Akhilesh Maitra – Family Law II – SYLLB Notes GJ Advani College of Law
Long Answer Types (Most short-notes also incorporated into long answers)
Frequency Distribution – All Questions 2011-2017
Frequency Distribution – All Questions 2011-2017
Q1 Explain the grounds of divorce available to a wife under the Hindu Marriage Act, 1955. (April 2011, November 2011, April 2012, November 2012, April 2014, April 2013, April 2015, November 2015, April 2016, November 2016, April 2017)
Introduction Before learning about the grounds for divorce under Hindu Marriage Act and Special Marriage Act, we need to know about what marriage really is? Marriage can be rightly defined as the legally or formally recognized union of a man and a woman (or, in some jurisdictions, two people of the same se x) as partners in a relationship. But the concept of m arriage is not restricted to this small definition, there is much more embedded in this relationship which is further state d in the blog. According to the principles of Hindu religion, marriage is considered as a sacred and pure re lationship. Marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle (life -cycle rituals). Parliament of India in the year 1955 enacted The Hindu Marriage Act which is an Act to amend and codify the laws relating to mar riage. During this time three more acts were also enacted by the Parliament of India which were a part of the HINDU CODE BILLS which were as follows:
Hindu Succession Act 1956 Hindu Minority and Guardianship Act 1956 Hindu Adoptions and Maintenance Act 1956
This act came into existence on o n 18th March 1955. This act includes the concept of divorce and separation. Since this act is applicable specifically to the Hindus and others, so Parliament o f India in the year 1954 enacted Special Marriage Act to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party which basically focused on 3 main objectives:
To provide a special form of marriage in certain cases,
To provide for registration of certain marriages and,
To provide for divorce.
Divorce means dissolution of marriage by competent court. Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu does not believe in discontinuance of marriage. He declares “let m utual fidelity continue till death”; this in brief may be understood to be the highest dharma of the husband and wife.
THEORIES OF DIVORCE
The concept of divorce can be categorized under mainly three theories which are basically:
FAULT THEORY- under Fault Theory marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
MUTUAL CONSENT THEORY- This theory states that since two persons can marry by their free will, they should be allowed to move out of their relationship of their own free will.
IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY - According to this theory, the bre akdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband & wife.”
GROUNDS FOR DIVORCE Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954 stated the grounds and reasons for divorce which are as follows:
Adultery – The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two ye ars, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of t he petitioner suffers from incurable mental disorder and therefore c annot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the o ther spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by t hose who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their cohabitation after the court has passed a decree of separation. Apart from this there are certain grounds embedded in the Hindu Marriage Act 1955 in which the petition for divorce can be filed by w ife only.
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If the husband has indulged in rape, bestiality and sodomy.
If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
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A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
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If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act , 1955 and Section 28 of the Special Marriage Act, 1954. For this section to apply there are certain requirements which have to be met and fulfilled by both the parties to the divorce which can be stated as follows: The parties have been living separately for a period of at least one year They have not been able to live together, and They have mutually agreed that marriage should be resolved The Supreme Court in 2012 ruled that the waiting period of six months can be waived off and a Marriage Laws Amendment Bill, 2010 was proposed which replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition." However the bill has not been yet passed by Lok Sabha as there was strong opposition to the bill and is still under a conflict.
We can conclude that prior to this Act; there was no provision for Divorce as this concept was too radical as the marriage was considered as a sacred and divine bond. In earlier marriages wives were the victims and were always at the mercy of their husbands and in- laws family and had no source to raise their voice and revolt. But we can notice that there are pros and cons of every law. So the lawmakers of our country have a hard role to perform to see the future implications and act in a cautious manner.
Q2. Define the term "Guardian" under Hindu Minority and Guardianship Act 1956. What are the powers and liabilities of a guardian? How and when can a testamentary guardian be removed? In Hindu dharmashastras, not much has been said about guardianship. Due to t he concept of joint families, a child without parents was usually cared for by the head of the joint family. Further, it was well accepted that the king is the guardian of all the orphans. Thus, no specific laws were required regarding guardianship. During British period, guardianship was primarily based on the extension of paternal authority. Thus, after parents, elder brothers,paternal uncles, and then maternal relations used to look after the interests of the minor. The British also introduced the concept of testamentary guardians in India. The concept of guardianship has changed from paternal power to the idea of protection in modern times and the HMG Act 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. A person below the age of 18 yrs is considered to be a minor as per Section 4 of HMGA 1956. Such a person is not capable of taking care of himself or of handling his affairs and thus requires help, support, and most importantly, protection, which is usually provided by the parents. However, in many unfortunate cases, parents are not available and in those cases other relatives or persons come to the rescue. Thus, parents and other people who look after a minor are called as guardians in general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:
Definition as per Section 4 of HMG 1956 Guardian means a person having the care of a person of a minor or of his property or of both the person and his property. This includes:
natural guardian guardian appointed by the will of a natural guardian (testamentary guardian) a guardian appointed or declared by court a person empowered to act as such by the order of Court of W ards.
This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor without authority of law, can also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not have right to sell or deal with minor's property if he is merely a de factor guardian as per section 11.
Natural Guardian (Sec 6) Section 6 of HMG Act 1956 defines only three natural guardians:
For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs of age will be with the mother. For an illegitimate boy or a girl, the mother, and after mother, the father. For a married woman, the husband.
It further states that no person shall be entitled to be a natural guardian of a minor if
he ceases to be a Hindu or he renounces the world completely by becoming a sanyasi.
Here, by father and mother, natural father and mother are meant. Step father or step mother do not have any right t o guardianship unless appointed by court. As per section 7, natural guardianship of an adopted son passes on to his adoptive father and after adoptive father, to adoptive mother. Position of Father Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a guardian after his death even if the mother was alive. This is not the case now. Further, as held in the case of Lalita vs. Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the welfare of the child. In the case of Githa Hariharan vs RBI AIR 1999 SC held the mother to be the natural guardian in spite of the father being alive and further held that the word "after" means "in the absence" rather than "after the life" of the father. Thus, if a father is incapable of protecting the interests of a minor due to any reason, he can be removed from guardianship. Position of Mother The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the mother has right to custody of a minor less than 5 yrs of age. This does not mean that mother does not have the right to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was held that a mother's right to guardianship is not lost upon conversion to another religion if she is able to provide proper care to the minor. Further, in Kumar vs Chethana AIR 2004, SC has held that the mother's right to guardianship is not lost automatically after her remarriage. In all such cases, welfare of the child has to be considered above all including the convenience and pleasure of the parents. Position of Husband In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the guardianship of a minor wife belongs to the husband. However, due to section 13, a court may revert the guardianship to the father or mother depending on the best interests of the minor. Powers of a natural guardian (Sec 8) Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:
A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minors estate. But the guardian, in no case, shall bind the minor by a personal covenant. The guardian cannot, without prior permission from the court, mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange, o or otherwise. lease the immovable property for a term more than 5 years or where the lease ends o ne year after o the minor attains majority. Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor. The court shall not give p ermission for sale of immovable property unless it is necessary or clearly in the benefit of the minor.
These powers also include the following
right in education right to determine religion right to custody right to control movement right to chastisement
In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held that the meaning of "necessity" and "advantage" of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required. Custody of a minor
Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be considered, though his wishes may be disregarded in his best interest. That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal grandfather is considered to be in favor of the father. In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant. To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and grand father by SC in case of Poonam vs Krishanlal AIR 1989. In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long time demanded the guardianship. His claim was rejected. In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with friends and may beget children from others, was not considered appropriate for custody in the minor's interest. Power over minor's property In general, a guardian may do all acts that are in the interest of the minor. A third party may deal safely with the guardian in this respect. However, this excludes fraudulent, speculative, and unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate the minor's property if it is necessary as determined by SC inHanuman Prasad vs Babooee Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts permission before alienating the minor's interest in the minor's property. Also, a guardian does not have any right over the joint family interest of a minor. In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of minor's immovable property without courts permission is voidable and not void ab -initio. It further held that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction. In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the consideration. Liabilities of a guardian
Since the legal position of a guardian is fiduciary, he is personally liable for breach of trust. he is not entitled to any compensation unless explicitly specified in a will. A guardian cannot take possession of minor's properties adversely. must manage the affairs prudently. liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardia n's liability comes to an end. Rights of a guardian A guardian has a right to
represent the minor in litigations. get compensation for legal expenses from minor's property. sue the minor after he attains majority to recover expenses. refer matters to arbitration if it is in the best interest of the minor. have exclusive possession of minor's property.
Removal of a guardian Court has the power to remove any guardian in accordance to section 13.
ceases to be a Hindu. becomes hermit or ascetic. court can remove if it finds that it is not in the best interest of the child.
Testamentary Guardian (Sec 9) A person who becomes a guardian due to the will of a natural guardian is called a testamentary guardian. Section 9 defines a testamentary guardian and his powers.
For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person to act as the guardian of the child after the death of the father. However, if the mother is alive, she will automatically become the natural guardian and after her death, if she has not named any guardian, the person appointed by the father will become the guardian. A widow mother who is a natural guardian, or a mother who is a natural guardian because the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a guardian after her death. For an illegitimate child, the power of appointing a testamentary guardian lies only with the mother.
Powers A testamentary guardian assumes all powers of a natural guardian subject to limitations described in this act and to the limitations contained in the will. A testamentary guardian is not liable personally for the expenses and he can ask the guardian of the property of the minor to meet the expenses through the property. The rights of the guardian appointed by will cease upon the marriage of the girl.
Guardianship by Affinity In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also did not hold this view and held that the welfare of the child is to be considered first before anything else.
De Facto Guardian Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the minor merely on the ground of his being the de facto guardian. There is controversy regarding the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable ( Ashwini Kr vs Fulkumari, Cal HC 1983), while some HC have held that both are voidable ( Sriramulu' case 1949). It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor's property, or to make reference to arbitration.
Welfare of the minor is of paramount importance (Sec 13)
While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the minor. No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the guardianship in marriage if the court believes that it is not in the interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the court may appoint a guardian as per the best interests of the minor.
Q3 What are the conditions for a valid adoption? Who is eligible for adoption? What are the effects of adoption? Historical Perspective Since the Vedic period, Hindu society has given a lot of importance to male child. It was said that a male child saves the father from 'put' hell, hence the male child is called Putra. This was the main reason which has prompted the sonless to adopt a male child. Manusmriti says that when the natural father and mother give wholeheartedly their son with the offering of water to another person in distress, it is called Dattak. Vashistha has given several guidelines on dattak. It says that the father and the mother of an offspring have complete right on selling or giving the offspring to another. A Dattak cannot be taken from the person who has only one son. A child whose kinsmen are not known cannot be taken as dattak. A woman had no right to adopt. Sounaka has said metaphorically that a Dattak son must be a re flection of the father, which means that a Dattak can only be taken from a mother whom the person could have married before her marriage. Thus, one could not adopt doughter's son, sister's son, or mother's sister's son. Thus, the practice of Dattak in the old days had been practiced mostly for religious reasons. This is also evident from the fact that only a male child was to be adopted because only he can perform the r eligious duties for the father. Slowly, the secular reasons such as continuance of the family name also became important. More recently, ulterior motives such as changing the course of inheritance of property has also prompted people to adopt. Based on the above three authors and many other customs, the Dattak ceremony primarily involved a Dattak g rahan, i.e. the actual giving and taking of the child and a Dattak homam. However, there were several controversies because there was no one standard rule. So, in 1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as modernized the rules and process for adoption. Some important features of this act are:
1. 2. 3. 4. 5. 6.
Adoption has been made a secular thing. There is no necessity of any religions ceremonies or other religious aspects. Both a man and a woman can adopt on their own right. Both a boy or a girl can be adopted. Orphans, out of cast children, or children in close relation, can also be adopted. Widow, widower, and bachelors can also adopt. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look into the motives of adoption.
Requisites for Adoption Section 6 of the HAM Act 1956 lays down the following 4 requirements
1. 2. 3. 4.
The The The The
person who is adopting must have the capacity and the right to adopt. person who is giving the child in adoption must have the capacity to give. person who is being adopt must be eligible to be adopted. adoption must satisfy all the rules given in this act.
Section 7 describes which Hindu Male is capable of adoption:
1. 2.
3.
Any Hindu male who has attained the age of majority and who is of sound mind can adopt. If he is married, he must take consent from his wife. If he has multiple wives, consent from all the wives is required. In the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent of the wife living with the husband is obtained but the consent of the wife living away has not been obtained then the adoption is void. A wife's consent is not required is the wife has completely renounced the world and has become a Sanyasin, has changed her religion and has ceased to be a Hindu, or has been proven by a competent judge to be mentally unsound.
Section 8 describes which Hindu Female is capable of adoption:
1. 2. 3.
She must be a major and must not be mentally unsound. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T Shankar, AIR 2001, SC has held that consent from a co-widow is not required because a widow can adopt on her own right. A married woman is allowed to adopt only if the husband has renounced the world completely, or is of unsound mind, or has ceased to be a Hindu.
This is a big change from pre-act situation. Earlier, a woman had no right to adopt. Section 9 describes who has the capacity to give a child in adoption
1.
2. 3. 4.
5.
Only the natural father has the right to give a legitimate child in adoption. However, the father must get consent from the natural mother unless the mother has been declared by a competent court to be of unsound mind, has renounced the world, or has ceased to be a Hindu. If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is dead, the mother can give the child in adoption. Only the mother of an illegitimate child has the right to give the child in adoption. However, she cannot adopt the child herself because a giver cannot be taker at the same time. If both the natural mother and father are dead, or have renounced the world, or have abandoned the child, or are of unsound mind, a guardian, testamentary or court appointed can give a child in adoption, including to the guardian himself, upon prior permission of the court. While granting permission, the court must see the welfare of the child and the wishes of the child depending on the child's age.
In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager or secretary of an orphanage, or the person in whose case the child is, of the person who has brought up the child can give the child in adoption. Section 10 describes who is capable of being adopted
1. 2. 3. 4.
The child must be a Hindu. The child must not have already been adopted. The child must be unmarried. However, if a custom to the contrary exists, such an adoption may take place. The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an adoption may take place.
There is no restriction on who can be adopted regarding Sapinda relationships. Even a daughter's son, or sister's son can be adopted. Section 11 describes some other conditions for a valid adoption
1.
If a male child is being adopted, the person who is adopting must not already have a son, son's son, or son's son, whether natural or adopted.
2. 3. 4. 5. 6.
If a female child is being adopted, the person who is adopting must not already have a daughter or son's daughter. If a male is adopting a female child, then their age difference must be greater than 21 yrs. If a female is adopting a male child, then their age difference must be greater than 21 yrs. Two persons cannot adopt the same child. The actual giving and taking of the child must happen. Only mere intention of giving and taking is not enough. The child must be transfered from the home of the natural parents, or in case of orphans, from the place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattak homam is not necessary.
In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998 , these conditions were challenged on the ground that they violate fundamental rights, however, SC held that personal laws do not fall under the ambit of part III of the constitution.
Effects of Adoption Section 12 says that an adopted child is deemed to be a natural child o f his adopted parents for all purposes. All relations with the natural parents and family are severed and new relationships with the adopted parents are established. Only exception is that the adopted child cannot marry anybody from his natural family in contravention of Sapind and prohibited relationships. It further says that the adopted child is not divested of his property that has vested in him before adoption an d that an adopted child cannot divest anybody of his vested property after adoptio n. An important change from the old law here is that the concept of "relating back", which means that when a widow adopts a child the adoption is considered to be done from the date the husband died, has been abolished. However, in the case of Sawan Ram vs Kalawati AIR 1967, SC has held that the deceased father is sill considered the adoptive father. Section 13 says that subject to any ante-adoption agreement, the adoptive parents do not lose their right of alienation of their property after adoption. Section 14 describes the position of mothers in certain situations:
1. 2. 3. 4.
When a male adopts with the consent of the wife, the wife becomes the adoptive mother. If a single adoptive father later marries, the wife of the adoptive father becomes the step mother. If a single adoptive mother later marries, the husband of the adoptive mother becomes the step father. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife becomes the adoptive mother and other wives become the step mothers.
Section 15 says that a valid adoption cannot be canceled either by the adoptive father or mother. Neither can the adopted child renounce the adoptive parents and go back to the family of his birth. Section 16 says that whenever any document made under any law in force at the time, purporting to record an adoption, and has been signed by the giver and taker of the child, is produced before the court, the court shall presume that the adoption has been made in accordance with the provisions of this act unless and until it is disproved. In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the plaintiff brought a suit for partition and possession. However, he failed to provide any proof of the adoption. His adoptive father was estranged from adoptive mother and the adoptive mother had asked for maintenance for herself but not for the adoptive son. There was no document or agreement. The plaintiff could not provide any essential details such as date of adoption or fixing of Muhurtam etc. Thus, SC held that there was no adoption and the alleged adopted son had no right in the property. Section 17 forbids receipt of any payment as a consideration for the adoption. If an y such payment is taken, he shall be punishable by 6 months imprisonment and/or a fine or both.
Q4 Rules of Succession OR Explain the provisions relating to the devolution of property of Hindu female dying intestate/ Rules of Succession of Hindu female
Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another. In e very system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them. Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Such rules may be based on t he will of a deceased person. However, there are cases in which a will cannot be expressed and e ventually, there needs to be some broadly accepted rules upon which the property shall devolve upon t hose succeeding him. There can be no doubt, however, that these rules primarily are the charac teristics of the social conditions in which that individual lived. They represent the view of society at large as to what ought to be the normal course of succession in the re adjustment of property after the death of a citizen.
Succession of A Hindu Male Dying Intestate Under The Hindu Succession Act: Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession of property of a Hindu male who dies intestate after the commencement of the Act. These rules are to be read along with the Schedule as well as other Sections pertaining to the same (S ections 9 to 13).
Section 8 lays down as follows: Section 8: General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the rules set out in this chapter: (a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no prefere ntial heir of Class I, then upon the preferential heirs being the relatives specified in class II of the Schedule; (c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being the agnates specified in Section 12; and (d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Sect ion 13. Thus, Section 8 groups the heirs of a male intestate into four gr oups and lays down that the property
first devolves upon the heirs of Class I of the Schedule. They are the son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a pre deceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son and widow of a pre deceased son of a predeceased son. All these heirs inherit simultaneously. If heirs of Class I are not available, the property goes to the enumerated heirs specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over an heir in a lower entry. In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates of the deceased in succession. Now, one person is said to be the agnate of the other if the two of them are related by blood or adoption wholly through the males. Similarly, one person is said to be the cognate of the other if the two of them are related by blood or adoption, but not totally through males, i.e. there has to be some intervention by a female ancestor somewhere. Now, the term ‘property’ includes all those properties of the deceased intestate that is heritable under the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughter’s son as mentioned in Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the Act came into force.
(A) Heirs In Class I: i. The adopted children (sons or daughters) are also to be counted as heirs. ii. The children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and hence they are entitled to succession. iii. The widow is also entitled to property along with the other heirs and in case there is more than one widow, they will inherit jointly one share of the deceased’s property, which is to be divided equally among them. iv. The widow is entitled to inherit from her deceased husband’s property even if she remarries after his death. v. The widow of the predeceased son will inherit with the other heirs. However, her right along with rights of the children of the predeceased son will exist to the extent of the share of the predeceased son, had he been alive. However, if she remarries before the death of the intestate, then she is not entitled to the property. vi. The daughter inherits simultaneously along with the other heirs in her individual capacity. Moreover, even if she is married, she is entitled to such property. vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has been held in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her inheriting from her son. Even if she is divorced or r emarried, she is entitled to inherit from her son. Here the term mother also includes an adoptive mother. Moreover, if there is an adoptive mother, the natural mother has no
right to succeed to the property of the intestate. A mother is also entitled to inherit the property of her illegitimate son by virtue of Section 3(i)(j).
(B) Heirs In Class II: i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of Entries I to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry excludes all the heirs in the lower entries. ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any property from the illegitimate son as opposed to t he mother. However, he is entitled to share from children born out of void or voidable marriage under Section 1 6. Also, a step mother is not entitled to inherit from the step son. iii. All brothers and sisters inherit simultaneously. Here the term ‘brother’ includes both a full and a half brother. However, a full brother is always preferred to a half brother (accor ding to Section 18). Uterine brother is not entitled to the intestate’s property. However, when the intestate and his brother are illegitimate children of their mother, they are related to each other as brothers under this entry.
(C) Agnates: A person is said to be the agnate of another if the two of them are related by blood or adoption entirely or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the intestate do not include widows of lineal male descendants because the definition of agnates does not include relatives by marriage but only relatives by blood or adoption. Since these widows would be relatives by marriage hence they will not fall under the definition of agnates and hence, they will not be entitled to inherit in this capacity. Moreover, there is no limit to the degree of relationship by which an ag nate is recognized. Hence, an agnate however remotely related to the intestate may succeed as an heir. Also, this relationship does not distinguish between male and female heirs. There is also no distinction between those related by full and half blood. However, uterine relationship is not recognized.
(D) Cognates: A person is said to be the cognate of another if the two of them are related by blood or adoption, but not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line of succession is by one or more females. As long as there is at least one female intervening, it is a cognate
relationship. As in agnate relationship, cognate relationship is also not based on marriage and o nly on blood or adoption. Hence widow or widowers of those re lated by cognate relationship do not fall under this category and hence they are not entitled to succeed on this ground. Section 9. Orders of succession among heirs in the Schedule. - Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in t he second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. Section 9 explicitly points out the or der of succession between the Class I and the Class II heirs and also among the Class II heirs interse. According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the property first devolves upon them on the death of the intestate. All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries. However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brother’s son, the sister being an heir in Entry II of Class II will get preference over his brother’s son who is an heir in Entry IV of Class II.
Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules: Rule 1- The intestate’s widow, or if there are more widows than one, all the w idows together, shall take one share. Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4- The distribution of the share referred to in Rule 3i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion; ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving sons and
daughters get equal portions. Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take simultaneously and to the exclusion of all other heirs in Class I I or otherwise. The Sections do not mention any priority among them, but it nowhere follows that every individual heir who succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The computation of the share of each is done in accordance with Section 10 which may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put the males and the females on equal footing. So it allots the shares to the males and the females pari passu. The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean that each one of them will get 1/4th of the property. The four rules given in this S ection are explanatory to the exte nt of understanding how much share each one will get.
The rules are: 1) The widows, if there are more than one, shall take toge ther only one share and [read with Sec tion 19(b)] inherit that share equally as tenants-in-common and not joint tenants. 2) When there are more than one son, each son will get a share and similarly each daughter will get a share and mother will also get a share. Thus this is based on the Principle of Equalization. 3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to take together a share of the property of their father or mother as the case maybe, and divide them equally among themselves. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestate’s property not as per capita but as per stripe. 4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a propositus, she will take the share of the predeceased son equally with her sons and daughters. The four rules in Section 10 are to be read in consonance with Section 19 which gives the two basic rules in case there is more than one heir succeeding to the property of the intestate.
The rules are: (a) save as otherwise expressly provided in the Act, per capita and not per strip. (b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the contrary. Section 11. Distribution of property among heirs in C lass II of the Schedule.- The property of an intestate
shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally.
This Section provides that when there are more than one heirs in one entry of Class II, they shall inherit equally. For example, Entry III contains four heirs: (a) the daughter’s son’s son (b) the daughter’s son’s daughter (c) the daughter’s daughter’s son (d) the daughter’s daughter’s daughter. Thus according to this Section, they all share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or fem ale. If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over half-blood. In the case of Arunachalathammal v. Ramachandran, it was contended that the different heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry and they do not inherit simultaneously but here again there is a question of preference i.e. the first subdivision inherits and then in its absence, the later. The question arose because there we re, in his case, one brother and five sisters of the intestate and no other heir and the brother contended that in a brother being in subcategory (3) of entry I , was to be preferred over sister who was in subcategory (4) of e ntry I and thus he was entitled to the full property. However the same was negated and it was held that all heirs in an entry inherit simultaneously and there is no preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in the same e ntry. Thus we find that the equality is between every individual heir of the intestate and not between the sub-division in any particular entry. In fact, the court went on to say that there were no subdivisions in any entry in Class II. They were just roman numerals representing the heirs in th e entry. Section 12. Order of succession among agnates and cognates.- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder: Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent. Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously. This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Se ction 8(d). The question of succession of cognates come only when ther e are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II.
Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent is the same or none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take simultaneously.
In accordance with the above three rules, the agnate and cognate relationship maybe categorized as follows:
Agnates: (a) agnates who are descendants, for e xample, son’s son’s son’s son and son’s son’s daughter. (b) agnates who are ascendants, for example, father’s father’s father and father’s father’s mother. (c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father’s brother’s son and father’s brother’s daughter.
Cognates: (a) cognates who are descendants, for ex ample, son’s daughter’s son’s son and daughter’s son’s son’s son. (b) cognates who are ascendants, for e xample, father’s mother’s father and mother’s father’s fat her. (c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father’s sister’s son and mother’s brother’s son. In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals.
Section 13. Computation of degrees. 1) For the purpose of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be. 2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate. 3) Every generation constitutes a degree either ascending or descending. Section 13 lays down the rules fo r computation of relationship between the intestate and his agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs. The second rule states that the computation of the degrees of ascent and descent are to be made
inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the first degree . However, the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act.
The following are examples of rules of computation of degrees: (a) The heir to be considered is the father’s mother’s father of the intestate. Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestate’s father, (iii) that father’s mother and (iv) that mother’s father . (b) The heir to be considered is the son’s daughter’s son’s daughter of the intestate. Hence there is no degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii) the intestate’s son, (iii) that son’s daughter, (iv) that daughter’s son and (v) that son’s daughter. (c) The heir to be considered is the mother’s father’s sister’s son (i.e. the mother’s father’s father’s daughter’s son) of the intestate. He has four degrees of ascent represented in order by (i) the intestate, (ii) the intestate’s mother, (iii) that mother’s fat her and (iv) that father’s father and two deg rees of descent i.e. (i) the daughter of t he common ancestor and (ii) her son (the he ir). What is to be remembered is that when degrees, both of ascent and descent, are to be computed in case of collateral, the degrees of ascent computed from the intestate are inclusive of him, but in counting the degrees of descent from the ancestor, only generations of descent are computed, that is, the ancestor does not constitute a degree of descent.
Succession of A Hindu Female Dying Intestate Under The Hindu Succession Act The great ancient lawgivers Manu and Baudhyana had described the g ood woman as a profoundly nonautonomous self, ruled by father in childhood, by husband in youth, by son in old age. I n the 19th century debates, on the contrary, she came to be re-envisaged as a person with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even when the family, the community or religion refused to accept them. The demand for the new laws stemmed from an understanding about Indian a necessary, autonomous core of female personhood that the state must underwrite. Under the Hindu law in operation prior to the coming into force of the Act, a woman’s ownership of property was hedged in by cert ain delimitations on her right of disposal and also on her testamentary power in respect of that property. Doctrinal diversity existed on that subject. Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to give technical significance. Women were supposed to, it was he ld and believed, not have power of absolute alienation of property. The restrictions imposed by the Hindu law o n the proprietary rights of women depended
upon her status as a maiden, as a married woman and as a widow. They also depended upon the source and nature of property. Thought there were some fragmented legislation upon the subject (regard being made to the Hindu Woman’s Right to Property Act, 1937), the settled law was still short of granting a status to woman where she could acquire, retain and dispose off the property as similar to a Hindu male. The Hindu Succession Act, 1956 and partic ularly Section 14 brought substantial change, thus, upon the aspect of a right of a Hindu female over her property and thereby settled the conflict.
Section 15. General rules of succession in t he case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) Secondly, upon the heirs of the husband ; (c) Thirdly, upon the mother and father; (d) Fourthly, upon the heirs of the father; and (e) Lastly, upon the heirs of the mother (2) Notwithstanding anything contained in Sub-Section (1), (a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the dece ased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the or der specified therein, but upon the heirs of the father; and (b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs re ferred to in sub-Section (1) in the order specified therein, but upon the heirs of the husband. This Section propounds a definite and uniform scheme of succession in the property of a female Hindu who dies intestate after the commencement of the Act. The rules laid down under this Section are to be read with Section 16. This Section gr oups the heirs of a female intestate into five categories as laid in sub-Section (1). However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue then, (i) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down as in sub-Section (1) but upon the heirs of her father, and (ii) in respect of the property inherited by her from her husband or father-in-law, that property will not devolve according to the order laid down in sub-Section (1) but upon the heirs of her husband.
It is important to note that the two exceptions herein referred are confined to only the property inherited from the father, mother, husband and father-in-law of the female and does not affect the property acquired by her by gift or other by other device. The S ection has changed the entire concept of stridhana and the mode and manner of acquisition of property by t he female, which earlier determined how the property would be inherited, has been changed and amended by the Section. Considering Section 17, it is important to note that Section 16 does not apply to persons governed by Marumakkattayam and Aliyasantana laws. As specified in the beginning of the sub-Sect ion (1), in the devolution of heritable property of a female intestate, those in a higher entry are preferred to those in a lower entry.
The order of succession, as by the effect of rules under Section 15 can be summarized as follows: (1) the general order of succession laid down in entries (a) to (e) in sub-Sect ion (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law. (2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case, sub-Section (2) does not apply. (3) In case of a female intestate dying without issue but leaving her husband, the husband will take he r property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death. (4) In case of female intestate dying without issue property inherited by her from her husband or fatherin-law (the husband being dead), will go the heirs of the husband and not in accordance with the gene ral order of succession laid in sub-Section (1). (5) In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-Section (1). Section 16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in Section 15 shall be and t he distribution of the intestate’s property among those heirs shall take place according, to the following rules, namely: Rule 1.- Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. Rule 2.- If any son or daughter of the intestate had predecease d the intestate leaving his or her own
children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-Section (1) and in sub-Section (2) to Section 1 5 shall be in the same order and acc ording to the same rules as would have applied if the property would have been the father’s, the mother’s or the husband’s as the case maybe, and such person had died intestate in respect thereof immediately after the intestate’s death. Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously. Rule 2 states that in case of the children of a predece ased son or daughter, they shall not take per capita with the son and daughter of t he intestate but shall take per stripes i.e. t he children and the predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance. Rule 3 is applicable only when succession is in te rms of entry (b), (d) or (e) of Section 1 5(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property.
Q5 What is partition? Who is entitled to share on partition. What is the effect of partition? Introduction Partition, is an act by which a coparcener severs his relations with joint family and loses his status of coparcener and becomes an independent individual from the links of joint family. An important consequence of such partition is that the share of coparcener or coparceners seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and definite, as a result of partition, and thus allotted to the respective members. According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the whole, by distributing them into particular portions of the aggregate. Therefore, Mitakshara partition is used into two distinct senses: firstly, the adjustment into specific shares the diverse rights of the different members according to the whole family property; secondly; the severance of the joint status, with the legal consequences resulting therefrom. It has been defined as the crystallization of the fluctuating interest of a coparcenary into a specific share in the joint family estate. According to Lord Westburn- there are two stages in partition under Mitakshara 1. Division of Right – Ascertaining and fixing with an intention to become separate, the share to which each coparcener is entitled. 2. Division of property- Actually making off, and assigning portions of the erstwhile joint estate to individual coparcener in portion to the share of each. Under the Dayabhaga law, it means division of property in accordance with the specific share of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share among coparcener according to metes and bound. Division of property in accordance with the specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of possession, while in Mitakshara it is unity of ownership Under Dayabhaga Law, every adult coparcener whether male or female is entitled to enforce partition.
Persons not entitled to enforce partition under the Dayabhaga Law are: 1. Sons, Grandsons and great grandsons have no birth interest in ancestor property against their father, so there is no right for partition. 2. It consider the illegitimate son of shudra becomes a coparcener with legitimate sons when they inherit the property after the death of the father. 3. Father’s wife-no such right 4. Childless step mother no entitle to a share after partition
PROPERTY LIABLE FOR PARTITION It is only the coparcenary property which is subject to the partition. The separate property is not liable to partition at all, as it belongs absolutely to the owner thereof. Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj. Nor can family idols and place of worship can be divided. Similarly, the following properties are not liable to partition: 1. Impartible estate i.e., property which descends to one member only, either by custom or under any provision of law or by terms of grant. 2. Property indivisible by nature, e.g., ponds, staircase, passage 3. Family idols and relies which are object of warship 4. Separate property of a member 5. The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes. 6. The well and the rights to draw water from the well 7. The ornaments and the dress materials given to the wives of the coparceners 8. The headship of a Math Manu says- following properties are not subject to in division 1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water and female slaves, as road, garden, utensils, documents, right to way, furniture etc. 2. Properties meant for pious use, or scarifies, object for worship.3.
3. Separate property of a member In respect of those properties three methods of adjustment are available1. may be enjoyed by coparcenary by jointly or by turn 2. May be allotted to the share of coparcener and its value adjusted. 3. May be sold and distributed the incident
DEDUCTIONS AND PROVISIONS Some provisions must be made out of the property liable to partition before any partition is affected. 1. Debts incurred for joint family. 2. Personal debts of the father not incurred for illegal or immoral purposes. 3. Maintenance of dependent female members and disqualified heirs. 4. Marriage expenses of unmarried daughters of the last male holder but not of the collaterals. 5. Expenses for the funeral ceremony of the widow and the mother of the last male holder.
PERSONS WHO ARE ENTITLED TO DEMAND PARTITION Every coparcener has a right of partition and entitle for share in partition. 1. Father- he can impose a partition, partial or total between his minor son and himself with bonafide intention, else, it will reopen. In case of major son and father, it should be by mutual consent. 2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right partition without the assent of his father, if the father is join with his own father and in case of Punjab Customary Law, as under Punjab Customary law son have no right by birth. 3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be reopen to give the share after born son. However Gautama, Manu, Nerada says the after born son could get the share of his father alone
According to Mitakshara we have few rule for this1. Son conceived at the time of Partition but born after it – person in the womb is equated the person exist. The tax lay down that if the pregnancy is know the partition should be postponed till the time child birth, if the other coparceners are not ready for this a equal share should be reserve if the child born son share should be allowed to them, in case female it should be expand on her marriage. 2. Not in the womb when partition take place if the pregnancy is not known and no share has been reserved then the partition should be reopen after childbirth. 3. Son begotten and born after partition- in this case two general rule under Mitakshara 4. When Father has taken his share in the partition- son become the coparcener with his father. 5. When Father has not taken his share in the partition – son has a right to reopen the partition and get his share. 6. Adopted Son- he has right if partition take place after adoption, but if partition take place before adoption he has no right. 7. Illegitimate Son- not entitle for partition and share but f or maintenance only. 8. Son void marriage and annulled marriage-not entitle. 9. Minor Coparcener- no distinction between major or minor.
PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER PARTITION No female has a right to partition but if partition takes place, some female (father’s wife, mother and grandmother) has a right for share in partition. However, after 2005 amendment, daughters are also entitled for it.
HOW PARTITION IS AFFECTED? 1. Severance of Joint Status or interest-expression of intention- one member of joint family can express his intention to partition, even though no actual partition take place. 2. by Notice 3. by Will 4. Conversion to another Religion.
5. Marriage under special marriage act. 6. by agreement 7. by arbitration 8. by father 9. by suit
ALLOTMENT OF SHARES Sons are not entitled for any share in presence of father. The share of deceased coparcener passes to his heir.
Q6 What are the rights and duties of coparceners with respect to the coparcenary property? The following are the fourteen main rights of a coparcener:
1. Community of interest and unity of possession: No coparcener is entitled to exclusive possession of any part of the coparcenary property; nor is any coparcener entitled to any special inte rest in such property. As observed by the Privy Council in K atama Natchairv. Rajah of Shivagunga (1893 9 M.I.A. 539), “there is community of interest and unity of possession between all the members of the family”.
2. Share of Income: A member of a joint family cannot, at any given moment, predicate what his share in the joint family property is. Such a share becomes defined only when a partition takes place. The r eason is that his share is a fluctuating one, which is liable to be increased by deaths, and diminished by births, in the family. It follows from this that no member is also entitled to any definite share of the income of the property. According to the principles governing a Hindu undivided family, the whole income of the joint family property must be brought to the common purse of the family, and then dealt with as per the rights of the members to enjoy such property.
3. Joint possession and enjoyment: Each coparcener is entitled to j oint possession and enjoyment of the family property. If he is exc luded from doing so, he can enforce this right by way of a suit. He is not, however, bound to sue for partition. In a suit for joint possession, the Court would declare his right to joint possession, and further direct that he should be put into such joint possession.
4. Right against exclusion from joint family property: If a coparcener is excluded by other coparceners from the use or enjoyment of the joint property, the Court may, by an injunction, restrain such coparceners from obstructing him in the enjoyment of the property. In one case, A and В were members of a joint family. A prevented В from using a door which was the only means of access to the rooms which were in B’ s occupation. It was held that, in the c ircumstances, the Court could, by injunction, restrain A from disturbing В in the use of the door. (Anani v. Gopal, 1895, 19 Bom. 269)
In another case, A and В were members of a joint family, which owned a shop in Poona. A prevented В from entering the shop, inspecting the account books, and taking part in the general management of the shop. В sued A for an injunction, restraining A from excluding В from the jo int possession and management of the shop, and the Bombay High Court held that В was entitled to succee d. (Ganpat v. Annaji, 1899 23 Bom. 144)
5. Right of maintenance and other necessary expenses: Every coparcener is entitled to be maintained out of the estate of the family. For this purpose, he is entitled to receive, from the coparcenary property, maintenance for himself, his wife and children, as also for those whom he is bound to maintain. Besides such maintenance, a coparcener is also entitled to get money from the coparcenary property for the purpose of the marriage of his children and for the performance of the sradha and upanayana ceremonies.
6. Right to restrain improper acts: Every coparcener has the right to restrain improper acts on the part of other coparceners, where such acts cause substantial injury to his rights as a member of the family. Thus, if a coparcener erects a building on land belonging to the joint family, so as to materially alter the condition of the property, he may be restrained by an injunction from doing so.
7. Right to enforce partition: Every adult coparcener is entitled to enforce a partition of a coparcenary property. He cannot, however, file a suit for a declaration of the amount of his share, as he has no definite share, until partition. In one leading case (Appaji v. Ramchandra, 16 Bom. 29), the Bombay High Court held that the re is one important exception to the above rule, namely, that where the father is joint with his own father or other collateral members, a son cannot enforce a partition against the will of the father. This exception is also recognised in the State of Punjab also, but not in other parts of India.
8. Right to account: A coparcener has no right to ask for accounts from the manager as regards his dealing with the coparcenary property and the income t hereof, unless of course, such coparcener is suing for a partition, in which case, he would have such a right.
9. Right of alienation: No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate such interest for value, except in the State of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat.
An unauthorised alienation is not however, absolutely void; it is merely voidable at the option of the other coparceners. However, it is open to a creditor, who has obtained a decree against the coparcener personally, to attach and sell his undivided interest, and if this is done, the purchaser can have his interest separated by a suit for partition.
10. Right to impeach unauthorised alienations: Every coparcener has the right to impeach alienation by the manager, or any other coparcener, in excess of their powers. Such alienation can be impeached only by a coparcener or by a transferee who has acquired the entire interest of a joint family in the property alienated.
11. Right to renounce: A coparcener has the right to renounce his interest in the coparcenary property. He can do so by expressing his intention to that effect, and if he does so, no other formalities would be necessary. Such a renunciation must, however, be in favour of the whole body of coparceners. Even if he renounces in favour of one individual member, the renunciation will operate for t he benefit of all the coparceners.
12. Right of survivorship: All the coparceners of a joint Hindu family have a right of survivorship in respect of the joint family property. Thus, if one coparcener dies, his undivided interest in such family passes by survivorship to the remaining coparceners, and not to his heirs by succession. (The circumstances in which this right of a coparcener does not exist have already been considered earlier.)
13. Right to make self-acquisition: A coparcener has the right to acquire property of his own, and keep it as his self-acquired property. The other coparceners would have ho claim on such property.
14. Right to manage: A coparcener, who is the senior-most member of the family, is entitled to manage the coparcenary property and business, and to look after the interests of the family on behalf of the other coparceners, unless he is incapacitated from doing so by illness or other like and sufficient cause.
Q7 Discuss the bars to matrimonial relief under Hindu Marriage act. Discuss Accessory, Condonation & Collusion as bars to matrimonial relief. Read: https://www.scribd.com/doc/83080891/Bars-to-Matrimonial-Remedies - Very exhaustive and detailed answer.
Q8 What are the essential conditions of a valid Hindu marriage? Introduction Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are Non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc. The essential conditions of valid Marriage are given and discussed below.
Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect. Bigamy – Section 5 (i)
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a b igamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife. Clause (ii) – Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suff ering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage. Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period. Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition. Clause (iii) – Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage. According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen. Clause (iv) – Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act. According to Section 3(g) “degree of
prohibited relationship” means when two persons are related to each other in any of the following manners: 1. By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the S apinda relationship which extends up to fifth degree in t he line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants. 2. By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step-father and step daughter are thus within the degrees of prohibited relationship.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act. 1. ‘A’ marries his adopted sister. This is not a valid m arriage, as it falls within the degrees of Prohibited relationship. 2. ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. 3. ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half-blood relationship.
Clause (v) – Avoidance of sapinda relationship
According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has l imited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the l ine of ascent through the mother. According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them. Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Rules for determining Sapinda relations:
1. The relationship extends as far as the third generation in the line of ascent through the m other in case of both the parties. 2. The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties. 3. Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother. 4. The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress. 5. Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.
Q9 Who can be a Karta? Elucidate the rights & Liabilities of a Karta.
Introduction to Karta The joint Hindu family is a patriarchal organization and the head of the family is known as Karta. He is the senior most male member of the family and as a head or manager of the family, he is the representative of the family and acts for or on behalf of the family. A Karta is a person in whom, others in the family repose confidence, so between the Karta and the family members there is a fiduciary relation because there is always a need for a manager to look after the welfare of minor members and females in a joint Hindu family. Such manager of the joint Hindu Family is known as the Karta of family and he enjoys immense powers in respect of the management of the affairs of family and its property. The position of Karta in a joint Hindu family is unique. He is that person who takes care of the whole family and its property and administers it and all the members of the family remain in discipline under his control and are bound by his decisions. A Karta incurs unlimited liability and is representative of the family in all the affairs. It has been said regarding the position of Karta that no one else is equivalent to him in the family. The position and powers are wider than anyone.
POWER 1. Power over income and expenditure 2. Power to manage joint family business 3. Power to contract debt for family purposes 4. Power to enter into contracts 5. Power to refer to arbitration any matter involving the interest of joint Hindu family and the other members of the family including minors 6. Power to enter into compromise in any matter relating to joint Hindu family property 7. Power to give discharge to the debt due to joint family
8. Power to acknowledge debts or make a part payment of it, so as to extend the period of limitation. 9. Power to represent in suits 10. Power of alienation of joint Hindu family property But this does not mean that he is a dictator. His position is extremely sensitive. He has to move along with all the members. Thus the position of the Karta is a mixture of rights and duties. He has to maintain the balance between rights and duties.
DUTIES AND LIABILITIES 1. He has the duty to render accounts to the other coparceners regarding the income from joint family property and expenditure thereon 2. He has the duty to realize the debt due to the family 3. He has the duty to spend the joint family funds only for the purposes of the family and should spend reasonably 4. It is the duty of the Karta not to start a new business without the consent of other coparceners. 5. It is the duty of Karta not to alienate the coparcenary property without legal necessity or benefit to the estate.
WHO CAN BE A KARTA 1. Hindu Law believes that the senior most coparcener is the Karta of the family. Refer case of Ram v. Khera -1971. 2. Any coparcener becomes Karta of the family because of his seniority not because of anyone appointed him. Refer a case to this effect Mann v. Jayani-1918 it Jayani-1918 it was held that such a person till he lives continues as the Karta of the family although he may be aged, handicapped, weak or ill. 3. However, any Karta becomes unsound mind then the senior most coparcener would become the Karta.
WHETHER A JUNIOR MOST COPARCENARY BECOMES KARTA. Generally, it does not happen but in a case of Narendra Kumar v. Income Tax Commissioner1976,it 1976, it was held that a junior coparcener can be the Karta with the consent or agreement of all the coparceners. In another case of Harihar Sethi v. Ladu Kishore Sethi -2002 , it was held by the Orissa High Court that junior coparcener can be the Karta when the senior most coparcener waives his right of Karta then a junior member can become Karta.
Whether mother can become the Karta. -1947 it was held by the Nagpur High Court that the In the case of Pandurang v. Pandurang -1947 it mother can become Karta if there is no other adult coparcener here the Supreme Court does not agree to this view in the case of Commissioner of Income-tax v. Seth Govind Ram -1986 . The Karta of Joint Hindu Family at a time can only one not more, but with the consent of other coparceners
there
can
be
more
than
Ranglal 1902 1902 and 1943 . and Shankar v. Shankar 1943.
one
Karta:
refer
a
case
of Mudrit
v.
Q10 Explain the concept of Separate Property Introduction In a Landmark Judgment pronounced by Supreme Court of India in case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the Concept of Ancestral Property. Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his father’s three brothers. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance accordance with the Mitakshara Law. It was ruled by SC that on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. Concept of Ancestral Property Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property. Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter. o
This property should be four generation old.
o
It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.
o
The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.
o
The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
o
Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.
o
Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.
In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289:
“………. if A inherits property, whether movable or immovable, from hi s father or father’s father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the prope rty, he holds the property as absolute owner thereof, and he can deal with it as he pleases ………. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his absolute property.” In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. Thus in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties
continues, an Classification of property under Hindu Law only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. Classification of property under Hindu Law The property under Hindu Law can be classified under two heads:o
Coparcenary property; and
o
Separate property.
Coparcenary property is again divisible into:o
o
ancestral property and joint family property which is not ancestral.
This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family. Law laid by Delhi High Court In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January, 2016 Hon’ble Mr. J. Valmiki Mehta of Delhi High Court ruled(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property belonging to his paternal ancestor. (ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual’s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be
clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property. (iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties. (iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property. Law laid by Supreme Court now The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i) an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
Q11 What are the Types of Family?
Types of Families in India Families in India may be viewed from different view-points and the classifications obtained thereby are indeed varied in nature. We are to examine the types of family from different angles:
From the point of structure: From this view-point, we can divide family into three basic types: Simple, elementary or nuclear family: It is composed of the following members a man, his wife, and unmarried children. It is most conspicuous in the modem European and Indian societies as well among the tribal societies like the Lodha, the Santal, and the Oraon. Joint family: If two or more nuclear families live together under a common shelter, and share a common hearth, and a common purse, then this type of family is known as joint family. The Hindu joint family is the best example of such type of family in which several uterine brothers live together. In Santal, Munda, Oraon societies such type of family is not uncommon. Joint family may split up into simple families at any moment as in the case of urban societies. Extended family: When the nuclear family is found to be extended on all sides by certain adhesions in the form of relatives of both sides i.e. husband’s and wife’s sides, then it can be declared as an extended family. In most of the partrilineal societies of India, we do find such type of family in which the parents of the ego, his widowed sister with her children and even the old widowed father’s sister may live. These persons are originally of some other nuclear families but due to some adverse circumstances; they forced to live in the ego’s family. It is interesting to note that these adhesions cannot leave this family so easily. In modem and tribal societies, such a type of family is seldom met with.
From the point of blood relation: In view of the blood relationship, the family may be classified into two types: Family of Orientation: It is the family in which one is born. His identity in this family is as son, the father’s family of the Hindus and the Muslims of India.
Family of procreation: The family which one helps to set up after one’s marriage. His affiliation to this family will be as father.
From the point of marriage: On the basis of marriage, the family can be classified into three types: Monogamous family: This type grows out of monogamy i.e. single marriage involving two adults of opposite sexes. It is the common type of family found among the advanced and tribal societies of India. Polygynous family: The family which grows around polygene i.e. multiple marriages on the part of a man. In former days, the Hindu zamindars and the Muslim Sultans had such type of family. Multiple marriages were then the symbol of prestige and high social status in some specific societies. The ‘Kulin’ Brahmin and Kayasthas had such familial affiliations. Polyandrous family: The family which grows out of polyandry i.e. multiple marriage on the part a woman as found among the Todas of Nilgiri hil ls of South India. The disparity in numerical strength between the male and female had led them to go for such marriage owing to the cruel custom of female infanticide practiced earlier. When the husbands are related as brothers, and if they remain in the same family then it can be termed as fraternal polyandrous family. Nonrelated husbands with their wife or wives from the non-fraternal polyandrous family.
On the basis of succession: On the basis or succession the family it can be classified into two broad divisions: Patrilineal family: The family in which authority and succession flow through the male line. Sons of such families live permanently in thei r parental house and the daughters have to leave it after their marriages. They are to live in their husbands’ house. Family property is shared by the sons. Daughter inherits nothing. Matrilineal family: The family whose authority and succession flow through the female line, as among the Khasi and the Garo. Married daughters with their husbands live in the house of their mother. Sons move out after their marriages.
On the basis of residence: Family may be classified into six broad categories on the basis of residence where the married couple choose to reside after their marriage.
Patrilocal family: After marriage, if the bride goes to reside in the father’s residence of the groom, such a type is known as patrilocal family. In most of the patrilineal society such type is found. Matrilocal family: In this type of family, husband goes to reside in the residence of the wife i.e. her mother’s household. Among the Khasi and the Garo, the daughters live permanently in the household of their mother and the sons come out of the family after their marriages. Mother, in such type of family, is the person in supreme command and the next position is held by her brother. Due to the impact of rapid modernization, matrilineal system is now in the process disintegration, at least in some aspects of their corporate living. Neolocal family: If the newly married couple settles in new apartment without any attachment to the parents’ families of both the husband and the wife, then such a type is known as Neolocal family. In modern Bengal and some enlightened tribal societies such type of family is met with. Bilocal Family: In some societies, a married couple may live with or near the parents of either of the spouses. This rule of residence is called bilocal and hence, the family will be designated as bilocal family. Avunculocal family: It prescribes that a married couple shall reside with or near a maternal uncle of the groom rather than with parents of either of the spouses or in separate home of their own, as found among the Nayars of South India. Matri-Patrilocal family: In some societies, it is found that the husband, goes to the house of the wife to live after marriage but a few years later or after the birth of the first child, the husband comes to his own parent’s house with his wife and children to live permanently there. This type of family is found among the Chenchus of Andhra Pradesh.
Q12 Explain the character of Mitakshara & Dabhyanga Schools
HINDU law: Hindu law as an historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. There are two types of schools of Hindu law: 1.
MITAKSHARA school of Hindu law.
2.
DAYABHAGA school of Hindu law.
MITAKSHARA: The Mitakshara is legal treaties on inheritance, written by Vijnaneshwara a scholar in Western Chaiukya court in 12th century. It became one of most influential texts in Hindu law, and its principles regarding property distribution, property rights, and succession are still in practice across most of India except for West Bengal and Assam where the Dayabhaga system is practiced. A salient feature is the principle of division of ancestral property held by the Hindu joint family. The Mitakshara School exists throughout India except in the State of West Bengal and Assam. ‘There are four Sub -Schools under Mitakshara School’:
i.
DRAVIDA SCHOOL (MADRAS SCHOOL).
ii.
MAHARASHTRA SCHOOL (BOMBAY SCHOOL).
iii.
BANARAS SCHOOL.
iv.
MITHILA SCHOOL.
DAYABHAGA: A Dayabhaga is a legal treatise dealing with various aspects of hindu law. It was written by Jimutavahana and Hemadri, and has much influenced the Hindu civil code of modern India. ‘The provisions relating to property rights are followed in West Bengal and Assam. Unlike the Mitakshara system, ancestral property of the hindu joint family can be partitioned among offspring generally after the father’s death, but in special circumstances the son has a right
before the father’s death. Right to Stridhan is an absolute right, the wife having the right to sell, mortgage or use without even the husband’s consent. Right of unmarried sons and daughters over the Stridhan is recognised. The owner has absolute right of disposing property at will. Ownership is determined according to Shastras. It exists in West Bengal and Asam only. It has sub-school. it differs from Mistakshara School in many respects. Dayabhaga School is based on the code of Yagnavalkya commented by Jimutvahana, Inheritance is based on the principle of spiritual benefit. it arises by pinda offering i.e. rice bali offering to deceased ancestors. Sapinda relation is by pinda offerings. This has led many scholars to conclude that the Mitākṣarā represents the orthodox doctrine of Hindu law, while the Dāyabhāga represents the reformed version. [1] This is in direct contrast to the Mitākṣharā, which gives the sons a claim upon birth[2]. Each brother has ownership over a definite fraction of the joint family property and so can transfer his share. The widow has a right to succeed to husband’s share and enforce partition if there are no male descendants. On the death of the husband the widow becomes a coparcener with other brothers of the husband. She can enforce partition of her share. APPLICATIONS:
The Mitakshara Law applies to the whole of India except Bengal and Assam. Under this law as it existed until the amendments made by The Hindu Succession (Amendment) Act, 2005, the son acquires by birth an interest in the ancestral property. Ancestral property, under the Mitakshara Law, thus devolves on the death- of a coparcener by survivorship. Mitakshara law recognizes two kinds of devolution of property as follows: – a ) Devolution by Succession is applicable to the Joint family property and b) Devolution by Survivorship is applicable to Property held in severaltys by the last owner. The Dayabhaga Law applies to communities like Bengalis and Assamese living in States of Bengal and Assam and other parts of world. According to this law, the son doesn’t acquire any right by birth in the ancestral property. The son’s right arises for the first time on father’s death. All properties thus, devolve by inheritance and not by survivorship. Under this school of law, the coparcenary is formed only on death of the father. Females can also be coparcener. Dayabhaga law thus recognizes only devolution by succession and it doesn’t recognize the devolution by survivorship as it recognizes in case of Mi takshara Law.
DIFFRENCE BETWEEN MITAKSHARA AND DAYABHAGA:
The differences between the Dayabhaga and the Mitakshara schools of law may be categorized under the following:1.Joint Family: – According to the Mitakshara law school a joint family refers only to the male member of a family and extends to include his son, grandson and great-grandson. They collectively have co-ownership/Coparcenary in the Joint Family.Thus a son by birth acquires an interest in the ancestral property of the joint family. Under the Dayabhaga law school the son has no automatic ownership right by birth but acquires it on the demise of his father. 2.Coparcenary/Co-ownership:-Under the Mitakshara law school all the members of the Joint family enjoy coparcenary rights during the father’s lifetime. Under Dayabhaga School when the father is alive the sons do not have coparcenary rights but acquire it on the death of the father. In the Mitakshara School the coparcener’s share is not defined and cannot be disposed. In the Dayabhaga the share of each Coparcener is defined and can be disposed. Partition: – While both the Mitakshara and the Dayabhaga schools hold that the true 3. test of partition is in the intention to separate the manifestation of this intention is different in each of the schools. In the case of the Mitakshara School the intention involves holding the property in defined definite shares while in the Dayabhaga School there has to be a physical separation of the property into specific portions and assigning of separate share to each coparcener. 4.Rights of Woman: – In the Mitakshara system the wife cannot demand partition. She however has the right to a share in any partition affected between her husband and her sons. Under the Dayabhaga this right does not exist for the women because the sons cannot demand partition as the father is the absolute owner. In both the systems, in any partition among the sons, the mother is entitled to a share equal to that of a son. Similarly when a son dies before partition leaving the mother as his heir, the mother is entitled to a share of her deceased son as well as share in her own right when there is a partition between the remaining sons.[3] 5. The widow succeeds the father’s property rights on his death, even in cases where he held property jointly with his brother.[4]
Conclusion
Through this research paper we get the basic idea of the Mitakshara system which is Conservative. It provides good security in times of difficulties as a member can rely on the joint family. However, sometimes a member can become a parasite. The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions. This has elucidated the concept of partition and coparcenary. Thus this paper eill give the fair and gist idea of divisions of Hindu Law Schools and the sub divisions under these school of thoughts.
Q13 Explain Uniform Civil Code with case laws [Author’s Note: Please refer to the section at the bottom which reads [REFERENCE] whenever citations appear (eg: [1], [2], [3] etc) for more information and relevant details.] “
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The mere three words and the nation breaks into hysterical jubilation and frantic wailing. These three words are enough to divide the nation into two categories - politically, socially and religiously. Politically, the nation is divided as BJP, which propagates implementation of the Uniform Civil Code (hereinafter referred to as the UCC) and the non BJP including the Congress party, Samajwadi party, who are against the implementation of the UCC. Socially, the intelligentsia of the country, who analyse logically the pros and cons of the UCC and the illiterate who have no opinion of their own and succumb to the political pressure are at opposite poles. And, religiously, there is a dangerous widening schism between the majority Hindus and the minority community mostly the Muslims. Being a law student, I would like to consider the legal implications of UCC. I strongly support the crusade for the implementation of UCC and homogenising the personal laws. I support it, not because of any bias, but because it is the need of the hour. It is high time that India had a uniform law dealing with marriage, divorce, succession, inheritance and maintenance. Indian case law: Recently, the Supreme Court of India again called for a UCC. The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum[1], popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure[2] after she was given triple talaq from him. The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44[3] of the Constitution has remained a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that, "A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies" After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for
enacting the UCC, not binding on the government or the Parliament and that t here should be no interference with the personal laws unless the demand comes from within. The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India[4]. In this case, the question was whether a Hindu husband, married under the Hindu l aw, by embracing Islam, can solemnise second marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnised after converting to Islam would be an offence under Section 494[5] of the Indian Penal Code. Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu personal law and held, "Where more then 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India." The Supreme Court’s latest reminder to the government of its Constitutional obligations to enact a UCC came in July 2003[6] when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118[7] of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act was discriminatory against the Christians as it impose unreasonable restrictions on their donation of property for religious or charitable purpose by will. T he bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Chief Justice Khare stated that, "We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. " Thus, as seen above, the apex court has on several instances directed the government to realise the directive principle enshrined in our Constitution and the urgency to do so can be inferred from the same.
Secularism v/s Uniform Civil Code:
The spine of controversy revolving around UCC has been secularism and the freedom of religion enumerated in the Constitution of India. The preamble of the Constitution states that India is a "secular democratic republic" This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. A State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It does not mean allowing all religions to be practiced. It means that religion should not interfere with the mundane life of an individual. In S.R. Bommai v. Union of India[8], as per Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. In India, there exist a concept of "positive secularism" as distinguished from doctrine of secularism accepted by America and some European states i.e. there is a wall of separation between religion and State. In India, positive secularism separates spiritualism with individual faith. The reason is that America and the European countries went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with religion. On the contrary, India has not gone through these stages and thus the responsibility lies on the State to interfere in the matters of religion so as to remove the impediments in the governance of the State. Articles 25[9] and 26[10] guarantee right to freedom of religion. Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to public order, morality and health and to the other provisions of Part III of the Constitution. Article 25 also empowers the State to regulate or restrict any economic, financial, political or other secular activity, which may be associated with religious practice and also to provide for social welfare and reforms. The protection of Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pur suance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion.[11] UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion[12]. The UCC will not and shall not result in interference of one’s religious belief s relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property, maintenance and succession, there will be a common law. Justice Khare, in the recent case[13], said, "It is no matter of doubt that marriage, succession and the like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution."
The Chief Justice also cautioned that any legislations which brought succession and like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. Article 25 confers right to practice and profess religion, while Article 44 divests religion from social relations and personal law. The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said, "Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity."[14]
Codification: The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to the constitutional mandate? There is a lot of li terature churned out on UCC but there is no model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed on all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender equality and comprising the best elements in all the personal laws. The UCC should carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations. Here is an overview of the essentials of the UCC:
Marriage and divorce: The personal laws of each religion contain different essentials of a valid marriage. The new code should have the basic essentials of valid marriage which shall include: (i) The new code should impose monogamy banning multiple marriages under any religion. Polygamy discriminates against the women and violates their basic human rights. Thus, monogamy should be imposed, not because it is the Hindu law, but because it adheres to Article 21 of the Constitution[15] and basic human values. (ii) The minimum age limit for a male should be 21 years and for a female should be 18 years. This would help in curbing child marriages. Punishment should be prescribed for any person
violating this provision. Also, punishment for other persons involved in such an act, like the relatives, should be prescribed which would have a deterrent effect on the society. (iii) Registration of marriage should be made compulsory. A valid marriage will be said to have solemnised when the man and the woman sign their declaration of eligibility before a registrar. This will do away with all the confusion regarding the validity of the marriage. (iv) The grounds and procedure for divorce should be specifically laid down. The grounds enumerated in the code should be reasonable and the procedure prescribed should be according to the principles of natural justice. Also, there should be a provision for divorce by mutual consent.
Succession and inheritance: This area throws up even more intractable problems. In Hindu law, there is a distinction between a joint family property and self acquired property which is not so under the Muslim law. The Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and own agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to be abolished. There are also fetters imposed on the extent to which one can bequeath property by will under the Muslim law. Considering all these, the UCC should include: (i) Equal shares to son and daughter from the property of the father, whether self acquired or joint family property. There should be no discrimination based on sex in the matters of inheritance. The provisions of the Hindu Succession (Maharashtra Amendment) Act, 1994 can be taken as guiding principles wherein the daughter of a coparcener shall by birth become the coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive the right to claim by survivorship and shall be subject to same liabilities and disabilities as the son. (ii) Provisions for inheritance of the property of mother, which she has self acquired or acquired through her father or relatives. (iii) The provisions relating to will should be in consonance with the principles of equity. There should be no limitations imposed on the extent to which the property can be bequeathed, the persons to whom such property can be bequeath and the donation of the property by will for religious and charitable purpose. (iv) The essentials of valid will, the procedure for registration and execution of the will should be provided for. (v) Provisions for gifts should not contain any limitations, though essential of valid gift and gift deed should be specified.
Maintenance: The maintenance laws for the Hindus and Muslims are very different. Apart from personal laws, a non-Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure. A Muslim woman can claim maintenance under the Muslim Women (Right to Protection on Divorce) Act, 1986. Apart from maintenance of wife, there are also provisions for maintenance of mother, father, son and unmarried daughter under the Hindu law. The UCC should contain the following with regards to maintenance: (i) A husband should maintain the wife during the marriage and also after they have divorced till the wife remarries. (ii) The amount of alimony should be decided on basis of the income of the husband, the status and the lifestyle of the wife. (iii) The son and daughter should be equally responsible to maintain the parents. The reason for this being that if she claims equal share of the property of her parents, she should share the duty to maintain her parents equally. (iv) The parents should maintain their children - son till he is capable of earning on his own and daughter, till she gets married. Thus based on these fundamental principles, an unbiased and fair UCC can be framed which will be in consonance with the Constitution.
Working of UCC and the Indian scenario: How foolproof will be the UCC? Will there be more abuse and less obedience of UCC? Will UCC have negative effect on the society? Such questions are bound to be raised after the implementation of the UCC. All laws are formulated to be obeyed, but they are abused. This doesnot mean that law should not be implemented. Similarly, there is a great possibility of the UCC being abused, but this should not eschew the Parliament from enacting the UCC; the social welfare and benefits resulting from the implementation of UCC are far greater.
While explaining the reason for including Article 44 in the Directives Principles, it was observed, "When you want to consolidate a community, you have to take into consideration the benefits which may accrue to the whole community and not to the customs of a part of it. If you look at the countries in Europe, which have a Civil Code, everyone who goes there forms a part of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the minorities."[16]
Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be created in which all sections feel secure enough to sit together and cull out the most progressive of their personal laws. But this can be answered by a n example of Hindu law. When the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious denominations of Hindus, was notified, there was a lot of protest. And the then Law Minister, Dr. Ambedkar, had said that for India’s unity, the country needs a codified law. In a similar fashion, the UCC can be implemented, which will cover all the religions, whether major or minor, practiced in India and any person who comes to India has to abide by the Code. Not many know that a UCC exists in the small state of Goa accepted by all communities. The Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese colonial rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws to the territory but made the exception of retaining the Family Laws because all the communities in Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed regarding the disposal of immovable and movable property in the event of divorce or death. During matrimony, both parents have a common right over the estate, but on dissolution, the property has to be divided equally; son and daughters have the equal right on the property. As the procedure involves compulsory registration of marriage, this effectively checks child and bigamous marriage. The philosophy behind the Portuguese Civil Code was to strengthen the family as the backbone of society by inculcating a spirit of tolerance between husband and wife and providing for inbuilt safeguard against injustice by one spouse against the other. Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken the rest of bigoted India."[17] Conclusion: The section of the nation against the implementation of UCC contends that in ideal ti mes, in an ideal State, a UCC would be an ideal safeguard of citizens’ rights. But India has moved much further from ideal than when the Constitution was written 50 years ago. But to conclude, I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nation’s unity, but also makes one wonder whether we are a sovereign secular republic or a loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits.
[REFERENCE] [1] AIR 1985 SC 945
[2] "(1) If any person having a sufficient means neglects or refuses to maintain- a) his wife, unable to maintain herself, or b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d) his father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate mat from time to time direct: Provided that the Magistrate may order the father of a minor female child refereed to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means." [3] "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." [4] AIR 1995 SC 153 [5] "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." [6] John Vallamattom v. Union of India AIR 2003 SC 2902 [7] "No man having a nephew or a niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for sak\fe custody of the Will of living persons." [8] (1994)3 SCC 1 [9] "(1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law - a) regulating or restricting any economic, financial, political or other secular activities which may be associated with religious practice; b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." [10] "Subject to public order, morality and health, every rel igious denomination or any section thereof shall have a right- a) to establish and maintain institutions for religious and charitable purposes; b) to manage its own affairs in matters of religion; c) to own and acquire movable and immovable property; and d) to administer such property in accordance with law." [11] Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4 SCC 522 [12] Sarla Mudgal v. Union of India AIR 1995 SC 1531 [13] John Vallamattom v. Union of India AIR 2003 SC 2902 [14] Sarla Mudgal v. Union of India AIR 1995 SC 1531 [15]"No person shall be deprived of his life or personal liberty except according to procedure established by law"
