint family but plurality of male member is not necessary for its continuation. The joint family does not end even with the death of a male member as long as it is possible in the nature of things to add a male member in the family.

        (ix) A Hindu joint family may comprise in perpetuity until it ends. Even where a partition id affected this joint family may break but does not end as in its place two or more joint families come into existence.

        In fig 2.4, a joint family comprises the father F, his wife W, his three married sons S1, S2, S3 with their wives, W1 and W3 four grandsons, S4, S5, S6 and S7 and two unmarried daughters D1 and D2. When a partitions is affected instead of one. Four smaller joint families will come into existence. F1, along with W and the daughters will form one joint family. S1 along with his wife and son will form another, while S2 and S3 will form joint families with their sons and wives.

         

        PICTURE11

         

        PRESUMPTION OF JOINTNESS

        The general principle is that every Hindu family is presumed to be a joint Hindu family and continue to be joint unless contrary is proved. It is presumed to be joint is food, worship and estate. But that does not mean that they must necessarily have a common kitchen, a joint place of worship or that they should worship at all. However, if they do have one kitchen in their house, it is presumed to be joint unless contrary is established. The joint family member may be living for the sake of convenience in different of the house, may not even share a common kitchen; yet the family will be presumed to be joint. For e.g., in fig, 2.5, a Hindu family comprises a Hindu male A and his wife W, his three married sons S1, S2 and S3 with their wives W1, W2 and W3 all living together at Delhi. The family will be presumed to be a joint Hindu family.

         

        PICTURE12

         

        All three sons might be living in different rooms; they might be having different kitchen yet, the family will be presumed to be a joint family. Suppose S1 gets a job at Mumbai and with his wife goes to Mumbai, S2 gets a job at Chennai and goes to live there with his wife and S3 gets a job at Bangalore and goes to live there with his wife. Yet, the family would continue to be a joint family as mere severance in food and worship does not result in or operates as a separation.

         

        Thus even if a member starts living separately he continues to hold his joint status for the purpose of his share as a member of Hindu joint family.

         

        COMMISSIONER OF INCOME TAX v. GOMEDALLI LAKSHMINARAYAN, AIR 1935 BOM 412

        A Hindu joint family consisted of the father, his wife, his son and the son’s wife. Upon the death of the father, the question before the Income tax commissioner was whether the joint family can continue even when there was only one male member i.e., the son in this case and whether he is to assessed as an individual or as the Karta of the joint family of which he was a member. The importance of this question lay in the fact that for the purpose of super tax he would he allowed a large exemption if he was taxed as the manager of a joint Hindu family than if he is taxed as an individual. It also means that if the Hindu joint family is taxed as a unit the individual members are not liable to be charged in respect of what each member receives as his or her share of the joint income the court held he was to be assessed as the Karta of the Hindu undivided family. Explaining the concept of a Hindu undivided family and a Coparcenary and the distinction between the two, the court observed that while for a Coparcenary the presence of at least two male members in the joint family is a necessary requirement, a Hindu joint family can continue even with one male member, and accordingly in this case the son was competent to be assessed as the Karta of his joint family.

         

        Though every Hindu family is presumed to be a joint Hindu family yet the strength of the presumption necessarily varies in each case. The presumption is peculiarly strong in the case of father and sons, sons of one father and also in the case of brothers than in case of cousins. The further one goes from the founder of the family the presumption becomes weaker and weaker. Even where son separate from the father, the other sons, more so in case they are minors, would be presumed to be joint with their father. This presumption of jointness can be rebutted by direct evidence or by joint family, the presumption of law is, that a family once joint retains that status and his presumption can only be rebutted by evidence of partition or acts of separation. The onus probandi, lies on the party who claims a share in such estate prove that it is divided family, as on partition, it is he who has to prove that there was a division of the joint family estate, so, till some positive action. It is taken to settled that there is no presumption that when one member separate from others, the latter remain united and whether the latter remain united or not must be decided on the basis of the facts of each case.

         

        No Presumption That The Hindu Joint Family Possesses Joint Property Or Any Property At All

        A Hindu joint family is presumed to be joint in food, worship and estate, yet there is no fundamental requirement of law that it must possess joint property. Practically it is difficult to conceive of a situation where the joint families members are living together and yet do not have some common or joint items of property. They may not be expensive items nut a normal common habitation is indicative of common sharing of at least some house hold items. Similarly, a common kitchen indicates utensils and kitchen appliances that can be shared; likewise, a common puja room will have common thing that may be owned and used by the family jointly. However, in law there is n presumption that a joint family possesses joint family property or any property at all or that it should be of value. This has to shown by affirmative evidence, similarly, proof of existences of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of the property was joint to established the fact. But where it is established that the family possessed some joint family property which from its very nature and relative value may have formed the nucleus from which the property may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

        While maintaining joint family status, property can also be acquired in the name of different members individually. Even Karta purchases property in the name of his wife it will not be presumed to be the joint family property unless there is evidence that he could not have acquired the property with his income or the acquisitions of it was not in keeping with his financial position. The important thing to consider is the income which the nucleus yields. A building in occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may, well from the foundations, of the subsequent acquisition. These are not abstract questions of law but questions of facts that have to be determined on the facts and circumstances of each case.

         

        POSITIONS WHEN THERE IS ONLY ONE MALE MEMBER

        A single male or a female cannot constituting a joint Hindu family individually even if the assets in their a male member is an essential requisite to start a joint Hindu family. However, it is not necessary that there should be at least two male members to from a Hindu undivided family as a taxable entity or for its continually, where the joint family comprises a ma, his son, and their wives, all of them together would constitute a joint Hindu family. On the death of the father. The family comprising the son, his wife and his mother maintain the same status, viz., a single male member with female members of the joint family can constitute a joint “Hindu family”. Similarly, where two out of three married brothers die, the surviving brother and the widows of the deceased coparceners will continue to constitute a Hindu joint family and therefore the arrears of maintenance received by a widow of the deceased coparcerner will be exempt from tax under s. 14(1) of the act.

        One of the basic argument against the holding that single male member can form a joint family is that his authority over the property in his hands, whether separate or ancestral is absolute. He can dispose it of in any manner he likes. He also has the capability to treat the joint family property as his separate property and thus he should be treated as an individual for the purpose of income tax. To that Rangnekar J. said in commissioner of income tax v. Lakshmi Narayan, that the powers of a sole surviving coparacener over disposal of the Coparcenary property are subject to well recognised rights of the female members of a family. The widow of a deceased coparcener has a right to be maintained out of the family property and a right to a due provision for her residence. An unmarried daughter has a right to maintenance and to marriage expenses. Similarly, the disqualified heirs such as of unsound mind have similar rights. If the rights of these persons are threatened or if the holder of the estate is dealing with the property in a manner inconsistent with or endangering the rights of these persons, he may be restained by a proper action from acting in that manner. Similarly, the widow of a deceased coparcener may adopt a son to her deceased husband and he would then become a coparcener may adopt a son to her deceased husband and he ould then become a coparcener may adopt a son to her deceased husband and he would then become a coparcener with the sole wurviving coparcerner. Then expensies fo religious ceremonies such as ‘Shraddha’ relating to the deceased coparceners also have to be provided from such property. There-fore, only because there is no Coparcenary it does not follow that there is no undivided family.

        Even in the absence of an antecedent history of jointness, a Hindu male can constitute a joint Hindu family with his wife and unmarried daughter. There is an assumption that joint and undivided family is the normal condition of Hindu society. The presumption. therefore, is that the members of a Hindu family are living in unison, unless the contrary is established. The absence of an antecedent history of jointness between a Hindu man and his ancestors is not impediment to his forming a joing Hindu family with his wife and unmarried daughter or with other females in the family. ‘Those that are called by nature to live together, continue to do so’ and form a joint Hindu family. A single male may constitute an undivided family with his wife and daughter.

         

        Continuation of a Joint Family at the Instance of Only Female Members

        The term ‘continuation’ suggests the existence of a joint family in the past and the maintenance of the same status in the present. It is different from starting or forming a joint family for the first time and therefore the conditions for maintaining the same status are different from initiation or starting of the family. On the question whether there can be a Hindu undivided family comprising only female members, the Apex Court has held that on the disappearance (death) of the last male member, which suggests that a male member was present in the joint family, the other members of the family though not coparceners, continue to be members of an undivided family. So, on the death of the sole male member of a Hindu undivided family, females who were earlier members of the Hindu joint family are allowed to continue with that status. So long as the property that was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues. The law provides that so long as it is possible in the nature of things to add a male members to the family, a joint family does not come to an end. Accordingly, where the joint family comprises two brothers with their wives, on the death of both the brothers, their two widows have the capability to add a male members to the family if one of them was pregnant or they decide to adopt a male child in this manner the capability to add a male member to the family if one of them was pregnant or they decide to adopt a male child; in this manner the joint family continues. The test laid down is the potentiality of the widows to bring a male member into existence either by nature or by law. 55 In Attorney General of Ceylon v. A.R. Arunachalam Chettiar,56 a father and his son constituted a joint family governed by the Mitakshara school of Hindu law. They were domiciled in India and had trading and other interests in India, Ceylon and far Eastern countries. The undivided son died in 1934 and the father became the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. The father died in 1938 and the question to be determined was whether he died as a member of joint family or as a separate member because under the relevant estate duty ordinance, it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. Here at all material times, the female members of the family had the right to maintenance and other rights in the property. The widows in the family including the widow of the predeceased son also had the power to introduce coparceners in the family by adoption though that power was exercised after the death of the father. It was held that the deceased at his death was a member after the death of the father. It was held that the deceased at his death was a member of Hindu undivided family, the same undivided family of which his son, when alive was a member and of which the continuity was preserved after the father’s death through adoptions by the widows of the family.

         

        PICTURE13

         

        One thing is noteworthy here. All these cases involved a situation where the joint family was in existence and had one or more male members in this family. The status of this family was determined when the male members died and only females were left. In these cases, courts held that a joint family did not end if the females had the capability to add a male member in the family. However, in none of the cases the claim was from the females of form a joint family for the first time.

         

        Continuation Of Joint Family At The Instance Of Only Daughters

        Under Hindu law the presence of a male member is not necessary for the continuation of a joint family so long as the females who became members of the family by marriage to lineal male descendants maintain the joint status and have the capability to add a male member to the family either by giving birth to sons or adopting a son to them. However, where a situation is reached when it is not possible to add a male member to the family, the joint family will come to an end, e.g., in Fig. 2.6, where the joint family initially comprised the father F his wife W, two sons S1 and S2 and their wives W1 and W2, and two daughters D1 and D2, on the death of the father, mother and the sons, the widows in the family have the capability to add a male member in the family while remaining joint and the family will continue as a joint Hindu family.

        On the death of both the widows when the family comprises only two daughters will the joint family come to an end? Under the law as it stood before 1956, a daughter did not have the capability to add a male member or her father’s joint family. Therefore, when only a daughter was left in the family, the joint family of the father ended. The reason was that the daughter could give birth to a legitimate offspring only after her marriage and the moment she got married, she ceased to be a member of her father’s family, and her child would be a member of her husband’s joint family and not her father’s family. After 1956 with the permissibility of adoption of a child, male or female57 to a single woman including an unmarried daughter, a daughter can have a legitimate son without getting married and while remaining a member of the father’s joint family. The Hindu Adoptions and Maintenance Act, 1956 has granted an unmarried female the ability to carry on her father’s joint family by adding a male member to the family. The reason why the child adopted by the unmarried daughter will be an addition to her father’s family is that a child adopted by a single parent can have only one parent e.g., where an unmarried woman adopts a son, he will have only a mother and no father and if the mother subsequently marries, her husband will be related to the child as his stepfather.

        After the amendment of the Hindu Succession Act, in 2005, a daughter now is coparcener and can, not only continue a joint family, but also one with her father and brothers.

         

        Formation of a Joint Hindu Family by Women Alone

        On the death of the last male member in the family the status of joint family does not end and the females so long as they have the capability to add a male member to the family continue as the members of the joint family. However, such situations are to be differentiated with cases where Hindu women claim to form a joint family in the first place in the absence of an antecedent joint family status. It is to be noted that for the starting of or for bringing a joint family into existence for the first time the presence of a senior most male member is an essential requisite. On the question of the feasibility of a Hindu undivided family comprising only females, the Apex Court answered in the negative58 and held that the concept of a Hindu undivided family formed by females only by agreement was alien to Hindu personal law. In the case in hand, the widow and two daughters of a Hindu male governed by Dayabhaga law, inherited his properties and the mother blended her share of the inheritance into the joint family kitty of such an undivided family that they claimed to form. The Court held:

        We have no authority before us which can lead us to the conclusion that the assessee and her two daughters were capable of forming a joint Hindu family or of throwing the interest of any one of them in the inherited property therein. Concept of Hindu females forming a joint family by agreement amongst themselves appears to us to be contrary to the basic tenets of the Hindu personal law. Even when the joint family is already in existence a female member of the family is incapable of blending her absolute property into the joint family hotch potch.

        From the point of view of revenue statutes, the ascertainment of the status of a family whether joint or individual is confined to certain basic questions, viz whether a person is to be assessed as an individual or as the Karta of the joint family. If the money is spent for the maintenance of a joint family member, that can be shown as an expense of the joint family. These issues remain the focal point of inquiry whenever there is an examination of the character of the family for income tax purposes, while all other considerations are subsidiary. It is this difference in approach primarily that has created a distinction between a Hindu joint family under Hindu law and a Hindu undivided family for taxation purposes. Though it has been held by the Supreme Court that the expression Hindu undivided family is to be understood in the same manner as the concept of ‘Hindu joint family’ under Mitakshara law yet the difference in approach is inevitable. This is why under the Hindu law a mother and a daughter will not constitute a joint family and the mother cannot be a Karta of the joint Hindu family; yet for the purposes of income tax she can be assessed as the head/manager of the Hindu undivided family.62 Similarly, the courts have held that a joint family can exist where there are only widows or a widow and an unmarried daugther63 so long as the property which was originally of the Hindu joint family remains in the hands of the widows of the members of the family and is not divided among them.64 As aforesaid, a Hindu Joint family cannot be finally brought to an end if it is possible to add a male member by a female by way of giving birth to a male child or through adoption.65 However, after the coming into force of the Hindu Succession Act, 1956, granting absolute rights of ownership to the widow, the situation has changed. Now if a person holding property as joint family property in his hands dies leaving behind his widow and his daughter, the property in the hands of the widow and daughter even if practically joint will be their separate property and his widow cannot be assessed as the head of the joint family.

         

        Position when there are only Husband and Wife

        There is a conflict of judicial opinion on the question whether a husband and wife can form a joint family. The Supreme Court held in TS Srinivasan v. Commissioner Income Tax,67 that a Hindu undivided family comes into existence only on the birth of a son. The case involved a situation where on the partition of the bigger joint family, the son obtained his share. He filed his returns as an individual until he got married. His status was to be determined when the wife was pregnant. It was held by the court that until the birth of the son, he did not form a joint family and could be assessed only as an individual. This decision that appears to be incorrect was later overruled by the Supreme Court in Surjit Lal’s68 case. This question, whether a Hindu male along with his wife even before the birth of the son can form a Hindu joint family or not arose for the consideration before the Madhya Pradesh High Court in Commissioner of Income Tax v. Vishnukumar Bhaiya.69 On exactly the same facts, the court held that when the property was received by the assessee on partition, he was a single member and did not constitute a Hindu undivided family. His status was that of an individual. The fact of his marriage did not alter the position and, in the absence of a son, the personal law of the assessee regarded him as the owner of the property received by him on partition and the income therfrom as his individual income. The Gujarat High Court,70 also held that a sole surviving coparcener of a Hindu undivided family is the owner of the property, and therefore even the existence of a female member did not affect the absolute right of the male member to deal with and enjoy the property as his own as if it was absolute property. The character of the property that he holds as a sole surviving coparcener is analogous to that of his exclusive property and makes him an individual rather than the head of the joint family Rajasthan High Court has also held that a husband and wife alone cannot form a Hindu undivided family as a wife cannot create a charge on husband’s property.71 It is the personal obligation of the husband to maintain the wife even though he has no property. In Seth Tulsidas Bolumal v. Commissioner of Income Tax 72 an assessee was the karta of a joint Hindu family consisting of himself, his wife and major son. He converted some of his individual properties as joint family properties as joint family property by a declaration. All these properties were assessed as income of the Hindu undivided family. The joint family properties were partitioned five years later, between the assessee and son, each taking a half share i.e., the father and his wife separated from the major son. For the assessment year subsequent to the above partition, the assessee claimed that the amounts which he paid to the smaller joint family was not his individual income, but that of the smaller Hindu undivided family. The court repelled that contention and held that the portion of the converted asset which fell to the share of the assessee after partition was individual property, notwithstanding the fact that the karta and his wife formed a Hindu undivided family. The reasoning of the court was that, in the absence of a son, the property belonged to the Hindu male (karta) absolutely and, therefore, the joint family had no right in the property or the income arising there from. The gist of the judgment was that a Hindu male and his wife would form a joint family but the properties held by him may be his separate properties, as that would depend on the facts and circumstances of each case.

        However in Kalyanji Vithaldas’s case a Hindu man having a wife and a daughter claimed that the properties held by him were joint family property and the Judicial Committee disagreeing with them observed:

        It would not be in consonance with ordinary notions or with a correct interpretation of law of the Mitakshara to hold that property, which a man has obtained from his father, belongs to a Hindu Undivided family by reason of his having a wife and daughters…. ‘Interest’ is a word of wide and vague significance and no doubt it might be used of a wife’s or daughter’s right to be maintained which right accrues in the daughter’s case on birth, but if the father’s obligations are increased, his ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of self-acquired property.

        They, therefore held that in all cases where the family comprised a man, his wife and daughters only or only himself and his wife, the income falling to their shares cannot be treated as income belonging to the joint Hindu family. Even where the sources from where the income received were ancestral but merely because the source held by the member who received it from his father and was on that account ancestral, the income could not be deemed for the purpose of assessment to be income of the Hindu undivided family even though a wife had rights to be maintained under Hindu Law.

        On the other hand in complete contrast to the aforesaid judgments in Narendranath’s case, the Supreme Court held, almost on similar facts, that the ownership of the dividing coparcener is such that female members of the family may have a right to maintenance out of it and, in some circumstances, to a charge for maintenance upon it and therefore when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property, in the hands of the coparcener, belongs to the Hindu undivided family comprising himself, his wife and minor daughters and cannot be assessed as his individual property. The Patna and Allahabad High Courts and recently the Gujarat High Court have also held that a husband and a wife can form a joint family all by themselves, as every Hindu family is joint until contrary is proved. Where a coparcener obtains property on partition and then subsequently marries, the status of the property that he holds is either ancestral or joint family property. According to the Karnataka High Court in such a situation the property in the hands of such a person will be joint family property because if he gets a wife, he will be burdened with an obligation to maintain her and if he later a son the character of the property will again be termed as joint family property. If he begets only daughters, the burden of maintaining them will be fastened on the property. According to the reasoning of the Karnataka High Court, even in the hands of a single male, the character of the property is that of Coparcenary property as he is given the title of a sole surviving coparcener. The Supreme Court has held that as far as the obligation to maintain the wife is concerned, the obligation is personal as well as with respect to the property of an individual and therefore the obligation to maintain the wife extends with respect to the personal property of the husband. The court said that as far as the self-acquired property of an individual is concerned, he has to assessed as an individual even though he with his wife and daughters a joint family. In other words the character of the family may differ from the character of the property it may possess. The family may be a joint family but the property that its head may possess may be his separate property. Therefore, what the court said was not that a Hindu male with his wife cannot constitute a joint family but that with respect to his separate property he has to be assessed as an individual. There can therefore be a joint family comprising a man and his wife.

        The Supreme Court further held,79 that the property which a coparcener obtains on partition does not become for all times his individual and separate property. If he has a wife or a daughter depending on him the property will be charged by the obligation to maintain them. If he marries later, his ancestral or self-acquired property will be burdened by an obligation to maintain his wife. If he begets a son, that son becomes entitled to a share in the property which thereby revives the character of a joint family property. If he begets only daughters, the obligation to maintain them will be fastened on the property. If is not as if an unmarried Hindu male obtaining a share of ancestral property in partition retains property as his absolute property even after marriage, encumbered by any obligation to maintain his wife or other dependants. In that absolute sense, it may not be his absolute property after he marries. It sheds the character of separate property and revives its character as joint family property of the smaller unit consisting of himself and his wife. The obligation is with respect to the ancestral property only and not with respect to the separate or self acquired property.

         

        Whether ‘Hindu Undivided Family’ And ‘Joint Hindu Family’ Is Same

        In revenue statutes, the expression ‘Hindu Undivided Family’ has been used. This appears slightly different form the term ‘Joint Hindu Family’ under ‘Hindu law. Section 2(9) of the Indian Income-tax Act, 1922 defines a ‘person’ to include, inter alia, a ‘Hindu undivided family.’ A Hindu undivided family is a taxable unit for the purposes of income tax and super-tax. The expression ‘Hindu undivided family’ Finds reference in various provisions of the Act but this expression is not define in the Act. The reason for the omission according to the Supreme court is that the expression has a well-known connotation under Hindu law and being aware of information technology, the legislature did not want to define the expression separately in the Act, therefore, the expression ‘Hindu undivided family’ must be construed in the sense in which it is understood under Hindu law. The Supreme Court has said that there is nothing in the scheme of the Wealth Tax Act also to suggest that it is different form joint Hindu family and therefore a joint Hindu family and undivided family are synonymous terms. However in a recent decision the Rajasthan High Court made an interesting observation.

        There is no such thing as HUF’s property. In fact the subject index of Mulla’s Hindu law which deals with nearly every matter discussed in the book does not refer to any such thing as HUF or the Hindu undivided family much less property belonging to such a family.

        Even in light of the Supreme Court’s observation that the expressions ‘Hindu undivided family’ and ‘Hindu joint family’ are synonymous, there are some basic differences between the two:

        (i) One of the basic presumptions under Hindu law is that every Hindu family is presumed to be a joint Hindu family until contrary is proved. There is no such assumption under the taxation laws for a Hindu family. On the other hand, this is the main point of contention.

        (ii) Under Hindu law though there is a presumption that every Hindu family is a joint family there is no presumption that information technology owns joint family property. Therefore, under Mitakshara law there can be a joint family without joint family property. However, the concept of Hindu undivided family under the revenue laws is linked only with the property. The concept of a Hindu undivided family without owning any property is meaningless as far as its assessment is concerned.

        (iii) Under Hindu law, a son in the womb of his mother in many aspects is treated as equal to a son in existence. He can also restrict the rights of a sole surviving coparcener to alienate the property, yet for the purposes of revenue laws, such a son is not taken into cognizance till he is actually born alive.

        (iv) The very purpose for which the expression Hindu joint family or Hindu undivided family is understood by these two legal branches, viz. the revenue authorities and Hindu law, are different. The importance of the difference lies in the fact that for the purposes of super tax a person will be allowed a larger exemption if he is taxed as the manager of a joint Hindu family than, if he is taxed as an individual. For imposition of tax, whether a person is to be assessed as an individual or as the Karta of a joint family is the primary consideration. If the money is spent of the maintenance of a joint family member that can be shown as an expense of the joint family . Thus this remains the focal point of inquiry whenever there is an examination of the character of the family for revenue purposes. All other consideration are subsidiary.

        (v) These differences in approach have created a distinction between a Hindu joint family under Hindu law and a Hindu undivided family for taxation purposes. This is the reason why under Hindu law there cannot be a joint family consisting only of a mother and a daughter and the mother will not be a karta of this Hindu family; Yet for the purpose of income tax she can be assessed as the head/manager of the Hindu undivided family. Under Hindu law, to understand the concept of Hindu joint family, its composition and its unique feature has multifarious purposes. Concept of Hindu joint family is the starting point of understanding the Hindu law of ownership and devolution of ancestral property, the rights and obligations of its various members, rights of survivorship in this property, rights and modes of partition and the ascertainment of their shares. The concept of joint family also has a bearing on succession laws and the power of a member to dispose of his share inter vivos or through a will. The purposes are beyond comparison. In completer contrast to the narrow object under the revenue laws the joint family concept under Hindu law is the starting point of a fully developed separate branch of law altogether.

         

        COMPOSITE FAMILIES-

        In certain communities particularly in Andhra Pradesh, there is a custom of existence of composite families. The culture of composite families arises by agreement between the families and the primary objective is convenience and efficient management of the family property. When two or more families live together, work together, pool in their resources and labour and throw their gains of labour into a common stock, they are called composite families. A long duration such as living together of a few generations can in itself raise a presumption of merger of various families into composite families.

         

        RIGHTS OF MEMBERS OF JOINT HINDU FAMILY

        In a Hindu joint family. All its members do not have equal rights. The interest in the coparcenery property is with the coparceners, including a right to demand its partition, and a right to challenge its unauthorised alienation made by Karta. All other female members including the widows of deceased coparceners, male members beyond four generations, disqualified coparceners, and illegitimate sons of lineal male descendants, have a right of maintenance out of the joint family funds and a right of residence in the joint family home. The right of residence cannot be enforced as a matter of right if any member, including a coparcener has proved to be a nuisance to the other family members and his continued residence in the family will adversely affect the interests of the other members or disturb the peace of the family. In such cases, the Karta can hand him his share and throw him out of the family. Unmarried daughters in the family also have a right to be married out of the joint family funds.

           

        SUCCESSION

        PRELIMINARY QUESTION

         

        1. A Hind joint family (according to Mitakshara Law) consists of “the common ancestor and all his lineal male descendants up to any generation together with the wife (s) or widows and unmarried daughters of the common ancestor and of the linear male descendants.” 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 the continuance of a joint family.

        (d) None of the above.

         

        1. Which of the following is excluded from the Hindu joint family:

        (a) Illegitimate son

        (b) Widowed daughter

        (c) Adopted son

        (d) Married Daughter

         

        1. A Coparcenary:

        (a) Can be created by an agreement.

        (b) Is a creature of law.

        (c) Both (a) and (b)

        (d) None of the above.

         

        1. A Mitakshara joint family consists of the following —H, the father, his sons S1 and S2, his daughters D1 and D2, his grandsons S3 and S4; his great grandson S5 by S3 and his greate great grandson S6 by S5. Which of the following is not a coparcener?

        (a) S3

        (b) S4

        (c) S5

        (d) S6

         

        1. Which of the following is an ancestral property?

        (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.

         

        1. Which of the following is not a joint family property

        (a) Ancestral property lost by the family and recovered by a member without the assistance of JFP.

        (b) Property granted by Government to a member of the joint family.

        (c) An acquisition made by means of leaning under the Hindu Gains of Learning Act, 1930

        (d) All of the above

         

        1. The Hindu joint family Property includes:

        (a) All ancestral property

        (b) Property acquired at the cost of ancestral property.

        (c) Separate property of a coparcener which is voluntarily thrown by him into the common stock to such an extent that it cannot be distinguished from JFP.

        (d) All of the above

         

        1. Which of the following statement is incorrect about a Hindu joint family?

        (a) It is a creation of law

        (b) It has no legal entity distinct and separate from the of the members who constitute it.

        (c) There is presumption that joint family possesses joint property

        (d) A single male or female cannot make a joint family

         

        1. Hindu female’s property right is her limited property right?

        (a) True

        (b) False

        (c) Partly

        (d) None of the above

         

        1. Make the correct statement

        (a) A Hindu Joint Family is akin to corporation.

        (b) A Hindu Joint Family is akin to composite family.

        (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 seprate in estate.

       

       

    JUDGEMENTS ON S. 125 CR.P.C

         

      Reema Salkan Vs. Sumer Singh Salkan (SC) [Bench Strength 3], 2018(9) JT 390 (Decided on 25/09/2018) [Dipak Misra C.J., A.M. Khanwilkar & D.Y. Chandrachud JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Quantum of maintenance — Basis of notional minimum wages, unsustainable — Courts below concurrently found that, in law, respondent was obliged to maintain appellant wife — Family Court restricted liability of respondent to pay maintenance amount only between 17th July, 2003 and 8th December, 2010 (date of unemployment of husband), which view did not commend to High Court — High Court, instead directed respondent to pay a monthly maintenance amount to appellant even after 9th December, 2010, but limited quantum to Rs.9,000/- per month — Held, principle invoked by High Court for determination of monthly maintenance amount payable to appellant on basis of notional minimum income of respondent as per current minimum wages in Delhi, is untenable — Regard must be had to living standard of respondent and his family, his past conduct in successfully protracting disposal of maintenance petition filed in year 2003, until 2015; coupled with fact that a specious and unsubstantiated plea taken by him that he is unemployed from 2010, despite fact that he is highly qualified and an able-bodied person; his monthly income while working in Canada in year 2010 was over Rs.1,77,364/-; and that this Court in Criminal Appeal Nos.2347-2349/2014 has prima facie found that cause of justice would be sub served if appellant is granted an interim maintenance of Rs.20,000/- per month commencing from November 1, 2014 — At this distance of time, keeping in mind spiraling inflation rate and high cost of living index today, to do complete justice between parties, respondent shall pay a sum of Rs.20,000/- per month to appellant towards maintenance amount with effect from January 2010 and at rate of Rs.25,000/- per month with effect from 1st June, 2018 until further orders — Impugned judgment of High Court modified accordingly — Appeal allowed.

         

      Amrita Singh Vs. Ratan Singh (SC) [Bench Strength 2], 2017 AIR(SC) 2937: 2017(4) Crimes 349(SC) (Decided on 18/04/2017) [A.K. Sikri & Ashok Bhushan JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance order — Quashing of, ground of no reasonable cause for living separately, allegation of dowry demand and cruelty proved before trial court, effect of — Respondent no. 1, a railway employee and getting a salary of Rs.16,000/- per month — Trial court awarded maintenance of Rs.4,000/- for appellant and Rs.4,000/- for child — By impugned order, High Court quashed order of trial court granting maintenance, on ground that appellant not made out any reasonable cause for not living with Respondent no. 1 — Held, fact remains that as per finding of trial court, allegations of appellant that there was a demand of dowry and she was subjected to cruelty at hands of her husband, stands proved, as of now — In view of said material on record, impugned order of High Court does not stand judicial scrutiny which is not only cryptic but, in teeth of judicial findings, against Respondent no. 1 — Appeal allowed thereby setting aside order of High Court and restoring maintenance granted by trial court.

         

      Kunapareddy Vs. Kunapareddy Swarna Kumari (SC) [Bench Strength 2], 2016 AIR(SC) 2519: 2016(11) SCC 774: 2016(5) JT 365: 2016(5) SCALE 703: 2016(4) Supreme 481: 2016(4) SLT 785: 2016 CrLJ 2921: 2016(2) Crimes 277(SC): 2016(3) Crimes 74(SC) (Decided on 18/04/2016) [A.K. Sikri & R.K. Agrawal JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance proceedings — Nature of — Held, maintenance proceedings are treated essentially as of civil nature.

         

      Munni Bai Vs. Bhanwarilal (SC) [Bench Strength 2], 2016 AIR(SC) 2224: 2016(1) SCC 621: 2015(12) SCALE 344: 2016 CrLJ 2678 (Decided on 15/10/2015) [Anil R. Dave & Adarsh Kumar Goel JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to first wife — Trial of husband for offence of bigamy, scope — Respondent No.1/husband had been convicted for committing offence of bigamy but appeal filed against said order was pending at relevant point of time — Grievance of appellant that she was not paid any amount of maintenance though she is staying separately — Held, it cannot be said that appellant is staying separately without any justifiable reason — She should be maintained by respondent/husband — Impugned order passed by High Court is set aside and remand matter to trial court so that after considering evidence, trial court may take appropriate decision regarding payment of maintenance — Appeal allowed — Penal Code, 1860 — Section 494 — Bigamy — Right of maintenance of first wife, scope.

       

      Shamima Farooqui Vs. Shahid Khan (SC) [Bench Strength 2], 2015 AIR(SC) 2025: 2015(5) SCC 705: 2015(3) JT 576: 2015(4) SCALE 521: 2015(3) Supreme 129: 2015(3) SLT 703: 2015 CrLJ 2551: 2015(2) Crimes 133(SC): 2015(2) JCC 1285 (Decided on 06/04/2015) [Dipak Misra & Prafulla C. Pant JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Reduction of quantum of maintenance — Ground of retirement of husband, unjustified — Appellant/wife filed an application under Section 125 against respondent, after she was sent to parental home — Husband was working on the post of Nayak in Army — Application resisted by husband disputing all averments pertaining to demand of dowry and harassment and further alleging that he had already given divorce to her and also paid Mehar to her, and had remarried — Family Court, taking note of fact that salary of husband was Rs.17,654/-, had fixed Rs.2,500/- as monthly maintenance from date application till date of order i.e. 17.2.2012 and from date of order, @ Rs.4,000/- per month till date of remarriage — High Court took note of fact that husband had retired on 1.4.2012 and consequently reduced maintenance allowance to Rs.2000/- from 1.4.2012 till remarriage of the appellant — Appellant aggrieved by modification of order by High Court – – Held, High Court by reducing quantum amount had shown immense sympathy to husband after his retirement — It was on record that husband was getting a monthly salary of Rs.17,654/- — High Court, without indicating any reason, reduced monthly maintenance allowance — As long as wife is held entitled to grant of maintenance within parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home — She cannot be compelled to become a destitute or a beggar — Solely because husband had retired, there was no justification to reduce maintenance by 50% — It reflects non-application of mind — Appeals allowed — Orders passed by High Court are set aside and that of Family Court is restored.

       

      Criminal Procedure Code, 1973 — Section 125 — Maintenance of wife — Obligation of husband — Held, it is obligation of husband to maintain his wife — He cannot be permitted to plead that he is unable to maintain wife due to financial constraints as long as he is capable of earning.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance provisions — Applicability to divorced Muslim women — Held, Section 125 CrPC applicable to Muslim women who has been divorced.

       

      Jaiminiben Hirenbhai Vyas Vs. Hirenbhai Rameshchandra Vyas (SC) [Bench Strength 2], 2015 AIR(SC) 300: 2015(2) SCC 385: 2014(13) SCALE 104: 2014(9) SLT 743: 2015 CrLJ 608: 2015(1) JCC 355 (Decided on 19/11/2014) [J. Chelameswar & S.A. Bobde JJ.]

      Criminal Procedure Code, 1973 — Section 125 r/w Section 354(6) — Maintenance — From date of application for maintenance, Wife not working after marriage, Justified — High Court granted maintenance in favour of wife/appellant, however, same was granted from date of order — Appellant being aggrieved, preferred appeal claiming entitlement of maintenance from date of application — Held, High Court had not given any reason for not granting maintenance from date of application — Circumstances eminently justified grant of maintenance with effect from date of application in view of finding that Appellant had worked before marriage and had not done so during her marriage — There was no evidence of her income during period parties lived as man and wife — Therefore, order of High Court is reversed and direct that respondent to pay amount of maintenance found payable from date of application for maintenance — Appeal allowed.

      Criminal Procedure Code, 1973 — Section 125 r/w Section 354(6) — Maintenance — Effective date for grant of, Requirement to mention reason for — Held, Section 125 expressly enables Court to grant maintenance from date of order or from date of application — However, Court should record reasons in support of order passed by it, in both eventualities.

       

      Sunita Kachwaha Vs. Anil Kachwaha (SC) [Bench Strength 2], 2015 AIR(SC) 554: 2014(16) SCC 715: 2014(12) JT 107: 2014(12) SCALE 352: 2014(8) Supreme 443: 2014(9) SLT 471: 2015 CrLJ 659: 2015(1) Crimes 13(SC): 2015(1) JCC 437 (Decided on 28/10/2014) [T.S. Thakur & R. Banumathi JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife — Denial on ground of being well qualified, Unjustified — By impugned order, High Court set aside order of maintenance of Rs.3,000/- awarded to wife while affirming order of maintenance awarded to two daughters — Appeal by wife — Held, merely because appellant/wife a qualified post graduate, it would not be sufficient to hold that she was in a position to maintain herself — Insofar as her employment as a teacher, nothing was placed on record before Courts below to prove her employment and her earnings — In view of salary and financial condition of husband, maintenance amount of Rs.3,000/- per month awarded to wife appeared to be minimal and High Court ought not to have set aside award of maintenance — Appeal allowed.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife — Grant of, Pre-condition for — Held, inability of wife to maintain herself is pre-condition for grant of maintenance to wife — Wife must positively aver and prove that she is unable to maintain herself, in addition to fact that her husband has sufficient means to maintain her and that he has neglected to maintain her.

      Criminal Procedure Code, 1973 — Section 125 — Proceedings under — Nature and scope of — Held, proceeding under Section is summary in nature — In such proceeding, it is not necessary for the court to ascertain as to who was in wrong and minute details of matrimonial dispute between husband and wife need not be gone into.

       

      Shamim Bano Vs. Asraf Khan (SC) [Bench Strength 2], 2014(4) SCR 844: 2014(12) SCC 636: 2014(6) JT 393: 2014(5) SCALE 299: 2014(3) Supreme 659: 2014(6) SLT 711: 2014(2) Crimes 234(SC) (Decided on 16/04/2014) [Dipak Misra & Vikramajit Sen JJ.]

      Criminal Procedure Code, 1973 — Sections 125 & 127(3)(b) — Muslim wife — Right of divorced Muslim wife to claim maintenance — Divorce took place during the pendency of maintenance application — Subsequently, the wife filed application u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 for grant of mahr and return of articles — Magistrate disposed of this application by directing only return of the articles, payment of mahr and also grant of maintenance for the Iddat period — Thus, in effect, no maintenance granted to the wife beyond the Iddat period by the Magistrate — Maintenance application u/s 125 remained continued and the husband contested the same on merits without raising the plea of absence of consent — Resultantly, the findings by the High Court that when the appellant-wife filed application u/s 3 of the Act, she exercised her option regarding maintenance and that the application for grant of maintenance u/s 125 would only be maintainable till she was divorced, held to be not sustainable and, therefore, the same set aside and the matter remitted to the Magistrate for re-adjudication in accordance with law — Muslim Women (Protection of Rights on Divorce) Act, 1986 — Sections 3 & 5.

       

      Badshah Vs. Urmila Badshah Godse (SC) [Bench Strength 2], 2014 AIR(SC) 869: 2013(10) SCR 259: 2014(1) SCC 188: 2013(13) JT 570: 2013(12) SCALE 681: 2013(9) SLT 543: 2014 CrLJ 1076: 2013(4) JCC 2765 (Decided on 18/10/2013) [Ranjana Prakash Desai & A.K. Sikri JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance — Suppression of subsisting marriage and living wife by husband, Effect of — Respondent No.1/wife was a divorcee which fact was in clear knowledge of petitioner/husband — Respondent No.1 got married with petitioner, who had living wife and subsisting marriage — By impugned order, High Court upheld award of maintenance to respondent No.1(wife) and respondent No.2 (daughter) — Appeal preferred by petitioner denying relationship with respondents — Held, marriage between the parties has been proved — Petitioner was already married but he duped respondent by suppressing factum of alleged first marriage — On these facts, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong — Appeal dismissed.

      HELD: When the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent No.1 is not legally wedded wife of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.

       

      Poongodi Vs. Thangavel (SC) [Bench Strength 2], 2014 AIR(SC) 24: 2013(9) SCR 862: 2013(10) SCC 618: 2013(12) SCALE 186: 2013(7) Supreme 254: 2013(8) SLT 113: 2013 CrLJ 5006: 2014(1) SCC(Cr) 361: 2013(4) Crimes 371(SC) (Decided on 27/09/2013) [Sudhansu Jyoti Mukhopadhaya & Ranjan Gogoi JJ.]

      Criminal Procedure Code, 1973 — Section 125(3) — Arrears of maintenance — Application u/S. 125(3) in continuation of earlier applications, Entitlement to — Trial court granted maintenance to appellants, wife and son of respondent from date of filing of the application under Section 125 Cr PC — Trial court sentenced respondent to imprisonment due to default in payment of maintenance, on application of appellants — Another miscellaneous application by appellants claiming maintenance before High Court wherein High Court curtailed the entitlement of appellants to maintenance to a period of one year prior to the date of filing of the Crl. M.P. — Appeal — Held, application filed by the appellants under Section 125(3) was in continuation of earlier applications and for subsequent periods of default on the part of the Respondent — Entitlement of appellants to maintenance granted by trial court did not extinguish or limit — Respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition — Appeal allowed.

      Criminal Procedure Code, 1973 — Section 125(3) — Recovery of maintenance — Failure to take step within one year of entitlement, Availability of remedy — Held, procedure for recovery of maintenance, by construing the same to be a levy of a fine and detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued — However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available.

      Criminal Procedure Code, 1973 — Section 125(3) — Arrears of maintenance — Absence of bar on entitlement — Proviso to Section 125(3) CrPC do not creates a bar or in any way effects the entitlement of a claimant to arrears of maintenance

       

      Nagendrappa Natikar Vs. Neelamma (SC) [Bench Strength 2], 2013(2) SCV(Civil) 312: 2013 AIR(SC) 1541: 2013(2) SCR 426: 2014(14) SCC 452: 2013(4) JT 120: 2013(3) SCALE 561: 2013(2) Supreme 424: 2013(4) SLT 26: 2013 CrLJ 2060 (Decided on 15/03/2013) [K.S. Radhakrishnan & Dipak Misra JJ.]

      Hindu Adoption and Maintenance Act, 1956 — Section 18 — Suit for maintenance — Compromise towards permanent alimony and giving up future claim for maintenance under Section 125 Cr.P.C. proceedings — Maintainability of — Compromise entered into by husband and wife under Order 23 Rule 3 of CPC, agreeing for a consolidated amount towards permanent alimony, thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 Cr.P.C. — Issue is whether it would preclude the wife from claiming maintenance in a suit filed under the Act, 1956 — Family Court held that compromise entered into between the parties would not be bar in entertaining a suit and decreed the suit holding that the respondent is entitled to monthly maintenance from the defendant husband — High court affirmed the same — Challenged by husband — Held, Court in complete agreement with the reasoning of the Family Court and confirmed by High Court that the suit under Section 18 of the Act is perfectly maintainable, in spite of the compromise reached between the parties under Order 23 Rule 3 C.P.C. — Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act — Therefore, no error in the view taken by the Family Court, which has been affirmed by the High Court — Petition dismissed in limine — Contract Act, 1872 — Section 25 — Agreement opposed to public policy — Enforceability of — Civil Procedure Code, 1908 — Order 23 Rule 3 — Compromise for permanent alimony — Criminal Procedure Code, 1973 — Section 125 — Compromise for permanent alimony, Effect of.

      Criminal Procedure Code, 1973 — Section 125 — Nature of proceedings under — Held, Section 125 is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children — Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.

       

      Pyla Mutyalamma Vs. Pyla Suri Demudu (SC) [Bench Strength 2], 2011(9) SCR 996: 2011(12) SCC 189: 2011(9) SCALE 403: 2011(8) SLT 557: 2012 CrLJ 660: 2012(1) SCC(Cr) 371: 2012(1) JCC 163 (Decided on 09/08/2011) [Harjit Singh Bedi & Gyan Sudha Misra JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance order passed in proceedings underRevision against — Reappreciation of evidence — Scope of — High Court under its revisional jurisdiction is not required to enter into re-appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife — Denial of marriage — When the husband says that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 Cr.P.C., is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born out of the union.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife — Denial of marriage — Plea of subsistence of earlier marriage — Respondent-husband started deserting the appellant-wife after almost 25 years of living together with 3 children — Plea of previous marriage was set up to avert maintenance claim of appellant — Failure of respondent to prove the earlier marriage — Not open for High Court in excise of revisional jurisdiction to set aside the finding of trial court and absolve the respondent from paying maintenance of Rs. 500/- p.m. to appellant — Order of High Court set aside.

       

      Saygo Bai Vs. Chueeru Bajrangi (SC) [Bench Strength 2], 2011 AIR(SC) 1557: 2010(13) SCR 1020: 2010(13) SCC 762: 2011(1) JT 207: 2010(12) SCALE 229: 2010(7) Supreme 937: 2011 CrLJ 1007: 2011(2) SCC(Cr) 415: 2010(4) Crimes 340(SC) (Decided on 19/11/2010) [V.S. Sirpurkar & T.S. Thakur JJ.]

      Criminal Procedure Code, 1973 — Section 125(3), second proviso & Explanation — Maintenance under — Entitlement to — Husband married second wife — Refusal of first wife to join company of husband — Effect on her right of maintenance — Held, the first wife would be entitled to claim maintenance and her refusal to join company of husband would be of no consequence whatsoever.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance — Quantum of — Determination — Maintenance claimed by first wife after marriage by husband with second wife — Claim of appellant wife that husband drew a monthly salary of Rs. 2000/- in year 1993 and also had 20 acres of land unchallenged — It is obvious that respondent must be earning at least Rs. 10,000/- per month presently as salary being a constable in Police force and also has sources of income from agricultural properties — In such circumstances, maintenance at rate of 1500/- p.m. would be proper maintenance in favour of appellant — Appeal allowed accordingly.

       

      Chanmuniya Vs. Virendra Kumar Singh Kushwaha (SC) [Bench Strength 2], 2011(1) SCV(Civil) 118: 2010(12) SCR 223: 2011(1) SCC 141: 2010(11) JT 132: 2010(10) SCALE 602: 2012(9) SLT 534: 2011 CrLJ 96: 2011(2) SCC(Cr) 666: 2011(1) JCC 185 (Decided on 07/10/2010) [G.S. Singhvi & A.K. Ganguly JJ.]

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to `wife — Construing of term `wife — Broad and expansive interpretation should be given to term `wife to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, strict proof of marriage should not be a pre-condition for maintenance under Section 125.

      Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife — Live-in-relationship — Grant of maintenance to woman in live-in-relationships — Respondent no. 1 is the brother of appellants husband — Appellant, on death of her husband, got married off to the respondent no. 1 as per the custom prevailing in the community — Appellant and respondent no. 1 lived as husband and wife by discharging matrimonial obligations — After some time, as respondent stopped and refused to discharge marital obligations towards her, appellant initiated proceedings for maintenance under section 125 and also filed separate suit for restitution of conjugal rights — Whether presumption of marriage arises when parties live together for long time giving rise to a claim for maintenance? — Divergence of opinion on the interpretation of word `wife — Questions framed for reference to larger bench — Hindu Marriage Act, 1955 — Sections 7, 9 & 28 — Protection of Women form Domestic Violence Act, 2005 — Sections 2(f), 3, 20, 22 & 26.

      • the Madras High Court has held that unmarried daughter can claim maintenance from her father by filing a petition under Section 125 of Code of Criminal Procedure. The Trial Court, in this case [R. Kiruba Kanmani vs L. Rajan], rejected the girl’s application on the ground that is a major and that in terms of Section 125 (1) (b) and (c) of CrPC, and that she is not entitled for any maintenance and that she does not suffer from any physical or mental disablement. Contending that, combined reading of Section 125 of CrPC and Section 20(3) of the Hindu Adoption and Maintenance Act makes it very clear that a father is under an obligation to maintain his unmarried daughter even if she has attained majority, the girl approached the High Court. A recent judgment by the Bombay High Court [Agnes Lily Irudaya Vs. Irudaya Kani Arasan] was also brought to the notice of the High Court. In the said judgment also, it was held that the unmarried daughter though the attained majority is entitled to claim maintenance from the father. Justice N. Anand Venkatesh, who considered the plea, said “It is very clear from the above judgments that even though Section 125 restricts the payment of maintenance to the children till they attain majority, when it comes to the daughter, Courts have taken a consistent stand that even though the daughter has attained majority, she will be entitled for maintenance till she remains unmarried by virtue of Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In order to avoid multiplicity proceedings, the Courts have taken a consistent stand that the petition under Section 125 of CrPC can be entertained without pushing her to file an independent petition seeking for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956” As regards the observation by the Trial Court that she does not suffer from any mental disablement, the court said that, if the right to claim maintenance of the daughter is infringed, definitely it can be called as a injury which can very well be fit into the definition of mental injury.

      ASHU DHIMAN VERSUS SMT.JYOTI DHIMAN “‘An order passed under Proviso to sub section (1) of Section 125 of Cr.P.C. rejecting or allowing an application for maintenance, pending proceedings, is not an interlocutory order which adjudicates the rights of the parties to some extent.’ The Uttarakhand High Court has held that a revision petition against a family court order passed under Section 125 of the Code of Criminal Procedure is maintainable. Justice Lok Pal Singh observed that an application under Section 482 of Cr.P.C. would not be maintainable against such an order”.

      PRAKASH BABULAL DANGI VERSUS THE STATE OF MAHARASHTRA (2018 ) case, a wife obtains an order of maintenance passed in the proceedings filed under Section 125 of CrPC is to be followed, and another order passed in the proceedings filed under the Domestic Violence Act, which of the either is to be followed by the husband or whether he should follow both. The Supreme Court has issued notice in special leave petitions filed by a husband against Bombay High Court order which ordered that he should follow both orders. In the instant case, on a petition filed by the wife, for maintenance under Section 125 of CrPC, the husband was directed to pay maintenance of Rs. 10,000/- per month to wife and minor daughter. In an interim application seeking maintenance filed by wife in proceedings under the Domestic Violence Act, the husband was directed to pay an amount of Rs. 8,000/- per month to the wife and Rs. 5,000/- per month to the daughter. The Bombay High Court, while it was approached by the husband, said both the proceedings being independent, both the orders will stand independently and, hence, husband will have to pay not only the maintenance awarded under the Domestic Violence Act, which was of an interim nature and taking into consideration maintenance only, the wife was awarded the maintenance under Section 125 of CrPC only from the date of the order. It has to be held that this order under Section 125 of CrPC stands independently and in addition to the maintenance awarded under the Domestic Violence Act, the court had held. The court had further observed: “There remains absolutely no scope as to the confusion between the parties as to which order is to be obeyed. It follows that, as both the orders are passed by two different Forums in two different proceedings, both the orders are binding on the Petitioner-husband and Respondent-wife and they have to comply with both the orders, unless they are varied or set aside.” Now the husband approached the apex court to clear his confusion and the bench comprising Justice SA Bobde and Justice L Nageswara Rao has stayed operation of the high court order. However, it asked the husband to continue to pay maintenance under the Domestic Violence Act.

      • The Madhya Pradesh High Court (Indore bench) in Anil Jain vs. Sunita Jain, has said a wife residing separately from husband without any reason is not entitled for maintenance under Section 125 of CrPC.

      Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble And Anr. Bombay High Court has held that even when a wife enters into an agreement with her husband waiving off her right to maintenance, her statutory right to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

      • The Supreme Court, while setting aside a Karnataka High Court order that had dismissed a maintenance petition for want of proof of marriage, has reiterated that in the proceedings under Section 125 of the Code of Criminal Procedure, such strict proof of marriage is not necessary. In this case (Kamala vs. MR Mohan Kumar), the Family court had observed that there was a husband-wife relationship between the parties and children are born out of the said wedlock. It had then directed the ‘husband’ to pay maintenance. In revision petition filed by the ‘husband’, the high court held that the petitioner did not produce any evidence to show that the marriage was solemnized as per custom and she, not being the legally wedded wife, is not entitled for any maintenance. The Supreme Court bench comprising Justice R. Banumathi and Justice Indira Banerjee, referring to the evidence on record, said the oral evidence given by the ‘wife’ coupled with documents raise a strong presumption of a valid marriage. Referring to testimonies of other witnesses, it said that it is established that the parties cohabitated as husband and wife and that the people around them treated them as husband and wife. The bench said that, unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. Quoting from the apex court judgment in Chanmuniya v. Virendra Kumar Singh Kushwaha, the bench said a broad and extensive interpretation should be given to the term “wife” under Section 125 CrPC. In the said judgment, it was observed: “We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.” Restoring the Family court order granting maintenance, the bench said when the Family court held that there was a valid marriage, the high court, being the revisional court, has no power to reassess the evidence and substitute its views on findings of fact.

      • ‘It would be most unjust and unreasonable to bar his statutory remedy of revision/ appeal as the case may be, merely because he may not be in a position to deposit the entire arrears of interim maintenance.’ The Delhi High Court in Sabina Sahdev v. Vidur Sahdev has held that there cannot be an absolute rider that the entire maintenance amount, as granted by the trial court, should be deposited prior to the entertainment of the statutory remedy.

      • Supreme court in Manoj Kumar vs Champa Devi, upheld a Himachal Pradesh High Court order directing a husband to grant maintenance to his deserter wife, whom he had divorced, from the date when the divorce was decreed. The husband had contended before the high court that he, having obtained a decree of divorce on the basis of desertion, was under no obligation to pay maintenance to the respondent in view of the provisions contained in Section 125 (4) CrPC. But the high court, referring to Vanamala vs HM Ranganatha Bhatta and Rohtash Singh vs Ramendri and others, observed that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under the provisions of the Code, but since the decree of divorce was passed on the ground of desertion by wife, the respondent would not be entitled for maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. The husband then approached the apex court assailing this order. A three-judge bench headed by Chief Justice of India JS Khehar dismissed the SLP, observing that it finds no reason to interfere in the high court order as it has followed the precedent and the legal position consistently interpreted by the apex court for the last two decades in respect of Section 125 CrPC.

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