Lectures of Hindu Law

Lectures of Hindu Law

  1. Discuss the importance of customary Rules as a source of Hindu and Muslim Law. What is the effect of Legislation on such Rules? Explain giving illustration.

 

  1. Discuss the concept, meaning and scope of partition under Mitakshara and Dayabahaga school. Further examine the rights of a minor coparcener to claim partition. Decide with reference to case law

 

  1. What do you understand by the expression, “Joint Hindu Family governed by the Mitakshara law?

HINDU LAW

  • The development of personal laws is intrinsically linked to the history of colonialism.
  • The term “Personal Laws” was introduced in the Presidencies of Calcutta, Bombay and Madras during the last 18th
  • Hindu Law is considered to be of divine origin. It is revealed by the almighty God to our great sages, philosophers, and Jurists who had attained spiritual heights by their Tapasya and Yog.
  • It must be noted that the Hindu concept of law is quite different from the Austinian concept.
  • According to Austin, “law is the command of sovereign”. But the law according to Hindu philosophers and sages is not the king-made law. The sovereign himself is not immune from the jurisdiction of Dharma. The king was not regarded as law-giver, but merely the law enforcer. He had to execute the law as laid down in the Dharmashastra and to execute the judgments pronounced by his own courts. The king was deemed to be supreme.
  • The Austinian concept of law also laid stress on sanction that it came from the sovereign. In the Austinian concept of law, the fear of punishment by the State in case of non-observance of the laws is the only force behind the obedience to the law. The Hindu concept on the other hand, besides providing for the State Sanction, also provided for the sanction by the divine displeasures. The fear of bad consequences and sufferings after death was the main sanction behind the observance of Hindu Law.
  • Hindu Law is now applied only as a personal law and its extent and operation are limited by the various Civil Acts.

 

  • Pre independence legislations during the 19th century social reforms movement period

 

  1. The Bengal sati Regulation Act,1829
  2. The widow remarriage Act,1856
  3. The age of consent Act, 1891
  4. The child marriage restraint Act, 1929

 

  • Enactments strengthening the rights of individual against the family / community
  1. The caste disabilities removal act, 1850
  2. The hindu disposition of property act,1916
  3. The hindu inheritance removal of disabilities act,1928
  4. The hindu gains of learning act,1930
  5. The hindu women’s Right to Property Act, 1937

 

  • Hindu law Reforms of the 1950s
  1. The Hindu Marriage Act,1955
  2. The Hindu Succession Act,1956
  3. The Hindu Minority and Guardianship Act,1956
  4. The Hindu Adoption and Maintenance Act,1956

 

ORIGIN OF HINDU LAW

There are two Extreme views about the origin of Hindu Law

  1. Hindu Law, according to the Hindus, is of divine origin, having been derived from the Vedas, which are revelations from the Almighty.

According to this theory, law was independent of the state and it was binding on the sovereign as well as on his subjects. To Hindus the theory of Rule of Law is not new.  The king was not a law-maker or law-giver but law-upholder, and this was the glory of Dharma.

  1. According to Western jurists, who do not accept the Hindu idea of divine origin of laws, it is based upon immemorial customs and usages, which existed prior to and independent of Brahmanism.

SOURCES OF HINDU LAW

The various sources of Hindu law can be classified under the following two heads.

  1. Ancient Sources: shruti or Vedas, smritis or dharamshashtras , commenataries and digests and Customs and Usages.
  2. Modern Sources: Legislations, Precedents , and justice , equity and good conscience.

 

 

  1. The shrutis or Vedas
  • The word shrutis literally means what is heard.
  • Shrutis or Vedas are that which have been revealed to and heard by inspired sages.
  • The shrutis consists of four Vedas, the six Vedangas and the eighteen Upanishads.
  • Shrutis have now little practical value

 

  1. The Smritis or Dharmashastras
  • The word smritis means what is remembered.
  • Smritis were recollected and created by the inspired sages and is believed to be based on the lost texts of Vedas although not in exact language of the revelation.
  • The smritis are many in number.
  • Manu’s smritis stands foremost.
  • The smritis are of two kinds.
  • (i) dharma sutras
  • (ii) dharma sastras
  1. The puranas
  • They are eighteen in number.
  • They are codes which illustrate the law by giving examples of its application.
  1. THE COMMENTARIES AND DIGESTS
  • Commentaries are an orderly explanation of sutras or shlokas
  • Digests are compilations of all relevant material from several sources on one topic of law.
  • The two principal commentaries are:
  • Mitakshra
  • Dayabhaga
  • Commentaries gave rise to what are called schools of law.
  1. Customs and Usages
  • Hindu law originated from customs.
  1. Legislation
  2. Precedent
  3. Justice , Equity and Good conscience

TWO MAIN SCHOOLS OF HINDU LAW

Originally there were no schools of Hindu jurisprudence. The two main schools of Hindu Law are the “ Mitakshara” and the “Dayabhaga”.

  • The Mitakshara School written by Vijnaneshwara is a running commentary on the Smriti of Yajnavalkya and a veritable digest of Smriti law. It prevails in the whole of India except Bengal and Asaam. The Mitakshara is not only a commentary on the Yajnavalkya’s Smriti but it is also a digest of practically all the leading Smritis and deals with the titles of Hindu law. The Mitakshara School of Hindu law can again be divided into five sub-schools:
  1. The Benaras School of Hindu law
  2. The Mithila School of Hindu law
  • The Maharashtra or Bombay School of Hindu law
  1. The Dravida or Madras School of Hindu law
  2. The Punjab School of Hindu law

These sub-schools differ mainly on the topics of adoption, succession and stridhana.

  • The Dayabhaga School or Bengal School: It owes its origin to Jimutvahana’s digest on leading Smritis by the name of Dayabhaga. The Dayabhaga is not a commentary on any particular Code, but professes to be a digest of all the codes. This school prevails in West Bengal as well as in Assam, except in one point in which the written law is at variance with the customs of the locality. It deals only with Partition and Inheritance. Matters on which the Dayabhaga is silent, the Mitakshara hold good even in Assam and Bengal. Similarly where the Mitakshara is silent the Dayabhaga apply.

 

The difference between mitakshara and dayabhaga:

The main points of difference may be laid down as under:

  • Owner of property: The Mitakshara expounds the doctrine of ownership by birth in favour of the son in ancestral property held by his father, making the son a co-owner with his father. The property is therefore known unobstructed property. The son, in such case, is entitled to demand partition of such property even during his father’s lifetime. The Dayabhaga school does not approve of this doctrine. The son, while his father is alive, cannot demand partition. That is why the ancestral property is called obstructed property.
  • Right of son: The next difference follows from the first and that is, in the Mitakshara school, a son has a right to control and interdict unauthorized alienations of ancestral property by his father, under the Dayabhaga school the father is the absolute owner of the property and the son has no such right.
  • Alienation: Under the former, a member of a joint family cannot alienate his interest in it, while, under the latter, on the father’s death his sons obtain the father’s property in quasi-severalty as a partitioned succession; and each son is entitled to alienate his share freely.
  • Right of survivorship: Under the former there is a right of survivorship inter se between member; under the latter on the death of a member in the absence of a male issue his share devolves on his widow by inheritance.
  • Basis of heritability: Under the Mitakshara school of law the principle of blood relationship is the basis of heritability and propinquity and it is the rule of determining preference. Spiritual benefit is the basis of heritability under the Dayabhaga school and it determines the order of a succession.

The commentators of Smritis displayed practically and pragmatism in weeding out certain practices as obsolete as they thought that Dharma followed in each Yuga.

 

HINDU LAW

Pre-Questions

  1. Under the Mitakshara system, the right in family property is acquired by birth. The statement is ……… ..

(a) True

(b) False

(c) Either (a) or (b)

(d) None of these

 

  1. In which of the following cases did the Supreme Court observe as follows: ‘One who affirms and asserts the existence of a custom has not to prove it’?

(a) Beni Bai v Raghubir Prasad

(b) Chetan Dass v Kamala Devi

(c) Dharmendra Kumar v Usha Kumar

(d) Kondiba Rama Papal v Narayan Kondiba Papal

 

  1. Under the ‘Dayabhaga system’, the right in joint family property is acquired by inheritance or by will. The statement is ……… ..

(a) False

(b) True

(c) Partly correct

(d) None of the above

 

  1. Which of the following statement(s) is correct?

(a) In the Mitakshara School, a son has a right to control and interdict unauthorized alienations of ancestral property by his father

(b) Under the Dayabhaga School,  the father is the absolute owner of the property and son has no such right

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

(d) None of the above

 

  1. ‘If a custom is so clearly established’, Which statement is correct?

(a) No evidence of its existence is necessary

(b) Custom will form part of law without any further proof

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

(d) Evidence of its existence is necessary

  1. Briefly discuss about the origin and nature of Hindu law.

HINDU LAW

CUSTOM

Mayne puts it, “A belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behavior in following it; and a uniformity of behavior in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class of community, it becomes a custom.” In modern law, before a custom can be enforced by a court, it is necessary to prove the existence of custom.

Requirements of a valid Custom

  1. Custom should be ancient.- It is necessary that custom should be ancient. The word ‘ancient’ means that it belongs to antiquity. According to Section 3(a) of the Hindu Marriage Should be observed for a ‘long time’. In India, custom need not be immemorial in English law sense. The courts have time and again expressed an opinion that if a custom is established to be 100 years old or more, it is of sufficient antiquity to be called ancient. Derrett thinks that if it is enough. The privy Council observed that it is not the essence of this rule that its antiquity in every case carried back to a period beyond a memory of man-still less that it is ancient in the English technical sense, it will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent been accepted as the governing rule. A custom cannot come into existence by agreement.
  2. Custom should be continuous.- Continuity of a custom is as essential as it antiquity. Discontinuance must be held to destroy them. Such a discontinuance may be intentional or accidental. An obsolete law can be repealed custom except by abandonment. Abandonment, conscious or unconscious, is the made by which a custom stands repealed.
  3. It should be certain.- It is necessary to prove that custom is certain. Mere vague allegation as to existence of custom will not suffice. It is necessary to prove with reasonable amount of certainly that the custom as alleged exist, and further that it is applicable to the parties on the matter at issue.
  4. It should not be unreasonable.- An unreasonable custom is void, although it cannot said that custom is always founded on reason. No amount of reason can make a custom. What is reasonable or unreasonable is a matter of social values. It may differ from time to time, from place to place. Therefore, whether a custom is reasonable or not is determined by the contemporary value of every society, though there are certain rules or practices which are considered unreasonable in all times and in all societies.
  5. It should not be immoral.- Like the standard of reasonability, the standard or morality may vary from time to time and from society to society. Custom which is immoral is void.
  6. Custom must not be opposed to public policy.- A custom which is opposed to public policy is void. Thus, a custom among dancing girl permitting them to adopt one or more daughters has been held to be void being opposed to morality and public policy. Similarly, a custom permitting the trustee of a religious endowment to shell the trust has been held to be contrary to public policy
  7. It must not be opposed to law.- opposed to situation law. The codified Hindu Law has abrogated custom except in a few matters where it has been expressly saved.

Proof of Custom

The burden of proving a custom is on the party who alleges it. There are certain customs of which the court will take judicial notice. The burden of proof is on the person who asserts, and if he fails to prove it , he will be governed by Hindu Law.

Kinds of Customs

The Smiritikars mentioned four types of customs: local custom, custom of caste or community, family custom and guild custom. The guild custom, i.e. custom of traders and merchants, is not a part of personal law of Hindus. Here we are concerned only with the first types of customs.

  1. Local custom- A local custom is a custom which prevails in a locality, in a geographical area, not necessarily confined to an administrative division or district, and is binding on all persons in the area within which is prevails.
  2. Family custom- family custom is binding only on the members of the family.. A family custom can be more easily abandoned than a local custom. Impartible estate and succession by the rule of primogeniture are two important example of family custom.
  3. Caste or community custom– A caste or Community custom is binding on all the members of the caste or community wherever they may be. Most of the Punjab customary law is of this nature. The custom among the Jats that one can marry one’s brother’s widow or the custom which permits marriage with sister’s daughter in South India or the custom permitting adoption of daughter’s son or sister’s son is of this type.

 

HINDU LAW

CUSTOM

Pre-Questions

  1. Which of the following type of customs are there in hindu law?
  • Local custom
  • Family custom
  • Caste or community custom
  • All of the above
  1. Which of the following is not the requirement of valid custom?
  • Custom should be continuous
  • It should be uncertain
  • Custom must not be opposed to public policy
  • It should not be immoral.

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

HINDU LAW

HINDU?

Who are Hindus?

Till this day 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 a
re 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.

 

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
  2. 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

  • Where both the parents are Hindu, the time for determination of the religion of the child is the time of its birth.
  • 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:

  • 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:

  • he practices, professes or follows any of these religions, and
  • 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.

  • Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist

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:

  • If he undergoes a formal ceremony of conversion or reconversion prescribe by the caste or community to which he converts; or
  • 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.

 

HINDU LAW

PRELIMINARY

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

(a) Birth

(b) Conversion

(c) Both (a) and (b)

(d) None of the above

  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

5.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)

6.‘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

7.While determining social and political consequences of a conversion, the question must be decided with common sense and ir1 a practical way, rather than on theoretical and theocratica 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

9.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) VV 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)

  1. Explain conditions essentials for a Hindu Marriage.
  1. Marriage among Hindus is a sacrament not a contract. Discuss. Whether marriage in modern time is still considered to be a sacrament.
  1. What is the concept of marriage under Hindu Marriage Act 1955 and how it is different from relationship which is in the nature of the marriage?

HINDU MARRIAGE ACT

Conditions of marriage: Sacrament or contract

  • Marriage is one of the essential Samskaras (sacraments) for every Hindu. The Sacramental marriage has three characteristics:

(i) permanent union

(ii) eternal union

(iii) holy union

 

  • By recognition of the divorce and widow remarriage the first two characteristics of sacramental marriage have been destroyed. However, the third characteristic is still retained. In most of the Hindu marriages a sacred or religious ceremony is still necessary. But this third characteristic of the sacramental marriage is of least importance.

 

  • Further, to the extent that marriage is a gift (Kanyadan), it is also a contract.
  • Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place.
  • Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, sec. 12 of the Hindu marriage Act does lay down that a marriage is voidable if one shows that consent was obtained by fraud or force, but it does not lay down that if one’s consent was not obtained the marriage is voidable. The Hindu marriage has not remained a sacramental marriage and has also not become a contract, though it has semblance of both. It has a semblance of a contract as consent is of some importance; it has a semblance of a sacrament as in most marriages a sacramental ceremony is still necessary. However, the addition of new grounds of divorce (breakdown and mutual consent) has created a view that the Hindu concept of marriage as a sacrament has undergone change over the years.

Forms and ceremonies of Marriage

  • These forms of Hindu marriage were valid before 1955. These were brahma (bride given in gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father). While the first and third are arranged marriages, the second one is love marriage which is fast becoming popular among the young generation.
  • The Hindu Marriage Act 1955, does not specifically provide for any form of marriage.
  • Thus, performance of certain Shastric ceremonies is still necessary for a valid Hindu marriage. Kanyadana, Panigrahan, vivahahoma and saptapadi are the four main shastric Of these, satapadi is absolutely necessary for all Hindus. Whether the other ceremonies are also necessary for the validity of marriage is not clear.
  • Section 7 of Hindu marriage Act provides: Ceremonies for a Hindu Marriage. (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the satapadi (i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
  • For instance, among Santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony. Similarly, if mere agreement to live together as husband and wife is the only formality required on the side of one of the parties to marriage that will be enough for the validiy of the marriage. Likewise, among Jat Vaishnavas a marriage can be performed by exchange of garlands between the bride and bridegroom.
  • It is obvious that a marriage without requisite ceremonies is null and void (though it is not expressly laid down under the Act). Thus, if a Jain and a Sikh marry it is necessary that either the Saptapadi (a Jain ceremony) or the Anand Karaj (a Sikh ceremony) must be performed, otherwise the marriage will not be valid.

Bigamy:

  • Monogamy means that one is permitted to have only wife or husband at a time.
  • 5 (i) prohibits bigamy
  • 11 maxes a bigamous marriage void.
  • 17 makes it a penal offence for both Hindu males and females under S. 494 & 495 I.P.C.
  • There are two conditions for the prosecution for bigamous marriage.

 

  • The first marriage should be perfectly valid
  • The second marriage should have been solemnized
  • Bhaurao Shankar Lokhande v. State of Maharashtra.

 

The Supreme Court held that the essential ceremonies of Hindu Marriage are:-

 

  • Invocation before the sacred fire
  • These ceremonies can be disposed with only if custom permits and the custom must be established.
  • Sarla Mudgal v. U.O.I
  • Lily Thomas v. U.O.I

Child Marriage

  • 5 (iii) Provides that at the time of marriage, the bridegroom should have completed the age of 23 years and the bride the age of 18 years.
  • V. Venkataramana v. State
  • Prohibition of child Marriage Act 2006.

HINDU MARRIAGE ACT, 1955

Registration of Marriages [S.8]

 

  • Most traditional marriages lack documentation. Despite numerous benefits of the registration of marriage, there have never been a settled law or custom, which can mandate to register compulsorily all the marriages. Various advantages of the registration of marriage are as follows:
  • To check bigamy or polygamy — If all the marriages have to be registered before any statutory authority and, those documents become accessible to all (e.g. through internet), then law against, bigamy/ polygamy can be well implemented.
  • To check duping girls — In several cases, the offenders are Non-resident Indians (NRIs) or

foreigners. Without proper documentation, it is very, difficult to prove the marriage in Courts of foreign countries.

  • To check unwilling and forced marriages – If the registration of all marriages will become

mandatory with presence of bride and bridegroom before a registering public authority, then nobody can be compelled to marry against her/his wishes.

  • To Restrain child marriages- If the registration of all the marriages will become mandatory,

then child marriage will be detected

  • To prone marriage wherever necessary before authorities – For instance, the certificate of

marriage will have multifarious use in hands of executive authorities e.g. Passport authorities. Further, proving A marriage is essential in all matrimonial matters (divorce cases, maintenance cases, dowry cases, etc.). In cases of bigamy or polygamy, proving of marriage is not always easier. Court’s time is also consumed in determination of solemnization of marriage. If the registration of all marriages will become mandatory, then lots of court’s valuable time will be saved.

  • To implement International Convention: – International Conventions in which India has also

been a signatory advocated the compulsorily registration of marriages to eliminate all forms of discrimination against women.

Statutes on Registration of Marriage

  • There is ‘The Births, Deaths; and Marriage Registration Act, 1886. However, despite title of the Act, it has no provision for registration of marriages.
  • Under Sec. 8 of the Hindu Marriage Act, 1955, certain provisions exist for registration-of marriages. However, it is left to the discretion of the contracting parties to either solemnize the marriage before the Sub-Registrar or register it after performing the marriage ceremony in conformity with the customary beliefs.
  • However, the Act makes it clear that the validity of the marriage in no way will be affected by omission to make the entry in the register. The Act also enables the State Government to make rules with regard to the registration of marriages. Under Sec. 8(2), if the State Government is of the opinion that such registration should be compulsory it can so provide. In that event, the person contravening any rule made in this regard shall be punishable with fine.
  • Mere registration is no proof of marriage (Shahji v Gopinath AIR 1995 Mad. 161).
  • In various States different marriage Acts are in operation e.g. in Jammu and Kashmir,J & K Hindu Marriage Act, 1980 empowers the Government to make rules to provide that the parties (Hindus) shall have their particulars relating to marriages entered in such a manner as may be prescribed for facilitating proof of such marriages. Admittedly, no rules have been framed. As regards Muslims, Section 3 of the J&K Muslim Marri1ages Registration/let, 1981 provides that marriage contracted between Muslims after the commencement of the Act shall be registered, in the manner provided therein within 30 days from the date of conclusion of Nikah ceremony. However, the Act has not been enforced. So far as Christians are concerned, the J&K Christian Marriage and Divorce Act, 1957 provides for registration of marriages solemnized by Minister of Religion/ Marriage Registrar.
  • From the compilation of relevant legislations in respect of registration of marriages, it appears that there are four statutes which provide for compulsory registration of marriages. They are: (1) The Bombay Registration of Marriages/Act, 1953 (applicable to Maharashtra and Gujarat), (2) The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 7976, (3) The Himachal Pradesh Registration if Marriages Art, 1996, and (4) The Andhra Pradesh Compulsory Registration of Marriages Art, 2002. In all other States, the registration of marriage is not compulsory.
  • Under the Bombay Registration of Marriages/Act, 1953, any failure to register a marriage attracts a statutory penalty, although does not affect the validity of marriage, if otherwise valid under any law in force.
  • In five States provisions appear to have been made for voluntary registration of Muslim marriages. These are Assam, Bihar, West Bengal, Orissa and Meghalaya. The “Assam Moslem Marriages and Divorce Registration Act, 1955″ the “Orissa Mohammedan Marriages and Divorce Registration Act 1949″’ and the “Bengal Mohammedan Marriages and Divorce Registration Act, 1876” are the relevant statutes.
  • Under the Special Marriage Act, 1954 which applies to Indian citizens irrespective of religion each marriage is registered by the Marriage Officer specially appointed for the purpose. The registration of marriage ‘is compulsory under the Indian Christian Marriage Act, 1872. Under the said Act, entries are made in the marriage register of the concerned Church soon after the marriage ceremony along with the signatures of bride and bridegroom, the officiating priest and the witnesses. But the procedure of registration is quite complicated because of different rules for Indian Christians and for other Christians and for the followers of various Churches.
  • The Parsi Marriage and Divorce Act, 1936 makes registration of marriages compulsory. The Marriage Registrars are commonly called as ‘Parsi Priests. They are appointed by State Government and, they have to work under the control and superintendence of the government authorities, and they have to periodically transmit the records of marriages to such authorities. The certificates issued by them are admissible in courts of law.
  • The Foreign Marriage Act, 1969 also provides for registration of marriages. The Act relates to solemnization and registration of marriage of an Indian citizen with another Indian or a foreigner. Books of Marriage Certificate are to be maintained in all Diplomatic Missions. The Act also has provision for registration of pre-existing marriages solemnized in foreign countries under the law of those countries.

Remarks

  • It is clear from the above discussion that there is no Central uniform Act on registration of marriage, applicable throughout India. Further, general public is not aware about the procedure, method, applicability and effects of registration and non-registration of the marriages under various statutes. Moreover, these statute’s did neither provide compulsorily registration of all marriages, nor they provide any ill- effect or loss for non-registration of any marriage.
  • Though the registration of marriage does not authenticate the validity of marriage, but it authenticates the happening of marriage. These statutes do not prima facie prove the marriage.
  • The Supreme Court in the below-discussed case gave the necessary directions to the Central as well as the State Governments to provide sufficient law so as to register compulsorily all the marriages.
  • SEEMA v ASHWANl KUMAR
  • Fact: and Issue – in this case, the Supreme Court, while emphasizing the need for ‘Registration of Marriages’ in the country, gave directions to the Central and State Governments in this regard. The court noted with concern that in large number of cases, some unscrupulous persons are denying the existence of marriage taking advantage of the situation that in most of the States there is no official record of the marriage. All the States and the Union Territories indicated their stand to the effect that registration of marriages is highly desirable. It has been pointed out that compulsory registration of marriages – would be a step in the right direction for the prevention of child marriages still prevalent in many parts of the country.
  • Observations and Decision — The Apex Court observed:
  • From the very commencement of the Rigvedic age, marriage was a well-established institution, and the Aryans ideal of marriage was very high.
  • The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was

adopted in 1979 by the UN General Assembly. India was a signatory to the Convention on 30 July, 1980 and ratified on 9‘h July, 1993 with two Declaratory Statements and one Reservation. Article 16(2) of the Convention says “though India agreed in principle that compulsory registration of marriages is highly desirable,” it was said as follows: It is not Practical in a vast country like India with its ‘variety of customs, religions and level of literacy’ and has expressed reservation to this very clause to make registration of marriage compulsory.

  • In the Constitution of India, List III (the Concurrent List) of the Seventh Schedule provides in Entry 5 (Marriage and divorce) and Entry 30 (Vital statistics including registration of births and deaths). The registration of marriages would come within the ambit of the expression ‘vital statistics’. The Centre as well as the State Governments can make the required law on this subject.
  • In exercise-of powers conferred by Sec. 8 of the H.M. Act the State of U.P. has framed U.P. Hindu Marriage Registration Ruler, 1973 which have been notified in 1973. In the affidavit filed by the State Government it is stated that the marriages are being registered after enactment of the Rules. In Uttar Pradesh also it appears that the State Government has announced a policy providing for compulsory registration of marriages by the Panchayats and maintenance of its records relating to births and deaths.
  • The National Commission for Women is of the opinion that non-registration of marriages affects the women to a great measure and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as:

 

(a) Prevention of child marriages and to ensure minimum age of marriage.

(b) Prevention of marriages without the consent of the parties.

(c) Check illegal bigamy/polygamy.

(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.

(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are-entitled to after the death of their husband.

(f) Deterring men from deserting women after marriage.

(g) Deterring parents/guardians from selling daughter/young girls to any person including a foreigner, under the grab of marriage.

  • Most of the States have framed rules regarding registration of marriages, but registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. If the marriage is registered it also provides evidence of the marriage having taken place and would provide al rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, rights of children born-“from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Sec. 8 of the H.M. Act is apparent from the use of the-expression “for the purpose of facilitating the proof of Hindu-Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered. Thus, marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.

 

(vii)  Accordingly, we direct the States and-the Central Government to take the following steps:

 

  • The procedure for registration should be notified by respective States within three months. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.
  • The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.
  • As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
  • Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately]
  • Comments- The Law Commission of India in its 211th Report (2008) has recommended enactment of a “Marriage and Divorce Registration Act to be made applicable -in whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions.
  • The National Commission for Women has recommended that registration process should be simple and free. Further, the courts of law should not entertain the disputes connected with marriages or divorces, if they are not duly registered. As occurs in the case with the documents required to be registered under the Registration Act, 1908, where unregistered documents (if they are required to be registered under the Registration Act) are not be considered in evidence in courts of law.

HINDU MARRIAGE ACT, 1955

Children of Void and Voidable Marriages

  • Although distinction between legitimate and illegitimate children is still maintained, there is a tendency in most of the countries including India to blur this distinction.
  • Under the Hindu law, an illegitimate child has never been considered as filius nullius(an illegitimate child who had few legal rights ) and his relationship with both parents was recognized. One species of an illegitimate child, called dasiputra (son born to a permanently and exclusively kept concubine) was accorded a definite status in his father’s family, although his status was inferior to the aurasa (natural) son, inasmuch as he had no right of inheritance or survivorship in the presence of natural son.
  • Broadly speaking, a child born within lawful wedlock has been considered to be a legitimate child, and a child who is born outside the lawful wedlock to be an illegitimate child.
  • 112 of the Indian Evidence Act, 1872, lays down a rule of presumption in this regard. It lays down that (i) a child born within the lawful wedlock (at any time, even soon after the marriage), or (ii) a child born within 280 days of the dissolution of marriage by death or divorce, will be conclusively presumed to be the child of his father, provided the mother remained unmarried.
  • In some countries, like England, there is a tendency to confer a status of legitimacy on illegitimate children. Such children are known as legitimated children.
  • The position regarding the children of void and voidable marriages under the Hindu Marriage Act (Sec. 16) and Special Marriage Act (Sec. 26) is:
  • Children of unannulled voidable marriage are legitimate in the same way as children of an otherwise valid marriage are.
  • Children of annulled voidable and void marriages are legitimate but they will inherit the property of their parents alone and of none else Sec. 16(3)].
  • It may be noted that before the 1976 Amendment to the Hindu Marriage Act, a status of legitimacy was conferred on the children of those void marriages, which were declared null or void. If a marriage was not declared null and void, the `children remained illegitimate. The position has been remedied by the 1976 Amendment. Now such a declaration (i.e. a decree of nullity) is not required to confer a status of legitimacy. Likewise, it does not matter that whether or not the marriage is held to be void otherwise than on a petition under the H.M. Act.
  • Thus, under Sec. 16, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents (as if such a marriage had been valid). It may be noted that Sec. 16 comes into play only if a marriage was proved to have taken place, but which is otherwise void or voidable. So, where there has been no marriage at all (i.e. no solemnisation of marriage), Sec. 16 cannot be invoked, and legitimacy cannot be conferred on any child.

 

  • If the marriage is void or voidable under any other provision of the law, except Sections 11 and 12 (which lays down the grounds of void and voidable marriages), the children will be illegitimate.
  • 16(2) states that even if a voidable marriage is annulled under Sec. 12, the children begotten or conceived before the decree is made, shall be deemed legitimate notwithstanding the decree of nullity. This provision applies not only to children begotten but also conceived before the decree though born after the decree.

Position of illegitimate Children under the Modern Hindu Law

  • Both, father and mother, are under an obligation to maintain illegitimate children up to the period of minority.
  • An illegitimate child is not entitled to succeed to his father. But he can inherit the property of his mother or of his illegitimate brother or sister.
  • An illegitimate son does not acquire any interest in the ancestral property in the hands of his

father, nor does he form a coparcenary with him. During the lifetime of his father, his right is only limited to maintenance. But the father may give him a share of his (separate) property. In a case, it was contended that once Sec. 16 legitimated the children born of void marriage, the stigma should be treated to have been wiped out in respect of the right to inherit property and such children should be given a share in the property of the coparcenary of which their father was at member. The Supreme Court held that the mandate of Sec. 16(3) is express that there is no room for conferring upon such children any right excepting the property of their parents [Jinia Keotin v Kumar Sitaram Manjhi (2003) 1 SCC 730].

  • A mother had a preferential right of guardianship. After her, the father becomes the natural

guardian of such a child.

  • The mother of an illegitimate child has power to give the child in adoption. Thus, such a child may be validly adopted. Existence of an illegitimate son is not a bar in respect of adoption of a son.

Legitimacy of Children Born from Presumed Marriage (Children of Live-in Relationship)

  • In D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469, after the death of his wife in 1945, C had live-in relationship with S and they started living as husband and wife which continued till the death of C in 1979. The respondents and other four daughters were born out of this relationship. Their relationship had been accepted not only by the society but also by the family members
  • The Supreme Court observed: The courts have consistently held that law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. In such a case, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to will not be illegitimate. However, such presumption can be rebutted by leading unimpeachable evidence.
  • The live-in-relationship if continued for such a long time cannot be termed as “walk-in and walk-out” relationship and there is a presumption of marriage between them which the appellants to rebut.
  • However, in Bharatha Matha v. Vijaya Renganathan (AIR 2010 SC 2685), it was categorically held that children born out of ‘live-in relationship cannot claim benefit of Sec. 16.

 

HINDU MARRIAGE ACT, 1955

MARRIAGE

There are two types of impediments or bars to a marriage

  1. Absolute : if it exists the marriage is void.
  2. Relative : if relative bars exists marriage is voidable.

VOID MARRIAGE[S.11]

  • A void marriage is no marriage.
  • It is void ab initio.
  • It is not necessary that a decree declaring a void marriage as void is passed by the court. Even when the court passes the decree it merely declares the marriage null and void. It is not the decree of the court which renders such marriage void.
  • Grounds of void marriage:
  1. That at the time of marriage either party has a spouse living.[s.5(i)]
  2. The parties are sapindas to each other [s.5(iv)]
  3. The parties are within the prohibited degree of relationship[s.5(v)]

VOIDABLE MARRIAGE[S.12]

  • A voidable marriage is perfectly valid marriage so long as it is not avoided.
  • It remains valid and binding, and continues to subsist for all purposes unless decree annuls it.
  • Whether the parties to voidable marriage can perform another marriage without first getting a decree declaring their first marriage as void.
  • Once a voidable marriage is annulled the decree is given retrospective effect from the date of the marriage.
  • The marriage is deemed to have been void for all purposes from its inception and parties are deemed to have never been husband and wife and children are deemed to have been illegitimate subject to s.16.
  • The grounds of voidable marriage:
  1. Impotency
  2. Incapacity to consent and mental disorder
  3. Fraud and force
  4. Pre marriage pregnancy

 

HINDU MARRIAGE ACT, 1955

PRELIMINARY QUESTIONS

  1. Under Hindu law, marriage is a
  • Sacrament
  • Contract
  • Both (a) and (b)
  • None of the above

 

  1. Marriage is sacrament amongst
  • Hindus
  • Muslims
  • Christians
  • Both (a)and (c)

 

  1. Conditions for a Hindu Marriage have been prescribed under
  • 4
  • 5
  • 6
  • 7

 

  1. Section 5(i) of the Hindu Marriage Act includes
  • Monogamy
  • Exogamy
  • Endogamy
  • All of the above

 

  1. A marriage under the Hindu marriage act must be solemnized in accordance with the customary rites and ceremonies of
  • The bride
  • The bridegroom
  • Both
  • Either bride or bridegroom

 

  1. Bigamy under Hindu marriage act includes
  • Polygamy
  • Polyandry
  • Both polygamy and polyandry
  • Only (a)not(b)
  1. A marriage solemnized between any two hindus, one of whom is not having the mental capacity to marry, shall be
  • Void
  • Voidable
  • Invalid
  • Either (a)or(b)or(c)

 

  1. Section 5(ii) of Hindu Marriage Act provides for
  • Age of the parties to the marriage
  • Mental capacity of the parties to the marriage
  • Sapinda relationship
  • Prohibited relationship

 

  1. Section 7 of Hindu Marriage Act, 1955 provides for
  • Conditions of marriage
  • Capacity to marry
  • Ceremonies of marriage
  • All of the above

 

  1. A party is regarded as not having the mental capacity to solemnize the marriage,if suffering from
  • Unsoundness of mind
  • Mental disorder
  • Insanity or epilepsy
  • All of the above

Restitution of conjugal right

  1. When does the suit for restitution of Conjugal rights lies? Does the refusal of wife to resign her join amounts to withdrawal of society without reasonable cause?

 

  1. ‘A’ a Hindu working as clerk in a Bank in Delhi marries ‘B’ a school teacher at Ambala in Haryana. After marriage ‘A ’ wants ‘B’ to leave her job and join him at Delhi but she declines to leave her job stating that she has no objection to join him during holidays and he is also welcome to come over to her at Ambala at any time. A does not agree to this and insist that after marriage B being his wife has to obey his orders. A files a petition for restitution of conjugal rights against B. Would A succeed? Discuss with reference to Case Law.

RESTITUTION OF CONJUGAL RIGHTS

 

Marriage imposes an obligation on both spouses to cohabit with each other. The necessary implication of marriages is that parties will live together.

Thus, it is a positive relief which aim ‘to preserve marriage’ and not at disrupting it as in case of divorce or judicial separation.

Sec. 9 Restitution of Conjugal Rights

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party, may apply, by petition to the other district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and there is no legal ground why the application should not be granted (this relates to bars to matrimonial relief), may decree restitution of conjugal rights accordingly, the wife filed a petition for restitution of conjugal rights but at the same time alleged that her marriage with the respondent was void because he was already married. Held that the wife’s petition is not maintainable, as application for restitution of conjugal rights could be maintained only against wife or the husband (as the case may be) when their marriage was a legal marriage.

The term “conjugal rights” means matrimonial rights i.e. the right of the parties to society and comfort of each other.

The word “Society” means companionship, cohabitation i.e. consortium (living together as husband and wife). The words “withdrawal from the society of other” means withdrawal from the totality of conjugal relationship such as refusal to stay together, refusal to have marital intercourse and refusal to give company and comfort.

Reasonable excuse

A petitioner shall be entitled to a decree of Restitution on establishing that he or she has a desire to resume matrimonial co-habitation and to perform all matrimonial obligations. A petition for restitution of conjugal rights will fails, even if it is established that the respondent has withdrawn from the society of the petitioner, where there is a reasonable excuse for doing so. It will amount to reasonable excuse:

  • If there exists a ground on which, the respondent can claim any matrimonial relief. Thus, if petitioner is guilty of cruelty or is an impotent the petition will fail.
  • If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him. However, the reason should be ‘grave and weighty’.

Mere temperamental incompatibilities, eccentricities, inexplicable conduct using rough language in public, or before guests, residing of aged parents in matrimonial home, husband’s refusal to migrate to wife’s place have been held not a constitute ‘reasonable excuse’.

The matrimonial misconduct should be ‘weighty and grave’. The following have been held to amount to ‘reasonable excuse’:

  • Husband’s insistence that wife must live with his parents
  • Acts of physical violence short of cruelty
  • Husband false accusations of adultery or immorality, and

Burden of proof

Explanation to sec. 9 means two things: (i) the initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner, and (ii) once that burden is discharged it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.

In Shanti Nigam v. Ramesh Chandra Nigam (1971) A.L.J. 67, the court held that if there is no refusal on the part of the wife to allow access to the husband and no reluctance on her part in going to her husband, then in such a case, it cannot be said that the mere refusal on her part to resign her job is sufficient ground for the husband to seek relief of restitution of conjugal rights. The wife’s taking up of a job even contrary to the wishes of husband wouldn’t amount to withdrawing from the society.

In Kailashwati v. Ayodhya Prakash

The court observed: the idea of the matrimonial home appears to lie at the very centre of the concept of marriage.

The right to constitution by the husband was a dominant incident of marriage from the earliest times. A particular situation or financial circumstances may require that both the spouses may have to seek work. In such a situation, either by mutuality or even at the instance of the husband, a wife might obtain gainful employment away from, matrimonial home.

Under Hindu Law, the obligation of the wife to live with her husband in his home and under the roof and protection is clear and unequivocal. It is only ion case of specified marital misconduct on the part of husband that entitled wife to live separately and claim maintenance.

Swaraj Garg v. K.M. Garg AIR 1978 Del 296

If the principle of Hindu law was held to give the exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife it would violate. Article 14 of the Constitution. When the husband and wife is earning more than the husband, there are sufficient reasons for the wife to stay separately and hence the petition for restitution of conjugal rights by the husband must fail. There is nothing in Hindu law saying that the wife has no say in choosing the place of matrimonial home.

Conclusion:

  1. Where the wife takes up employment with the consent of the husband, whether due to need or due to greed, the separate living of the wife is not a withdrawal without a reasonable excuse.
  2. If the wife takes up employment without the consent of the husband or without any fear of losing maintenance from him, but because it is a noble social cause, then also the reasonable excuse is not absent.
  • It is likely that the husband is not employed but the wife is and both live at separate places. The wife’s refusal to resign her job and join the husband cannot be called unreasonable withdrawal from his society.
  1. In a case where both the spouses are well employed and the husband is earnestly willing to maintain the wife at his place and is insisting that she resign her job but she declines, the problem is aggravated by the emotive concept of the equality of sexes. It is submitted that in such a situation the say of the husband would carry weight.
  2. A wife may take up a job because the earning of the husband alone is not sufficient to make their both ends meet. In the case if the husband is not earning anything he cannot claim the preference. But in such a situation if wife prevents the husband from visiting her at reasonable times, it will amount to withdrawal reasonable excuse.

Decree for restitution of conjugal rights where the disobedience follows as result of willful conduct i.e., where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobey the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights. The Supreme Court observed that we are unable to accept the position that Section 9, HMA is violative of Article 14 or 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.

In Saroj Rani’s case the Supreme Court speaking through Justice Sabyasachi Mukharji upheld the Constitutional validity of Section 9. The court observed that in India conjugal rights i.e. right of the husband or the wife to the society of other spouse is not merely creature of the Statue. Such a right is inherent in the very institution of the marriage itself. Section 9 is only a condition of pre-existing of law.

There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The provision of “reasonable excuse” for withdrawal is a “built in safeguard” against the misuse of Section 9. The remedy gives the husband and wife an opportunity to settle up the matter amicably and live together. It serves a social purpose as an aid to restoring the marital tie. Order 21, Rule 32 CPC deals with the execution of  the decree for specific performance of contract and of restitution of conjugal rights. It is significant to note that unlike a degree of specific performance of contract for  restitution of conjugal rights, the sanction is provided by court where the disobedience to such a decree is willful i. e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against disobedience of

 

Pre-Questions

  1. Section 9 of Hindu Marriage Act, 1955 provides for

(a) ceremonies of marriage

(b) restitution of conjugal rights

(c) judicial separation

(d) jurisdiction of court.

  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. Restitution of conjugal rights is a remedy having its generis under

(a) Jewish Law

(b) English Law

(c) Indian Law

(d) all the above.

  1. Remedy of restitution of conjugal rights is available to

(a) wife

(b) husband

(c) wife and husband both

(d) only husband & not wife.

  1. A decree of restitution of conjugal rights, in India, can be executed by

(a) attachment of the property of respondent

(b) arrest of the respondent

(c) attachment of property and arrest of the respondent both

(d) either attachment of property or by arrest of the respondent.

  1. Restitution of conjugal rights can be claimed

(a) when there is a withdrawal from the society of other with an excuse

(b) when there is a withdrawal from the society of other without any reasonable cause

(c) when there is a withdrawal from the society of other without any absolute cause

(d) both (b) & (c).

  1. Distinguish between Divorce and Judicial Separation?

 

HINDU MARRIAGE ACT

JUDICIAL SEPARATION [SECTION 10]

A wife or husband who does not want immediate dissolution of the marriage but desire to give to the party some time, can seek the remedy of judicial separation, instead of divorce. Judicial separation is separation between husband and wife by the order of a court of competent jurisdiction. It is a remedy lesser than divorce and it enables the spouse to live apart. When under certain circumstances it becomes difficult for one party to continue in the society of the other law allows separation. As a result of judicial separation active marital life between the spouses is suspended on separation, the marriage does not dissolve or sever but it subsists. The parties are absolved from the duty of cohabitation. Thus   judicial separation is a state of relations between husband and wife when they are under no obligation to live together or to perform marital obligations from each other.

Under the Textual Hindu, Law there was no scope for judicial separation or for divorce. Nowhere these two terms have been introduced exception recent enactments. It was pious duty of the husband to keep the wife under his roof and maintain her. She was shown as better half (Ardhangini). Without the wife husband was not complete. He alone could not perform any religious ceremony. Wives were to be honoured and respected by the husbands as they were known Grihlakshmi (wealth of the house); But our recent enactments have prescribed provisions under certain specified circumstances for judicial separation and divorce. Section 10, HMA is a statutory recognition of the right to judicial separation among Hindus. ’

Section 10 reads as follows:

  • Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
  • Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.

Retrospective Operation: Section 10(1) makes it clear that the Section applies to the spouses of a Hindu Marriage whether the marriage was solemnized before or alter the commencement of this Act. Thus this Section is retrospective in its operation.

Standard of Proof: While awarding the relief, the Court must be satisfied be and all reasonable doubt; what is required is that gore should be strict inquiry into the matter. It does not mean that proof should reach certainty. But it must

Judicial separation preferable to divorce: As judicial separation is just a jolt to and not, unlike divorce, dissolution of marriage, it is a better remedy from the sociological point of view. Needless to say that the proper development of children depends upon a viable marriage. It is, therefore, in the interest of society that all attempts must be made to preserve marriage. A warning-bell ‘or safety- valve must be provided so that the parties may rejuvenate their bond lest it breathes its last. The remedy of judicial separation serves this very purpose. It affords an opportunity “for reconciliation and adjustment for the Hindu society, in which divorce was unthinkable and “contemptible till late, this remedy is all more preferable and therefore better.

Valid Marriage: The expression “marriage” refers only to’ a marriage among ‘two Hindus. A’ Petition for judicial separation cannot obviously lie if the marriage between the parties was void ab initio.

Merely living Apart: A spouse who is merely living apart without having obtained a decree for judicial separation cannot be said to be “judicially separated”. For this relief either party to” the marriage has to present a petition mentioning any of the grounds specified in Section 13, before a Court that is the District Court as defined in Section 3(b) of this Act with a prayer for a decree for judicial separation.

Judicial separation is temporary between the spouses as a result of decree passed by the Court on anyone of the grounds mentioned in the Section. Section 10(1)-provides that either party to Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13(1) and in case of wife besides the above ground she can have additional grounds available as mentioned in Section 13(2) of the Act. Thus‘, it is Manifest that the grounds for judicial separation and divorce are virtually the same. Whatever the grounds of divorce under Section 13(1) and (2) have been laid down, they have been similarly adopted in Section 10. Thus under Section 10. on the grounds of judicial separation are:

  • Adultery: Under the Marriage Laws (Amendment) Act, 1976, the expression “living in adultery” has been dispensed with and it has been replaced by a simple requirement of adultery, that is, where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. And thus, even a single act of adultery may be sufficient now for the relief under this head.
  • Cruelty: Cruelty is a ground for matrimonial reliefs under all matrimonial laws. Where the other party has treated the petitioner with cruelty, the petitioner can claim the relief of judicial separation. The term cruelty: is nowhere defined, nor is it capable of any definition. It has no parameters, it is subjective and relative. It would differ from place to place, from person to person ‘and would also vary depend in upon social and cultural backgrounds of the parties. “ i
  • Desertion: Judicial separation may be granted where the other has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes, the wilful neglect of the petitioner by the other party to the marriage.
  • Unsoundness of Mind: To get relief on this ground the petitioner-has to prove that: (i) the respondent has been incurably of unsound mind or, has been suffering continuously or intermittently from mental disorder of and (ii) the nature and degree of the disease is such that the petitioner cannot reasonably be expected to live with the respondent. Both the elements must be established for the grant of the relief. The expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, a whether or not it requires or is susceptible to medical treatment.
  • Conversion/Apostasy: If a party to Marriage has renounced the Hindu religion and embraced some other religion, it is a ground for the other party to petition for judicial separation. If a person leaves the Hindu religion to embrace some other religion that he goes out of the fold of the definition of Hindu as given under Section 2′ of the Act, then he is said to have converted himself.
  • Virulent and incurable Leprosy: One of the grounds for Judicial separation is that the respondent has been suffering from a virulent and incurable form of leprosy. The expression ‘Virulent’ has been interpreted as Malignant or Venomous.
  • Venereal Disease: Judicial separation is obtainable if the respondent has been suffering from venereal disease in a communicable form.
  • Renunciation of World: Under Hindu law renouncing from the worldly affairs by entering any religious order amounts to civil death and it may amount to desertion of the petitioner.
  • Presumed death (Missing Spouse): A person may present a petition for judicial separation on the ground that the other party to the marriage has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him or her had that other party been alive.

ADDITIONAL GROUNDS TO WIFE TO CLAIM DECREE

The Section has further laid down additional grounds to wife to claim decree for the judicial separation on the ground of:

  • Bigamy: In the case of a marriage solemnized before the commencement of this Act, a wife is entitled to present a petition for judicial separation on the ground (a)- that the respondent husband had married again before the commencement of the Act or (b) that any other wife of the respondent husband to whom he was married before such commencement was alive at the time of the solemnization of the marriage of the petitioner with the respondent. A petition by a wife for judicial separation will lie on either of these grounds provided that the other wife is alive at the time of the presentation of the petition.
  • Rape, Sodomy or Bestiality: A wife can seek judicial separation on the ground that since the solemnization of the marriage the husband has been guilty of rape, sodomy or bestiality.
  • Non-resumption of Cohabitation after decree or Order of maintenance: A wife can seek judicial separation where a suit under Section 18 of HAMA or in a proceeding under Section 125Cr.P.C., a decree or order, as the case may be, has been passed against the husband awarding maintenance wife and that since the passing of such decree or order‘, cohabitation parties has not been resumed for one year or upwards.
  • Option of Puberty (Repudiation of the marriage):- if before she completes the age of l5 years she is given an marriage alter completing the age of 15 years.‘Tl1is option ‘must be exercised before attaining the age of 18 years. The Act provides no particular form of repudiation. It may be by, filing a petition or by an overt act. If she has exercised this option to repudiate her marriage she can petition for judicial separation or divorce on/this ground after completing 18 years of age.

Incidents and effects of decree of judicial separation (Section 10(2))

Section 10(2) provides that it shall no longer be obligatory for the petitioner to cohabit with the respondent where decree for judicial separation has been passed. A decree of judicial separation does not snap the legal bond of marriage between the parties. ‘However, it gives a legal license to the petitioner to live separate from  the respondent and the latter can no more insist that the former cohabit with him or her as the case may be. Matters “relating to the spouses and children may be decided by the Court while deciding on a petition for judicial separation and even earlier while the petition is pending for disposal. By implication of Section 10(2) it appears that in the absence of a decree for judicial separation it is not legally obligatory for the parties to cohabit with one another.

The following are the incidents and effects of an order of judicial separation:

  • That the marriage tie is not dissolved
  • That after the passing of the decree of judicial separation, the husband and wife are not bound to live together or dine together as judicial separation is separation from bed and board.
  • After the decree of judicial separation it will not be obligatory for the parties to cohabit with each other.
  • It does not prevent the parties from subsequently resuming cohabitation and living together as husband and wife as originally they did. It is not necessary for them to undergo the ceremony of marriage again because their original marriage still subsists in spite of the decree of judicial separation.
  • A fortiori if either marries during that period, he or she will be guilty of bigamy and will be liable for punishment prescribed by Section 17 of this Act.
  • The petitioner, if she be the wife, becomes entitled to alimony from the husband, and if he is the husband he can claim maintenance from wife under Section 25 of this Act.
  • The wife shall, from the date of the decree and till, separation continues, be considered as a feme sole, i.e. “independent woman” with respect to property of every description.
  • The mutual rights and obligations arising from the marriage are suspended and the rights and duties prescribed by the decree are substituted therefore.

Ground for Divorce: if the cohabitation has not been resumed for one year or more or more following a decree of judicial separation it is a ground for divorce available either party. However, it is not necessary and the parties are not bound to have recourse to that remedy. They can, for the whole of their life, live separately and yet keep alive their status as husband and wife.

Judicial Separation and Marital Rape: Even though a decree of judicial separation does not have the effect of legally snapping the marital tie, there is no obligation on the parties to cohabit. A wife has been given a special protection in this context vide Section 376A, IPC. Sexual intercourse by the husband after a decree of judicial separation without the wife’s consent is made punishable with imprisonment upto two years and also a fine. Thus cohabitation against the wishes and consent of the judicially separated wife would constitute an offence of marital rape by the husband.

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, a decree for judicial separation is reversible and may be rescinded. If the separated’ parties who live apart under a decree of judicial separation “desire to make a compromise, there is no impediment whatsoever and the Court may rescind such a decree of separation if it thinks it just to” do. There after the parties may resume their normal life without again undergoing ceremony of marriage.

‘The power to rescind though available under Section 10(2), must be exercised with circumspection only to achieve the purpose of giving every opportunity to the patties for reconciliation. The question whether the ground urged is sufficient to make the case fit for rescission” of decree comes after the Court is satisfied about the truth of the averments made in the application.

In the case of S. Narasimha Bihanidary v. Vijaya Bat, AIR 1978 Kant 115 the Karnataka High Court has decided that the statute does not refer to any specific grounds on which the decree for judicial separation can be annulled or rescinded Section 10(2) of the Act, however, empowers the court to rescind the decree for Judicial separation if it considers it just and reasonable to ‘do so. A party against whom a decree for judicial separation is passed cannot succeed in getting the decree rescinded; in the absence of other circumstances which justify an order of rescission to be passed, merely by saying that he or she is willing to rejoin and live with the other spouse. The power conferred on the Court under Section 10(2) has, to be exercised with great circumspection.

The following are the circumstances in which the court may rescind the decree:

(1) if the decree has been obtained ex-parte, by showing reasonable excuse for his or her absence, or for his or her alleged desertion.

(2) if the parties had cohabited with each other, after the decree, or have come to terms with each other and have again begun to live as husband and wife.

(3) If the opposite patty has condoned the offence.

(4) If the opposite party has satisfied the court that he or she is willing to live as husband or wife and is not going to do any such thing in future on which judicial separation was granted (Section 23).

(5) If the opposite party; is cured of leprosy or venereal disease, or unsoundness of mind and in spite of that, the petitioner is not willing to resume cohabitation (Section 23).

Rescission by cohabitation

The object, and reason of the petitioner for seeking the decree of judicial separation is that he may be free from the essential marital obligation of cohabitation with the respondent. Sub-section (2) lays it down explicitly that it shall no longer be obligatory for the petitioner to cohabit with the respondent” on the passing of the decree of judicial separation. But it does not prescribe that “it is obligatory for the petitioner not to cohabit with the respondent”. It implies that it is left to the sweet will of the petitioner and the respondent to cohabit or not to cohabit with each other.

Here a question arises. Does the resumption of cohabitation automatically rescind the decree of judicial separation without the intervention of the court? The question has importance. If the spouses resume cohabitation after getting this decree judicially rescinded, then when one of them withdraws from the society of the other then the forsaken party can pray for restitution of conjugal rights; or one of them can again pray for judicial separation. But is it possible where the cohabitation is resumed without the order of a court?

It is submitted that it depends upon the will of the parties and the duration of the cohabitation. In case the husband and wife only desire to probe the possibility of a durable reconciliation but fail, and again fall apart, the decree is not automatically rescinded by a short-lived cohabitation. However, where cohabitation lasts long the decree stands rescinded. How long should this duration be? The answer, will depend upon the circumstances of the case before the court.

DIVORCE AND ‘JUDICIAL SEPARATION: DISTINCTION

Both are breaks in marriage but they differ from each other both in nature and degree. In divorce, marriage is dissolved; the parties to it become strangers for each other and free to marry elsewhere. If the parties are divorced, then they cannot re-unite without a marriage ceremony. There is no provision for the rescission of the decree of divorce for reuniting them.

Judicial separation does not terminate the marriage relationship but only modifies it by suspending the obligation to live together. In Judicial separation the marriage is only eclipsed and parties are not completely alienated. The doors of reconciliation are open. If the parties wish to re-unite, they can lawfully do so even after judicial separation, and no flesh marriage ceremony is required for the purpose. They can resume cohabitation without remaining. A rescission of the decree of judicial separation is required for this purpose. In judicial separation, the parties cannot remarry elsewhere. If they do so, it would -be bigamy inviting all its punitive consequences under the Hindu Marriage Act.

If the parties are merely separated then, on the death of one spouse, the inheritance rights of the other spouse remain unaffected. On the other hand, if the parties are divorced, then, on the death-of one spouse after divorce, the divorced spouse has no right of inheritance in the assets of the deceased spouse.

 

HINDU MARRIAGE ACT

Pre-Questions

  1. A decree of judicial separation

(a) can be rescinded by the parties of their own

(b) can be rescinded by the court on the application of the either party

(c) can be rescinded by the court on the application of the decree-holder

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

  1. A decree of judicial separation

(a) dissolves the marriage

(b) does not dissolve the marriage & the marriage subsists

(c) either (a) or (b)

(d) only (a) & not (b).

  1. A petition for judicial separation lies

(a) if the marriage is void

(b) if the marriage is valid

(c) if the marriage is either void or voidable

(d) if the marriage is invalid.

  1. After the passing of a decree for judicial separation, co-habitation is

(a) obligatory

(b) not obligatory

(c) directory

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

  1. After the passing of a decree for judicial separation, if one of the spouse dies intestate, the other spouse

(a) can inherit the property of that spouse

(b) cannot inherit the property of that spouse

(c) can inherit the property of that spouse only with the consent of the children

(d) cannot inherit and only the children can inherit the property of that spouse.

 

HINDU MARRIAGE ACT, 1955

Mains Question

  1. Although cruelty is clearly a ground for divorce under Section 13 of the Hindu Marriage Act, 1955, and yet the legislature in its wisdom has not defined it in the Act. In the application of this statutory ground, however, the apex court has developed a functional concept of cruelty. Bring out the salient features of that concept in the light of case law.
  2. Critically examine the concept of irretrievable breakdown of marriage. Can the courts invokes this concept for granting divorce under the provisions of the Hindu Marriage Act, 1955?

HINDU MARRIAGE ACT, 1955

      Divorce by Mutual Consent (Sec. 13 B)

  • There are cases when parties wish to part happily, rather than indulge in accusation. Mutual consent, introduced in 1976, is a part of the legislative effort to ease the law of divorce by taking care of such cases, in accordance with the changed conception of marriage.
  • 13 B runs as under:-
  • Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce

may be presented to the district court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

  • On the motion of both the parties made not earlier than 6 months after the date of the

presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date. if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved “with effect from the date of the decree.

  • Section 23 (1)(bb) provides that in any proceeding under this Act, whether defended or not, if the court is satisfied that when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, the court shall decree such relief accordingly.
  • The essential ingredient of Sec. 13 B read with Sec. 23(1)(bb) are:-

(1) A joint petition by both the spouses stating:

(a) that they have been living separately for a period of one

(b) That they have not been able to live together, and

(c) they have mutually agreed to live separately.

  • The words ‘living separately’ only means not living as husband and wife. Thus they may live in the same room, yet live separately. What seems to be necessary is that they have no desire to perform marital obligations. “They have not been able to live together means that there is state of complete breakdown of marriage.

(2) After the presentation of the petition the parties are required to wait for 6 months though

not for more than 18 months, and then to move a motion in the court that divorce be granted.

(3) The parties are free to withdraw the petition at any time. If no motion is moved within 18 months, the petition shall stand dismissed. The waiting period of 6 to 18 months from the date of filing petition has been held directory by some  Courts and not by others. The period of 18 months is an upper limit for the withdrawal of the petition. But the court has power to grant divorce even after the expiry of that time or even before the expiry of 6 months if other conditions are fulfilled.

  • Recently, in Hitesh Bhatnagar v Deepa Bhatnagar (2011) 5 SCC 234, the Apex Court observed that consent can be withdrawn after expiry of 18 months. Consent can be withdrawn any time before decree of divorce is passed. This period of 18 months is for speedy disposal of mutual consent petitions and not to specify time period for withdrawal of consent.

(4) At the time of second petition, the court shall after hearing the files and making such inquiry as it thinks fit that a marriage has been solemnized and that the averments made in the petition are true pass a decree. Only at the time of the second petition, the averments in the petition shall be seen by the court.

(5) The court must in every case be satisfied that the consent of neither party has been obtained by force, fraud or undue influence [Sec. 23(1)(bb)]

(6) Collusion [Sec. 23(1)(c)] may be pleaded as a bar to petition for divorce on the basis of mutual consent.

  • However, a ‘compromise’ application agreeing to divorce submitted by the parties can be a basis of divorce. In Sibnath v Sunita (AIR 1989 Cal. the court observed that such a compromise is not unlawful, though petition should not be collusive. In fact, it is possible now to dissolve a marriage by agreement between the parties although none of the grounds on which the court may dissolve marriage, be found to exist. In Santosh v Virendra, a petition for divorce on the ground of cruelty and desertion was allowed to be converted into a petition for divorce by mutual consent, ignoring the formality of a joint petition under Sec. 13B. However, in a petition for divorce by mutual consent, no other ground of divorce can be taken (Ravi v sharda AIR 1978 M.P. 44). .

(7 )No appeal against a divorce decree under Sec. 13 B shall lie unless the party finds himself or herself deceived.

Existence of Mutual Consent till what Stage?

 

Earlier there was a difference of opinion between the High Courts, with the Delhi, Bombay and M.P. High Courts holding that mutual consent is relevant only till the first petition (that means the court has to pass the decree even if one of the parties withdraws consent), and the Kerala, Punjab 86 Haryana, and Rajasthan  Courts holding that the mutual consent must prevail till the divorce is granted. The issue has been settled by the Supreme Court in

Leading Cases

  1. SURESHTA DEVI v OM PRAKASH (AIR 1992 SC 1904)
  2. ASHOK HURRA v RUPA BIPIN ZAVERI (AIR 1997 SC 1266)
  3. ANIL KUMAR JAIN v MAYA JAIN [(2009) 10 SCC 415]

      WIFE’S SPECIAL GROUNDS OF DIVORCE:

  • Besides the grounds available under Sec. 13 (1), a wife has been provided four additional grounds of divorce under Sec. 13 (2), H.M. Act,1955 the last two grounds have been added by the 1976 Amendment Act.

(1). Pre-Act polygamous marriage [Sec 13 (2) (i) ]
Under this clause the first wife of pre-Act marriage may file a petition for divorce on the ground that her husband has remarried. Similarly, the second wife of the pre-Act marriage may file a petition for divorce on the ground that her husband’s first wife was alive at the time of solemnization of marriage. In either case, the other wife should be alive at the time of presentation of petition, It does not matter that the petitioner wife is aware of the other wife or not. Similarly, it is immaterial whether the petitioner wife is living with the husband or separately at the time of commencement of the Act.

The ground will be available if both the marriages are valid. The Hindu Marriage Act did not rightly render the pre-Act bigamous/polygamous marriages void but provides relief of divorce to any wife of such marriage. Today, this ground is no longer of any practical importance.

(2) Rape, sodomy or bestiality [Sec 13 (2) (ii)]

Under this clause the commission of the offence of rape, sodomy or bestiality (unnatural offences)’by the husband gives the wife a right to divorce him. An ‘attempt’ by the husband is not covered. Further, the offence should be subsequent to the marriage of the petitioner.

A man is not guilty of raping his own wife unless she is under the age of 15 years (Exception to Sec. 375, IPC). In a wife’s suit for divorce on this ground, it is not necessary for her to show that the husband was prosecuted and convicted for the offence. Even if the husband is discharged on the charge of rape, etc-. she can sue for divorce. In either case the burden of proof for establishing the ground is on the wife; thus, she has to prove the offence de novo (afresh) in the matrimonial proceedings.

‘Sodomy’ is anal intercourse by a man with his wife/another woman or with a man. ‘Consent of the  victim or the victim’s age are not relevant factors. ‘Bestiality’ is sex with an animal.

(3) Non-“resumption of cohabitation after a decree/ order of maintenance [Sec 13(2) (iii)]

Under this clause if a wife has obtained an order of maintenance in proceedings under Sec. 125, Cr/P.C., 1973 or a decree under Sec. 18, Hindu Adoptions and Maintenance Act, 1956 and cohabitation between parties has not been resumed for one year or upwards after the passing of the order or decree, then the wife may sue for divorce.

It is evident that this ground has been enacted as a fault ground.

(4) Repudiation of marriage [Sec 13 (2) (iv)] (Option of Puberty)

Under this clause, a wife who has married before she had attained the age of 15 years, and who had repudiated the marriage after  attaining the age of 15 years but before attaining the age of 18 years (irrespective of the fact whether the marriage has been consummated or not) may bring a petition for divorce on that basis.

  • This right (added by the 1976 Amendment Act) has been conferred with retrospective effect. Thus, a wife may invoke the clause whether the marriage has been solemnized before or after the 1976 Amendment Act [Explanation, Sec. 13 (2)].
  • The repudiation may be express (written or spoken words) or implied from the conduct of the wife (e.g. she left her husband and refuse to come back). Sec. 13 (2) (iv) requires that the marriage should be repudiated by the wife (e.g. by sending a registered letter to her husband) before she attains the age of 18 years. A petition for divorce on this ground can obviously be filed after she attains the age of 18 A repudiation of marriage and dissolution of marriage is not the same thing; a minor girl can get her marriage dissolved only after she becomes 18 years old and files a petition in the court.
  • This provision is similar to Sec. 2 (vii) of Dissolution of Muslim Marriage Act, 1959 where a similar ground is available to a Muslim wife married below the age of 15. However, under Muslim law it is also essential that the marriage have not been consummated, before she repudiated it. Under Hindu law, consummation of marriage is immaterial.

 

HINDU MARRIAGE ACT, 1955

Pre-Questions

  1. Under section 13 of Hindu Marriage Act, 1955 the number of grounds which are common to husband & wife, is

(a) seven

(b) nine

(c) ten

(d) eleven.

  1. Under section 13 of Hindu Marriage Act, 1955 the number of grounds which are exclusively available to the wife, is

(a) two

(b) three

(c) four

(d) five.

  1. Desertion is ground for divorce

(a) under section 13(1)(ib) of 1955 Act

(b) under section 13(1)(ia) of 1955 Act

(c) under section 13(1)(i) of 1955 Act

(d) under section 13(1)(ii) of 1955 Act.

  1. Cruelty is a ground for

(a) judicial separation

(b) divorce

(c) both judicial separation and divorce

(d) only divorce and not judicial separation.

  1. Which of the following is an essential element of cruelty

(a) motive

(b) malignity

(c) malevolent intention

(d) neither (a) nor (b) nor (c)

HINDU LAW OF MAINTENANCE

                                                               MAINS

  1. When is a Hindu wife entitled to claim maintenance? Discuss
  1. Can an unchaste Hindu wife claim maintenance from her husband?

HINDU LAW OF MAINTENANCE

  • The aged parents, a virtuous wife, and an infant child must be maintained, even by doing a hundred misdeeds…..Manu
  • There are three different types of provisions regarding maintenance to a wife (or husband):

(I) Provisions under Code of Criminal Procedure, 1973.

(II) Provisions under the Hindu Marriage Act, 1955.

(III) Provisions under the Hindu Adoptions and Maintenance Act, 1956.

  • The provisions of maintenance in the Cr. P.C. and the HAMA are independent reliefs. Further, the right to claim maintenance under the H.M.A is an independent right and it is not controlled by the HAMA. In other words, the court’s jurisdiction cannot be ousted on the plea that the applicant for maintenance under the H.M. Act is already getting maintenance under the HAMA, though in fixing the quantum of maintenance that may be taken into consideration.
  • While under the Hindu Marriage Act, either spouse can seek maintenance, under the Cr. P.C. and HAMA only the wife can claim maintenance.

(I) Provisions under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, an order for maintenance may be made by the court:-

  • For maintenance pendente lite (interim or temporary) and expenses of the proceedings under Sec. 24, and

 

  • For permanent maintenance and alimony under Sec. 25.

Interim Maintenance( s.24)

  • Under it, the claim may be made (either by husband or by wife) for
  • (1) personal maintenance of the claimant, and (2) expenses of proceedings (i.e. any proceedings under this Act). Only requirement is that the claimant should establish that he/ she has no independent income sufficient for his/ her maintenance and support
  • He/ she has no means to meet the expenses of proceedings. The court, may, then order the respondent to pay ‘to the petitioner such sum as, having regard to the petitioner’s own income and income of the respondent, seem to be reasonable. If the respondent has no means and no income, then the court need not fix any amount of maintenance.
  • 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. 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.
  • 24 does not limit the jurisdiction of the court to award the maintenance. Maintenance pendente lite and the litigation expenses are payable from the date of the application, and, once fixed can be enhanced or reduced depending on the nature of change of circumstances.
  • An order under Sec. 24 is an interlocutory order and no appeal lies against it. An order passed under Sec. 25 is appealable generally. An order under Sec. 24 can be enforced by execution proceedings, or by stay of petition, or by striking of the defence. The payment ordered by the court under Sec. 25 may be secured, if necessary, by a charge on the “immovable property (Self-acquired or Joint Family Property) of the respondent.

 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 court may order the payment of gross sum or monthly or periodical sum for a term 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). The usual practice is to award a fifth of the husband’s income to the wife, after taking wife’s income (if any) into account.
  • 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.
  • The court has power to pass an order of maintenance even when petition is dismissed, because in either case (when petition allowed or dismissed) it is decree. The words “any decree” have reference to the decree(s) of nullity (void/voidable), divorce, judicial separation and restitution of conjugal rights, the four possible decrees under the Hindu Marriage Act. Therefore, the wife under a void or voidable marriage is also entitled to maintenance and alimony under Sec. 25. The provision has been misunderstood all along, as it is commonly believed that maintenance could only be given to a separated spouse and not to a spouse who was creation of an illegal relationship, which is not immoral.
  • The words “any decree” used in Sec. 25. encompass only such decrees which grant relief of disruption of marital ties or confer or take away any legal status relating to the marriage. Thus, a decree of nullity is covered [Chand Dhawan v. Jawaharlal Dhawan (1993) 3-SCC 406]
  • The Supreme Court has held that a bigamous marriage may be illegal in law, it cannot be held to be immoral for as to deny maintenance to an affected spouse financially weak and economically dependent. As per the apex court’s ruling, an ‘illegal’ wife is entitled to alimony. Thus, the spouse of a null and void union, entered into during the pendency of an earlier marriage is entitled to maintenance on the passing of a decree of nullity (Ramesh Chandra Daga v. Rameshwari Daga AIR 2005 SC 422).
  • 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 , 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).

Conduct towards Marriage and Quantum of Maintenance

  • It is now well-settled that even if the conduct of the claimant under Sec. 25 has not been fair towards the marriage, or it is she who is responsible for breaking the marriage, or is guilty of the matrimonial offence, the court may still grant her maintenance though the quantum of maintenance may be affected. An act may amount to misconduct for the purpose of matrimonial relief, yet for the purpose of awarding maintenance it may be ignored. The ‘conduct’ is one of the considerations (in determination of application under Sec. 25), and howsoever important it may be, undue importance should not be given to it.
  • In Gulab Kamat (AIR 1985 Bom 88), held that a wife is entitled to maintenance even if the decree was passed on the ground of her adultery. In Jagdish v. Manjula (AIR 1975 Cal 64), held that the wife cannot be denied maintenance on the ground that the decree was passed against her on account of her cruelty. The same view was taken when wife was found guilty of desertion. May be‘, a woman has committed adultery once, this does not necessarily mean that all her life she should be condemned to live in adultery. If the wife has ceased to live in unchastity “she is entitled to maintenance. If this will not be done, it would, in most likelihood, condemn her to live in immorality, especially in a society like ours, where most women are still dependent on husband‘, parents, etc.
  • Leading Case: Amar Kanta Sen v. Sovana Sen (AIR 1960 Cal. 438)
  • [Under the Hindu Law, a -wife who was found unchaste was only “entitled to a bare or starving allowance. But, when she is earning a living and is not in helpless position her right to maintenance, – even of the bare subsistence-disappears.]
  • In I959 an application was made by Sovana Sen Inter alia for an order that the permanent maintenance at a sum of Rs. 350/ or any sum which this Hon’ble Court may think proper be directed to lie paid to her by the respondent Mr. Amar Kanta ,Sen.-This application arises out of a judgment delivered on’10-7-A1959 whereby the marriage between her and Amar Kanta Sen was dissolved. She stated in her petition that she came of a very respectable family and was married to a respectable person and was -throughout accustomed to a decent way of living. She cannot marry nor does she intend to marry in her life over again and wants to lead a very chaste and decent life dedicating herself to the welfare of her son and to her musical pursuit and painting for which -she has special aptitude.
  • She further stated that she was not in good health and was unable to support herself and that she was now practically without means and had no friends or relations who would support her. She further stated that her monthly expenses came to about Rs. 315/- per month. The husband was drawing a salary of Rs. 1700/- per month. She further asserted that she was entitled under the Hindu Law to be maintained by her husband so long as she lived a decent life according to the standard she had so long been accustomed to and so long –as her husband was capable to bear such expenses; the obligation to maintain her was his moral and personal obligation. ‘
  • In this case there was dissolution of the marriage on the ground of adultery of the applicant. The applicant is a graduate and an adept in music. She according to her own petition earned about the time of making the petition a sum of about Rs. 90/? per month. After she joined the All India Radio at Delhi she has been earning a sum of about Rs. 300/ per month. The respondent’s salary is Rs. 1360/-. Before the dissolution of the -marriage there was an order for the payment- of maintenance at Rs. 200/- per month from May 1956. There is no evidence as to any misconduct of the applicant after the judgment.
  • In this background the application has to be considered in the light of Sec. 25, H.M. Act. This follows more or less Sec. 37 of the Indian Divorce Act, 1869 except that in the Hindu Marriage Act like obligation is imposed in similar circumstances upon the wife to maintain her husband. The Indian Divorce Act, 1869 is modelled in its turn on Sec. 32 of the Matrimonial Causes Act, 1857. In 1902, in Aschcroft v. Aschcroft And Roberts it was held inter alia that the Court has, an absolute discretion vested in it to be exercised according to the circumstances of each case. Thus, it will order the husband to secure a provision for his guilty wife, even though-i his own conduct has been unimpeachable, if the wife is proved to be entirely without means of support and unable through. ill-health to earn her own living.

‘In 1905, in Squire v. Squire and O’ Callaghanit was held as follows: The\Court, in exercising its discretion in favour of and granting a divorce to a_ husband who had previously been judicially separated on the ground of his cruelty, ordered that the decree dissolving the marriage should not be made absolute unless and until the husband should secure an allowance of pound 52 a year, payable weekly to the divorced wife. She ought to be preserved from imminent temptation. The main ground for ordering him to make her an allowance is not his own conduct in the past, but that she may be reasonably safe from the terrible temptation which might otherwise assail her. The conduct of the husband is not, in my view, materially in issue in dealing with this matter. The wife should know and should be made to feel that her livelihood depends on her leading a chaste life in the future.

As far as the position of an unchaste wife under the Hindu Law is ‘concerned, in Principle of Hindu Law by D.F. Mulla (12th Edition), the law on this point is summarised as follows: A wife who persists in following a vicious course of life,‘ forfeits her right to maintenance even though it is secured by a decree. But is would seem that if “she completely renounces her immoral course of conduct, her husband is liable to furnish her with a bare or what is also called starving maintenance that is, food and raiment just sufficient to support her life. The burden of proving that the erring wife has returned to purity is on the wife herself.

It will be seen that even under the Hindu Law a wife who was found unchaste was only entitled to a bare or starving allowance. In this respect there seems to be very little difference in principle between the English Law and the Hindu Law, before the Hindu Marriage Act, 1955. When she is earning a living and is not in helpless position her right to maintenance, even of the bare subsistence disappears for the allowance is meant to prevent ‘starvation’. In these circumstances, in the present case, she is not at all entitled to any allowance after 17-9-1959 when she joined the service.

Modification, Rescission, etc. of Maintenance Order

Under Sec. 25 (2), the court has power to vary, modify or discharge any order of permanent alimony at the instance of either party (either prospectively or retrospectively) if change of circumstances is shown (e.g. income of respondent has come down appreciably or the expenditure of claimant has gone up). Under Sec. 25 (3), the court may remind the order if the party in whose favour an order has been passed has remarried or, if such party is the wife, she has not remained chaste or if such party is the husband, he committed adultery.

The resumption, of cohabitation by the parties after maintenance order nullifies that order, in the case of Restitution or judicial separation. But the question of resumption of cohabitation cannot arise in case of divorce or nullity. On the death of non-claimant, the order of maintenance comes to an end.

(II) Provisions under the Cr. P.C., 1973

  • 125 of Cr. P.C. provides that if any person, having sufficient means, neglects or refuses to maintain… his wife, unable to maintain herself.., a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife… at such monthly rate. In the whole… However, Amendment of 2001, no maximum limit for maintenance amount has been fixed. The Magistrate may order such monthly rate as he thinks fit.
  • Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.
  • Explanation- “Wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.
  • If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, ,or if they are living separately by mutual consent.
  • In Ramesh Chandra v. Veena Kaushal AIR 1978 SC 1807), held that the duty of person to maintain his wife, children and parents is an independent duty, as they have independent rights. The words ‘in the whole’ has reference -to items of maintenance, and not all the members put together. Thus, Rs. S00 is the entitlement of each claimant of maintenance, and not that of all claimants put-together.
  • ‘Wife’ means only a legitimate/ legally wedded wife and therefore a marriage proved illegal cannot give a wife any right to get maintenance. The second wife or a woman living as ‘wife’ is not entitled to get maintenance Yamunabai v. Anantrao (1988) 1 SCC 530]. If the marriage is void, or annulled under Sec. 12 of the Hindu Marriage Act, a wife is not entitled to maintenance [Krishna Gopal v. Usha Rani, 1982 CrLJ 901 (Del)l.

Recently, the Supreme Court again held that the expression ‘wife’ as per Sec. 125, Cr.PC. refers only the legally married wife. The court observed: “There may be substance in the plea of the appellant wife that the law operates harshly against the woman who unwittingly gets into a relationship with a married man and Sec. 125 of the Cr.PC. does not give protection-to such woman. This may be an inadequacy in law, which only the legislature can undo.” The court, however, held that the illegitimate children from the second wife are entitled to such maintenance.

(III) Provisions under the Hindu Adoptions and Maintenance Act, 1956

The Hindu husband is under a duty to maintain his wife during his lifetime. Maintenance is a personal/ legal obligation. It is an incident of the status or estate of matrimony. The meaning of the term ‘maintenance’ is given in Sec.l3 (b) of the Act — “maintenance” includes:

(i) in all cases, provision for, food, clothing, residing, education, and medical treatment, and

(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

Sec. 18. Maintenance of Wife

C1ause (1)- Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. Sec. 18 (1) is applicable when the wife lives with her husband. A wife who has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who lives with her husband can claim maintenance.

Clause (2)- A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:

(a) if he is guilty of desertion or of wilfully neglecting her, ,

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

“(c) if he is suffering from a virulent form of leprosy,

(d) if he has any other wife living,

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere,

(f) if he has ceased to be a Hindu by conversion to another religion,

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

Clause (3) (Forefeiture of the claim of maintenance) – A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Distinction between Sec. 18, HAMA, Sec. 25, HMA and Sec. 125, Cr.P.C.

  • Under Sec. 18, HAMA, and Sec. 125, Cr.PC., only wife can claim maintenance, while under Sec. 25, HMA, either spouse can do so.
  • Under Sec.18, HAMA, and Sec. 125, Cr.PC., a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Sec. 25, HMA, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce.

 

When the marriage is subsisting there is no question of applicability of Sec. 25, HMA but Sec. 18, HAMA. The word “wife” does not have the same meaning in the two enactments. The court cannot grant the relief of maintenance in proceeding under one enactment in proceedings under the other (Ramesh Chandra Daga v Raeshwari Daga  AIR 2005 SC 422).

 

  • Hindu wife contemplated under Sec. 18, HAMA, and Sec. 125, Cr.PC., includes only the wife of a valid marriage. While under Sec. 25, HMA, even a wife of void marriage can claim maintenance.
  • Apparently Sec. 18, HAMA, seems to have overridden Sec. 25, HMA, because in both the sections a similar provision exists and by virtue of Sec. 4, HAMA, it is the Act of 1956 (i.e. HAMA) which shall prevail and the provisions of Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect. Apparently it seems so; but there is no inconsistency between two sections as both do not deal with a similar provision (as noted in the aforesaid differences). Both sections provide for separate and independent reliefs. The court’s jurisdiction cannot be ousted on the plea that the applicant for maintenance under the HMA is already getting maintenance under the H.A.M.A., though in fixing the quantum of maintenance that may be taken into consideration.

 

The provisions of maintenance in the Cr. P.C. and the HAMA are, again, independent reliefs.

Maintenance of Widowed Daughter-in-law

Sec. 19 of HAMA provides that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law, is he has no means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Further, his obligation ceases when the daughter-in-law remarries.

Maintenance of Children and Aged Parents

Sec. 20 casts a duty on a Hindu, during his (or her) lifetime to maintain his (or her) legitimate as well as illegitimate children and his (or her) aged or infirm parents. Further, a legitimate child can claim maintenance from his or her father or mother, so long as the child is a minor. The term ‘parent’ also includes a childless step mother. This obligation extends only so far as such parent or unmarried daughter is unable to maintain himself (or herself) out of his or her own earnings or property. It may be noted that the obligation of a Hindu to maintain his wife, minor sons, unmarried daughters and aged parents (whether he himself possesses any property or not) is personal and legal in character, and arises from the very existence of the relationship between the parties.

Maintenance of Dependants

Sec. 21 lays down a list of relatives of the deceased who would be included within the term “dependants”. The list includes: Father, Mother, Widow (of a pre-deceased son or of a son of a pre deceased son), Minor son/ grandson, etc., Unmarried daughter/ granddaughter, etc., Widowed” daughter, Widowed daughter-in-law, Illegitimate son or daughter.

The obligation to maintain a ‘widowed daughter’ exists only when she is unable to obtain maintenance from the estate of her husband or from her son or daughter or from her father-in-law. A» widow is entitled to maintenance .even if she does not reside with that relative of her husband. The claim of maintenance of daughters is limited to their maidenhood.

Sec. 22 then provides that the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased. The liability of an heir is individual liability in proportion of the value of the share of the estate taken by him. A person who is a dependant and also a Class I heir and gets a share in the deceased’s property as heir is not entitled to claim maintenance as dependant.

Further, if a dependant has not obtained any share in the estate of a Hindu dying after the commencement of the Act, such a dependant can claim maintenance from those (including other dependants) who take the estate. The other dependants liability is limited to the extent that the remainder shall not-be less than the maintenance to him as a dependant.

Amount of Maintenance: Court’s Discretion

Under Sec. 25, it is in the discretion of the court to determine whether any, and if so 11//rat, maintenance should be awarded under the, Act. In respect of the wife, children, aged or infirm parents, the court will have regard to:

  • the position and status of the parties;
  • the reasonable wants of the claimant;
  • if the claimant is living separately, whether he (or she) is justified ‘in doing so; ‘
  • the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
  • the number of persons entitled to maintenance under the Act.

The amount of maintenance, whether fixed by a court’s decree or by agreement, may be altered subsequently if there is a material change in the circumstances (Sec. 25). A person cannot claim maintenance under the Act if he or she has ceased to be a Hindu by conversion to another religion (Sec. 24).

The debts contracted or payable by a deceased Hindu are to have priority over the claims of his dependants for maintenance, unless there is a valid charge in respect of the same under Sec. 27 (Sec. 26). Sec. 27 lays down that a dependant’s claim for maintenance is not to be treated as a charge on the estate of the deceased, unless such a charge has been created by the will of the deceased, or by a court’s decree, or by an agreement between the dependant and the owner of the estate, or otherwise.

Sec. 28 lays down that if a dependant has a right to receive maintenance out of an estate, and such estate is transferred, the dependant can enforce his right to receive maintenance against the transferee: (i) if the transferee has notice of such right; or (ii) if the transfer is gratuitous; but against a transferee for consideration and without notice of the right,

 

HINDU LAW OF MAINTENANCE

  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).

3.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.

4.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).

5.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.

  1. Alimony under section 25 of Hindu Marriage Act, 1955 can be ordered by

(a) a civil court

(b) a court exercising jurisdiction under the Hindu Marriage act

(c) both (a) and (b)

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

  1. ‘Any decree’ within the meaning of section 25 of Hindu Marriage Act, 1955 means

(a) decrees granting relief

(b) decrees declining reliefs

(c) both (a) and (b)

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

  1. Maintenance under section 25 of Hindu Marriage Act, 1955 is

(a) a substantive relief

(b) an ancillary relief

(c) either (a) or (b)

(d) both (a) and (b).

  1. Who are coparceners and what are their rights? State whether a daughter who wants to remain unmarried can claim partition in the Coparcenary property.

 

  1. What do you understand by the expression, “Joint Hindu Family governed by the Mitakshara law?

 

  1. Distinction between mitakshara and Dayabhaga on the basis on inheritance and succession.

 

  1. Explain the salient features of Hindu Succession Amendment Act, 2005.

HINDU SUCCESSION ACT, 1956

Hindu Joint Family and Coparcenary

  • A Hindu joint family is the fundamental aspect of the life of Hindus -an ancient and unique institution.
  • A Hindu joint family (according to Mitakshara law) consists of “the common ancestor and all this lineal male descendants up to any generation together with the wife(s) or widows and unmarried daughters of the common ancestor and of the lineal male descendants.”
  • lt is interesting to note that even an illegitimate son and widowed daughters may lay claim on the bounty of the joint family.
  • A ‘child in womb’ is also deemed to be a member of joint family for limited purposes.
  • it has to be clearly understood that the existence of the common ancestor is necessary for bringing a joint family into existence, but not necessary for its continuance.
  • The chief characteristics of a Hindu joint family (Mitakshara) are:
  1. It is a creation of law. In other words, it is a legally recognized unit which can neither be created by the act of the members nor by an agreement between the parties. A stranger cannot be admitted into it except by marriage or adoption.
  2. It has no legal entity distinct and separate from that of the members who constitute it. lt is not juristic person. lt is not a corporation either.
  3. It is a unit and in all affairs it is represented by its Karta (head or manager).
  4. Status can be acquired into it only by birth, marriage to a male member, and adoption.
  5. Status can be lost by Conversion to a non-Hindu faith, marriage to a non-Hindu under the Special Marriage Act, I954, on being given in valid ‘adoption, and, on partition.
  6. It is different from a composite family – a creature of custom and agreement, where two or more families agree to live and work together, pool their resources, throw their gains and labour into the joint stock and shoulder the common risk. The primary objective of composite families is convenience and efficient management of the family properties.
  7. A joint family may consist of a single male member and his wife and daughters, or a single male member and a widow of coparcener, or even when there are only widows. The rule is “that, even on the death of sole surviving coparcener, the Hindu joint family does not come to an end so long as it is possible in nature or law (i.e. adoption) to add a male member to it. A single male or female cannot make a joint family. There must be at least two members to constitute it.
  8. Hindu Undivided Family – For the purposes of tax assessment, the revenue statutes use the expression ‘Hindu Undivided Family’ (HUF), which appears to be slightly different from the definition of a Hindu joint family.

PRESUMPTLON OF JOINTNESS

  • Every Hindu family is presumed to be a joint family………………….. (Radhamoni v Dibaker AIR l99l Pat 15).
  • The normal state of every Hindu family is that it is a joint family, presumably joint in food, worship and estate, and it continues to be joint …………………..(Rukhmabai v Laxminarayan AIR i960 SC 335). However, if a family is not joint in food, worship and estate, or in any one or all of them, it does not necessarily imply that it has ceased to be a joint family. Thus it is not necessary that all members of a joint family live or work at the same place. The members of a family may reside separately and mess apart, still they remain joint in estate. Thus, ‘union in estate’ is quite essential for a joint family.
  • The strength of the presumption of jointness varies with the degree of generations.

There is no presumption-that joint family possesses joint property (KO. Reddy –v Vehkata Nardyan Reddy AIR I984 SC 1171; Pran v Rajendra AIR 1986 Del 121). ln Hindu law existence of joint property is not a condition precedent to the existence of joint family, though it will be a rare case where a joint family possesses no (joint) property. lt will have at least household utensils and articles which its members use in common. “Acquisition of property in the name of different members of the family is not inconsistent with the jointness. The rule is that one who “alleges that a particular property held by a member of joint family is  joint Family Property (JFP) has to prove that it is so. When property is purchased in the joint names, it is for the person who alleges it to be separate property, to prove it.

The presumption of jointness is rebuttable. There are only two ways to rebut the presumption of jointness viz. partition and extinction of the family (Bhagwani v Mohan Singh AIR l925 PC l4l). It is for the persons alleging severance of the Hindu joint family to prove it. Lf one takes the plea of partition, he has to prove it.

Coparcenary

The Mitakshara concept of coparcenary is based on the notion of son’s birth right in the joint family property. Not merely a-son, but also a son’s son and son’s son’s son acquire an interest by birth in the joint family property.

Coparcenary is a narrower body of persons within a joint family, and consists of father, son, son’s son and son’s son’s son i.e. father and his three male lineal ascendants. lt maybe noted that in its (coparcenary) continuance, the existence of the father-son relationship is not necessary. Thus a coparcenary can consist of grand-father, and grand-son, of brothers, of uncle and nephew, and so on. .

The coparcenary is limited to three generations of lineal male descendants of the last holder of the property only, According to tenets of Hinduism, only descendants up to three generations can offer spiritual ministration to the ancestor. Besides only, males can/-be coparceners because the females invariably leave the father’s house and assume domestic and spiritual duties in their husband’s house.

The rule is that so long as one is not removed by more than four degrees from the last holder of the property, howsoever removed, one may be from the original holder, one will be a coparcener. Last holder means the senior-most living lineal male ancestor.

Example 1.

A

 

B

(Coparceners)

C

D

E

F

(Not Coparceners)

G

H

(8 Generations)

Example  2.

 

 

 

A

B

C

D                          E

DS           DS1       ES                ES1

 

During the lifetime of the common male ancestor (i.e. the last holder) the disappearance of any of the intermediary generation or generations does not extend the coparcenary beyond” the fourth degree of generation from him.

In the above example, if B dies first; and C dies next, then the coparcenary will consist of A, D and E. If now E dies, coparcenary will consist of A and D and at this stage.ES and ES1 get removed by more  than four degrees from the last holder of the property and their chance of ever becoming coparceners comes to an end. If at this stage A dies, coparcenary will consist of D and his two sons DS’ and DS1.

Extinction of Coparcenary

  • A Mitakshara coparcenary comes to an end by partition or by the death of all the male member/last or sole surviving coparcener. The case of Moro Vishwanath v Ganesh Vithal, ILR (I873) 10 Bom 444, gives an example of the extinction of coparcenary.
  • Suppose there is a line of lineally descendant males ‘A, B, C, D and E. A is the last holder of joint family property. Now suppose B, C, and D die before A,” The moment three immediate ancestors die, the line cannot proceed in that direction, Thus E will never become a coparcener and the property in the hands of A is the property of the sole surviving coparcener. After A’s death, there will be an extinction of coparcenary and the joint family property will pass by succession.
  • The coparcenary also becomes extinct when all the male members die; However, the death of all the male members does not ipso facto mean the extinction of the joint family, as a joint family can consist of two female members. The joint family status cannot end till it is possible in nature or in law (“i.e. adoption) to add a male member to the family (Anant v Shankar AIR i943 PC. 196).
  • “Thus, if there is no coparcenary, it does not follow that there is no joint family (C.I.T v Laxminarayan, 37 Bom LR 692). Coparcenary is a unit within the institution of joint Hindu family.

Essential Characteristics of Coparcenary

  • Some members in a HJF may constitute a coparcenary, viz. the father and his three male lineal descendants.
  • An illegitimate son.
  • An insane coparcener
  • If a Hindu performs a marriage under the Special Marriage Act, 1954 with a non-Hindu, his interest in the JFP is severed. But it does not 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.

 

  • The characteristic features of a coparcenary are:

(1) Existence of property – Existence of JFP is essential in a coparcenary. If a Hindu acquires property in his lifetime, on his death, the property inherited by his son shall be held by the latter as JFP and he will form a coparcenary along with his sons by operation of law, whether he likes it or not.

(2) Only males — Only males (till 2005), including the adopted ones, can be members of a coparcenary. An illegitimate son, although a member of a joint family, is not a coparcener. An insane son is a coparcener, though he has no right to claim partition.

(3) Four generation rule – Only such males as are within four generation from, and inclusive of, the last male holder or owner of property, – the eldest surviving male member in the family form a coparcenary.

(4) Interest by birth — Coparceners acquire interest in the joint family property from their birth. The doctrine of the right by birth is a unique feature of the coparcenary as it gives a right in the property of a person to another during the lifetime of the former, the owner.

(5) Rule of survivorship and fluctuation of interest — On the death of a coparcener, his interest in the           J FP devolves on the surviving coparceners by rule of survivorship and not according to law of succession.

(6) Coparcenary within a coparcenary — Within a joint family, there can be coparcenaries more than one in different branches of the family. Likewise there can be a coparcenary within a coparcenaryi This is because a coparcenary is formed automatically by operation of law, and the moment a Hindu inherits property, from his father, grandfather or great ‘ grandfather, he immediately forms a coparcenary with his sons, grandsons and great grandsons.

For example, a coparcenary consists of A and his three sons B, C and D. C and D had two sons each. If C and D acquire separate property and dies, the sons of C (and D) inherit the separate property of C (and D) and between themselves constitute a coparcenary. If sons are born to sons of C and D, they will get a birth right not merely in the coparcenary headed by A but also in the sub-coparcenary created among the sons of C and D.

DISTINCTION BETWEEN JOINT FAMILY AND COPARCENARY

Hindu Joint Family                                                                          Coparcenary

  • It is a wider body consisting of all persons (1)   It is a much narrower body than the joint lineally descended from a common ancestor,                    family and consists of father and his three

and includes their wives and unmarried                                        male lineal descendants.

Daughters.

  • Female, and illegitimate son are members (2)   Only a male can be a coparcener; an

of the HJF.                                                                                  Illegitimate son is not a coparcener.

  • Limitation of four generations applicable to (3)  Only such males as are within four –

coparcenary does not apply to a HJF.                             Generations from, and inclusive of the

eldest surviving male member in the family

form a coparcenary.

  • Death of all the male members does not ipso (4)  The coparcenary becomes extinct when all

facto mean the extinction of the joint family,             the male members die.

as a joint family can consist of two female

members. The joint family status cannot end

till it is possible in nature or in law to add a

male member to the family.

  • In joint family, existence of property is not (5)  Existence of JFP is essential in a coparcenary

Essential.

  • Law of succession determines the rights and (6)  On the death of coparcener, his interest in

Interests of joint family members.                                  The JFP devolves on the surviving –

coparceners by rule of survivorship and not

according to law of succession.

  • The members of the joint family enjoy very (7)  The coparceners enjoy very wide rights, viz,

limited rights, viz, of maintenance and                          a right to partition and a right to alienate

marriage expenses of unmarried daughters.              (their undivided interest in the family

property). Each coparcener is owner of the entire family property, although he can’t set up an individual title to any specific portion.

Similarities – A Hindu joint family as well as coparcenary come into existence by operation of law and cannot be brought into-existence by agreement amongst the strangers. Thus the basis of formation of both joint family and coparcenary is close relationship.

Illustration                         A

B                              C

D                              E

F                             G

X

A is the holder of the ancestral property. He has two sons B and C. B has a son D and C has a son E. D has a son F and E has a son G F also has a son X. All are alive.

The joint family consists of all of them’ but the coparcenary does not include X in it so long as A is alive. X has no interest in the property in the life-time of A. After A’s death, X becomes coparcener with others.

CHANGES IN MITAKSHARA JOINT FAMILY AND COPARCENARY BY H.S. (AMENDMENT) ACT, 2005

  • The 1956 Hindu Succession Act (HSA) could not remove completely the persisting inequalities in favour of women. When the HSA was passed in 1956,the Mitakshara coparcenary system was retained in spite of protest by the All India Women’s Conference.
  • The Law Commission in its 174th Report (2000) — ‘Property Rights of Women- Proposed Reforms Under Hindu Law’ — recommended for an ending the Hindu Succession Act, 1956. Its primary aim was to remove gender inequaIities under the Act, as it stood before the amendment.
  • The Hindu Succession (Amendment) Act, 2005, assented by President of India on September 5, 2005‘, came into force on 9th September 2005.
  • It has effected some significant changes in the concept of Mitakshara coparcenary/JFP, parental dwelling house, and certain widow’s rights. The main significant change making all daughters (including married ones) coparceners in joint family property is-of great importance for women, both economically and symbolically. The amendment abolishes the doctrine of survivorship, modifies the provisions relating to devolution of interest in Mitakshara coparcenary,the provisions relating to intestate succession, the category of class I heirs, rules relating to disqualification of heirs and marginally touches the provision relating to testamentary succession.
  • The amendment had also become necessary in view of the changes in Hindu Succession Act 1956, in five Indian States namely, Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. These States gave daughters, including married daughters, an equal share in the father’s ancestral property.
  • The 2005 Amendment Act is reportedly similar to the laws enacted in Andhra Pradesh and Kerala. Both the Central and State laws will now co-exist. But if there is any repugnancy or contradiction in a State law, then that will be overtaken. The Union Act will prevail over an existing or even future law.

Devolution of Interest In Coparcenary Property

According to Sec. 6(1), H.S. Act, 1956, on and from the commencement of the Hindu Succession Act (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall:

(a) by birth become a coparcener in her own right (irrespective of her marital status) in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same-liabilities in respect of the said coparcenary property as that of a son;

(d) and any reference to a Hindu Mitakshara coparcener shall be deemed to include, a reference to a daughter of a coparcener.

Daughter as Coparcener/Karta

  • One of the major changes brought in by the 2005 Amendment is that in a Hindu joint family, the exclusive prerogative of males to be coparceners-has been changed altogether and the right by birth in the coparcenary property has been conferred in favour of a daughter as well. This radical change has fundamentally altered the character of a Mitakshara coparcenary. Now, the daughters have been made coparceners in the Mitakshara joint family property, with the same rights as sons to shares, to claim partition and (by presumption) to become Karta (Manager), while also sharing the liabilities. The discrimination against daughter has been brought to an end, as her rights and liabilities are the same as that of a son.
  • Further, daughters would not only be empowered to form a coparcenary along with their other siblings (irrespective of gender), but would also be competent to start a joint family herself. She can even be a Karta, throw her self-acquired earnings into the joint family fund, something that was not possible before the amendment. The rule that females cannot form or start a joint family on their own but can continue it even on the death of a male member in the family but provided they have the capacity to add a male member to it by birth or through adoption, stands abrogated now.10 After the 2005 Amendment, thus, a ‘daughter’, like a son, can not only continue a joint family, but also form one with her father and brothers.
  • lt may be noted that the daughters have been made coparceners irrespective of their marital (status. Thus, after the marriage of a daughter, she will continue to be a coparcener as well as member of joint Hindu family because all the members of a coparcenary are necessarily the members of a joint Hindu family too (coparcenary being a narrower body than the joint family). That means, after marriage, the daughter will be a member of two joint Hindu families. Similarly, children born to her will be members as well as coparceners in their maternal family as well as paternal family. According to Sec. 6, HSA, after the amendment, daughters become coparceners] in the same manner as a son implies not only the daughter but also her children will be coparceners.11
  • lt may further be noted that after the amendment, a female can ‘become Karta where the family is joint and if she happens to be the senior most member. She will continue to be Karta even after her marriage. However, she may face practical difficulties in managing the affairs of joint family comprising her natal family members after her marriage. As a Karta, a female will be entitled to represent the family and can even acquire the status, of the head of the family.12
  • It needs to be clarified that after the 2005 Amendment, a daughter has been introduced as a A mother and all females who become members of a Hindu joint family upon their marriage to male coparceners are not coparceners themselves. Therefore, a distinction has been created between female members of joint family in relation to their rights over the joint family property. The two classes of females are one, who are born in the family and secondly, those who become members-of this joint family by marriage to the coparceners. Females, who are born in the family i.e. daughters, sisters possess alright by birth in the coparcenary property and ‘those who become members of the joint family by marriage to a coparcener, are subject to the same law as it stood before the amendment. Their rights over the joint family property continue to be the same, like maintenance out of its funds, a right of residence in family house, etc.13

Abolition of Doctrine of Survivorship

  • According to Sec. 6(1), H.S. Act, I956, where a Hindu dies after the commencement of the H.S.A. (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
  • The 2005 Act, thus, abolishes the incidents of survivorship – one of the primary incidents of coparcenary when a male coparcener dies. Survivorship implies that on the death of a coparcener, his interest was taken by the surviving coparceners and nothing remained for his female dependents. This rule was first modified by the Act of 1937, where the coparcener’s widow was permitted to hold on to his share for the rest of her life, and only on her death, the doctrine of survivorship applied and the male collateral could take the property. The rule was further diluted in 1956, when the Hindu Succession Act was enacted. As per the 2005 Act, the doctrine of survivorship has been abolished unconditionally. Now, if any male Hindu dies,  having at the time of his death an undivided interest in Mitakshara coparcenary; the rule of survivorship would not apply at all.
  • From the use of the-term “his interest” in Sec. 6(3), it appears that the doctrine of survivorship has been abolished for male coparceners but has been retained for ‘females.’ Because according to Sec. 6(2), a female would hold the property with incidents of coparcenary ownership and survivorship is one of the basic incidents of coparcenary.

MITAKSHARA v DAYABHAGA SCHOOL

  • Hindu law has two main schools: the Mitakshara school and Dayabhaga school. The Mitakshara (‘a concise work’) is a commentary on the code of Yajnavalkya and is written by Vijnaneshwar. The Dayabhaga is a digest of all the codes and is written by Jimutavahana. The Mitakshara is the orthodox school, whereas the Dayabhaga is a reformist school of Hindu law.
  • Mitakshara is the authority for the whole of India except parts of Punjab and Bengal. In Bengal also, Mitakshara was received as high authority except with respect to those points on which it conflicted with Dayabhaga that is of paramount authority in Bengal. Likewise, the Dayabhaga is also referred to sometimes in a case governed by ‘Mitakshara law, on points on which the latter is silent.
  • Even Mitakshara was subject to different interpretations leading to its sub-division into several schools. Mitakshara prevailed in the Mithila (Bihar), Benaras (Northern and North-west), Dravida/Madras (Southern) and Maharashtra/Bombay (Western), schools while in Bengal and North-East prevails the Dayabhaga school. In Punjab, customary law (modifying Mitakshara to a large extent) still prevails.
  • Where a Hindu family migrates from Maharashtra (where the Mitakshara law prevails) to Bengal (where the Dayabhaga prevails), the presumption is that the family continues to be governed by the Mitakshara law unless it is shown that the family has abandoned the law of the province of its origin. (i.e. Maharashtra) and adopted the, law of the province where it has settled. Thus, the Hindu law is not a lex loci i.e. a local law, but it is, in every sense, a personal law.
  • In the modern Hindu law, schools have relevance only in the respect of the uncodified Hindu law; they have lost all their relevance in ‘regard to the codified Hindu law (Acts). The Hindu Succession Act, 1956, has abrogated the difference between the two schools and has provided for a uniform law relating to succession of Hindus.

Mitakshara and Dayabhaga schools differ on certain basic aspects:

  • Under Mitakshara, the basis for the law of inheritance is the principle of propinquity i.e. the nearness in blood relationship or consanguinity of blood. This is purely a secular principle and means that sons and daughters should inherit equally as they are equally nearer to the deceased parent. However, agnates are preferred over cognates.

Under Dayabhaga, the law of succession is based on religious efficacy or spiritual benefits (offering of oblations or Pindadan) and therefore a person who confers more religious benefit on the deceased is preferred; It therefore rejects the preference of agnates to cognates.

  • 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 the father can dispose of the property at his pleasure. After his death, property (ancestral or separate), devolves by inheritance or succession. Thus, there is no right to the son to ask for a partition during‘ the lifetime of the father.
  • Under Mitakshara law, the coparceners have community of interest and unity of possession but their interest in the property fluctuates. Under the Dayabhaga law, coparceners have specified and ascertained shares in the J FP. The interests do not fluctuate but the coparceners have a unity of possession.
  • While under the Mitakshara system, the brothers and even collaterals so long as they

are joint do not have a right to dispose of their shares, under the Dayabhaga system, the brothers/collaterals have such right.

  • Under Mitakshara, the doctrine of survivorship applies and on the death of a coparcener

his share is taken by the surviving coparceners. Under Dayabhaga, 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 account.

 

HINDU SUCCESSION ACT, 1956

PRELIMINARY QUESTIONS

  1. A joint Hindu family consists of

(a) all persons lineally descended from a common ancestor and their unmarried daughters

(b) all persons lineally descended from a common ancestor

(c) all persons lineally descended from a common ancestor including their wives but excluding their unmarried daughter

(d) all persons lineally descended from a common ancestor including their wives and unmarried daughters.

 

  1. Existence of a common ancestor is necessary for

(a) bringing a joint family into existence

(b) continuance of a joint family

(c) both (a) and (b)

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

 

  1. A Hindu joint family is a

(a) corporation

(b) juristic person

(c) composite family

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

 

  1. Where two or more families agree to live and work together, pool their resources, throw their gains and labour into the joint stock and shoulder the common risk, there comes into existence, a

(a) Hindu joint family

(b) composite family

(c) neither (a) nor (b)

(d) only (a) and not (b) as composite family is unknown to Hindu law.

 

  1. A joint Hindu family is

(a) joint in estate

(b) joint in food and worship

(c) joint in both (a) and (b)

(d) a tenancy in common.

 

  1. A joint Hindu family status comes to an end when the members of the family become separate

(a) in estate

(b) in food and worship

(c) in both (a) and (b)

(d) only (b) and not (a) as there can be joint family without any joint estate.

 

  1. Which of the following families cannot be a joint Hindu family

(a) a family consisting of only two male members

(b) a family consisting of a single male member, his wife and daughters

(c) a family consisting of only two widows

(d) family consisting of a single male or female.

 

  1. A co-parcener having right in joint family property is competent to dispose of her share in property. This was held in case of

(a) Mahendra Mahanta v. Tarini Devi, AIR 2003 Ori 80

(b) Rukmini v. Tara Devi, AIR 2003 Ori 80

(c) Vasantha v. Muni Devi, AIR 2003 Ori 80

(d) Binapuri v. llma Shankar, AIR 2003 Ori 80.

 

  1. A Hindu coparcenary consists of the

(a) common male ancestor and his three male lineal descendants

(b) common male ancestor and his four male lineal descendants

(c) common male ancestor and his five male lineal descendants

(d) common male ancestor and his seven male lineal descendants.

 

  1. Existence of a father-son relationship is necessary for

(a) constitution of a Hindu copar-cenery

(b) continuance of a Hindu copar-cenery

(c) both (a) and (b)

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

 

  1. A Hindu coparcenery is a

(a) creation of act of parties

(b) creative of law

(c) both (a) and (b)

(d) only (a) not (b).

 

  1. A female can be a member of

(a) a joint Hindu family only

(b) a coparcenery

(c) both (a) and (b),

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

 

  1. In a coparcenery there is a

(a) community of interest

(b) unity of possession

(c) either (a) or (b)

(d) both (a) and (b).

 

  1. A coparcener has an interest in the joint family property that interest is

(a) specified and fixed

(b) specified but fluctuating

(c) unpredictable and fluctuating

(d) unpredictable but fixed.

 

  1. Interest in the Mitakshara joint family property devolves by

(a) survivorship

(b) succession

(c) both (a) and (b)

(d) either (a) or (b) as agreed by the coparceners.

 

  1. Community of ownership in a Mitaksham coparcenery in terms of individual ownership, can be expressed as

(a) right by birth and right of maintenance

(b) right by birth and right of survivorship

(c) right of survivorship and right of maintenance

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

 

  1. An insane person

(a) can be a coparcener in his own right

(b) cannot be a coparcener in his own right

(c) can be a coparcener only with the consent of other coparceners

(d) can be a coparcener only with the consent of the common male ancestor.

HINDU LAW OF MAINTENANCE

                                                               MAINS

  1. When is a Hindu wife entitled to claim maintenance? Discuss
  2. Can an unchaste Hindu wife claim maintenance from her husband?

HINDU LAW OF MAINTENANCE

  • The aged parents, a virtuous wife, and an infant child must be maintained, even by doing a hundred misdeeds…..Manu
  • There are three different types of provisions regarding maintenance to a wife (or husband):

(I) Provisions under Code of Criminal Procedure, 1973.

(II) Provisions under the Hindu Marriage Act, 1955.

(III) Provisions under the Hindu Adoptions and Maintenance Act, 1956.

  • The provisions of maintenance in the Cr. P.C. and the HAMA are independent reliefs. Further, the right to claim maintenance under the H.M.A is an independent right and it is not controlled by the HAMA. In other words, the court’s jurisdiction cannot be ousted on the plea that the applicant for maintenance under the H.M. Act is already getting maintenance under the HAMA, though in fixing the quantum of maintenance that may be taken into consideration.
  • While under the Hindu Marriage Act, either spouse can seek maintenance, under the Cr. P.C. and HAMA only the wife can claim maintenance.

(I) Provisions under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, an order for maintenance may be made by the court:-

  • For maintenance pendente lite (interim or temporary) and expenses of the proceedings under Sec. 24, and

 

  • For permanent maintenance and alimony under Sec. 25.

Interim Maintenance( s.24)

  • Under it, the claim may be made (either by husband or by wife) for
  • (1) personal maintenance of the claimant, and (2) expenses of proceedings (i.e. any proceedings under this Act). Only requirement is that the claimant should establish that he/ she has no independent income sufficient for his/ her maintenance and support
  • He/ she has no means to meet the expenses of proceedings. The court, may, then order the respondent to pay ‘to the petitioner such sum as, having regard to the petitioner’s own income and income of the respondent, seem to be reasonable. If the respondent has no means and no income, then the court need not fix any amount of maintenance.
  • 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. 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.
  • 24 does not limit the jurisdiction of the court to award the maintenance. Maintenance pendente lite and the litigation expenses are payable from the date of the application, and, once fixed can be enhanced or reduced depending on the nature of change of circumstances.
  • An order under Sec. 24 is an interlocutory order and no appeal lies against it. An order passed under Sec. 25 is appealable generally. An order under Sec. 24 can be enforced by execution proceedings, or by stay of petition, or by striking of the defence. The payment ordered by the court under Sec. 25 may be secured, if necessary, by a charge on the “immovable property (Self-acquired or Joint Family Property) of the respondent.

 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 court may order the payment of gross sum or monthly or periodical sum for a term 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). The usual practice is to award a fifth of the husband’s income to the wife, after taking wife’s income (if any) into account.
  • 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.
  • The court has power to pass an order of maintenance even when petition is dismissed, because in either case (when petition allowed or dismissed) it is decree. The words “any decree” have reference to the decree(s) of nullity (void/voidable), divorce, judicial separation and restitution of conjugal rights, the four possible decrees under the Hindu Marriage Act. Therefore, the wife under a void or voidable marriage is also entitled to maintenance and alimony under Sec. 25. The provision has been misunderstood all along, as it is commonly believed that maintenance could only be given to a separated spouse and not to a spouse who was creation of an illegal relationship, which is not immoral.
  • The words “any decree” used in Sec. 25. encompass only such decrees which grant relief of disruption of marital ties or confer or take away any legal status relating to the marriage. Thus, a decree of nullity is covered [Chand Dhawan v. Jawaharlal Dhawan (1993) 3-SCC 406]
  • The Supreme Court has held that a bigamous marriage may be illegal in law, it cannot be held to be immoral for as to deny maintenance to an affected spouse financially weak and economically dependent. As per the apex court’s ruling, an ‘illegal’ wife is entitled to alimony. Thus, the spouse of a null and void union, entered into during the pendency of an earlier marriage is entitled to maintenance on the passing of a decree of nullity (Ramesh Chandra Daga v. Rameshwari Daga AIR 2005 SC 422).
  • 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 , 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).

Conduct towards Marriage and Quantum of Maintenance

  • It is now well-settled that even if the conduct of the claimant under Sec. 25 has not been fair towards the marriage, or it is she who is responsible for breaking the marriage, or is guilty of the matrimonial offence, the court may still grant her maintenance though the quantum of maintenance may be affected. An act may amount to misconduct for the purpose of matrimonial relief, yet for the purpose of awarding maintenance it may be ignored. The ‘conduct’ is one of the considerations (in determination of application under Sec. 25), and howsoever important it may be, undue importance should not be given to it.
  • In Gulab Kamat (AIR 1985 Bom 88), held that a wife is entitled to maintenance even if the decree was passed on the ground of her adultery. In Jagdish v. Manjula (AIR 1975 Cal 64), held that the wife cannot be denied maintenance on the ground that the decree was passed against her on account of her cruelty. The same view was taken when wife was found guilty of desertion. May be‘, a woman has committed adultery once, this does not necessarily mean that all her life she should be condemned to live in adultery. If the wife has ceased to live in unchastity “she is entitled to maintenance. If this will not be done, it would, in most likelihood, condemn her to live in immorality, especially in a society like ours, where most women are still dependent on husband‘, parents, etc.
  • Leading Case: Amar Kanta Sen v. Sovana Sen (AIR 1960 Cal. 438)
  • [Under the Hindu Law, a -wife who was found unchaste was only “entitled to a bare or starving allowance. But, when she is earning a living and is not in helpless position her right to maintenance, – even of the bare subsistence-disappears.]
  • In I959 an application was made by Sovana Sen Inter alia for an order that the permanent maintenance at a sum of Rs. 350/ or any sum which this Hon’ble Court may think proper be directed to lie paid to her by the respondent Mr. Amar Kanta ,Sen.-This application arises out of a judgment delivered on’10-7-A1959 whereby the marriage between her and Amar Kanta Sen was dissolved. She stated in her petition that she came of a very respectable family and was married to a respectable person and was -throughout accustomed to a decent way of living. She cannot marry nor does she intend to marry in her life over again and wants to lead a very chaste and decent life dedicating herself to the welfare of her son and to her musical pursuit and painting for which -she has special aptitude.
  • She further stated that she was not in good health and was unable to support herself and that she was now practically without means and had no friends or relations who would support her. She further stated that her monthly expenses came to about Rs. 315/- per month. The husband was drawing a salary of Rs. 1700/- per month. She further asserted that she was entitled under the Hindu Law to be maintained by her husband so long as she lived a decent life according to the standard she had so long been accustomed to and so long –as her husband was capable to bear such expenses; the obligation to maintain her was his moral and personal obligation. ‘
  • In this case there was dissolution of the marriage on the ground of adultery of the applicant. The applicant is a graduate and an adept in music. She according to her own petition earned about the time of making the petition a sum of about Rs. 90/? per month. After she joined the All India Radio at Delhi she has been earning a sum of about Rs. 300/ per month. The respondent’s salary is Rs. 1360/-. Before the dissolution of the -marriage there was an order for the payment- of maintenance at Rs. 200/- per month from May 1956. There is no evidence as to any misconduct of the applicant after the judgment.
  • In this background the application has to be considered in the light of Sec. 25, H.M. Act. This follows more or less Sec. 37 of the Indian Divorce Act, 1869 except that in the Hindu Marriage Act like obligation is imposed in similar circumstances upon the wife to maintain her husband. The Indian Divorce Act, 1869 is modelled in its turn on Sec. 32 of the Matrimonial Causes Act, 1857. In 1902, in Aschcroft v. Aschcroft And Roberts it was held inter alia that the Court has, an absolute discretion vested in it to be exercised according to the circumstances of each case. Thus, it will order the husband to secure a provision for his guilty wife, even though-i his own conduct has been unimpeachable, if the wife is proved to be entirely without means of support and unable through. ill-health to earn her own living.

‘In 1905, in Squire v. Squire and O’ Callaghanit was held as follows: The\Court, in exercising its discretion in favour of and granting a divorce to a_ husband who had previously been judicially separated on the ground of his cruelty, ordered that the decree dissolving the marriage should not be made absolute unless and until the husband should secure an allowance of pound 52 a year, payable weekly to the divorced wife. She ought to be preserved from imminent temptation. The main ground for ordering him to make her an allowance is not his own conduct in the past, but that she may be reasonably safe from the terrible temptation which might otherwise assail her. The conduct of the husband is not, in my view, materially in issue in dealing with this matter. The wife should know and should be made to feel that her livelihood depends on her leading a chaste life in the future.

As far as the position of an unchaste wife under the Hindu Law is ‘concerned, in Principle of Hindu Law by D.F. Mulla (12th Edition), the law on this point is summarised as follows: A wife who persists in following a vicious course of life,‘ forfeits her right to maintenance even though it is secured by a decree. But is would seem that if “she completely renounces her immoral course of conduct, her husband is liable to furnish her with a bare or what is also called starving maintenance that is, food and raiment just sufficient to support her life. The burden of proving that the erring wife has returned to purity is on the wife herself.

It will be seen that even under the Hindu Law a wife who was found unchaste was only entitled to a bare or starving allowance. In this respect there seems to be very little difference in principle between the English Law and the Hindu Law, before the Hindu Marriage Act, 1955. When she is earning a living and is not in helpless position her right to maintenance, even of the bare subsistence disappears for the allowance is meant to prevent ‘starvation’. In these circumstances, in the present case, she is not at all entitled to any allowance after 17-9-1959 when she joined the service.

Modification, Rescission, etc. of Maintenance Order

Under Sec. 25 (2), the court has power to vary, modify or discharge any order of permanent alimony at the instance of either party (either prospectively or retrospectively) if change of circumstances is shown (e.g. income of respondent has come down appreciably or the expenditure of claimant has gone up). Under Sec. 25 (3), the court may remind the order if the party in whose favour an order has been passed has remarried or, if such party is the wife, she has not remained chaste or if such party is the husband, he committed adultery.

The resumption, of cohabitation by the parties after maintenance order nullifies that order, in the case of Restitution or judicial separation. But the question of resumption of cohabitation cannot arise in case of divorce or nullity. On the death of non-claimant, the order of maintenance comes to an end.

(II) Provisions under the Cr. P.C., 1973

  • 125 of Cr. P.C. provides that if any person, having sufficient means, neglects or refuses to maintain… his wife, unable to maintain herself.., a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife… at such monthly rate. In the whole… However, Amendment of 2001, no maximum limit for maintenance amount has been fixed. The Magistrate may order such monthly rate as he thinks fit.
  • Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.
  • Explanation- “Wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.
  • If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, ,or if they are living separately by mutual consent.
  • In Ramesh Chandra v. Veena Kaushal AIR 1978 SC 1807), held that the duty of person to maintain his wife, children and parents is an independent duty, as they have independent rights. The words ‘in the whole’ has reference -to items of maintenance, and not all the members put together. Thus, Rs. S00 is the entitlement of each claimant of maintenance, and not that of all claimants put-together.
  • ‘Wife’ means only a legitimate/ legally wedded wife and therefore a marriage proved illegal cannot give a wife any right to get maintenance. The second wife or a woman living as ‘wife’ is not entitled to get maintenance Yamunabai v. Anantrao (1988) 1 SCC 530]. If the marriage is void, or annulled under Sec. 12 of the Hindu Marriage Act, a wife is not entitled to maintenance [Krishna Gopal v. Usha Rani, 1982 CrLJ 901 (Del)l.

Recently, the Supreme Court again held that the expression ‘wife’ as per Sec. 125, Cr.PC. refers only the legally married wife. The court observed: “There may be substance in the plea of the appellant wife that the law operates harshly against the woman who unwittingly gets into a relationship with a married man and Sec. 125 of the Cr.PC. does not give protection-to such woman. This may be an inadequacy in law, which only the legislature can undo.” The court, however, held that the illegitimate children from the second wife are entitled to such maintenance.

(III) Provisions under the Hindu Adoptions and Maintenance Act, 1956

The Hindu husband is under a duty to maintain his wife during his lifetime. Maintenance is a personal/ legal obligation. It is an incident of the status or estate of matrimony. The meaning of the term ‘maintenance’ is given in Sec.l3 (b) of the Act — “maintenance” includes:

(i) in all cases, provision for, food, clothing, residing, education, and medical treatment, and

(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

Sec. 18. Maintenance of Wife

C1ause (1)- Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. Sec. 18 (1) is applicable when the wife lives with her husband. A wife who has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who lives with her husband can claim maintenance.

Clause (2)- A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:

(a) if he is guilty of desertion or of wilfully neglecting her, ,

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

“(c) if he is suffering from a virulent form of leprosy,

(d) if he has any other wife living,

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere,

(f) if he has ceased to be a Hindu by conversion to another religion,

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

Clause (3) (Forefeiture of the claim of maintenance) – A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Distinction between Sec. 18, HAMA, Sec. 25, HMA and Sec. 125, Cr.P.C.

  • Under Sec. 18, HAMA, and Sec. 125, Cr.PC., only wife can claim maintenance, while under Sec. 25, HMA, either spouse can do so.
  • Under Sec.18, HAMA, and Sec. 125, Cr.PC., a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Sec. 25, HMA, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce.

 

When the marriage is subsisting there is no question of applicability of Sec. 25, HMA but Sec. 18, HAMA. The word “wife” does not have the same meaning in the two enactments. The court cannot grant the relief of maintenance in proceeding under one enactment in proceedings under the other (Ramesh Chandra Daga v Raeshwari Daga  AIR 2005 SC 422).

 

  • Hindu wife contemplated under Sec. 18, HAMA, and Sec. 125, Cr.PC., includes only the wife of a valid marriage. While under Sec. 25, HMA, even a wife of void marriage can claim maintenance.
  • Apparently Sec. 18, HAMA, seems to have overridden Sec. 25, HMA, because in both the sections a similar provision exists and by virtue of Sec. 4, HAMA, it is the Act of 1956 (i.e. HAMA) which shall prevail and the provisions of Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect. Apparently it seems so; but there is no inconsistency between two sections as both do not deal with a similar provision (as noted in the aforesaid differences). Both sections provide for separate and independent reliefs. The court’s jurisdiction cannot be ousted on the plea that the applicant for maintenance under the HMA is already getting maintenance under the H.A.M.A., though in fixing the quantum of maintenance that may be taken into consideration.

 

The provisions of maintenance in the Cr. P.C. and the HAMA are, again, independent reliefs.

Maintenance of Widowed Daughter-in-law

Sec. 19 of HAMA provides that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law, is he has no means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Further, his obligation ceases when the daughter-in-law remarries.

Maintenance of Children and Aged Parents

Sec. 20 casts a duty on a Hindu, during his (or her) lifetime to maintain his (or her) legitimate as well as illegitimate children and his (or her) aged or infirm parents. Further, a legitimate child can claim maintenance from his or her father or mother, so long as the child is a minor. The term ‘parent’ also includes a childless step mother. This obligation extends only so far as such parent or unmarried daughter is unable to maintain himself (or herself) out of his or her own earnings or property. It may be noted that the obligation of a Hindu to maintain his wife, minor sons, unmarried daughters and aged parents (whether he himself possesses any property or not) is personal and legal in character, and arises from the very existence of the relationship between the parties.

Maintenance of Dependants

Sec. 21 lays down a list of relatives of the deceased who would be included within the term “dependants”. The list includes: Father, Mother, Widow (of a pre-deceased son or of a son of a pre deceased son), Minor son/ grandson, etc., Unmarried daughter/ granddaughter, etc., Widowed” daughter, Widowed daughter-in-law, Illegitimate son or daughter.

The obligation to maintain a ‘widowed daughter’ exists only when she is unable to obtain maintenance from the estate of her husband or from her son or daughter or from her father-in-law. A» widow is entitled to maintenance .even if she does not reside with that relative of her husband. The claim of maintenance of daughters is limited to their maidenhood.

Sec. 22 then provides that the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased. The liability of an heir is individual liability in proportion of the value of the share of the estate taken by him. A person who is a dependant and also a Class I heir and gets a share in the deceased’s property as heir is not entitled to claim maintenance as dependant.

Further, if a dependant has not obtained any share in the estate of a Hindu dying after the commencement of the Act, such a dependant can claim maintenance from those (including other dependants) who take the estate. The other dependants liability is limited to the extent that the remainder shall not-be less than the maintenance to him as a dependant.

Amount of Maintenance: Court’s Discretion

Under Sec. 25, it is in the discretion of the court to determine whether any, and if so 11//rat, maintenance should be awarded under the, Act. In respect of the wife, children, aged or infirm parents, the court will have regard to:

  • the position and status of the parties;
  • the reasonable wants of the claimant;
  • if the claimant is living separately, whether he (or she) is justified ‘in doing so; ‘
  • the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
  • the number of persons entitled to maintenance under the Act.

The amount of maintenance, whether fixed by a court’s decree or by agreement, may be altered subsequently if there is a material change in the circumstances (Sec. 25). A person cannot claim maintenance under the Act if he or she has ceased to be a Hindu by conversion to another religion (Sec. 24).

The debts contracted or payable by a deceased Hindu are to have priority over the claims of his dependants for maintenance, unless there is a valid charge in respect of the same under Sec. 27 (Sec. 26). Sec. 27 lays down that a dependant’s claim for maintenance is not to be treated as a charge on the estate of the deceased, unless such a charge has been created by the will of the deceased, or by a court’s decree, or by an agreement between the dependant and the owner of the estate, or otherwise.

Sec. 28 lays down that if a dependant has a right to receive maintenance out of an estate, and such estate is transferred, the dependant can enforce his right to receive maintenance against the transferee: (i) if the transferee has notice of such right; or (ii) if the transfer is gratuitous; but against a transferee for consideration and without notice of the right,

 

HINDU LAW OF MAINTENANCE

  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).

3.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.

4.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).

5.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 LAW

       MAINS

 

  1. Explain the concept of property in Hindu Joint Family.

 

  HINDU LAW

Property in Hindu Law CLASSIFICATION OF PROPERTY

Obstructed and Unobstructed Heritage –

The Mitakshara school classifies property mainly under two Heads: apratibandha daya (unobstructed heritage) and sapratibandha daya

(obstructed heritage).-

Ancestral property is ‘unobstructed heritage. All properties inherited by ‘a Hindu male from a direct male ancestor, not exceeding three degrees higher to him is called apratibandha daya. In this property his son, son’s son and son’s son’s son acquire an ‘interest by birth.’ Therefore, it is called an -‘unobstructed heritage’, as the accrual of the right to it is not obstructed by the existence of the owner. Thus, if A inherits property from his father or grand-father or great grandfather, it is unobstructed heritage in the hands of A as regards his male issue (because the existence of A is no obstruction to his son acquiring an interest) but as regards other relations he holds it as his absolute property. Property, the right in which accrues not by birth but on the death of the last owner without leaving any male issue, is called ‘obstructed heritage.’ Property inherited by a Hindu from a person other than his father, grandfather or great grandfather is obstructed heritage. Thus where a person inherits property from maternal/paternal uncle or brother, nephew, etc. it is obstructed heritage. lt is called ‘obstructed’ because the accrual of the rights to it is obstructed by the existence of the owner. The owner’ho1d,s it as his separate and absolute‘ property. The relations of the owner as not take a vested interest in it by birth. They are entitled to it only of the death of the owner. For example, A inherits certain property from his- brother. ‘ A has a son B. The property is obstructed. in the lifetime of A. B‘ does not take any interest in it during the life time of A. After A’s ‘death, B will take it as A is heir by succession.

Thus, the unobstructed heritage devolves by survivorship and obstructed heritage by inheritance (succession). In the former case, relatives take a vested interest in the property “by ‘birth in the latter case, their right to it arises for the first time on the death of the owner. Until then they have a bare chance of succession to the property, contingent upon their surviving the owner.

However, in some cases, obstructed heritage passes by survivorship e.g. two or more sons, grandsons and great grandsons succeeding as heirs to the separate property of their paternal-ancestor take as joint tenants with survivorship ‘rights.

(ll) Joint Family Property and Separate Property,

According to the Hindu law, the property is divided into two classes, namely:- (1) Joint family property or Coparcenary property, and (2) Separate property.

(1) JOINT FAMILY PROPERTY, (COPARCENARY PROPERTY) 

The joint family property is the most important aspect of the law of the Hindu Joint Family. The HJ F property is like a big reservoir into which property flows in from various sources and from-which all members of the joint family” draw out to fulfill their multifarious needs. Thus, ‘coparcenary property’ is that in which every coparcener has ad joint interest and joint possession. It devolves by survivorship (interest by birth), not by succession.‘ The coparceners are in fact defined in reference to JFP is a narrow body of those specific members of IIJF who acquires by birth -an interest in JFP, it may be noted that although the Hindu Joint Family and Hindu Coparcenary are “two distinct concepts, Joint Family Property and Coparcenary Property are synonymous expressions. Types/Sources of Joint Family Property

The Hindu Joint Family Property includes:—

(1) All ancestral property

(2) Property acquired with aid/assistance of ancestral property (Doctrine of Accretion).

(3) Property acquired at the cost of ancestral property (Doctrine of Detriment)

(4) 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 joint’ family property (Doctrine of Blending).

(5) Other types of property e.g. recovered joint family property.

 (2) SELF ACQUIRED PROPERTY

Sources of Separate Property

Property acquired in the following ways is the separate property of the acquires:

(1) Property inherited as obstructed heritage i.e. property inherited by a Hindu from a person other than his father, father’s father and father’s father’s father.

(2) Gift of his self-acquired property by father to his son; if the father intends that the son will take it as his separate property.

(3) Gift “of a small portion of ancestral ‘movable property made through affection by a father to his son, wife, daughter, daughter-in-law, son-in-law, etc.

(4) Property obtained by a coparcener who has no male issue on partition

(5) Property held by a sole surviving-coparcener, when there is no widow in existence who has power to adopt.

(6) Government grants – Self property is granted to a coparcener by the Government, it will constitute the separate property of the grantee unless it has been specially given to him as joint family property.

(7) ‘ Income from the separate property or ‘property acquired with such income will “be coparcener’s separate property.

(8) Separate earnings or earnings by self- Such earnings, without the aid of -the joint family property constitute separate property of the coparcener.

(9) Income of the joint family property allotted to a member for his maintenance . If some surplus income remains after the maintenance, or any property is purchased out of surplus, such income or property will-be separate property of the coparcener. Because the acquisitions were as much the result of his own industry and thrift as they were the natural products of the land itself (‘money saved is money earned’) in Chinna v Venkatta (AIR 1954’ Mad 282), the court said that even if the coparcener invests a portion of such property in business and cams profits these profits will be his separate property, as to hold otherwise will go to kill “the spirit of initiative and enterprise”.

(10) Benefits of insurance policy — In every case, where joint family funds are used for payment of premium of a life insurance policy,‘ there is detriment to the joint family, but that is not the sole criterion. _lf joint family funds are advanced to members of the coparcenary for their individual benefit, there is strictly speaking a detriment to the family, nonetheless the intention with which that money was given and the use of it by the ‘individual for his own benefit would determine the character of the income or the amount earned therefrom (Narayanlal v Controllefof Estate Duty AIR I969 A.P. 188)

Thus, a member of a coparcenary may with the moneys which the might receive from the coparcenary effect insurance upon his own life for the benefit of the members of his immediate family. His intention to do so and to keep the property as his separate property would be manifested if he makes a nomination in favour of his wife or children [Seerhalakshmi v Controller of Estate Duty (1966) 61 ITR 317]. Earlier in Parvati Kaur v Sarangadhar (AIR 1960 SC 403), the Supreme Court Held that if the intention was to benefit the family as a whole, the policy should be treated as JFP, but, where the premium was paid out‘ of joint family fund is, but the intention was that the insured or his immediate family should alone be benefited, then the policy should go to him or for his legal, heirs benefit.

(11) Gains of learning

(12) Salary and remunerations

 

   HINDU LAW

  PRELIMINARY

  1. Gains of learning is

(a) Ancestral property

(b) separate property

(c) both

(d) none of the above

 

  1. Ancestral property is

(a) unobstructed heritage

(b) obstructed heritage

(c) both

(d) none of the above

 

  1. Under the Mitakshara system, the right in family property is acquired by birth. The statement is …..

(a) True

(b) False

(c) Either (a) or (b)

(d) None of these

 

  1. Under the ‘Dayabhaga system’, the right in joint family property is acquired by inheritance or by will. The statement is ………..

(a) False

(b) True

(c) Partly correct

(d) None of the above

 

HINDU LAW

MAINS

 

  1. Discuss the changes brought about in provisions of section 6 of Hindu Succession Act, After amendment Act, 2005?

 

  1. Define:-

(a) Agnate

(b) Cognate

(c) Full blood

(d) Half blood

(e) Uterine blood

(f) Intestate

 

HINDU LAW

PRELIMINARY

1.The presence of any of the female relatives or a male relative claiming through a female, specified in clas s I of the Schedule, prevents the interest of a Mitakshara coparcener, devolving by

(a) survivorship

(b) succession

(c) either (a) or (b)

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

 

  1. The proviso to section 6 of the Hindu Succession Act, imports

(a) actual partition

(b) deemed partition

(c) deemed partition for specific purpose

(d) real partition.

 

  1. The Hindu Succession Act as amended in September, 2005 empowered the daughter of a coparcener, rights in coparcenary property like son under __ of the Act

(a) section 6

(b) section 7

(c) section 12

(d) section 15.

 

  1. The Hindu Succession Act, 1956, abolishes

(a) the doctrine of acquisition of right by birth

(b) the doctrine of the right survivorship .

(c) both (a) and (b)

(d) neither (a) nor (b)

 

  1. The proviso to section 6 of Hindu Succession Act comes into operation

(a) when the deceased co-parcener is competent to claim partition

(b) when the deceased co-parcener is not competent to claim partition (

  1. c) irrespective of whether the deceased co- parcener was entitled to claim partition or not

(d) only (b) and not (a).

 

 

 

 

  1. The famous case decided by the Supreme Court in section 6 of the Hindu Succession Act is

(a) Gurupad v. Hirabai

(b) Ranghubai v. Laxman

(c) Sushila v. Narayanrao

(d) Neelawwa v. Basppa

 

  1. Under the proviso to section 6 of Hindu Succession Act, on the death of any co-parcener

(a) a separated co-parcener from the co- parcenery is entitled to claim a share in the interest of the deceased co-parcener

(b) the heirs of a separated co-parcener are entitled to claim a share in the interest of the deceased co-parcener

(c) a separated coparcener and his heirs all are entitled to claim a share in the interest of the deceased co-parcener

(d) neither the separated coparcener nor his heirs are entitled to claim a share in interest of the deceased co-parcener.

 

  1. The general rules of succession of a Hindu male dying intestate are contained in

(a) section 7 of Hindu Succession Act, 1956

(b) section 8 of Hindu Succession Act, 1956

(c) section 14 of Hindu Succession Act, 1956

(d) section 15 of Hindu Succession Act, 1956.

 

  1. Section 8 of Hindu Succession Act, 1956 divides the heirs of a Hindu male into

(a) four categories

(b) three categories

(c) two categories

(d) one category.

 

  1. Section 8 of Hindu Succession Act, 1956 lays down the order of priority of succession, the correct order of priority is reflected as

(a) class I – class II – cognates – agnates

(b) class I – class II – agnates – cognates

(c) class II – class I – cognates – agnates

(d) class II – class I – agnates – cognates.

ABOUT PLA

PLA offers extensive Training Programmes to help you succeed in fiercely competitive examinations like CLAT and other Law entrance exams in India. Our passion is to help you create a successful career in Law.

Who’s Online

Profile picture of Mrundenieviz
Profile picture of inencielmAY
Profile picture of JeffsypesqueKZ
top
Copyright © 2017. Pahuja Law Academy
Designed & Developed By : Asap Comm Ind
Registration Opens For Judiciary Coaching


X
Free Demo Class Every Sunday - 10 AM & Every Wednesday - 04 PM                                    Free Demo Class Every Sunday - 10 AM & Every Wednesday - 04 PM