FAMILY LAW
No |
Particulars |
UNIT - I |
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1 |
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2 |
|
3 |
Modern and Ancient |
4 |
Importance of Dharma shastra on legislation |
5 |
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6 |
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UNIT - II |
|
1 |
Marriage and Kinship |
2 |
Evolution of the institution of marriage and family |
3 |
Law prior to Hindu marriage a detailed study of Hindu marriage Act - 1955 |
4 |
|
5 |
Customary practices and legislative relating to dowry prohibition |
UNIT - III |
|
1 |
Hindu un divided family mitakshara joint family |
2 |
Formation and incidents property under both schools |
3 |
|
4 |
|
5 |
|
6 |
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UNIT - IV |
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1 |
|
2 |
Historical prospective of traditional Hindu Law relating to inheritance |
3 |
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UNIT - V |
|
1 |
Law relating to Hindu Minority and guardian ship : kinds of guardians |
2 |
|
3 |
|
4 |
Maintenance : Traditional right and Rights Under Hindu adoption Maintenance Act 1956 |
Introduction:-
Hindu law has a very old ancestry. It was given by Hindu seers and sages who after their long penance and meditation discovered certain rules of conduct which, according to them, are necessary for peaceful co-existence of society. The principles of law discovered by these ancient seers, who were sociologists in the true sense, have great relevance even today. It was correctly observed by J.D. Mayne that Hindu Law has the oldest pedigree of any known system of jurisprudence and has not shown any signs of decrepitude even today. Law was identified with Dharma and was supposed to have its origin from God itself. The Hindu seers and sages regarded the law as revelations of God and therefore it was given the highest respect in the society. The king and his subjects were equally subjected to law. In order to bring certainty to them the laws were codified by the Dharmashastra writers.
The ultimate aim of life, according to Hindu philosophy, is to achieve salvation i.e., Moksha from this physical world. Human body is mortal but the soul is immortal. When any person dies, his soul remains in a free state and acquires a new form at rebirth. Thus, the chain of birth and death continue till the soul attains Moksha from this world.
According to Dharmashastras there are four goals of human life, Artha, Dharma, Kama and Moksha. Moksha, that is, salvation is the ultimate goal. Prior to attainment of Moksha man has to undergo three other stages of human life, i.e., Artha, Dharma and Kama. Dharma stands foremost. As a matter of fact, Artha and Kama are concerned with this world, whereas Dharma and Moksha are concerned with the next world. A life in accordance with Dharma leads to happiness and pleasure in this life also.
Hindu Social Structure:-
Hindu Social Structure is the outcome of Hindu Philosophy. According to Hindu Philosophy, the attainment of salvation (Mukti) is the ultimate goal of life. This goal can be obtained by performing good deeds. A person gets pain and pleasure in life according to accumulated good or bad deeds (or, Karma) of past life. The entire human life is controlled by his past deeds. If one enjoys happy life, or suffers from miseries, it is not by accident but by design depending upon his accumulated good or bad deeds of past birth.
Hindu Social Structure was based on Verna Vyavstha, i.e., caste system. There are four casts, namely, Brahmin, Kshatriya, Vaishya and Sudra, the first three of which were supposed to be regenerate class. According to SukraNiti, Guna, Karma and Swabhava are the criteria for the divisions of society into these four classes. According to another theory, first three so-called upper classes descended respectively from the mouths, arms and thigh of Brahma, whereas the Sudra came down from feet of Brahma. Yet another view about the basis of the classification is the occupation and Karma of the people in society.
In Vedic period since there was no restriction on one's choice of occupation and Karmas, men were free to do whatever they liked. Thus the group of persons who engaged themselves into the study, Jap-Tapa, making of sacrifices, etc. were termed as Brahmas and were regarded as superior to other classes. The group of persons who engaged themselves into the protection of people, study and war, etc., were called Kshatriyas. They were inferior to the Brahmans because they had lesser power of self-control. They constituted the class of warriors. The group of persons who engaged themselves in the occupation of trade and commerce came to be known as Vaishyas. Their main work was trade and business. The fourth class of persons whose only duty was to serve people belonging to three castes were called Sudras.
However, it has been provided in the Shanti Parva of Mahabharat that, "In times of adversity or distress, the Brahman may follow the occupations of Kshatriyas, or he may follow the occupation of Vaishyas. If he is not capable to perform the duties of Kshatriyas there are certain reservations in this rule, the Brahman should not, even when following the occupation of Vaishyas, sell wines, salt, seasum seeds, bulls, honey, meat and cooked food under any circumstances.
Mr. P.H.Prabhu in his book writes - "if one is born in a lower Varna, then by following the Dharma of his own Varna in the birth, he may be able to be born again in a higher Varna in the next birth; and one who is born in a higher Varna must live up to the duties and obligations of his Varna if he does not want to be degraded in the next birth".
Thus according t second theory, Karma f an individual was the determining factor for his caste and by this division of work among the four castes, a harmony has been attempted in the social organization of Hindus.
These four classes occupy different status in the Hindu society according to their Karmas and duties assigned to them. But in spite of this division, common duties towards society for all the classes were the same and its basic idea was to maintain harmony of various interests in Hindu society. Now-violence (Ahinsa) self-restraint, truthfulness (Satya) and benevolence etc. were the most important duties for all. It was believed by the Hindus that these general duties should not be ignored even at the time of adversity or distress of any kind. Kautilya too has said, "harmlessness, truthfulness, purity, absence of spite abstinence from cruelty and forgiveness are the duties, common to all human beings". Thus if we ignore these duties, a better life could not be obtained in the next world.
We have discussed above the Varna-Dharma which related to caste division. Now we will consider the Hindu social structure with reference to Ashrama-Dharma. According to the Shastric concept of Hindu life, it has been considered that the average life of a human being as of hundred years to be divided into four stages, i.e., twenty five years for each. This division of life was related to the division of life into four Ashramas as - Brahmacharya, Grihastha, Vanaprastha and Sanyas Ashram. An individual could get salvation from this physical world by performing the prescribed duties under these four Ashrams. According to the Purushartha theory, there are four objectives of human life, namely, Artha, Dharma, Karma and Moksha, which must be attained by an individual in order t make the life successful. Though the Dharma dominated all the four stages r Ashrams, yet- the attainment of other three objectives was not less essential than Dharma. According to our Dharmashastras, the first twenty - five years of age were called the Brahmacharya - Ashrama. During this period and individual is expected to gain learning under the guidance and control of a Guru. After learning Vedas and other sciences during this period and having been blessed by his preceptor (Guru) his Brahmacharya -Ashram came to an end. Thus with the completion of the twenty five years, he entered the second stage of life that is known as Grihastha - Ashram.
The Grihastha Ashram was the second stage when an individual was expected to be married and to experience the pleasures of life. The two objectives of life provided by the Purushartha theory as Artha and Karma were to be acquired in this Ashram. Artha means the acquisition f wealth and prosperity while the Karma means the enjoyments and pleasures, including the sexual enjoyment. These two objectives, Artha and Karma must be acquired simultaneously, since Dharma dominated the whole span of life, it was necessary that Artha and Karma were to be acquired in accordance with the terms of Dharma.
In the Shanti Parva of the Mahabharat it is provided that : of all the Ashramas, however, the Grishastha-Ashrama is given a very high place of honour. "It has been narrated in the Shanti-Parva that one Yudhisthira became s disgusted with the affaris of the world that he proposed to take Sanyas, but eventually he was persuaded to remain in Grihastha-Ashrama by the wise counsel f his brothers, wife and the wise DvaipayanaVyas himself.
Next after the Grihastha-Ashrama, the third stage was termed as Vanaprasth - Ashrama. At this stage, the husband and wife left the worldly life, detached themselves from the family and usually went t forest for devoting their time in worship or upasana. This was the beginning of the ultimate goal f human life. An individual, at this stage, should try to get rid of the illusions (Maya) of this physical world and to realise the truth.
The last stage of human life was known as Sanyasa - Ashram. In this Ashram one has to give up every thing which is worldly. It was a life of complete renunciation. During this period one has to concentrate on worship and meditation, which are the paths of realisation of God or Self.
Thus, the four Ashrama provided by our Hindu Dharmashastras regulated the whole life of an individual. These four Ashramas were intended to attain both worldly pleasures as well as spiritual sublimity. They were intended to maintain an equilibrium of social interests without laying aside the real aim of life. The duties prescribed by the Dharmashastras were the duties which an individual owed towards society. Thus the Dharmashastras have laid down rlsborately the duties of man in each Ashram and in each society. The performance of these duties, according to them, would lead to social equilibrium and realisation of one's goal of life.
Mr. P.H.Prabhu in his book writes, "Apart from the social duties concerned with the life of the individual in each of the Ashramsa, there are certain obligations of a general or universal nature: these are considered as part of the duties of every human being without reference of Ashramas to which he belongs". Thus the observance of the duties which are general nature is also a part of Hindu Dharma and Salvation can be obtained by following these duties. Kautilya too has said that harmlessness, truthfulness, purity, absence of spite, abstinence form cruelty and forgiveness are the duties, common to all the four Ashramas and to all human beings.
Hindu Concept of Law:-
Hindu law is considered to be of divine origin. It is revealed by the Almighty God to our great sages, philosophers and jurists who had attained spiritual heights by their Tapasya and Yog. Hindu law, according to our Dharmashastras, is sacrosanct, inviolable and immutable. It means that its violation is deemed as sin (pap). Since it is divine law, it cannot be changed by any human agency. It is enforceable at all time, it is the eternal law. Its validity cannot be challenged because it has the sanction of the Supreme Power.
Dharma has been defined as collection of duties to be performed by all the human beings for their good. Medhatithi, the commentator of Manu Smriti defines Dharma as duty created by God himself for individuals. But the term Dharma does not signify the legal duties alone; it refers to moral, religious as well as social duties. Hence it is strange combination of different kinds of duties for which the nature of sanctions differed. As regards the legal duties, the sanctions came from the state itself. Those who disregarded them were to be punished by the King.
It may be noted that the Hindu concept of law is quite different from the Austinian concept. According to Austin, "law is the command of sovereign". But the law according to Hindu philosophers and sages is not the kind-made law. The sovereign himself is not immune from the jurisdiction of Dharma. The King was not regarded as law-giver, but merely the law enforcer. He has to execute the law as laid down in the Dharmashastra and to execute the judgments pronounced by his own courts. The king was deemed to be subordinate to Dharma, i.e., Law. Law was deemed to be Supreme. In Sarpatha Brahmana, the law has been declared to be the "king t kings". The supremacy of law was established because of its emanation from God himself. No human agency except the seers and sages was deemed competent to enunciate law.
Hindu jurisprudence, at earlier stages did not make any distinction between legal, moral and religious rules. Moral rules has been so blended with legal rules that at times it becomes difficult to separate them. It was only at a later period of development of Dharmashastra that the distinction between legal rules on the one hand and moral religious rules on the other hand was clearly maintained. As regards sanction behind observance of law K.R.R Shastri observes:-
"In ancient Hindu society where religious and secular elements were interwoven, and where civil and criminal sanctions were found in the state of non-separation, fear of consequences in the other wrld was as much a reality as in the present existence, a certain dread of divine displeasure always acted upon the human mind". It means the fear of bad consequences and sufferings after death was the main sanction behind the observance of Hindu law. The Asutinian concept of law also laid stress on sanction but it came from the sovereign. The fear of punishment by the State in case of non-observance of the laws was the only force behind the obedience to law. The Hindu concept, on the other hand, besides providing for the State sanction, also provided for the sanction by the divine displeasures.
The great Dharmashastra writers of ancient time have divided their whole work under three hands as - Achara, Vyvahara and Pravaschitta. Achara deals with the Karmas of an individual. The Vuavahara means the civil law. Smritikar Narada laid much emphasis on the Vyavahara or civil law. Lastly, the Prayaschitta is the process of purification which enables a wrong-doer to purity himself from all the sins (Pap) by performing penance. For example, as P.N. Sen writes where if an individual killed a cow intentionally, he was bound to perform the Prayachitta in order to immune himself from the consequences of his sin, otherwise he would go to hell. Our Dharmashastras have dealt exhaustively with the rule of Prayaschitta.
The later Dharmashastras realising the importance of Vyavahara as an indepencent entity classified it separately and adequate emphasis was laid on its sanctity. All the men were required to observe Vyavahara in letters and spirit. In case of its non-observance, the king had to take cognizance and bring the offenders to book. Manu laid down eighteen titles of litigation, to cover up all types of cases in the king's court. Thus the concept of positive law, i.e., Vyavahara became distinct from religious or moral laws, and a fully developed system of Vyavahara came before us.
According to Manu there are four sources of Dharma, namely the Vedas the Smritis, Sadachara (approved customs and usages) and what is agreeable to one's conscience. According to Yajnyavalkya, "The Sruti, Smriti, the approved usage, what is agreeable to one's good conscience and desires, sprung from due deliberation are ordained as the foundation of Dharma (Law)".
The main sources of Hindu Law are as follows :-
i.Srutis.
ii.Smritis.
iii.Commentaries and Digests,
iv. Judicial decisions,
v.Legislation,
vi.Justice, equity and good conscience, and
vii.Customs.
(a) The Srutis. - The name (Sruti) is derived from the root 'Sru' to hear and signifies 'what is heard'. 'By Sruti' or what was heard from above, is meant the Veda. It is believed to contain the very words of the 'Deity' revealed to inspired sages. In theory srutis are considered the primary and paramount sources of Hindu Law.
(b) Smritis. - Unlike the Sruti, the Smriti means 'what was remembered" and is of human origin and is believed to be the recollections of Rishis handed down to us, constituting the principal sources of Hindu Law.
The Smritis are of two kinds :
a) In prose style; and
b) In poetry style;
i) Those in prose are called "Dharma Sutras" and are anterior (prior) to those in verse. The principal authors thereof are Gautama, Baudhyana, Apastamba, Vasishtha, Vishnu and Harita.
ii) Those is verse are called "Dharma Shastras". The most eminent among the authors thereof are Manu, Yajnyavalkaya, Narada, Vishnu, Devala, Vrihaspati, Karyayana and VyasaYajnyavalkya gives the names of various Dharmshastra writers. These are according to him-Manu, Atri, Vishnu, Harita, Yajvalkya, Ushana, Angira, Yama, Apastamba, Samvarta, Katyana, Brihaspathi, Parashara, Vyasa, Sankha, Likhita, Daksha, Gautama, Satatapa and Vasistha.
(c) Commentaries and Digests. - Owing to the obscurity, incompleteness and ht infrequent conflicts in the rules of the Smritis and the desirability of interpretation of the injuctions of Smritis in a manner so as to suit prevalent customs and usages f different parts of the country, there was the necessity to reconcile them on the points, of difference. In this process there arose what constitutes the most significant source of Hindu law, namely, the commentaries.
The Commentaries while professing to interpret the law as laid down in the Smitis introduced change in order to bring it into harmony with usages followed by the people governed by the law; and it is the opinion of the Commentators which prevails in the provinces where their authority is recgnised. In the event of a conflict between the ancient text-writer and the commentators the opinion of the latter must be accepted.
The Principal Commentaries are : (1) Dayabhaga by Jimutavahana, (2) Mitakshara a commentary n yajnyavalkya by vijnaneshwara, (3) Viramitrodaya by MitraMisra (4) VivadaChintamoni, by VachaspatiMisra, (5) Vivada-Ratnakara, by Chandeshwara, (6) Dayatattwa, by Raghunandana, (7) Dayakramasangraha by Sri Krishna, (8) Smriti, Chandrika, by DevanandaBhatta, (9) ParasharaMadhaviya, commentary on Parashara, by Maadhavacharya and (10) VyavaharaMayukha, by Nilkantha.
(d) Judicial Decisions. -It cannot be gainsaid that the early English Judges who administered the law to the Hindus with the help to the Pandits had brought to bear their own notions and thus influenced the development of the Hindu Law.
A precedent is not merely an evidence of a law but also a source of law and the courts are bound to follow the precedents. Strictly speaking, legislation and judicial decisions are not sources; they have modified and supplemented the pure Hindu law and now they have emerged as important sources of the present Hindu Law. Thus it was observed by Bose J., that "the laws we are administering are judge-made laws. The ancient sages said nothing about the present matter and even where they often spoke with conflicting voices, and when they did it, sometimes spoke so enigmatically that the learned and able commentators were unable to agree as to what they meant. In the circumstances it is the courts which have moulded the Hindu Law and made what it is.
(e) Legislation. -Legislation is modern source of Hindu Law. It has been an important factor in the development of Hindu Law. Most of them are in the direction of reforming Hind Law and some of them supersedes Hindu Law. Prior to the British regime the law of Hindus was scattered. In different parts of the country there were different rules and practices. It was difficult to find fixed principles of law on several areas. The British Government passed certain Acts which has effect of changing the religious nature of Hindu law at several instances. Legislation became potential source of law in India.
The important Legislations which have modified, altered and supplemented the textual Hindu Law are as follows:
a) The Caste Disabilities Remarriage Act, 1850 (The Freedom of Religion Act).- A person renouncing his religion or losing his caste is not deprived of his rights f inheritance under the Act.
b) The Hindu Widows Remarriage Act, 1856 - The Act legalized remarriage of Hindu widows in certain cases and declared their rights and disabilities on remarriage.
c) The Special Marriage Act, 1872 - (As amended in 1923 and now as repealed by Act 42 of 1954).
d) The Transfer of Property Act, 1882. - It superseded the Hindu Law relating to transfer of property, excepting certain gifts.
e) The Guardians and Wards Act, 1890. - It applied to appointment of guardians by the Court.
f) The Hindu Disposition of Property Act, 1916. - It allowed bequests to an unborn person.
g) The Indian Succession Act, 1935. - It modified the Hindu Law relating to Wills.
h) The Hindu Law of inheritance (Amendment) Act, 1919. - It altered the order of heirs on intestate succession and created new female heirs.
i) The Child Marriage Restraint Act, 1929 (Sharda Act). - The Act related to the restraints on the solemnization of child marriages.
j) The Hindu Women's Right to Property Act, 1937. - This Act gave better rights to women. A Window is entitled to get a share along with the son.
k) HinduMarriageValidity Act of 1949. - (Now repealed by Hindu Marriage Act 25of 1955) - It laid down that no marriage between Hindus shall be deemed to be invalid or even to have been in valid by reason only of the fact that the parties there to belonged to different regions, castes, sub-castes or sects, so far as it legalized inter-caste marriage.
l) The Special Marriage Act, 1954.
m) The Hindu Minority and Guardianship Act, 1956.
n) The Hindu Succession Act, 1956.
o) The Hindu Adoptions and Maintenance Act, 1956.
(f) Equity, justice and good conscience. - Equity as a branch of legal system, may be said to men the principles or rules emerging in the course of administration of justice particularly in those cases, where on account of inadequacy of law, the judges evolve certain general principles on the basis of justness, fairness and propriety. In India the origin of equity is traced back to the Hindu Period when jurists explained the old laws and gave new rules of interpretation. In case of a conflict between the rules of Smritis that one should be followed which is based on reasons, justice and principles of equity.Brihaspati declared that no decision should be made exclusively according to the letter of the Shastra for, in a decision devoid of yukti, failure of justice occurs, Kautilya has said that if Dharma text is found opposed to judicial reasoning, the Dharma text fails and the authority of reasons prevails. According to Yajnavalkya, "If there is a conflict between two Smritis, equity should supercede law. The rule is that a Religious Code (Dharmashastra) is superior to a Secular Code (Arthashastra). In view of the above observations it will not be incorrect to mention equity, justice and good conscience as an important source of Hindu Law. However, the principles of equity, justice and good conscience acquired a peculiar, arbitrary and narrow meaning at the hands of the British administrators of justice who understood by it the principles of English law, as far as they were applicable to the Indian circumstances.
(i) Custom. - Custom is the parent of personal law in all countries and India, a country with diverse customs, is not an exception to it. Custom is regarded as one of the most important sources of law. The importance of custom in Hindu Law has been so great that Privy Council laid down that a clear proof of usage will outweigh the written text of law. Custom is believed to be based on unrecorded revelation and its observance is insisted on by the ancient writers. Custom in its legal sense means a rule which in a particular family, class or district has from long usage obtained the force of law. It must be ancient, certain, reasonable, and continuously followed. If it is in derogation of general rules of law it must be strictly construed.
1.2 SCHOOLS OF HINDU LAW
Introduction:-
Schools of Hindu Law came into being when different commentaries appeared to interpret 'Smritis' with reference to different local customs in vogue in different parts of India. In Rutcheputty v. Rajendra, it has been observed by the Privy Council that the different local customs prevailed in different provinces of India. The commentators of the Smritis could not ignore the local customs and usages and while interpreting the text, they eventually incorporated different local customs. The local conditions and customs of the different provinces have, therefore, gone to mould the principles of law prevailing in each provinces.
Properly speaking there are two schools of Hindu Law, namely, Mitakshara School and the Dayabhaga School. The latter prevails in Bengal and the former in other parts of India. Mitakshara is a running commentary on the Code of Yajnavalkya and was written by Vijnaneshwara in the letter part of the eleventh century. The Dayabhaga is not a commentary on any one Code, but purports to be a digest of all the Codes. It was written by Jimutavahana. It was written about two centuries latter than the Mitakshara.
The Mitakshara is of supreme authority throughout India except in Bengal. The Dayabhaga is of supreme authority in Bengal. But even in Bengal the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no conflict between it and the Dayabhaga. The Dayaghaga has permitted the women to let in the coparcenary whereas the Mitakshara has discarded this very notion. The former one accepted the rule of religious efficacy whereas the latter propounded the doctrine of consanguinity in the matter of succession. The Dayabhaga is more dynamic and is definitely an improvement upon Mitakshara.
The persons who accepted the authority of Mitakshara came to be further divided. Thus, Mitakshara school is sub-divided into four main schools, viz, (1) "Banaras", (2) "Mithila", (3) "Bombay", or "Maharashrta" and the (4) "Dravida or madras" Schools. To these four, one more school, namely, the "Punjab"school is added with recognizes the authority of the Mitakshara as well as of the Viramitrodaya.
The "Dayabhaga" is the leading authority of the Bengal School.
The Mitaksharaschool is thus divided into five sub-schools. They materially differ on the law of adoption and inheritance. All these schools acknowledge the supreme authority of the Mitakshara, but give preference to certain treatises and to commentaries which contain passages of the Mitakshara.
The five sub-Schools are namely :-
1) The Benaras School,
2) The Mithila School,
3) The Drevida or Madras School,
4) The Bombay or Maharashtra School, and
5) The Punjab School.
Mayne writes that the variances between the sub-division of the Mitakshara Schools are comparatively few and slight. Except in respect of the Maharashtra School, this division serves no useful purpose; nor does it rest upon any true or scientific basis. It is to a certain extent misleading as it conceals the fundamental identify or doctrines between the so-called Mithila, Benaras, Maharashtra and Dravida Schools, etc. and suggests that there are note differences than do really exist.
Now these various sub-schools of Mitakshara will be discussed in detail :-
1) Benaras School. - Excepting in Mithila and the punjabm this School prevails in the whole of Northern India including Orissa. The "lexloci" in the Central Provinces (Now Madhya Pradesh) is the Benaras Scholl of Hindu Law.
The following commentaries are also held in high esteem in this School :-
1. Mitakshara, 2. Viramitrodaya, 3.DattakaMimansa,
4. Nirnayasindhu, 5. VivadaTandava, 6. Subodhini, and 7. Balam - Bhatti.
2) Mithila School. - This school prevails in Tirhoot and North Bihar. Of course, the Mitakshara is the law of this school, except in a few matters. Thus it was observed by the Privy Council that the law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of Mithila School has departed from the law of the Mitakshara.
The following are the commentaries treated as authoritative in this School :-
1. Mitakshara, 2. VivadaRatnakar, 3. VivadaChintamani,
4. Smriti Sara or Smrityathasara, 5. MadanaParijata.
3) Dravida or Madras School. - The whole of the Madras State is governed by the Madras School of Hindu Law. This School was once sub-divided into a Tamil, a Karnataka and an Andhra School for which, however, there was no justification.
4) Bombay or Maharashtra School. - The Bmbay or Maharashtra School of Hindu Law prevails in almost the whole of the State of Bombay including Gujarat, Kanara and the parts were the Marathi Language is spoken as the local language.
The following works are treated as authoritative in this school:
1. Mitakshara, 2. VyavharaMayukha, 3. Viramitrodaya,
4. NirnayaSindhu, 5. Parasara-Madhaviya, 6.VivadaTandava.
5) Punjab School. - It Prevails in the part of the country called the East Punjab. This school is chiefly governed by customs.
The following are authorities in this School :
1. Mitakshara, 2. Viramitrodaya and 3.Punjab Customs.
Dayabhaga
This school prevails in West Bengal as well as in Assam with some variances based on the authority of customs.
The following authorities are accepted in this school:
1. Dayabhaga, 2. Dayatatva, 3.Daya-Sangraha,
4. Viamitrodaya, and 5.Dattaka-Chandrika.
'Dayabhaga' was written by Jimutvahana. According to Dr.Jolly it is one of the most striking compositions in the whole department of Indian jurisprudence.
According to Mayne, 'Dayabhag' was written in the 13th century.
Difference between the Mitakshara and Dayabhaga Schools. - The fundamental points of difference between the Mitakshara and Dayabhaga Schools of law may be summarized as follows:
Mitakshara |
Dayabhaga |
1) As regards joint property Right to property arises by birth (of the claimant); hence the son is a co-owner with the father in ancestral property. Father has a restricted power of alienation, and son can claim partition even against the father. The interest of a member of the joint family would, on his death, pass to the other members by survivorship. |
Right to property by death (of the last owner); hence son has no right to ancestral property during father's lifetime. Father has absolute power of alienation, and son cannot claim partition or even maintenance. The interest of every person would, on his death, pass by inheritance to his heirs, like widow or daughters. |
2) As regards Alienation Members of joint family cannot dispose of their shares while undivided. |
Any member of joint family may sell or give away his share even when undivided. |
3) As regards Inheritance The principle of inheritance is consanguinity (i.e., blood-relationship). But cognates are postponed to agnates.
|
The principle of inheritance is spiritual efficacy (i.e., offering of pindas). Some cognates, like sister's sons are preferred t many agnates. |
4) As regards Doctrine of Factum Valet - a fact cannot be altered by hundred texts. It is recognized to a very limited extent. |
Doctrine of factum valet is full recognized. |
Introduction:-
The power of the Courts to apply Hindu Law before Independence was derived from the Acts and statutes passed by the British Parliament and Provincial legislatures from time to time. From the years 1774 onwards, Britishers approved of customary and textual Hindu Law of the extent they were not in conflict with the statutory laws. The Indian Courts also applied the principles of justice, equity and good conscience freely whenever the situations demanded so.
Now under the Constitution of India it is provided in Article 372 that all laws (subject to such adaptations and modifications as might be made by the President under Clause 2 of the Article) in force in the territory of India immediately before the commencement of the Constitution, i.e., 26th January, 1950, shall continue until altered or replaced or amended by a competent Legislature or other competent authority. After the Constitution was adopted, four major Acts namely Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956 and Hindu Adoptions and Maintenance Act, 1956 have been passed with a view to overhauling the law concerning the above subjects. The obvious consequence of the above legislations has been either to alter or repeal the textual and customary Hindu Law.
Who are Hindus:-
When a question arises as to whom Hindu Law applies, the obvious answer is the Hindu Law applies to Hindus. The question again arises as to who are Hindus? The term 'Hindu' is a general term embracing all those who are commonly so known. The term "Hindu" denotes all those persons who profess Hindu religion either by birth, or by conversion to the Hindu faith.
Persons to whom Hindu Law applies:-
UncodifiedHindu Law applies to following categories of persons:
(i) Hindus by birth, and also to Hindus by religion, i.e., converts to Hinduism;
(ii) Illegitimate children where both parents are Hindus;
(iii) Illegitimate children where the father is a Christian and the mother a Hindu, and the children are brought up as Hindus. But the Hindu Law of coparcenary, which contemplates the father of survivorship, cannot from the very nature of the case apply to such children;
(iv) Jains, Buddhists in India, Sikhs and Nambudri Brahmas except, so far as such law is varied by custom and to Lingayats who are considered as Shudras;
(v) A Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiation and repentance. Or even without a formal ritual of reconversion when he was recognized as a Hindu by his community;
(vi) Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism, where the sons are taken into the family of the Hindu grand-parents and are brought up as a Hindu;
(vii) Brahmos, AryaSamajists, and Santhals of Chota Nagpur, and also Santhals of Manbhum except so far as it is not varied by custom;
(viii) Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872; and
(ix) A person who is born Hindu and has not renounced the Hindu religion, does not cease to be a Hindu merely because he departs from the standard of orthodoxy in matters of diet and ceremonial observances.
The enacted Hind Law is now applicable to Hindus on their personal matters. For example, the Hindu marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoptions and Maintenance Act of 1956 and Hindu Minority and Guardianship Act f 1956 apply to a person who is Hindu.
UNIT -II
2.1 HINDU MARRIAGE ACT, 1955
Conditions of a Hindu Marriage (Old Hindu Law) -
Before proceeding to discuss the conditions for a valid Hindu Marriage as laid down by the Hindu Marriage Act, 1955, it will be advisable to have some idea of the conditions for a valid marriage under the textual a (old) Hindu Law.
Three conditions. - Under the textual Hindu Law, three conditions were required for a valid marriage. These conditions were:-
i.identify to caste between the parties;
ii.parties to be beyond the prohibited degrees of relationship, i.e., were not of the same gotra or
pravara and were not the sapinda of each other; and
iii.proper performance of ceremonies of marriage.
Identity of caste:-
If the parties did not belong to the same caste, the marriage was invalid, unless it was sanctioned by custom.
Ancient Hindu texts prohibited 'Pratiloma' marriage, i.e., between males of lower caste and females of higher caste. But 'Anuloma' marriage, i.e., between malesof higher caste and femalesoflower caste were permitted and recognized by the texts. But with the passage of time the rigours of caste system dominated the whole scene and it was required that the parties to marriage must belong to the same caste.
The requirement of pure Hindu Law that both parties to the marriage must belong to the same caste was changed from time to time through legislations providing inter-caste marriages. Similarly the prohibitions on the basis of gotra and pravara were also reaxed through legislation. Marriages between Hindu, Jain, Sikh and Buddhists were also legalized. The legislations like the Arya Marriage Validation Act, 1937, the Hindu Marriage Disabilities Removal Act, 1946, the Special Marriage Act, 1872, and the Hindu Marriages Validity Act, 1949, deserve special mention in this connection.
Parties to be beyond the prohibited degrees:-
Vishnu declared that one should not marry a wife belonging to the same gotra or having the same pravara. A man cannot marry a girl f the same gotra or pravara and they should not be 'sapindas' of each other. Hindu Law prohibited marriage between persons related to each other within certain degrees, probably for physiological and social reasons so that a marriage is invalid if it is made between persons related to each other within the prohibited degrees, unless such marriage is sanctioned by customs.
A man, therefore, cannot marry a girl of the same gotra or pravara as the girl and boy are deemed to have descended from a common ancestor in the male line. The rule does not apply to Shudras as they have no gotra of their own. Even among the higher castes sagotra marriages may be recognized by custom, e.g., among the VaishyaAgarwalas. The issues of such marriages are perfectly legitimate.
The gotras of the Brahmans are defined as being the various branches descended from the different rishis or sages. There is therefore, in theory at any rate, a blood relationship between such descendants. The gotra of Khatriyas and Vaishyas, however, was the gotra of the family purohit, and nothing more. There was, therefore, no blood link between such disciples and the idea of the gotra amongst these two latter classes was that to congregations as opposed to families.
BaudhayanaSrauta Sutra saya, "Vishwamitra, jamadagni, Bharadwaja, Gautam, Atri, Vasistha and kasyapa are the seven sages and Agestya is the eighth; the progeny of these eight sages is declared to be gotra".
The word 'pravara' may be better described as follows:
The principal sages of a gotra or race by whom that race or its branch is distinguished from other gotra or the rest of the same gotra are called 'pravaras'. For instance in the Vishwamitragotra three pravaras, namely Viswamitra, 'Marichi' and 'Kaushika' of whom Vishwamitra is the founder of the gotra which is distinguished from other gotras by having for its pravara the sages Marichi and Kaushika. All persons have not only a gotra but also a pravara. The number of rishis included in pravaras in usually three but never exceeds five.
Furthermore, the parties marrying should not be the sapindas of each other.
'Sapindas' according to Mitakshara are the persons who have in them parties of the body of the same ancestor; according to the Dayabhaga, spindas are persons connected by the offering f funeral cake. According the Mitakshara, all sapindas cannot inter-marry, who have descended from a common ancestor, and being traced on the father's side are not beyond the fifth degree, both the ancestor and the person in question being counted as one degree.
Marriage within the same gotra or between families having the same pravaras is prohibited and the text of Vishu, "one should not marry a wife within the same gotra or having the same pravara" has been interpreted by the jurists and Nibandkars as an excluding clause.
Performance of marriage - The ceremonies:-
There are three stages in the ritual of all forms of Hindu Marriage. The rituals are: 1) the betrothal, 2) the formalities including the racital of holy texts before the sacred fire, and 3) the saptapadigamana. Of these, the betrothal, though in some cases celebrated with much ceremony and ostentation, is only a promise to marry and is revocable. Even the second stage of the ritual consisting of the invocation before the sacred fire and Kannikkadhara does not form the operative art of the transaction which is really the completion of the saptapadi, or the taking of seven steps by the bridal pair in the marriage ceremony. It is on the completion of the last step that the marriage takes place and till then the transaction is incomplete and can be revoked. In the connection Manu declares, "The recital of the holy text in connection with joining of the hands of the bridegroom and the bride determines the growth of marital relationship. These should be deemed by the learned to attain finality in the taking of the seven steps. But the fact that more than seven steps have been taken does not render the marriage invalid. Besides these rituals, some other forms of ceremonies are recognized by the customs of the caste or the community. The essentials of marriage are panigrahana and saptapadi.
Now under the Hindu Marriage Act, 1955, the identify of caste or sub-caste is not necessary for a marriage. Ancient texts on Hindu law prohibited pratiloma marriage i.e., between males of lower castes and females of higher castes. But they permitted Anuloma marriage, marriage between males of higher castes and females of lower castes. Under the Hindu Marriage Act inter-caste marriage is valid and legal, whether it is Anuloma marriage or pratiloma marriage. The Act had provided six conditions as prerequisites for a valid Hindu Marriage. In Valsamma Paul v. Cochin University the Supreme Court has held that as regards the validity of a Hindu marriage under the Act recognition of the marriage by community or by parents of the spouses is not and pre-requisite. If the conditions laid down in section 5 are fulfilled, the marriage is valid. Essential conditions of valid marriage may be described under the following heads.
Monogamy [Section 5(i)]:-
This clause provides the rule of monogamy and prohibits polygamy and polyandry. Before the Act of 1955, a Hindu could marry any numbers of wives, even if he had a wife or wives living, although this practice was always looked with disfavor. The condition laid down in this clause for a valid marriage is one of those conditions, contravention of which would make the marriage void under Section 11 of the Act. Section 17 would further render the offending party liable for prosecution under Section 494 and 495 of the Indian Penal Code.
Thus a man whose wife is alive and his marriage is valid and subsisting at the time, cannot marry another wife. He will be guilty of committing the offence of bigamy, if marries another wife during the continuance of the former marriage. So also a woman whose husband is alive and her marriage is valid and subsisting at the time, cannot marry another husband and she will be committing the offence of bigamy, if she marries another husband.
Sanity - [Section 5(ii)]:-
As regards the second condition, it is necessary that the parties to marriage are of sound mind and are not suffering from any mental disability so as to be unfit from giving a valid consent, and therefore, it is laid down under the Marriage Laws (Amendment) Act, 1976, that neither party at the time of marriage is incapable of giving a valid consent to it in consequence of unsoundness of mind or has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and for the procreation of children, or neither party has been subject to recurrent attacks of insanity or epilepsy. Before the Amendment Act of 1976 mental incapacities consisted of idiocy and lunacy. The courts interpreted these two terms in wider connotation so as to include all kinds of unsoundness of mind.
Age of parties to marriage [Sec. 5(iii)]:-
Under this condition the minimum age for marriage is fixed. Originally, according to Hindu Marriage Act, 1955, the age provided for the bridegroom was 18 years and for the bride was 15 years. Though where the bride was below 18, the consent of her guardian was necessary under clause (vi) of this section. Now the Child Marriage Restraint (Amendment) Act, 1978, has revised the minimum age fixed for marriage to 21 years in case of bridegroom and 18 years in case of bride.
According to the Marriage law (Amendment) Act, 1976, where the marriage of a girl (whether consummated or not) was solemnized before the attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years, the girl can obtain a decree for dissolution of marriage. This is an additional ground made available to a wife under Section 13 (2) (iv) of the Act.
Beyond prohibited degree [Section 5(iv)]:-
This clause prohibits marriage between persons who are within the prohibited degrees of relationship with each other.
According to Section 3 (g) "two persons are said to be within the degrees of prohibited relationship:
a. if one is a lineal ascendant of the other;
b. if one was the wife or husband of a lineal ascendant or descendant of the other; or
c. if one was the wife on the brother or of the father's or mother's brother or of the grandfather's
brother of other; or
d. if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister
or of two brothers or sisters.
It should also be noted that prohibited relationship includes -
a. relationship by half or uterine blood as by full blood;
b. illegitimate blood relationship as well as legitimate;
c. relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be
construed accordingly.
But if the 'custom' or 'usage' governing each of the parties to the marriage allows the marriage within the degree of prohibited relationship, then such marriage will be valid and binging.
Beyond Sapinda Relationship.(Under old Hindu Law):-
There were two theories regarding Sapinda relationship under old Hindu Law. According to earlier theory (which was propounded by Medhatithi and Kullukabhatt, when two persons offer "Pindas" to the same ancestor, (common ancestor) they are sapindas of each other. According to the second theory, which was propounded by Vijnaneswara, Sapinda relationship arises between two persons n account of their being connected by particles of one and the same body. He, however, limited this connection upto seventh degree on the father's side and upto fifth degree on the mother's side, counting upwards, in ascending order from each. The 'pindas' theory also regarded who persons as sapindas of each other, because they offered pindas to six ancestors ascending on the father's side and four ancestors ascending on the mother's side. If the person offering 'pinda' is included as himself being of one generation, it means seven degrees on the fathers' side and five degrees on the mothers' side.
'Sapinda' - Definition of. - The word 'sapinda' etymologically means, 'one of the 'sapinda'. In the Hindu texts, the word has been used in two senses, firstly, it means a relation connected through the same body, and secondly, it means, relatin connected through funeral oblation of food.
2.3 Restitution of Conjugal Rights (Section 9) :-
After marriage the husband is entitled to the society of his wife and the wife to the society of her husband. A cause of action, therefore, arises when one of the parties to the marriage withdraws from the society of the other. Section 9 of the Hindu Marriage Act, 1955, deals with the subject of the restitution of conjugal rights. The foundation of the right is the fundamental rule of matrimonial law that one spouse is entitled to society and comfort - consortium - of the other spouse and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause the court should grant a decree for restitution.
When the rights arise ?
The section provides that : "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of the conjugal rights and the court, on being satisfied on the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
The essence of decree for restitution of conjugal rights is that the husband desiring the company of the wife makes an effort through the court for its assistance in order to restore his wife back to him so that they may be able to lead conjugal life. Intrinsically, the plaintiff in proceedings of conjugal rights is the aggrieved party who desires to live with his spouse.
In T.Sareetha v. VenkataSubbaiah, the Andhra Pradesh H.C. has observed that the remedy f restitution of conjugal rights provided under Section 9 of the Act is a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution. According to the learned judge a decree for restitution of conjugal rights constituted the grossest from of violation of any individual's right to privacy. It denied the woman a free choice, where when and how her body was to become the vehicle for procreation of another human being. A decree of restitution of conjugal rights deprived a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be served. She loses her control over her most intimate decisions. It did not subserve any social good. It was arbitraty and void as offending Article 14 of the Constitution.
But the above view about the constitutional validity was not accepted by the Delhi High Court in the case of Smt. HaviderKaur v. Harmander Singh. In this case the learned judge of the Delhi High Court expressed the view that Section 9 was not violative of Articles 14 and 21 of the Constitution. The object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The remedy of restitution aimed at cohabitation and consortium. The restitution decree does not enforce sexual intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted the "starkest form f governmental invasion" of 'marital privacy'.
2.4 Judicial Separation (Section 10) :-
Judicial separation is a state of relations between husband and wife when they are under no obligation to live together or to perform marital obligations for each other. It is temporary suspension of marital rights between the spouses as a result of decree passed by the court on any one of the grounds mentioned in this section. During the course of judicial separation, either party may be entitled to get maintenance from the other if the situation so warrants. But during this period the husband or the wife would not acquire the competence to marry afresh. The right of fresh marriage would be available to them only after the dissolution of marriage.
Section 10 provides that either party to marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in sub-section (1) of the Section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
Grounds available to husband and wife both:-
· Adultery. -Where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Under the Marriage laws (Amendment) Act, 1976, the expression "living in adultery" has been dispensed with and it has been replaced by a simple requirement of adultery, that is, voluntary sexual intercourse with any person other than his or her spouse. And thus, even a single act of adultery may be sufficient now for the relief under this head.
· Cruelty.-Where the other party has treated the petitioner with cruelty.
· Desertion. - Where the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of desertion in order that it may furnish a ground for relief are:
1. The factum of separation;
2. The intention to bring cohabitation permanently to an end - animus deserendi;
3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of not less than two years.
The expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
· Conversion. - Where the other party has caused to be a Hindu by conversion to another religion.
· Unsoundness of mind.- Where the other party has been of incurable unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disorder or disability of mind which results inabnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
· Leprosy. - Where the other party has been suffering from a virulent and an incurable form of leprosy.
· Venereal disease. - Where the other party has been suffering from venereal disease in a communicable from.
· Renunciation of world. - Where the other party has renounced the world by entering any religious order.
· Presumed death. - Where the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it had that party been alive
Additional grounds of wife:-
The Section has further laid down additional grounds to wife for the judicial separation of marriage by a decree of divorce on the grounds of:
· Bigamy. - In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married after such commencement was alive at the time of the solemnization f the marriage of the petitioner ; or
· Rape, Sodomy or Bestiality.- That the husband has since the solemnization of the marriage, been guilty of rape or sodomy or bestiality; or
· Non-Resumption of cohabitation after decree or order of maintenance. - That where a suit under Section 18 of the Hindu Adoptions and Maintenance Act or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards ; or
· Option of puberty. -That her marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years.
2.5 NULLITY OF MARRIAGES : AND DIVORCE: (SECTION 11and 12)
Void marriages :-
Section 11 says, "any marriage solemnized at the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5.
Thus a marriage will be void ab initio -
(i) if any party to marriage has a spouse living at the time f the marriage [Section 5(1)];
(ii) if the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section5 (iv)];
(iii) if the parties are 'sapindas' of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)].
Section 11 if not applicable to marriages solemnized before the commencement of the Hindu Marriage Act, 1955, i.e., before 18th May, 1955, though such marriages may be void.
Voidable marriages:-
Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely-
a) that the marriage has not been consummated owing to the impotence of the respondent ; or
b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5 [i.e., if either party suffers from unsoundness of mind at the time of the marriage]; or
c) that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was required, [under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978], the consent of such guardian was obtained by force or by fraud as to the nature of ceremony or as to any material fact of circumstance concerning the respondent; or
d) that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.
Distinction between Void and Voidable marriages :-
The main distinction between the two is that a void marriage is void ab initio and is a nullity. It is void ipso facto. A voidable marriage, on the other hand, is a marriage which is valid for all purposes whatever unless it is annulled by the District Court on the petition of the aggrieved party.
A fresh marriage contracted during the subsistence of voidable marriage and before it is annulled by a decree of nullity will be considered a bigamous one and either spouse of the second marriage is liable under the penal provisions of Section 18 of the Act. But it is not so in the case of a void marriage where neither party thereto will be liable to the said penal provision by reason of contracting a second marriage ignoring the previous void marriage.
Under Section 11, a marriage solemnized after the commencement of the Act, shall be null and void if it is in contravention of clauses (i), (iv) and (v) of Section 5. But any marriage may be annulled by a decree of nullity, whether solemnized before or after the commencement of the Act, under Section 12 if it contravenes the conditions laid down there under.
2.6 Divorce (Section 13)
Introduction:-
Divorce was unknown to general Hindu Law as marriage was regarded as an indissoluble union of the husband and wife.
According to Kautilya'sArthashastra, marriage might be dissolved by mutual consent in the case of the unapproved form of marriage. Manu does not believe in discontinuance of the marriage relationship. He declares, "Let mutual fidelity continue till death; this in brief may be understood to be the highest dharma of husband and wife". The duty of a wife continues even after her death. She can never have a second husband.
Grounds for Divorce (Section 13)
A marriage may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the grounds mentioned in Section 13 of the Act. In Ishwar Singh v. Smt. HukamKaur, it was held that mere severance of all connections with wife because of his ill-health and allowing her to remarry any person she likes cannot amount to divorce within the meaning of Section 13 of the Act, because a divorce which could result in the dissolution of a solemnized marriage has to be obtained by one of the two parties on presentation of a petition from a competent court. So long as such a divorce has not been obtained, the marriage subsists, and therefore second marriage cannot be contracted by a Hindu. Grounds for divorce laid down in the provisions of the Hindu Marriage Act are the only grounds under which divorce could be granted to the parties governed by the same and the court is not free to create a new ground of divorce.
Divorce can be obtained on any one of the following grounds:
1) Adultery - Where the other party has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse [Section 13(1)(i)].
2) Cruelty - Where the other party has after the solemnization of marriage, treated the petitioner with cruelty [Section 13(1)(ia)].
3) Desertion - Where the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition [Section 13(1)(ib)].
4) Conversion - Where the other party has ceased to be a Hindu by conversion to another religion [Section 13(1)(ii)].
5) Unsoundness of mind - Where the other party has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Mental disorder means mental illness arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
Psychopathic disorder means a persistent disorder or disability of mind (including sub-normality of intelligence) which results in a normally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment [Section 13(1)(iii)].
6) Leprosy - Where the other party has been suffering from a virulent and an incurable form of leprosy [Section 13(1)(iV)].
7) Venereal disease - Where the other party has been suffering from venereal disease in a communicable from [Section 13(1)(V)].
8) Renunciation of world - Where the other party has been renounced the world by entering any religious order [Section 13(1)(Vi)].
9) Presumed death - Where the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally has heard of it, had that party been alive [Section 13(1)(Vii)].
10) Non - resumption of cohabitation - Where there has been no resumption of cohabitation for a period of one year or onwards after the passing of a decree for judicial separation to which they were parties [Section 13(1A)(i)].
11) Failure to comply with decree for restitution of conjugal rights -Where there has been no restitution of conjugal rights between the parties for a period of one year or onwards after passing of the decree for restitution of conjugal rights in a proceeding to which they were parties [Section 13(1A)(ii)].
Additional grounds to wife:-
The section has further laid down additional grounds available to wife for the dissolution of marriage by a decree of divorce on the grounds of -
i) Bigamy - In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition;
ii) Rape, sodomy or bestiality - That the husband has since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
iv) that her marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Divorce by mutual consent:-
Under Section 13-B, a decree of divorce may be obtained by both the parties to a marriage together whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act. 1976 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the date of the presentation of petition and not later than eighteen months after that date the court shall, if satisfied after hearing the parties, making enquiries, that a marriage has been solemnized and the statements contained therein are true, pass a decree of divorce declaring the marriage to be dissolved.
2.7 FACTUM VALET -
The doctrine of factum valet was quite well known to Hindu Law text writers; viz, a fact cannot be altered by a hundred texts. The doctrine in the case of marriage of a minor was that the factum of marriage, which was solemnized, could not be undone by reason of a large number of legal prohibitions to the contrary. But, under Section 4 of the Hindu Marriage Act, there is clear provision that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of Hindu Marriage Act shall cease to have effect in so far as it is inconsistent with any of the provisions of the Act.
2.8 Maintenance :-
Maintenance 'pendente lite' and expenses of Proceedings -(Section 24) :-
This section makes provision for grant of maintenance pendente lite and expenses of proceedings to either spouse and Section 25 contains similar provisions regarding payment of permanent alimony and maintenance. The provision of maintenance pendente lite in favour of a needy spouse applies irrespective of whether such spouse appeared as the initiator of the main proceeding or not. Once an order is passed under Section 24, no matter what happens to the petitioner thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending cannot be avoided. It has been provided that the application for the payment of expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be. Under this section, the order for interim relief can be passed in any proceedings under the Act and Court cannot defer decision on the issue till disposal of main issue of nullity of marriage on ground of deception or fraud. Subsequent dismissal of petition does not affect the liability already incurred.
In deciding the question of maintenance pendente lite the only issue to be considered is whether the claimant is or is not in a position to maintain herself or himself. That there is an accusation of adultery or any other matrimonial offence against the claimant is of no consequence.
As to the question from which date maintenance would be effective, in Nalini v. Velu, Kerala High Court held that there is no legal impediment in directing that maintenance should be paid from the date of service of summons in the main petition. Postponement of the effective date would be to put the spouse already in a disadvantageous position, in a more disadvantageous position.
It may be noted that "there is no reason to think that the Legislature in making provision in Section 24 for maintenance pendente lite and expenses of the proceedings under the Hindu Marriage Act wished to depart from the principle that it should be open to the court to make such provisions in favour of a needy spouse whether such spouse figured as the initiator of the main proceedings or not.
Who may apply?
In several cases it was argued that the phrase "order the respondent to pay the petitioner the expenses of the proceedings", lays down a definite rule that only initiator of the proceedings under the Act can get alimony under Section 24. But the High Courts of Bombay, Mysore and Punjab have clearly held that the words 'petitioner' and 'respondent' in Section 24 mean respectively the party who had made the application under this section and the party opposing the application or against whom a claim under this section is made. This is also the view of the Madhya Pradesh High Court.
Object and scope of the section:-
The object of Section 24 is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding by reason of his or her poverty. The party standing in need of such relief may be either party. There is no reason why the Parliament should try to make a distinction when the needy party is the petitioner who made the original petition, and the person requiring interim relief is the respondent. The fact that under Section 24 relief can be granted to both the wife and the husband indicates that the Legislature intended to make no such distinction. Therefore, it would not be reasonable to confine the relief under this section only to the party, who had initiated the original proceeding before the court. So long as the marriage is subsisting the spouse cannot get any maintenance under the Act.
In ChitraLekha v. RanjitRai, it has been laid down that the object behind Section 24 is to provide financial assistance to the indigent spouse to maintain herself (or herself) during the pendency of the proceedings and also to have sufficient funds to defend or carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds.
In SohanLal v. Smt. Kamlesh, the Punjab and Haryana High Court reiterated that the object behind incorporating Section 24 in the Act was to ensure that any party to marriage against whom a matrimonial litigation has started does not suffer injustice on account of his or her proverty. On such applications under Section 24, the court must immediately pass an order so that the cause of the party to marriage does not suffer. Where both the parties have made such application before the court, the court may allow the application of any one, who is deemed to be needy, and reject the application of the other. In a Punjab case has husband presented a petition for the dissolution of his marriage with his wife, the respondent, and the wife made an application under Section 24, the court allowed the application of the wife.
Maintenance also for children:-
It may be noted that the central idea behind provisions of this section is to provide maintenance to the necessitous spouse during pendency of the proceedings. But in exceptional cases the Court can order the maintenance also for such children who are dependent on and are living with spouse whose claim has been found justified by the court. In jasbirKaurSehgal v. District Judge, Dehradum, the Supreme Court held that provisions under section 24 cannot be given restricted meaning; the wife's right to claim maintenance pendente lite would include her own maintenance and that of her unmarried daughter living with her. Giving new dimensions of this section, the Supreme Court observed that under Hindu Adoption and Maintenance Act, it is the obligation of father to maintain his unmarried daughter if she is unable to maintain herself, "In this case", the Court observed father, "since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with the wife. Section 24 of the Act no doubt talks of maintenance of wife during pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife and no one else.."
The right to claim educational expenses has been specifically provided under Section 20 read with the definition of word "maintenance" under the Hindu Adoption and Maintenance Act but no such provision has been provided under the Hindu Marriage Act and that the word "maintenance" as has been used Section 24 of the Hindu Marriage Act, cannot include the specified educational expenses for an adult child.
Quantum of maintenance :-
There is no hard and fast rule regarding the quantum of interim maintenance. In the absence of special circumstances, courts should generally allow maintenance pendente lite at one-fifth of the income if the respondent after deduction on account of the income-tax and provident fund. Under the Indian Divorce Act the maximum alimony pendente lite has been fixed at one-fifth of the net income of the respondent. In the Hindu marriage Act no such limit has been fixed. If the court comes to the conclusion that the applicant is entitled to maintenance and expenses, then it has to consider their quantum. As for expenses of litigation there should be no difficulty in assessing what the reasonable expenses should be. However, such amount must be sufficient enough to enable the applicant to contest the case property. In Parchuri Rahya Lakshmi v. Parchuri Viswa Sankara Prasad, where the husband's source of income was agricultural land, the Andhra Pradesh High Court enhanced the maintenance to wife from Rs. 150 P.M to Rs 200 P.M after considering the types of land, value of agricultural produce and deducting the expenses incurred.
An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the petitioner has no independent income to support himself/herself or to meet the necessary expenses of the proceedings.
Discretion of the Court:-
In the matter of granting alimony pendente lite, the court exercises a wide discretion, but this discretion is not to be exercised arbitrarily. It should be within the purview of the section and guided by the sound principles of matrimonial law.
In Hema v. Lakshmna, the Kerala High Court held that it must take into consideration income of the spouse and the legitimate needs of the claimant having regard to the status of the parties, this family background, the standard of life to which the claimant has been accustomed to, legal and other obligation of the person liable to make the payment and other relevant circumstances.
The court has been empowered under Section 25 to direct the opposite party at the time of decree or subsequently to pay maintenance to the petitioner. The court shall take into account the status of the opposite party in fixing the amount for maintenance. The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant; and if petitioner becomes unchaste or remarries at the subsequent stage, the court may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just.
Thus Section 25 of the Hindu Marriage Act, 1955, lays down that "any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to if for the purpose either by the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property of the applicant and the conduct of the parties, and other circumstances of the case it may seem to the court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent".[Section 25 (1)].
In Durga Das v. Tara Ranemi, the full Bench of the Punjab and Haryana High Court held that when the language of Section 25 (3) is read along with Section 23 (1), it is clear that in section 25 the status has described the parties to the proceedings under the Act as husband and wife not only until the passing of a decree but also after the grant of permanent alimony. So the description of the parties for the purposes of Section 25 coninues to be exactly the same as it was in the proceedings originally initiated for the decree under the Act. The fact that the proceedings for grant of permanent alimony are incidental to the main proceedings also lends support to this approach. Therefore an alimony application under Section 25 (1) can be made even after the grant of a divorce decree.
The application for permanent alimony is maintainable even in cases of decrees for divorce and annulment of marriage although the relationship of husband and wife not exist between the parties after passing of the decree.
The application for maintenance can be accepted even in the cases of marriage under Section 11 and 12 of the Act and the maintenance allowance can be realized even after the death of the other party from the property left by such spouse.
UNIT- III
3.1 JOINT HINDU UNDIVIDE FAMILY
Importance of the Karta :-
The affairs of a joint family, consisting of generally pardanashin ladies and infants, cannot be managed by all the members of it, nor are they managed jointly by all the adult male members, probably by reason of the inequality in their rank; but ordinarily they are, by the consent of all managed by a single male member who is the head of the family by reasons of his seniority and superior rank. His is called the manager or 'Karta' of the family. The very idea of there being two Kartas of joint Hindu family does not appear prima facie, consistent with theconsistent with the concept of a karta of the joint Hindu family. He is certainly the manager of the family property with powers which an ordinary manager does not possess. The karta, therefore, cannot be just equated with the manager of the property.
Who may act as Katha ?
The father, is living, would generally be the manager or 'karta' of the joint Hindu family. Thus, it has been held that "the father is in all cases naturally and in the case of infant sons, necessarily, the manager of the joint family estate. And where father is not alive and the family consists of brothers, the elder brother, in the absence of any evidence to the contrary, should be presumed to be the manager of the family. A minor cannot be the manager of a joint Hindu family. Under Hindu Law coparcener ship is a necessary qualification for the membership of a joint Hindu family. A widow is not a coparcener, she has not legal qualification to become the manager of a joint Hindu family. A window of a coparcener cannot, therefore, be a karta of the joint Hindu family consisting of three windows and two minors.
It has been further supported in the case of Sahadeo Singh v. Ram Chhabila Singh, where the Court has laid down that a widow cannot be karta of joint Hindu family as she is not coparcener. Hence she cannot represent the joint family in any suit. The mother accordingly cannot alienate the share of a minor in joint Hindu family property. In the absence of karta with the permission of the Court she could alienate the share of minor in the capacity of guardian.
Powers of Karta (Manager) :-
A coparcener who is a manager or 'karta' has no larger proprietary interest in the family property nor any larger rights to enjoy the same, then any other coparcener. He is also not entitled to any remuneration.
The following are the general powers of the manager (Karta)of a joint Hindu family:
(i) Power over income and expenditure.
(ii) Power to manage joint-family business.
(iii) Power to contract debt for family purposes.
(iv) Power to contract.
(v) Power to refer to arbitration.
(vi) Power to compromise.
(vii) Power to give discharge.
(viii) Power to acknowledge debts.
(ix) Power to represent in suits, etc.
(x) Power of alienation of joint-family property for legal necessity or for the benefit of the estate.
Power over income and expenditure:-
The karta has control over the income, expenditure and is the custodian of the surplus, if any. He is not bound to economise or save like a trustee or agent, so long as he spends the income for the purpose of the family, that is, for maintenance, education, marriage, sraddha and other religious ceremonies of the coparceners and of the coparceners and of the members of their respective families.
Power to manage joint-family business :-
The karta has the power to manage the joint-family business.
His position is not that of a trustee or of an agent, though it may be that some of his duties and function appear to be similar in character to those of trustees strictly so called.
Power to contract debt for family purposes:-
The kata has implied authority to contract debts for family purposes and family business so as to bind the coparceners to the extent only of their interest in the joint-family property and the adult coparceners personally also if they be parties to the contract expressly or impliedly or if they subsequently ratify the contract and of minors if they ratify on attaining majority.
Thus the manager of a joint-family has implied authority to contract debt
a) for the joint-family purposes, or
b) for a joint-family business.
The principle upon which the authority of the manager is based had been formulated by Brihaspati in the following words:
"Even a single individual may conclude a donation, mortgage or sale of immovable property, during a season of distress, for the sake of the family, and specially for pious purposes".
In the case of a loan advanced to the manager, if the lender makes due inquiry into the necessity for the loan and lends the money bona fide, the debt is binding on the interests of all the members although the reasonably credited necessity did not in fact exist.
Power to contract :-
Thekarta has the power of making contracts, giving receipts, and compromising or discharging contracts ordinarily incidental to the business of the family.
Power to refer to arbitration:-
The karta may refer to arbitration any matter involving the interest of joint Hindu family and the other members of the family, including minors, are bound by the reference, and consequently by the award made upon it.
Power of compromise:-
The karta has, however, no power to give up a debt due to the joint-family and to give up a valuable item without any return or consideration, though he has a right to settle accounts with the debtors and to make a reasonable reduction either towards interest or towards principal in the interest of the family.
Power of give discharge:-
The karta has power to give a valid discharge for debt due to the joint family. Hence if one of the members is a minor, he cannot claim the benefit of Section 7 of the Limitation Act.
Power to acknowledge debts:-
The karta has power to acknowledge a debt or make a part payment of it so as to extend the period of limitation. But he cannot execute a fresh promissory note or a bond so as to revive a time barred debt.
Power to represent in suits and other proceedings:-
The karta may represent the family in the event of a suit by or against a joint Hindu family, and the other members are not necessary parties to the same. Thus the manager of joint Hindu family may sue, or be sued in respect of a transaction entered into by him as the manager of the family or in respect of a joint-family property and a decree passed against him in such a suit would bind all other members of the family if, as regards minor members, he acted in the litigation in their interest and if as regards major members, he acted with their consent.
In a trading family, when any member starts his separate business, it is supposed to be separate property and on his death the assets of the business devolve by succession on his heirs. When the business is inherited by his sons, they constitute a joint-traders family and it is said to be joint business. Such joint-family business is not created by birth but by agreement. On the death of karta or any other coparcener the joint business does not come to an end. Similarly if any of the coparceners separate from jointness, the joint-family business does not come to an end. Like the joint Hindu family property, the joint-family business also devolves by survivorship. Even the minor coparceners are its members by birth. The membership is not on account of consent of the coparceners. Karta alone is responsible for running the business.
Power of alienation :-
The karta can alienate for value the joint-family property so as to bind the interests of the other coparceners (adults or minors) provided it is made -
a) with the consent of all the coparceners in existence at the time of alienation, they being all adults;
b) for legal necessity; or
c) for the benefit of the estate.
Thus, where an alienation by the manager is for legal necessity or for the benefit of the estate, the consent of the coparceners is not essential. He can alienate for such purpose even without the consent of the other coparceners. Where the joint-family property has been alienated by the father as karta and the legal necessity is not proved, the sale was held binding on the undivided share of the father karta. It is for the alienee to establish one of the following two things :
1) the transaction was infact justified by legal necessity or was for the benefit of the estate; or
2) he had made reasonable and bona fide inquiry as to the existence of the necessity and satisfied himself that the manager was acting for the benefit of the estate. The topic will be discussed in detail further under the Head "Alienation of Coparcenary Property"
In G. Shiva Kumari v. Indian Overseas Bank, Guntur Andhra Pradesh High Court has decided that the karta of a joint-family can burden the estate by mortgaging the property for the benefit of the estate. However, in doing so, he must act as a prudent owner with the knowledge available to him at the time of transaction. A transaction by the manager which is neither risky not speculative but calculated to confer a positive advantage on the family, can be said to benefit the estate. But what transaction would be for the benefit of the family must necessarily depend upon the facts of each case.
The manager has no absolute power of disposal over joint Hindu property. The Hindu Law permits him to do so only within strict limits. The decisions under Hindu Law sanction gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But a gift to a stranger however, much the donor was beholden to him, cannot be sustained on the ground that it was made out of charity. The scope of the power cannot be extended on the basis of wide interpretation given to the words pious purposes in the Hindu Law in a different context. Accordingly, it has been held that a gift to a strange or relative of a join-family property out of love and affection by the manager of the family is void.
The Supreme Court is Sunil Kumar v. Ram Praksah has held that where the father, who is a Karta in a joint Hindu family is going to alienate certain joint Hindu family property for legal necessity no coparcener can restrain him from doing so by filing a suit for injunctions. In case such coparcener thinks the sale to be illegal, he can challenge the same afterwards.
3.2 Duties And Liabilities of Manager
The following may be mentioned as the duties liabilities of a manager of joint family property:
a. Duty to render accounts.
b. Duty to realise debt due to the family.
c. Duty to spend reasonably
d. Duty not to start a new business without the consent of the coparceners.
e. Duty not to alienate coparcenary property without 'legal necessity' or for the 'benefit of the estate'.
a. Duty to render accounts :-
The karta is duty bound to render accounts to the other coparceners regarding his dealing with the coparcenary property and the income thereof. But a 'karta' is not liable to account for his past dealings with the family property unless there is clear proof of misappropriation or fraudulent use of the family funds or estate by him. He is liable to account at the time of partition only, and then only for the family property as it exists at the time. But this does not mean that the parties are bound to accept the statement of the karta as to what the property consisted of and an inquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. In what manner this principle can be applied depends, however, on the facts and circumstances of each case.
b. Duty to realise debt due to the family:-
It is the duty of the karta to make all possible efforts to realise the debts due to the family. It should be noted that the 'karta' has no power to give up a debt to the joint-family or give up a valuable claim without any return or consideration, though he has a right to settle accounts with the debtors and to make a reasonable reduction either towards interest or towards principal in the interest of the family.
c. Duty to spend reasonably:-
It is also a duty of the 'karta' to spend the joint-family funds reasonably and for the purpose of the family. He is, however, not under the obligation to economise or save as a paid agent or trustee would do. But he must spend reasonably if not economically. If he spends more than the other members approve, their remedy is to demand a partition.
d. Duty not to start new business without the consent of other coparceners:-
A 'karta' whether he be father or other senior coparcener has no authority to start a new business so as to impose upon minor members the risk of a new business nor can he impose such a risk upon the adult members except with their consent, express or implied.
e. Duty not to alienate coparcenary property:-
It is incumbent upon the 'karta' not to alienate joint-family property except with the consent of all the coparceners or for 'legal necessity' or for the 'benefit of the estate'. Whether the transaction is sought to be justified on the ground of legal necessity or benefit to the estate, the real question to be considered is whether it is fair and proper transaction, such as, a prudent owner enter into, with the knowledge available to him at the time.
The Doctrine of Pious Obligation - Its origin :-
This well-known doctrine has its origin in the Smriti which regard non-payment of debt as a positive sin, the evil consequences of which follow the undischared debts even in the world afterwards. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father's debts.
Thus Vrihaspati says that if the father is no longer alive, the debt must be paid by his sons. The father's debt must be paid first of all, and after that a man's own debt; but a debt contracted by the paternal grandfather must always be paid before these own events. The father's debts on being proved, must be paid by the sons, as if it were their own; the grandfather's debt must be paid by his son's son without interest, but the son of a grandson need not pay it at all. "Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for promises made under influence of love or wrath, or for suretyship; nor the balance of a fine or toll liquidated in part by their father".
Manu says : "Money due by a surety or idly promised or lost at a play or due for spirituous liquor, or what remains unpaid of a fine and tax or duty, the son shall not be obliged to pay".
According to Gautam, money due by a surety, a commercial debt, a fee (due to the parents of the bride), debts contracted for spirituous liquor or in gambling and a fine shall not involve the sons (of the debtor).
Yajnavalkya in this respect declares : "A son has not to pay in this world his father's debt incurred for spirituous liquor, for gratification of lust or gambling, nor a fine not what remains unpaid of a toll; not (shall he make good) idle gifts".
Narada is not far behind when he says, "A father must not pay the debt of his son but a son must pay a debt contracted by his father excepting those debts which have been contracted from love, anger, spirituous liquor, games or bailments.
According to Vyasa, the son has not to pay a fine or the balance of a fine or a tax (or toll) or its balance (due by the father) nor that which is not proper.
Rule of Damdupat
The rule of Damdupat is a branch of the Hindu Law of Debts. The reason of rule is that the Hindu Law did not recognize any rule of limitation for the recovery of debts. Every debt, which was lawful, was binding and recoverable from the debtor irrespective of the period which may have elapsed since the original liability was incurred and no restriction on its recovery was recognized beyond this that at no time more than double the amount of the principal money could be claimed. The rule is of equity and of good senses.
It was held by the Supreme Court in Hukum Chand v. Fulchand, that the principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at once and the same in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realizing the debt from the borrower within reasonable time so that there be no such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount.
What is the rule of Damdupat? - The rule of Damdupat is a rule of Hindu Law according to which the amount of interest recoverable at any one time cannot exceed the principal. Where a part of the loan has been paid, the principal for the purpose of the rule of Damdupat is the balance of principal remaining due at the time when the interest claimed in the suit accrued. But the rule of Damdupat does not forbid capitalization of interest in arrear by a subsequent fresh agreement. Thus, where a fresh bond is executed for aggregate amount of the principal and interest, the principal for purpose of the rule of Damdupat is the amount of the fresh bond, nor does the rule apply after a suit is instituted. The rule ceases to operate on the institution of a suit to recover the loan (Vide Section 34, C.P.C).
Illustrations
1.A takes a loan from B of Rs. 2,000 at an interest, the rate of which is 2% per annum. B allows the interest, to accumulate and then sues A for recovery of Rs.5,000 as interest, B will be allowed a decree only for Rs. 2,000 as the interest because the interest cannot exceed the principal amount.
2.In the above illustration, suppose, before B sued for recovery, A had paid an amount of Rs. 1,000 towards interest, with the result that B sues A for Rs. 2,000 plus Rs. 1,000 i.e., 3,000. The entire amount of Rs. 3,000 will be decreed, as the interest is not more than the principal.
3.Again, in the same illustration, suppose, before B filed his suit for recovery, A had accumulated interest of Rs. 1,500 which was to be paid. He unable to pay this amount and capitalises this interest, i.e., merges it with the principal amount to make it Rs. 3,500 and passes a promissory note for this amount of B, promising to pay interest of Rs. 3,500. Now the debt is again not paid and interest amounting to Rs. 3,000 gets accumulated. B sues A for recovery of Rs. 3,500 plus Rs. 3,000 i.e., Rs. 6,500. B can recover this amount as the original amount of debt.
Places to which the rule applies.- The rule of Damdupat applies in Bombay State, Town to Calcutta and Santhal Parganas, Gujarat, Berar, Part of Mysore State, and Part of Madhya Pradesh.
Persons to whom the rule applies.- According to the Calcutta High Court, the rule applies only where both the original contracting parties are Hindus. But according to Bombay High Court, all that is necessary is that the original debtor should be a Hindu. Where, however, the interest has accumulated and expanded the principal and subsequently the debt is transferred to a Mohammedan, the rule of Damdupat will cease to operate from the date of the assignment. Thus, where a Hindu borrows Rs. 100 from a Mohammedan, on the security of his immovable property and when the interest has accumulated to Rs. 150 he transfers the equity of redemption to a Mohammedan, the creditor will be entitled to recover Rs. 200 (i.e., double the principal, Rs.100) and interest thereon at the fixed rate from the date of the transfer.
There may be justification for the principal of Damdupat applying in the case of an ordinary creditor and a debtor but there is no justification for extending that principle for the case of trustee who has to pay interest on the funds in his hands with respect to which on certain grounds he is held liable to pay interest. The rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee of a Hindu Public Religious Trust, on his committing breach of trust with respect to the trust funds in his hands as that is not debt.
Transaction to which the rule applies.- The following are transactions to which the rule applies:
1.The rule applies to secured as well as unsecured loans.
2.But, in the case of a mortgagee with possession the rule of Damdupat does not apply if the mortgagee is under a liability to account for the rents and profits received by him from the mortgaged property.
Introduction:-
We have already seen that under Mitakshara Law, the essence of coparcenary is unity of ownership. No undivided member in the copercenary property has any specific share in the property so long as the family is joint. The partition splits up joint ownership and ascertains and defines the share of the several coparceners. Every adult coparcener has the right to obtain partition of the joint-family property.
Meaning of partition :-
The Mitakshara says that "Partition is the adjustment of diverse rights regarding the whole, by distributing them or particular portions of the aggregate". Thus, according to Mitakshara Law partition has two distinct meanings. In the first place it means "the adjustment into specific shares the diverse rights of different members according to the whole of family property". In the second place, it means "the severance of the joint status with the legal consequences resulting therefore". Partition under Mitakshara law may be defined as, "the crystallization of the fluctuating interest of a coparcenary into a specific share in the joint-family estate". According to Mitaksharathe ownership of each coparcener in an undivided family extends over the whole of the joint-property and each part thereof. Lord Westbury in Approvier v. Ram SubbaAiyer held that "no individual member of the family, while it remains undivided can predicate of the joint and undivided property that he, that particular member, has a certain definite share". It, therefore, follows that each co-owner is deemed to be the owner of the whole, in the same manner as the co-owners are also owners of the whole, the ownership of the one without excluding the co-ownership of the others. This doctrine is known as the doctrine of ownership in the whole of estate.
Partition is a matter of individual volition, and reduces the members to the position of tenant-in-common requiring only a definite, unequivocal intention on the part of member to separate and enjoy his share in absolute severalty. As soon the shares of the coparceners are defined, the partition is deemed effected. It is not necessary that there should be an actual division of the property by metes and bounds. Once the shares are defined, there is severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and henceforth the parties hold as tenants-in-common. In other words, the right to take by survivorship is extinguished.
It was held by the Supreme Court in Sarin v. Ajit Kumar, that having regard to the basic character of the joint family property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. As this is the true nature of partition, the contention that partition an undivided Hindu family necessarily means transfer of the property to the individual coparceners, cannot be accepted. In the case of the property which was enjoyed by the members of a coparcenary and which they divided among themselves in a partition there is no transfer of the property from coparcener as a unit to individual coparceners who divide it. It is only a case of converting what had been enjoyed by them with separate rights. There is no element of transfer in such a division.
The Supreme Court in Kalyani v. Narayanan, has laid down in detail the essential ingredients of partition. It says that the first requirement of partition is that any of the male members of the joint Hindu family should express his clear and definite will about partition. The medium of expressing the desire to this effect may be according to the circumstances. The desire of this effect must be known to all other members of joint family who are likely to be affected by it. This could be done by notice or by filing a suit. Partition is the severance of the joint status. Every coparcener has the right of claiming partition. In such circumstances a clear declaration to this effect would be sufficient. By partition the joint status comes to an end resulting in putting the coparcenary to an end. It also does away with the right of survivorship. In such circumstances the devolution of the property is by succession not by survivorship among the survivors.
Mayukha says that "partition is only a particular condition of the mind, where intention to separate constitutes partition". It is a process whereby a member of a joint or reunited family becomes separate and ceases to be a coparcener and they become tenants-in-common. The question whether the status of the family is altered or not is a question they have done to effect such division. They must intend from the instruments they executed or the acts they have done to effect such division. They must intend that their condition as coparceners shall cease. It is not sufficient that they should alter their title to it; they must cease to be joint tenants and become tenants-in-common. No consent of the other members, nor a decree of a court or any other writing is necessary for partition.
The Karnataka High Court in B.Bassamma v. K.B. Sadyahathappa held that severance of status is brought about when shares of coparceners are crystallized by defining their shares and once that is done the mere fact that they continued to stay together in the same house would not by itself have any legal impact no the severance of status already brought as subsequent conduct of the parties would only pertain to the domain of enjoyment of the properties.
A physical division of the property, in accordance with the share of each coparcener as ascertained at the partition, but is not essence of it, for under the Mitkashara a partition in law is complete even without it, the essence of it being the severance of status which is effects. It is not necessary for a partition to be valid that it should be in respect of the whole of the joint estate, nor is it necessary that it should be among all the coparceners; it may be partial as to both.
Where there is no joint-property to divide, there can be a partition by the mere declaration. 'I am separate from thee' for a partition merely indicates a state of mind. Existence of property is not essential for a partition and reasons for severance are immaterial.
Division of right and Division of property :-
Lord Westburn has laid down two stages in a mitakshara partition. The first stage according to him is the ascertaining and fixing with a intention to become separate, the share to which each coparcener is entitled, the second stage is that of actually "making off" and assigning portions of the erstwhile joint estate or individual coparcener in proportion to the share of each. The first stage has been termed as "division of right" and the second stage is named as the "division of property".
Partition and Family Arrangement - Distinguished :-
A partition must be distinguished from a family arrangement, setting the mode of enjoyment of the family property, as such, an arrangement does not put an end to the joint status. It is possible for members of a joint family to divide property among themselves for the purposes of convenient enjoyment or management without the intention of making a partition.
Although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims, would be sufficient. Members of a joint Hindu family may enter into such a family arrangement, to maintain peace or to bring harmony in the family. If such an arrangement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the curt would more readily give assent to such an arrangement that to avoid it. A family settlement can be made orally also and the court will not ignore such oral settlement on the ground that it is not permissible in law. A family settlement among Hindus is a well-known and recognized mode of division of joint-family property.
The following may be mentioned as the points of difference between the two:
i) A family arrangement is concluded with the object of settling a 'bona fide' dispute arising out of conflicting claims to property. Partition is not necessarily a compromise of conflicting claims.
ii) A widow or other limited owner or a manager can enter into a family arrangement with persons who are not coparceners; whereas coparceners alone can effect partition.
iii) Family arrangement can never be an unilateral act. Partition may be effected by an unilateral declaration.
Arrangement not to partition :-
Arrangement between coparceners not to partition coparcenary property does not bind even the parties thereto, according to the Bombay High Court, any party may, notwithstanding and agreement, sue the other parties for partition. The High Court of Calcutta, Allahabad and Nagpur have held that such an agreement does bind the actual parties though it cannot bind their assigns or the persons to whom they transfer their shares, unless there is a stipulation not to assign.
According to the Calcutta High Court where an arrangement has been effected between the brothers not to go for partition, the agreement would not exclude any of the brothers of file suit for effecting partition. Such agreements do not involve any consideration and hence they cannot be binding agreements.
The Madras High Court also took the same view and held that coparceners in a joint Hindu family can agree for consideration that, for a certain time or until a certain event or throughout their lives, they will not exercise their right to divide.
Property liable to partition :-
Firstly, it should be understood that coparcenary property is liable to partition. Separate property is not liable to partition at all; it belongs absolutely to the owner thereof. In PurnabashiMisra v. Raj Kumari Mishra, the Orissa High Court has held that property acquired subsequently even though with joint funds is to be regarded as self-acquired property and it has to be excluded from partition. Similarly, in Kondiram v. Krishna the Supreme Court has expressed its view that properties acquired after severance of the status of joint family cannot be clubbed into joint family properties and therefore cannot be subject matter of partition.
Secondly, property to which the law of primogeniture applies cannot be divided, e.g., a Raj. Nor can family idols and places of worship be divided. Certain kinds of properties are by their nature indivisible, e.g., animals, furniture, etc. their value may be determined and distributed among the sharers or some of those properties may be enjoyed by coparceners jointly, or by turns. Under this category properties like wills, idols and temple are included.
Thus the following properties are not liable to partition:
1) Impartible property, i.e., property which descends to one member only, either by custom, or under any provision of law, by the terms of grant.
2) Property indivisible by nature.
3) Family idols and relics which are object of worship.
4) Separate property of a member.
According to Manu, "a dress, a vehicle, ornaments, cooked food, water and female slaves, property destined for pious use and sacrifices, and a pasture land are indivisible". Vijnaneswara expounding the texts of Smritis said, "water or a reservoir of it, as a well or the like, not being divisible, must not be distributed by means of the value, but is to be used by the co-heirs by turns".
"The common way, road of ingress to and egress from the house, garden or the like is also indivisible" [Mit. I, IV 21,25].
Thus there may be several kinds of properties indivisible by nature in respect of which an agreement has to be reached so that they remain in the common use of all coparceners. For example, stair case, courtyards, tanks, roads, right of way and the like, are incapable of valuation or division.
3.5 Persons Entitle To Partition
Partition of the joint Hindu family property may take place at the instance of the following:
Sons and Grandsons :-
Under the Mitakshara Law the right of a son, a grandson and great-grandson, as well as every other adult meal member of the coparcenary, to demand a partition even against the consent of others has been fully settled. The Bombay high Court in a Full Bench case has laid down that a son is not entitled to ask for a partition in the lifetime of his father without his consent when the father is not already separate from his own father or brothers and nephews.
After-born sons:-
After-born sons may be considered in two sets. Firstly, those born as well as begotten after the partition, and secondly, those born after partition but begotten before it or those in their mother's womb at the time of partition. A son in his mother's womb at the time of partition is treated, in point of law in existence and is entitled to reopen the partition to receive a share equal to that of his brothers. In the case of a son born as well as begotten after the partition, if his father has taken a share for himself and separated from the other sons, then the after-born son, is entitled to his father's share at the partition and also his separate property to the exclusion of the separated sons and is not entitled to reopen the partition.
Illegitimate sons:-
An illegitimate son among the three regenerate classes, having no vested interest in the property, cannot demand a partition but he is entitled to maintenance out of his father's estate. The Madras and the Allahabad High Court have held that the illegitimate son of Sudra may enforce a partition against his legitimate brothers but not against his father, or his father's coparceners, as, for instance, his father's brother or their sons. In a Bombay case also the same view was expressed. But the Calcutta High Court has taken an opposite view. The share of an illegitimate son according to some is half of what he would have got had he been a legitimate son and according t others his share is half of that of a legitimate son.
In VelliyappaChetty v. Nataraja the Privy Council approved the madras decision and held that if the father has left no separate property and no legitimate son but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, though he is entitled as a member of the family to maintenance out of that property.
Widows:-
A widow though not a coparcener under Mitakshara Law, under the Hindu Women's Right to Property Act, 1937, could have claimed a partition of the joint estate. She can claim partition under Section 23 of the Hindu Succession Act. Mere partition of the estate between two windows does not destroy the right of survivorship of each of the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agree to relinquish the right to survivorship must establish this arrangement by clear and cogent evidence.
In so far as a suit relates to a dwelling house, a female heir or heirs are not entitled to have the dwelling house divided if there are male heirs who have not claimed divisions. This rule is available not only to the estate of a deceased coparcener, but also to the estate of a female Hindu dying intestate.
Alienee:-
An alienee of coparcener's interest, wherever such an alienation is valid, has also a right to partition. In Smt. Kailashpati Devi v. Smt Bhuwaneswari Devi, the Supreme Court has held that the purchaser of joint-family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of joint family, and that may be the proper remedy for him to adopt to effectuate his purchase. An execution purchaser of a member's interest and purchaser of the same for value in Bombay and Madras is entitled to demand partition in the rights of that member.
Female sharers :-
The term 'female sharers' include three types of female members of coparcenary, namely 1) the wife, 2) widowed mother, and 3) paternal grandmother. These female sharers cannot demand a partition nor can they claim a share upon a mere severance of the joint-family property is actually divided not on every partition but on some partitions only.
According to the Mitakshara Law (except madras), a wife is entitled on a partition between her husband and his sons to a share equal to that of a son, but she cannot enforce partition. According to Mitakshara Law, when a partition takes place after the father's death between the sons, the mother or step-mother is entitled to a share equal to that of a son or step-son.
Under the Dayabhaga law, a sonless widow is not entitled to a share on partition, nor a stepmother entitled to a share if she has no son.
Section 23 of the Hindu Succession Act, 1956, postpones the right of female heirs to claim partition of the dwelling-house until male heirs choose to divide their respective shares therein. But certain female heirs shall be entitled to right of residence therein.
Adopted son:-
An adopted son is treated as a natural born son and therefore he would be entitled to demand a partition anytime after adoption. But where after a son has been adopted by the parents and a natural son is begotten to them subsequently, although the adopted son was to be treated at par with the natural son, yet the quantum of his share in the joint-family property differed in different schools. In Bengal he took 1/3 share, in Banaras he took ¼ and in Bombay and Madras he took 1/5th share of the property. Now under the Hindu Adoptions and maintenance Act 1956, an adopted son is entitled to a share equal to that of natural born son on partition (Section 12, Hindu Adoptions and Maintenance Act, 1956).
3.6 Partition How Effected
Partition by mere declaration to separate:-
Partition under the Mitakshara Law is a severance of joint status and as such it is a matter of individual volition. All that is necessary to constitute partition is a definite and unequivocal indication of his 'intention' by a member of joint-family to separate himself from the joint family and enjoy his share in severalty. A division in status takes place when he expresses his intention to become separate unequivocally and unambiguously and the filing of a suit for partition is a clear expression of such an intention.
However, living separately, without any family settlement does not amount partition. In Roop Chand v. Indradevi the Madhya Pradesh High Court held that mere admission that the four brothers were living separately in the same house and doing separate business does not permit raising a presumption that there was a family settlement to deal with the property independently of their shares. In this case, four brothers were living separately in the same house. There was no mutation of names of the co-sharers of their different shares. The Court observed that "in view of the matter, no presumption could be raised of any settlement much less than that of a partition".
The communication of intention to sever must be communicated to all interested parties. Dr. Paras Diwan is of opinion that the interested parties mean here the coparceners only and not the other members of the family. Severance of status is effective from the date on which the communication into transmission. The vested rights accruing between the date of transmission of communication and receipt of communication are preserved. Subba Rao, J., in Raghavamma v. Chenachamma observed, "If the doctrine of relating back is invoked without any limitation thereon, vested right so created will be effected and the settled title may be disturbed".
The severance in status by coparceners effected by the communication of the unilateral declaration of intention to separate, cannot be nullified by revoking the intention. This will apply even in the case of a declaration of intention by the guardian of a minor when court sets its approval thereof.
The Supreme Court laid down in, Puitorangamma v. Rangamma, that it is now well-settled doctrine of Hindu law that a member of joint family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. It is not necessary that there be an agreement between all the coparceners for the disruption of the joint status. It is immaterial whether the other coparceners in such a case give their assent to the separation or not.
Partition by notice:-
A severance of joint status may be effected by serving a notice by a coparcener on the other coparceners, including his intention to separate and enjoy the property in severalty or demanding partition of the property. The notice may be subsequently withdrawn with the consent of the other coparceners and if it is withdrawn, there will be no partition.
Partition by will :-
Partition may be effected by a coparcener by making a will containing a clear and unequivocal intimation to his coparceners of this desire to sever himself from the joint family or containing an assertion of his rights to separate. But where there is nothing in the will executed by a member of Hindu coparcenary to unmistakably show that the intention of the testator was to separate from the joint family the will does not affect severance of status. The father in joint family cannot impose any family settlement by saying that he is exercising the right of partition. Although he does possess the right. But a will to the above effect could be effective only if all other adult members have given their consent to it.
Conversion to another faith :-
Conversion of a coparcener to any other religion operates as partition of the joint status as between him and other members of the family. Such convert no longer possesses the right of survivorship as he ceases to be a coparcener from the moment of his conversion and he takes his share in the family property as it stood at the date of his conversion. Reconversion of the convert to Hinduism does not ipso facto bring about his coparcenary relationship in the absence of subsequent act or transactions pointing to a re-union.
Marriage under Special Marriage Act, 1954:-
Marriage of a Hindu under the Special marriage Act causes severance between him and the other members of the family.
Partition by agreement :-
The true test of partition being the intention of the member of the joint family to become separate owners, it follows that an agreement between the members of a joint family to hold and enjoy the property in certain defined shares as separate owner operates as partition, although the property itself has not been actually divided by metes and bounds. The two ideas - the severance of joint status and a de facto division of property must be kept distinct. As partition under the Mistakshara law is effected on the severance of joint status, the allotment of shares may be done later. Even it may be an unregistered partition deed with may be looked into established severance of status, though it cannot be looked into for terms of partition. Once the members of the joint family or heads of the different branches of the coparcenary agree to specification of shares, the same can be treated to result in severance of joint status, though the division by metes and bounds may take place later on.
In Smt. Lilawati v. Paras Ramm the Himachal Pradesh High Court has laid down that were there was partition as evidence by the mutation, the partition will sever the joint status even if the motive is to defeat the claims of creditors. It may be that the mutation was effected to save the property from the creditors but the partition once effected even if it may have been brought with an ulterior motive will be binding on the brothers or the members who were before the partition members of the joint Hindu family.
Partition by arbitration :-
An agreement between the members of a joint family whereby they appoint an arbitrator to arbitrate and divide the property operates as a partition from the dare thereof. The mere fact that no award has been made is no evidence of a renunciation of the intention to separate.
Where an award has been made, the question whether it divided all the members form one another or only some of them from the other is to be determined by a construction of the award, and the subsequent conduct of parties is irrelevant. Though a division by the arbitrators of only part of the joint property under their award is open to question on ground that the award is uncertain in its terms and incomplete, yet it is competent to the parties to agree to the division between made by the arbitrators step and that each should be final in itself.
Partition by father :-
The father may also cause the severance of the sons without their consent. It is remnant of the ancient doctrine of 'PartiaPotestas' (Paternal power). The topic will be dealt with in detail under separate heading. According to the latest pronouncement of the Supreme Court, Hindu father under Mitakshare law can demand for partition alongwith his sons even in presence of the karta of the family, and thus can bind the sons by partition. By this he can get the shares of his sons fixed and also get them separated. But he does not have the right to get the joint family property partitioned through the will. Although he could do the same with their consent.
Partition by suits :-
The institution of a suit of partition ipso facto effects severance of the joint-family status and as such the mere institution of such a suit effects immediate severance of joint status. A decree may be necessary for working out the resultant severance and for allotting definite shares but the status of the plaintiff as separate in estate is brought about on his assertion of his right to separate whether he obtains a consequential judgment or not. So even if such a suit was to be dismissed, that would not effect the division in status which must be held to have taken place when the action was instituted. Their Lordships of the Supreme Court held in Girjanandini v. Brijendra, that partition may ordinarily be effected by the institution of suit. In case of suit for partition in joint status, father's consent to the suit for partition is not longer necessary. Thus the son is fully eligible to file a suit for partition even during the life time of the father.
3.7 Suit For Partition
Who can sue for partition:-
a. Every adult coparcener. Every coparcener is entitled to sue for partition and is entitled to have a share on partition. No other person has such right. A female has no right to partition, but when partition takes place, certain females, (Father's wife, mother and grandmother) are entitled to a share. In Bombay, a son is not entitled to sue his father, for partition against his will.
In AharHamir Buda v. AharDudaArjan, the Gujarat High Court declared that in the case where the son was asking not only for severance of status but also for partition of the properties by metes and bounds, without te sent of his father, his father not having separated from his grandfather, the son was not entitled for partition by his father.
b. It may be noted that the Hindu Women's Right to Property Act had given the right to sue for partition for the windows getting interest of their deceased husband; but this Act has been repealed by the Hindu Succession Act, 1956. Now this right to window has been provided under the Section 23 of the Hindu Succession Act, 1956.
c. A purchaser of a coparcenary interest of a coparcener at a sale in execution of a decree can demand a partition.
Suit by minor:- The Hindu Law makes no distinction between a minor and major coparcener so far as their rights to joint properties are concerned. A minor's rights at partition, are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has to be satisfied that the action has been instituted for his benefit. According to Gujarat High Court were any coparcener is minor he is still entitled to get partitioned the joint-family property. If the minor has got any complaint he can reagitate the entire partition on ground that it is inequitable or fraudulent.
In Meenabai v. Chocbalinga Chettiar, the Madras High Court has held that where the mother, acting as guardian of minor son, has effected the partition, the minor cannot ignore that partition after attaining majority by getting earlier partition set aside except on ground of fraud or illegality or on ground that it is unfair and prejudicial. If the partition effected during the minority of a coparcener is unfair or prejudicial to his interest, then and then alone such coparcener can get it set aside on attaining majority.
At this stage it is necessary to examine the nature of the jurisdiction which the courts exercise when they decide whether a suit is for the benefit of the minor of not. The theory is that the sovereign as parens patrie has the power, and is indeed under a duty to protect the interest of minors, and this function has devolved to the courts. In discharge of that function, therefore, they have the power to conduct all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interest, and stay proceedings if they consider that they are vexatious. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and partition is decree by it, it is done so in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a court that the action is beneficial to the minor is not to create in the proprio vigore a right which he did not possess before but to recognize the right which had accrued to him when the person acting on his behalf instituted the action. Their Lordships of the Supreme Court in VenkataReddi v. Lakshamma, held that action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. Their tight claimed is in property and devolve on his death upon his legal representatives. The Court, it is true, will direct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess but merely to recognize the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that bring about severance.
When the division in status takes place :- The division in status takes place when there is an unambiguous declaration by a coparcener of his intention to separate, and the very institution of a suit for partition constitutes the expression of such an intention. In a case where the suit is filed by a major coparcener, there is no difficulty and the intention to separate is clear when such suit is filed. The Supreme Court in a case had held this principle can also be applied, when the suit for partition is instituted by a minor acting through his next friend. When a court decides that a suit for partition is beneficial to the minor, that by itself does not bring a division in status. The Court is not in a position of super guardian of a minor expressing on his behalf an intention to become divided. That intention is, in fact, expressed by some other person, and the function which the Court exercises is merely to decide whether that other person has acted in the best interest of the minor in expressing on his behalf an intention to become divided.
In G. Thotappa v. Gurusiddappa, the Karnataka High Court has laid down that under the Hindu law, there is no distinction between a major coparcener and minor coparcener, so far as their rights in the joint-family properties are concerned. By virtue of the minority that right cannot be exercised by a minor in the same manner as it would be by a major coparcener. A minor cannot have a volition of his own. It is therefore that a guardian or next friend acting on behalf of the minor can exercise such volition on his behalf.
When the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor, must be held to result in severance in status subject only to the Court, deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division from the date of the institution of the suit.
Minor dies during pendency of suit - Effect of :- A suit for partition brought on behalf of minor coparcener in a joint Mitakshara family does not abate on death of the minor before trial but it is open to his legal representatives to continue the suit and satisfy the Court that the institution of the suit was for the benefit of the minor, in which case, there would be division in status from the date of the plaint and the interest of the minor in the joint-family properties, would devolve on his heirs. The maxim action perconalismoritur cum persona has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule has no application to it and the suit will not abate.
Benefit to the minor :- where the transactions, which adversely affected the interests of the minor, were entered by the karta of the joint Hindu family prior to the birth of the minor a suit for partition on behalf of the minors on the basis of those transactions which were prejudicial to minor's interest can be filed and such an action in seeking the partition would be for the benefit of the minors.
Parties to the suit :- The following persons should be made defendants in a suit partition:
1) the heads of all branches;
2) females who are entitled to a share on partition, viz. the wife, mother and grandmother;
3) the purchaser of coparcener's interest, if any;
4) if the plaintiff himself is a purchaser from a coparcener his alienor.
All persons who are entitled (i) to demand partition, or (ii) to have a share on partition including female sharers, or (iii) to have provisions made for maintenance and marriage, and (iv) alienees of undivided interests are necessary parties to a suit for partition.
The Partition Act, 1898 :- The Act authorizes the Court to order a sale of the property to be partitioned, if-
1) a division cannot be reasonably or conveniently made.
2) a sale would be made beneficial to the sharers; and
3) the sharers representing a majority or upwards of the family property requests the court to do so.
Special power of father to effect partition :-
The father possesses a special power to effect partition between himself and his sons, even without their assent and he has also the power to effect a partition among the sons inter se. The father has the power to divide the family at any time during his lifetime without the consent of his sons, and, if he makes a division it has the effect t separating, not only the father from the sons, but also inter se. The right is peculiar to the father alone, the grandfather has no power t bring about the sons are a consenting party to it, but because it is the result of a power enforced by the father. The father can exercise their power only in his lifetime; he cannot by his will direct a partition amongst his sons. According to Vignanveswara, the father has this power not only in respect f his separate property but also in respect of joint family property. No such power is vested in any other coparcener. The father in exercise f this power can effect a partial partition between his minor sons and himself. However, it is necessary that he must exercise this power bona fide. If the partition effected by father is fraudulent, unfair, unequal or vitiated by favoritism, it can be reopened.
Partition should be complete - General Rules :-
As a general rule a partition must be complete, i.e., suit for partition must comprise all the joint property which is then capable of partition. Thus it was held that "the ordinary rule undoubtedly is that there cannot be a partial partition, but it has been held that the rule is elastic, and has in several cases been departed from, if there is no inconvenience in a partial partition, apart from a final partition of the whole of the joint property".
Exceptions:- There are however, several exceptions to the above general rule. A partition may be partial by mutual agreement of the parties. But a coparcener cannot by suit enforce a partition against the other coparceners.
Partial partition
It is well settled that a partition between coparceners may be partial either in respect of the property or in respect of the persons making it. It is, therefore, open to the members to make a division or severance of interest in respect of a part of the joint property, while retaining their joint status as joint family and holding the rest of the properties as properties of a joint and undivided family. The whole of the joint family property is owned by the joint family which can exercise its ownership over any of those assets through its karta. It can alienate an item of those assets without affecting thereby its status as a joint family. Consequently, when a part of the joint family assets are divided without intending to sever the joint family status, there is no disruption of the joint family status by partial partition.
There is no illegality if the members of joint family partition a particular property are leave the other joint.
Thus partition of a joint family property may therefore be partial either:
1) as to property, or
2) as to the persons separating,
But the consequences of partial partition are to be determined from the intention of the parties, and intention thus becomes the main factor in determining whether the properties and the family still continue to be joint.
1) Partial as to property - It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as joint family and holding the rest as properties of a joint and undivided family. But where there is evidence to show that the parties intended to sever completely, then the joint family status is put to an end, and any portion of the property remaining undivided is presumed to have been intended to be held by the members as tenants-in-common; but a special agreement to hold as joint tenants may be roved.
In a partition between coparceners, a property may be excluded, if it is
(a) impartible property, or
(b) is held jointly with a stranger who has no interest in the family partition, or
(c) is not in the possession of a conparcener,
(d) is already partitioned, or
(e) is outside the jurisdiction of the court.
2) Partial as to persons separating - It is open to a member to separate himself from other members of a joint family, and to have his share ascertained and partitioned off. The remaining coparceners, without any special agreement, may continue to be coparcener and to enjoy the remainder as a joint family. But there is no presumption that the others remain united.
In this connection it will be advisable to mention certain points as decided by the Privy Council in various cases.
There is no presumption when one coparcener separates from the others that the latter remain united. An agreement amongst the remaining members of a joint family to remain united or to re-unite must be proved like any other fact. It is open to the non-separating member to remain joint and to enjoy as member of a joint family what remained in the joint family property. After such a partition where there has been a separation between the members of a joint family, there is no presumption that there was a separation between one of the members and his descendants. Thus if two brothers A and B separate, there is no presumption that there was a separation between A and B, his sons, or between B and his sons.
A Hindu father may separate from his sons, and the sons may remain joint or he may separate from his sons by one wife, and remain joint with his sons by another wife.
Where in a suit a decree is passed for partition and the question arises whether the separation effected by the decree was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other, the decree alone should be looked at to determine that question. It is the decree alone which can be evidence of what was decreed.
Effect of partial partition -On the separation of one coparcener from the others, a natural question arises that whether the other members are to be deemed as "joint" or 're-united or separate".
Intention - The main factor - The question rests upon presumption and also to a great extent upon the intention of the parties.
It is to be seen that whether the non-separating members intended to remain joint and to enjoy as members of a joint family what remained of their property after such a partition. No express agreement is necessary for the purpose. The intention to remain joint may be inferred from the way in which they continue to live. However if one brother separates from the rest there is no presumption that the others intended to remain joint; such an intention must be proved liked any other fact. In all cases a question of their intention to remain joint must be proved like any other fact. Thus the effect of partial partition may be summed up as follows:-
a) As regards partial partition to property, where coparceners in a joint Hindu family come to a partition and divide the joint property with the exception of a portion of it, they are in the absence of any indication to the contrary, tenant-in-common with reference to the excepted property, unless and until a special agreement to hold it as joint tenants is proved.
b) But where the partition is partial not in respect of the property but in respect of persons making it, s that some of the various joint tenants separate from the rest, it has been held by a series of authorities that the remaining coparceners, without any special agreement among themselves, may continue to be coparceners and enjoy as members of a joint family the remaining property, and the question whether or not they continue to be joint or separate is to be determined on the evidence in each case.
Re-opening partition:-
Manu says, "Once is partition made, once is a damsel given in marriage, once does a man say, 'I give these are by good men done once for all and irrevocable".
General Rule - Partition once made cannot be re-opened.
In the case of Smt. Lila Wati v. Paras Ram, the Himachal Pradesh High Court has held that where there was a partition as evidenced by the mutation, the partition will sever the joint status even if he motive is to defeat the claims of the creditors. It may be that the mutation was effected to save the property from the creditors, but the partition once proved even if it may have been brought about with an ulterior motive will be binding on the brothers or the members who were before the partition members of the joint Hindu family.
Exceptions - There are, however, certain exceptions to the general rule and the following are the cases where partition may be re-opened :-
a) a son conceived at the time of partition, though not born partition, can re-open it if a share has been reserved for him; n the other hand, if a son is begotten as well as born after partition, and if a share has been allotted to the father, such after born son is not entitled to have the partition re-opened and the property redistributed on the ground that the partition has been completed by actual division of the estate. He is only entitled to succeed to his father's share and to his separate or self-acquired property to the exclusion of the divided sons;
b) a son begotten as well as born after partition can demand a re-opening of partition, if his father though entitled to a share, has not reserved a share for himself;
c) a disqualified coparcener after the removal of disqualification, or a missing coparcener on his return can re-open the partition;
d) a partition can be re-opened by a minor coparcener on attaining his majority, if the partition made during his minority was unfair or prejudicial to his interest. The Supreme Court in Smt. Sukhrani v. Hari Shankar, has held that if the partition is detrimental to the interest of minor or it was improperly effected, the partition could be re-opened irrespective of the fact that there was fraud, misrepresentation or under influence;
e) similarly, if a coparcener has obtained as unfair advantage in the division, the partition may be reopened for the readjustment of shares.
The Supreme Court in RathamChettiar v. S.M. KuppuSwami, has held that a partition effected between member of the Hindu undivided family by their own volition and with their consent cannot be re-opened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. When undivided family consists of minors. And partition effected therein is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition can be re-opened whatever the length of time when the partition took place.
Persons entitled to partition in Dayabhaga School :-
Under the Dayabhaga every adult coparcener, whether male or female, has a right to enforce partition.
Sons, grandsons and great-grandsons of a Hindu governed by the Dayabhaga Law do not take interest by birth in the ancestral property and are, therefore, not entitled to partition of ancestral property against him. For the same reason no question of wife taking any share in the ancestral property arises. The rights of a widowed mother under the Dayabhaga Law are the same as those under the MitaksharaLaw, except in the following respects:
i) Under the Dayabhaga Law a mother may inherit both in her own right as well as heris of her deceased sons.
ii) Under the Dayabhaga Law a sonless step-mother is not entitled to a share on a partition between her step sons.
Allotment of shares
The rules of allotment of shares under the Dayabhaga are the same except that :-.
a) sons are not entitled to any share in the presence of their father;
b) the share of a deceased coparcener passes to his heir, devisee or assignee.
Where a property stood in the name of one of the coparceners and there existed an agreement between the coparceners showing the property as subject-matter of partition, the property would remain a coparcenary property liable to be taken into account for partition, particularly in the circumstances when the subject-matter of property was purchased by mother of the coparceners.
In Dayabhaga School where the property is in the name of an individual coparcener, it must be proved to be copercenary property by the party asserting it to be so. Whereas in case of Mitakshara School any property possessed by a coparcener is presumed to be coparcenary, if there existed a coparcenary at the given time.
"It is for the benefit of the worshippers that there is manifestation in images of the Supreme being, which is bodies, which has no attribute, which consists of pure spirit, and which is without a second".
What are endowments:-
Endowments are properties set apart or dedicated by gift or devise for the worship or some particular deity or for the establishment or maintenance of a religious or charitable institution, or for the benefit of the public or some section of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind. Hospital, Schools, Universities, alms-houses for distribution of food to Brahmanas or the poor, establishment of idols, etc. are instances of the religious and charitable endowments.
Kinds of religious endowments :-
Religious endowments are of two kinds
1) Public; and
2) Private.
In public endowment, the dedication is for the use or benefit of the public at large or a specified class: But when property is set apart for the worship of a family God, in which the public are not interested, the endowment is a private one. In a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion thereof answering a particular description, while in a private trust the beneficiaries are definite and ascertained individuals, or who within a definite time, can be definitely ascertained.
Essentials of endowment :-
Essentials of a valid endowment, are as follows:-
i) Absolute dedication .
In order to create a valid endowment, the donor must dedicate the property absolutely and in perpetuity, for the worship of a deity or for a particular charitable purpose, the donor must divest himself of the beneficial interest in the property
ii) Object must be definite.
The object of the gift must be a definite idol, or a definite charitable object. Gift or bequests to dharma is invalid for vagueness and uncertainty. Similarly, bequests for such charitable or public purpose as the trustees think proper, are void for uncertainty.
iii) Property must be specific.
No endowment is valid unless some definite property is dedicated. Any uncertainty regarding the subject-matter of the bequest would be fatal to the validity of endowment.
iv) Settler should be capable of creating endowment.
The settler must be a major, of sound mind, and must not suffer from any legal disqualification. A Hindu, governed by Mitakshara Law, can dedicate his separate or self-acquired property, but not his interest in copercenary.
v) Endowment must not be opposed to any law.
Bequests to idols and temples are not invalid for transgressing that rule which forbids the creation of perpetuities. The rule against accumulations, as mentioned in the Transfer of Property Act does not apply in this case, but a colourful endowment or a transfer of property even to a religious or charitable endowment is void if made with the intention to delay or defeat the creditors or it is made within two years of the insolvency of the transferor.
3.9 Doctrine of Cy-Pres.-
Where a clear charitable intention is expressed it will not be permitted to fail because the mode, if specified cannot be executed but the law will substitute another mode (Cy-pres), that is, as near as possible to the mode specified by the donor. The doctrine of Cy-pres will not apply until it is clearly established that the mode specified by the donor cannot be carried into effect that the donot had a general charitable intention.
In Batilal v. State of Maharashtra the court clearly laid down that where the object of endowment has failed or frustrated or it could not be fulfilled fully, for the remainder part or for the entire object, the court would create another endowment but would not allow it to fail. In such cases the doctrine of cypress would be applied and the entire endowment property shall be diverted for the achievement of an object similar to one for which the endowment was originally conceived.
In Jadu Gopal v. Pannalal the Supreme Court has laid down that there is authority for proposition that when the property dedicated is very large, and the religious ceremonies which are expressly prescribed by the settlor, cannot exhaust entire income, some portion of the beneficial interest may be construed as undisposed of and cannot be vest as secular property in the heirs of the settlor.
Persons competent to sue.- There are several distinct rights of suit in respect of endowed property, viz:
1.The idol itself as a juristic person has the right of suit;
2.The Shebait, the human agency through whom the idol must act, has a distinct right, distinct from and in normal case in supersession of the idol's right of suit and is vested in Shebait and not in idol;
3.The prospective Shebaits as persons interested in the endowment have right of suit; and
4.Worshippers and members of the family of the founder have their own right.
On behalf of the idol, the de facto manager can also file a suit. In Shivanand v. Sri Shankerji Maharaj Rairajman, an Arya Samaji, who was neither a worshipper nor a Shebait, but was a virtual manager filed a suit. The Court held that the manager cannot be held disqualified to act as manager because he was an Arya Samahi, who does not believe in idol worshipping. The idol installed as a god could be looked after by any person may be an Arya Samaji.
To sustain a suit with respect to endowed property the interest required may be neither direct nor measurable in money, since it will suffice if it is such as a civil law would consider as sufficient.
The Allahabad High Court, in the case of Kishore Joo v. Guman Bihari Joo Deo has decided that it is settled law that normally it is the Shebait alone who can file a suit on behalf of the idol, but it is also equally well settled that in exceptional circumstances a person other than a Shebait can also institute a suit on behalf of the idol. A suit may be brought by a person who has made large donations to a private Hindu temple against a pujari.
UNIT - IV
a) Distribution of property among class-I heirs
Following are the heirs of the deceased specified in Class I:
1. Son.
2. Daughter.
3. Widow.
4. Mother.
5. Son of pre-deceased son.
6. Daughter of a pre-deceased son.
7. Son of a pre-deceased daughter.
8. Daughter of a pre-deceased daughter.
9. Widow of a pre-deceased son.
10. Son of a pre-deceased son of a pre-deceased son.
11. Daughter of a pre-deceased son of a pre-deceased son.
12. Widow of a pre-deceased son of a pre-deceased son.
Illustrations
1) A Hindu dies intestate leaving a widow and a father. The widow will take the whole to the exclusion of father.
2) A Hindu dies intestate leaving a mother and a father. Mother being heir of Class I will take the whole to the exclusion of father.
Father is Class II heir and is placed in the first entry of Class II in the Schedule of the Act, hence he stands next to Class I heirs.
Section 10 of the Act defines the share which the heirs in Class I of the Schedule shall get even though they take simultaneously. Section 10 has given four rules regarding the distribution of property. Section 10 reads as follows:
"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 widows 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 sons branch of each per-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 3
(ii) among the heirs in the breath of the pre-deceased son shall be so made that his window (or windows together) and the surviving sons and daughters get equal portion, and the branch of his pre-deceased sons get the same portion.
(iii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions".
Rule 1. - According to this rule, the intestate's window is entitled to one share. Where the intestate had left behind more widows than one, then all widows together are entitled to one share shall be equal to that of a son or daughter.
b) Rules of succession of the property of females
Section 15 of the Act prescribes the General Rules of Succession of the property of a female dying intestate, and Section 16 lays down the Order of Succession. Section 15 runs as follows:
Section 15 -
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 deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order 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 person or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband".
Section 15 does not apply to that property which is held by a Hindu female with restricted rights [in view of sub-section (2) of section 14] at the time of her death. It applies to cases where the Hindu female has become a fresh stock of descent.
The words 'son' and 'daughter' of the deceased in Section 15(2)(b) of the Act can only mean a son or daughter of the female, dying intestate, born to her of any husband, former or later. The definition includes even illegitimate children. But does not include step-children, who will not be able to inherit their step mother. In KeshriLodhi v. Harprasad, the Court laid down that from the language of sub-section (1) and (2) of Section 15, it is clear that the intention of the Legislature was to allow the succession of the property of the Hindu female to her sons and daughters. Only in the absence of such heirs the property would go to husband's heirs. Consequently the female's property would devolve on her sons and daughters even where the sons and daughters are born of the first husband, and the property left by the female was inherited by her from the second husband.
In Gurnam Singh v. Smt. AsaKaur, the Punjab High Court held that the plain and natural implication of the words "son or daughter of the deceased" in sub-section (2) of Section 15, is that the son or the daughter should be heirs, even though she might have married once or more than once and may have, thus given birth to children from these marriages, because these off-springs are capable of establishing their blood relation to the female Hindu as son or a daughter.
c) General principles of succession to property of male Hindu
The Act deals with the different rules of succession in connection of the devolution of property, belonging to a male and to a female. Section 6 of the Act as discussed in the foregoing pages relates to the devolution of a coparcenary interest of a Mitakshara coparcener. Section 8 to 13 deal with rules of succession in connection with the separate property of a male Hindu, dying intestante. Section 15 and 16 with the devolution of the property belonging to a female Hindu.
Succession to property of males
Section 8 of the Act lays down general rules of succession in the case of males dying intestate. Succession opens at the time of death of the person whose property is to be succeeded, and is governed by the law in force at that time. The words 'dying intestate' in Section 8 are descriptive of status of the deceased and have no reference to the time of death of a Hindu male. The Act applies to cases of succession which opens after the Act came into force. The property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. The section divides the heirs of a male for the purposes of inheriting the property into four classes. There are :
1) Relations mentioned in Class I of the Schedule.
2) Relations mentioned in Class II of the Schedule.
3) Agnates of the deceased.
4) Cognates of the deceased.
On failure of heirs qualified to succeed under the Act, the property of the intestate shall devolve on the Government. This is Government's right to get the property by escheat. But the Government cannot be classed as an heir entitled to succeed under the Act. Therefore, Government cannot be treated as constituting a fifth class of heirs, and, accordingly, Section 8 mentions only four classes of heirs, Section 8 of the Act runs as follows:
"The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter -
a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;
d) lastly, if there are no agnates, then upon the cognates of the deceased".
Section 6 and 8. - Section 6 is applied to the devolution of coparcenary property of a male Hindu who dies after the commencement of the Act. Section 8 is applied to the devolution of a self acquired property of a male Hindu. The words "the property of a male Hindu dying intestate" and the words "shall devolve" occurring in Section 8 make it very clear that the property whose devolution is provided for by that section must be property of a person who dies after the commencement of the Act. The provisions of Section 8 are therefore, not retrospective in operation. Where succession opened before the Act, Section 8 will have no application.
Meaning of Stridhana
In modern Hindu Law, the term 'stridhana denotes not only the specific kinds of property enumerated in the Smritis, but also other species or property acquired or owned by a women over which she has absolute control; and she forms the stock of descent in respect of such property, which accordingly devolves on her own heirs. Properties gifted to a girl before the marriage, at the time of marriage or at the time of giving fare-well or thereafter are her stridhan properties. It is her absolute property with all rights to dispose at her own pleasure. Husband or other members of his family have no control over the stridhan property. Husband may use it during the time of his distress but nevertheless he has a moral obligation to restore the same or its value to his wife.
Early texts as to stridhana.- The texts relating to stridhana, except in the matter of succession, are fairly adequate and clear. The principal definition is that contained in manu: "what was given before the nuptial fire (adhyagni), what was given at the bridal procession (adhyavahanika), what was given in token of love (dattam pritikarmani) and what was received from a brother, a mother, or a father, are considered as the six-fold property of a woman". The words, "a brother, a mother, or a father" appear to be given by way of illustration, for her says in the next verse : "Such property as well as a gift subsequent (anvadheyam) and what was given to her by her affectionate husband shall go to her offspring even if she dies in his lifetime". Vishnu and Yajnavalkya give a similar enumeration. But both add to the list the compensation which is given to a superseded wife (adhivedanika). The text of Yajnavalkya is: "what was given to a women by the father, mother, her husband or her brother, or received by her at the nuptial fire or presented on her supersession (adhivedanika) and the like (adi), is denominated woman's property. That which is given (to the bride) by her bandhus, sulka, anvadheyaka, these her kinsmen (bandhavas) take if she dies without issue". Vijnanesvara explains that the term 'adi' includes "property which she may have acquired by inheritance, purchase, partition, seizure, and finding" and says: "The term 'woman's property' conforms in its import with its etymology and is not technical. According to him, Manu's six-fold classification is only illustrative. Obviously he is right, for Manu, Yajnavalkya and all the other Smritis enumerate more than six kinds of stridhana.
Kinds of stridhana in the Smritis.- The kinds of stridhana enumerated in the Smritis are:
1.what is given before the nuptial fire, adhyagni;
2.what a woman receives while she is conducted from her father's house to her husband's dwelling, adhyavahanika;
3.what is bestowed in token of love, pritidatta or bhartrudaya;
4.pritidatta or affectionate present, as defined by Katyayana, is: "whatever has been given to a women through affection by her mother-in-law or her father-in-law as also wealth termed padavandanika, that is, that which is received by a woman at the time of bowing at the feet of elders";
5.gifts made by father, mother or brother; (according to Manu, these are counted as three kinds of stridhana).
6.gift subsequent, that is, that which is received from her husband's family or her father's family subsequent to marriage (anvadheyaka);
7.gift on supersession (anvadheyaka). A person made to a woman on her husband's marriage to another wife is the gift on supersession;
8.gift by bandhus (bandhudatta), that is, what is given to the bride by the relations of her mother or of her father;
9.sulka of the fee which is variously described; (i) as the gratuity for the receipt of which a girl is given in marriage; (ii) as being a special present to the bride to induce her to go cheerfully to the mansion of her lord; and (iii) as what is received as the price of household furniture, conveyance, milch-cattle and ornaments.
Property inherited from males and from a woman not stridhana.- It is now settled beyond doubt as well as under the Mitakshara as under the Dayabhaga law, that property inherited by a woman from a male is not her absolute property and it passes on her death not to her stridhana heirs, but to the heirs of the male from whom she inherited it. It is equally well settled that the property which a woman has taken by inheritance from a female is not stridhana for the purpose of inheritance; she does not take it for an absolute and alienable estate, but for a qualified estate with reverter after her death to the heirs of the female who was the last full owner. A case of a maiden daughter succeeding to the sridhana property of her mother is no exception to this rule.
Share allotted on partition not stridhana.- In Debi Mangal Prasad v. Mahadeo Prasad, it was held by the Judicial Committee that immovable property obtained by a Hindu woman on partition of the joint family property is not her stridhana in the sense that on her death it passes to her stridhana heirs, but reverts on her death to the next heirs of her husband.
The actual point decided in the above case was that there was no substantial difference in principle between a woman's property acquired by inheritance and that acquired by partition. It has, however, been suggested that decision of the Privy Council limits stridhana to the kinds enumerated in the Smiriti texts. This does not appear to be correct. On the other hand, their Lordships thought that the word 'adi' would include property acquired in any other manner ejusdem generis with the modes mentioned by Yajnavalkya. It is different to see any reason why the enumeration mentioned in the Smiritis should be taken as exhaustive and not as illustrative only, which is the uniform opinion of all the Mitakshara authorities. Rules of Hindu law are not so inelastic as to be incapable of application to any acquisitions which were not known when the Smriti rules were first formulated. The Smriti texts are in terms not restrictive and the very fact that one Smriti adds to the list given in another, shows that the subject of stridhana was in a stage of development. None of the Smriti texts can held to cover modern conditions of life or to rule our as not stridhana, acquisitions which a woman might make for herself and over which she would have full powers of disposition. A woman may choose to marry late or not at all. She may be a teacher, an another or a great singer, a medical practitioner or a lawyer, a minister or a public servant. She can carry on a trade or business and earn wealth in a variety of ways. A text to Katyayana says: "Wealth acquired by mechanical arts or received through affection from any but the kindred is subject to her husband's dominion. The rest is stridhana". The Viramitrodaya explains it as meaning that the text is not a denial of its being a woman's property but that it cannot be alienated by her without the consent of her husband though it belongs to her. The Mayukha indeed treats property acquired by mechanical arts, by spinning and the like, as non-technical stridhana. According to modern notions such property will be regarded as the woman's stridhana over which she has absolute powers of control and which will descend to her own heirs.
All other acquisitions and stridhana.- With the exception of property inherited by a woman or allotted to her at a partition, Vijnanesvara's view as to the other modes of acquisition has been accepted by the courts. Accordingly:-
1)All savings made by a woman with her stridhana and all purchases made with it are of course stridhana. In Sri Ram v. Jagdamba, a Hindu widow in possession of her husband's estate acquired property through the exercise of a right of pre-emption which she had in that character. She, however, paid the pre-emption money, not by raising it on the security of her husband's estate or out of its income, but by borrowing it on the security of the estate purchased. It was held that the right of pre-emption though incidental to her husband's estate, did not prevent the acquisition from being stridhana.
2)So also, money or property given to a woman absolutely in lieu of maintenance, and purchases made with such money or property are both stridhana.
3)Of course, the income of her husband's estate is absolutely at the disposal or the widow and would be her stridhana. Investments or purchases made with it for her own benefit are her stridhana devolving as such on her own heirs and she is entitled to dispose of them by gift inter vivos or by will.
4)So also gifts or grants to her by strangers, whether made during coverture or when she is a widow, will be her stridhana.
5)A wife's earnings and property acquired by her own exertion are equally stridhana, for instance, properties acquired with the profits of a trade.
6)Property obtained by a woman under a compromise or settlement of any claim which she makes is her stridhana where the property is granted to her absolutely.
7)When a Hindu woman takes possession of property adversely to the true owner, she may either prescribe for a Hindu woman's estate or for an absolute estate. In the latter case it will be her stridhana property. But where the circumstances are such as to show that she claimed as heir to a male or a female and consequently for the limited estate of a Hindu woman, the property so acquired will become part of that estate. But the position of a Hindu widow entitled only to maintenance who obtains possession of property which belongs to the joint family under a wrongful claim of title as the only heir to the last male holder and denying the right of the true heir, is not free from doubt, particularly in regard to limitation, and is of some importance in Hindu law.
Introduction:
Wills unknown to Hindu law.- The origin and growth of the testamentary power among Hindu has always been a puzzle to lawyers. Wills were wholly unknown to Hindu law. Apparently, there was no name for them either in Sanskrit or in the vernacular languages. Probably a father made a partition of his self-acquired as well as family property before he died or before he entered the vanaprastha order. Deeds of gift were undoubtedly common, but such as were intended to take effect only on the death of the donor and revocable during his life, do not find a place in the elaborate enumeration and description of documents given by the Sanskrit writers. The reason probably was that sentiment was strongly against revoking gifts, once they were formally made. Wills were certainly known to Mohammedans and contact with them during the Mohammedan rule, and later with the Western nations, was probably responsible for the practice of substituting formal testamentary instruments for the informal written or oral instructions which must have been from early times, in occasional use; for though testamentary instruments in the sense known of English law were unknown, it does not necessarily follow that oral or written directions by a dying man to his heirs intended to affect their conscience in the disposal of his property after his death were never given.
It has been suggested that some texts of the Hindu sages contain the actual germ of a will. Katyanana says: "What a man has promised, in health or in sickness, for religious purpose, must be given; and if he dies without giving it, his son shall doubtless be compelled to deliver it". And again "After delivering what is due as a friendly gift (promised by the father), let the remainder be divided among the heirs". And so Harita says: " A promise legally made in words, but not performed in deed, is a debt of conscience both in this world and the next". These are inadequate date for postulating the position that wills were known to Hindu law. It is improbable that, when an unequal division by the father was condemned, the law of succession was allowed to be appreciable altered by trstmentry dispositions.
Definition of a will.- A will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A nomination by a Mahant of his successor is not a will. Every will or codicil made by a Hindu is now required to be in writing and attested by at least two witnesses. If it executed by a testator while in a sound and disposing state fo mind it is valid even if it is not signed by the testator.
Who can dispose off by will.- Every person of sound mind, not being a minor, may dispose of his property by will. Apart from the Act, all the courts have held that a Hindu who has not attainted the age of majority prescribed by the Indian Majority Act, cannot execute a valid will. A person who has not the capacity to comprehend the extent of his property and the nature of the claims of people whom he is excluding from participation has not a sound disposing mind.
A will, or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. To constitute undue influence for setting aside a will, there must be coercion. Neither fiduciary relationship, not a domination position which will readily raise a presumption of undue influence in cases of gifts inter vivos, will avail. The circumstance that one person had unbounded influence over another even though it was a very bad influence, would not be undue influence so as to invalidate the letter's will. All influences are not unlawful. Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution and the like are all legitimate and may be fairly pressed on the testator. But on the other hand pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgments, is a species of restraint under which no valid will can be made. Importunity or threats such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or escaping from distress of mind or social discomfort, if carried to a degree, in which the free play of the testator's judgment, discretion or wishes, is overborne, would constitute undue influence, though no force is either used or threatened. In other words, a testator may be led but nor driven.
Revocation.- A will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose of his property by will. But marriage does not revoke a will or codicil of a Hindu, nor does the birth of a son subsequent to the execution of the will revoke it when he predeceases the testator. Section 70 of the Indian Succession Act now lays down categorically what acts only amount to revocation.
Bequests to unborn persons valid.- Accordingly, the law in this respect was altered by Madras Act 1 of 1914, which applied not only to future dispositions but also to wills executed before the date of the Act, in respect of such dispositions as were intended to come into operation after the date of the Act. The validity of a disposition in favour of an unborn person was, however, made subject to the rule against perpetuity contained in section 101 of the Indian Succession Act 1865. Following the lead given by the Madras Act, in 1916, an Act of the Indian Legislature, the Hindu Disposition of Property Act (XV of 1916) was passed declaring the validity of dispositions in favour of unborn person subject to the provisions contained in sections 100 and 101 of the Indian Succession Act, 1865, and to an independent provision modifying section 103 of the Indian Succession Act, 1865, confining the failure of the prior bequest to the grounds stated in sections 100 and 101 but not specifically excluding section 102 of the Act. This Act applied to the whole of British India except to the State of Madras to which however it might to extended. In 1920, in Soundara Rajan v. Natarajan it was discovered that the Madras Act (I of 1914) which was passed by the Provincial Legislature was ultra vires that legislature in so far as it purported to affect the law administrated on the original side of the High Court having regard to the provisions of the Indian Councils Act, 1861, and the Indian High Court Act, 1861. As a consequence, in 1921, the Indian Legislature intervened with the Hindu Transfers and Bequests (City of Madras) Act (VII of 1921) which simple repeated the provisions of Madras Act I to 1914 and applied them to the City of Madras.
UNIT - V
Introduction
The ancient Hindu system had hardly a developed law on minority and guardianship. The minor children mostly lived in a joint family and were always under the protection of the karta. In the joint Hindu family, the karta was obliged to protect the minors and the women and maintain them, even after the death of the father or the husband, as the case may be. Outside the joint family the minor children used to study in the Gurukula or the Guru Ashram, where the Guru was their protector. That is why Dharmashastras do not generally speak of protection of the person or the property of a minor, and the texts available are few and scanty. It was broadly recognized that the king was the supreme guardian and, as such, protected the person and property of everyone who was in need of such protection.
The modern law of guardianship has been drafted in this country by the British during their rule here. The modern law of guardianship has its basis in the incapacity which law attributes to minors and persons deficient in mental capacity in the matter of looking after themselves, their property or entering into contracts. According to Hindu Law, the sovereign of the State is regarded as the lawful guardian of all minors. Because of their incapacity to look after the matters of their interest and take proper care of their welfare, the law of guardianship has been evolved. It provides for a lawful guardian, natural or testamentary or otherwise. The authority in the first instance was delegated to the father both as regards the person as well as separate property of the minor children. In the absence of the father, the mother became the next natural guardian. In the absence of both father and mother, the court could appoint guardians who were nearest to him in blood first from the paternal side or in their absence from the maternal side. So far as the minor wife was concerned, the husband, whether himself an adult, or minor, was her natural guardian. The Guardians and Wards Act,1890 (VII of 1890) more or less retained this position in the sense that if the father or the husband was not found unfit to act as the natural guardian, their right could not be disturbed and further it preserved the right of the father to appoint a testamentary guardian. But the Guardians and Wards Act made certain changes also in the position of the natural guardian. It is important to remember that this Act, i.e., the Guardians and Wards Act is still the basis f the rights and duties of a natural or testamentary guardian r a guardian appointed by the court with certain restrictions (Sec. 2, Hindu Minority and Guardianship Act, 1956).
1) Changes made by the Act
The Hindu Minority and Guardianship Act has effected certain significant changes in the position and status of guardians. Firstly, the Act has improved the status of the mother as the natural guardian. Thus even if the father but the mother who will act as the natural guardian [Sec. 9(1)]and if the mother leaves behind a testamentary guardian it is the guardian appointed by her who will take precedence over the guardian appointed by the father [Sec. 9(2)]. Formally, the father could disentitle the mother from natural guardianship by his will. Secondly, Section 6 (a) provides that the custody of a child below 5 years will be with mother although the father may be the natural guardian. The old Hindu law recognised the powers of a de facto guardian of a minor to intermeddle with his estates which was held to be co-extensive with that of the natural guardian. Bur Section 11 of the Hindu Minority and Guardianship Act forbids a de facto guardian from dealing with or disposing of the properties of Hindu minor. Thirdly, under the old law the father did not lose custody of his child merely because of his change of religion, but under (Section 6), proviso, of the present Act, no person shall be entitled to act as guardian if he or she has ceased to be a Hindu or has renounced the world becoming a sanyasi. Fourthly, the power of the natural guardian regarding alienation of the immovable property of the minor cannot be exercised without the previous permission of the Court [Section 8(2)]. It may be noted in this respect that the powers of natural guardian have been considerably restricted under the present law. Before the commencement of this Act, the father used to exercise unlimited powers with respect to minor's person and property under them. Moreover, the powers of testamentary guardian have also been considerably limited. He cannot alienate the property belonging to a minor without the prior permission of the court.
2) Age of Majority under Hindu Law
According to Manu the minority of an infant ceases on his sixteenth year. Minority under Hindu Law terminates at the age of sixteen. In this respect Narada says, "Till the eighth year a child is comparable to one in its mother's womb. Till he attains the age of sixteen he is called a minor (poganda). Then he becomes suit juris (vyavacharanga).
There is however, difference of opinion as to whether this age is attained at the beginning, or at the end of the sixteenth year. Sanskrit writers seem to take the former view, and this was always held to be the law in Bengal. The later limit (the end of the sixteenth) is stated to be the rule in Mithila and Banaras, and was at one time followed in Sothern India and apparently in Bombay. The only expression of judicial opinion on the subject in Southern India agrees with the Bengal view.
3) Guardians and Wards Act, 1890 and Indian majority Act, 1875
Since the passing of Indian Majority Act the difference of opinion among Hindu writers has lost much of its importance. According to Section 3 of the Indian Majority Act every minor, of whose person and property a guardian has been appointed by any court, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards, is deemed to have attained his majority at the completion of twenty-five year. In all other cases the minor is deemed to have attained his majority at the completion of the eighteenth year. This Act applies to persons domiciled in the whole of India (except the State of Jammu and Kashmir) and to all matters except marriage, dower, divorce and adoption. Same is the position under the Guardians and Wards Act.
4) Hindu Minority and Guardianship Act, 1956
A Supplemental Law, the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act) does not codify the entire law of guardianship applicable to Hindu, but amends and supplements the provisions of the Guardians and Wards Act. 1890,in its application of Hindus only. Section 2 of the Act clearly provides that the provisions of the Act shall be in addition to the guardians and Wards Act of 1890. For the purpose of the appointment of a guardian by the Court, one has to look into the provisions of the Guardians and Wards Act and the definition of a minor in the Indian majority Act. In respect of matters expressly dealt with in the Hindu Minority and Guardianship Act, the provisions of the Act, abrogate all the rules of guardianship hitherto applicable to the Hindus by virtue of any text or rule of Hindu law or any custom or usage having the force of law, and have overriding effect. These provisions also supersede any other law, if inconsistent with them.
5) Age of Majority
Section 4 of the Act defines the word 'minor' as a person who has not completed the age of eighteen years. The rules laid down by the Act or the rules applicable to Hindus in so far as the Minority and Guardianship is concerned is for purposes other than marriage. According to both the Acts (i.e., Indian Majority Act and Hindu Minority and Guardianship Act) the age of majority is 18 years. But according to Raghavachariar, the provisions of the Indian Majority Act that even minor of whose person or property or both a guardian has been appointed by the Court of Wards and every minor of whose property the superintendence has been r shall be assumed by any court, shall be deemed to have attained his majority when he shall have completed his age of twenty one years, stands abrogated by the Act in so far as the provisions of the Indian Majority Act in this respect are inconsistent with the provisions of the Act. According to Section 4(a) of the Act completion of 18 years will apply in all cases.
However, an important case has been decided by the Gujarat High Curt in the matter of PrakshaNavnittbhai, in which the Gujarat High Court held that if a guardian of the person or property of a minor is appointed r declared by a Court or superintendence of his property is assumed by the Curt of Wards, the minor shall be deemed t have attained majority on the completion of twenty ne years, despite the overriding effect of the Hindu Minority and Guardianship Act over other Acts. The reason is that the Hindu Minority and Guardianship Act deals only with natural and testamentary guardians and their powers cease on the appointment of a certified guardian or the assumption, of superintendence by a Court of Wards. The Hindu Minority and Guardianship Act virtually leaves the age of majority of a Hindu minor unaffected.
6) Applicability of the Act
Section 3 of the Act mentions the persons to whom this Act applies [see Chapter 2 "Who are Hindus?"]. The Act applies only to Hindus. The Act extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends and who are outside the said territories [Section 1 (2)].
7) Act is not retrospective
This Act is not retrospective. No Legislation should be contrued to affect the vested rights retrospectively unless there is a clear provision for the same in the Act itself. In the Act we find no such provision for giving the Act a retrospective effect. So the Act is prospective and not retrospective.
8) Guardian - meaning of
A guardian means a person having the case of the person of another or of his property, or of both. Section 4 of the Guardians and Wards Act also defines the word 'guardian' to the same effect. Section 4(b) of Hindu Minority and Guardianship Act defines the word 'guardian' as follows:
"Guardian" means a person having the care of the person of a minor, or of his property, or of both his person and property and includes-
1) a natural guardian;
2) a guardian appointed by the will of the minor's father or mother;
3) a guardian appointed or declared by a court; and
4) a person empowered to act as such by or under an enactment relating to any Court of Wards.
Definitions given by the Guardians and Wards Act and Hindu Minority and Guardianship Act are identical except that the letter Act includes some other kinds of guardians enumerated in sub-sections (i) to (iv) of Section 4 (b) of the Act.
The definition given in the Act is not exhaustive. There are four categories of guardians specifically referred to in this section viz., the natural guardian, testamentary guardian, a guardian appointed r declared by a court, and a person empowered to act as guardian by or under any enactment relating to Court of Wards.
Apart from the above four categories specifically referred to in section 4(b) (i) and (iv), under the old law another category, namely, a de facto guardian was recognized. A De facto guardian is not been specifically mentioned in this sub-section. But, it has been held in Ratan v. Bisan that as the definition is an inclusive definition there is no reason why a person who acts as a De facto guardian should not fall within the definition of a guardian. The main part of the definition says that a guardian is one having the care of the person or property of the minor or of both.
5.2 Kinds of Guardian
Section 4 of the Act mentions four kinds of guardians. There are:
i) a natural guardian,
ii) a guardian appointed by the will of the minor's father or mothers, (we call it testamentary
guardian),
iii) a guardian appointed or declared by a court, and
iv) a person empowered to act as such by or under any enactment relating to any Court of Wards.
Besides this, there are other types of guardians such as:
v) de facto guardian, and
vi) Ad hoc guardian.
(i) Natural Guardian - :-
Meaning:- A natural guardian is one who becomes so by reason of the natural relationship with the minor. In other words a natural guardian is a person having the care of the person of a minor or of his property or of both, by virtue of his natural relationship with the minor. Every relation of the minor cannot be natural guardian of the minor, although law does not restrict the list of guardians. The present Act, however gives list of natural guardians.
Section 6 of the Hindu Minority and Guardianship Act, runs as follows:
The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in hoint family property) are-
a) in the case of a boy or an unmarried girl - the father, and after him, the mother: provided that the
custody of a minor who has not completed the age of five years shall ordinarily be with the mother,
b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the
father;
c) in the case of a married girl the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(i) if he has ceased to be a Hindu, or
(ii) if he has dompletely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation - In this section, the expressions 'father' and 'mother' do not include a step father and a step-mother.
Among the Hindus, the father is the natural guardian of his children during their minority. He may, in exercise of his discretion as guardian entrust the custody and education of his children to another, but the authority he thus confers is revocable authority. Subject to eh statutory restrictions and the Court's orders, the father's rights over his minor child are absolute and uncontrolled. He is also the proper judge of the school in which to place his ward.
The powers of the father to act as a natural guardian do not come to an end simply because the child is being looked after by his aunt and is living with her.
In D. Rajaiah v. Dhanapal, the Madras High Court held that the rule of Hindu Law is that on one other than the father and failing him the mother has an absolute right to have the guardianship over and custody of an unmarried Hindu minor girl. Hindu Law recognises primarily the father as the legal guardian and custodian of his unmarried minor daughter when he is alive. Failing the father, the mother comes into picture and she should assume such guardianship and custody only in such a contingency. Section 6 of the present Act does not make any substantial alteration in the law on the subject and gives legislative sanction to the principle well established already.
Who are Natural Gardians?
The father is the natural guardian of the person and of the separate property of his minor children, and next to him, the mother. In Jijabai v. Pathan Khan, where the father was alive but had fallen. Out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping and care of the mother, it was held by their Lordships of the Supreme Court that in the peculiar circumstances, the father should be treated non-existent and the mother could be considered as the natural guardian f the minor's person as well as property. Where the father converts to Islam and marries a Muslim girl, he cannot claim, as a matter of right, the natural guardianship of the child born to him with Hindu wife.
No relation except a parent is entitled, as of right, to the guardianship of minor. The court has no power to appoint a guardian of the person of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor. The husband is the lawful guardian of his minor wife, and is entitled to require her to live with him, however young she may be, unless there is a custom enabling the wife to live with her parents until she arrived at puberty.
In Shobhadei v. Bhima and others, the Orissa High Court held that where the father being the natural guardian of the minor, who is more than five years old living with mother, is alive and not unfit, the mother is incompetent to represent the minor as next friend. The mother in such a case cannot maintain a suit unless the father has been declared to be incompetent by a curt.
In Smt. Dr. SnehlataMathur v. MahendraNarain, the mother who was in custody of her daughter aged about five months, took a decree of divorce from her husband. She entrusted the custody of her daughter to her parents for the time being and left for some foreign country temporarily. The daughter stayed with the maternal grandfather and grandmother and developed great affection with them. Later on the father brought a suit for the custody of the daughter, claiming that he is the natural guardian and therefore the daughter should be given in his custody. Generally the child upto the age of 5 years is in the custody of the mother. In the present case the court agreed although the child is in the custody of maternal grandfather or grandmother, yet she would be deemed to be in the custody of her mother only. But the court held that keeping in view the overall interest and welfare of the child, it is desirable to entrust the child into the custody of the father because he is very much keen to look after her.
The mother is entitled to keep the child in his custody till he has not completed the age of five years. It is true even in the cases where she is employed, and the possibility to take proper care over the child is lessened. The mere fact that the mother has not visited her husband's house to see the child for 1½ years did not indicate that she was not attached to child.
In K.S.Mohan v. Sandhya Mohan the Madras High Court has held that custody of a child below the age of five years should be given to its mother and only in exceptional circumstances, the father may claim the custody of that child. However, in Seela v. Soli, the Bombay High Court held that if mother is able to provide a congenial, comfortable and happy home, she is entitled to the guardianship of the minor child in the absence of father, notwithstanding the fact that she has ceased to be Hindu by conversion to another religion. It is submitted that view is not a correct statement of law, because proviso (a) to Section 6 expressly disqualifies a non-Hindu to be a natural guardian of a Hindu minor.
Step - father and step-mother -The words 'father' and 'mother' under Section 6 of the Act do not include step-father and step-mother and, therefore, a step-father and a step-mother are not the natural guardians of the minor child.
Illegitimate boy and girl - According to Section 6 of the present Act, in the case of an illegitimate boy or an illegitimate unmarried girl the mother would act as natural guardian. In absence of mother, the father would be the next guardian.
Married girl -In case of married girl, the husband would be the guardian, unless he has ceased, to be a Hindu or he has completely and finally renounced the world by becoming a hermit or an ascetic.
It may be stated that the enumeration above is meant to be exhaustive and no other person except those stated above can act as the natural guardian. It may also be pointed out that the rights of these natural guardians are inherent in them and arise because of their intimate relationship with their wards. Further, there is nothing in the section which would forfeit their rights off guardianship merely by virtue of their subsequent marriage.
Widow - In case of a guardianship of a minor, it could be assumed that whosoever acts as guardian of a minor wife of minor husband could be conferred with the guardianship of the minor widow as well. Despite the Child Marriage Restraint (Amendment) Act, 1978, the child marriages may still take place. In such case the minor would be under the guardianship of the same person who was her guardian before the death of her husband. Normally, the nearest sapinda is her guardian under these conditions. According to Mayne, "the husband's relations if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations". In an old case madras High Court held that by marriage a girl passes into the family of her husband. Her husband's gotra therefore becomes her gotra and her husband's sapindas become her sapinda, as she becomes her gotra and her husband's sapindas become her sapindas, as she becomes one with her husband. If she becomes a widow when minor, it follows as a matter of course that the eldest among the nearest sapindas of her husband becomes her guardian. This is in consonance with the Hindu notion of merger of the identify of the wife in the husband.
In Parasram v. State, the father-in-law forcibly took away his widowed minor daughter-in-law from her parent's place and brought her to his home. After sometimes he married her to an unsuitable person for money against her wishes. The father-in-law was prosecuted for removing the girl forcibly. The Court held that he was not guilty since he was the lawful guardian of the minor widowed daughter-in-law.
On the other hand, Madras and Nagpur High Court hold contrary view. In Rai Chand v. Sayer, Madras high Court held that in the appointment of any persons as guardian, the welfare for the child is paramount consideration according to Sec. 13, and the fact that under the Hindu Law father-in law has preferential right t be appointed as guardian is only a matter of secondary consideration. If the interest of father-in-law is against that of daughter-in-law, he cannot be appointed as a guardian.
ii) Testamentary Guardian
Meaning :- The testamentary guardians of a minor are those guardians who are appointed by a will of the natural guardian, entitled to act as a guardian for the minor. Needless to say that a will becomes effective only after the death of the executor.
Section 9 of the Act runs as follows:-
1) A Hindu father entitled to act as natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property [other than the undivided interest referred to in Section 12] or in respect of both.
2) An appointment made under sub-section (1) shall have no effect if the father pre-deceases the mother, bur shall revive, if the mother dies without appointing by will, any person as guardian.
3) A Hindu widow, entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property [other than the undivided interest referred to in Section 12] or in respect of both.
4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.
5) The guardian so appointed by will the power to act as the minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the powers of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
(iii) Guardian Declared or Appointed by the Court :-
Meaning :- Where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890, appointing a guardian. In appointing or declaring a person as the guardian of a minor the welfare of the minor shall be the paramount consideration. This has been laid down in Section 13 of the Hindu Minority and Guardianship Act, 1956 and Section 17 of the Guardians and Wards Act, 1890. Section 13 of the Hindu Minority and Guardianship Act runs as follows.
13 (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No Person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindu, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
In considering as to what will be for the welfare of the minor, the court shall have regard to the age and sex of the minor, the character and capacity of the proposed guardian and his nearness of kins to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference.
In the case of S.L. Mohini v. Virendre Kumar, the Supreme Court held that the welfare of the minor is the supreme consideration for the court. Where the decree of divorce has been passed between husband and wife the interest and welfare of the child is of utmost importance for the court. In this case, the marriage of the father and mother of a minor was dissolved by a decree of divorce. The mother undertakes to look after the interest of the child to educate him properly in some good educational institution, the court found it desirable to keep the child in the custody of mother. The court insisted for the welfare of the minor through and through.
(iv) Guardian under other Enactments
Meaning:- Under Order 32 of Civil Procedure Code a guardian ad litem may be appointed or removed or where the management of an estate is vested, for the time being, in a Court of Wards, a guardian of the minor whose estate is so vested may appointed under the provisions of the Court of Wards Act.
(v) De facto guardian -
Meaning :- A de facto guardian of a minor, is neither a legal guardian, nor a testamentary guardian, nor a guardian appointed by the court, but he is a person, who himself, takes over the management of the affairs of the minor, as if he was a natural guardian. He is not an intermeddler, nor does an isolated act of any person in regard to child's property make him a de facto guardian. Some continuous course of conduct is necessary on his part.
In the old texts nothing has been mentioned about the de facto guardian but in practice such a guardian has been quietly recognised. In an old judgment, Justice Kaniahad observed that Hindu Law tried to find a solution out of two difficult situations, one, when there is no legal guardian of the minor, and secondly, a person having no title could not be permitted to intermeddle with the minor's estate so as to cause loss to him. The solution to the above problem was found out by lending recognition to de facto guardians.
A person, having the care of properties of a minor but who is neither a natural guardian, testamentary guardian nor a guardian appointed by the Court is only a de facto guardian and the restriction under Section 11 will apply to his acts.
(vi) Ad hoc guardian:-
Meaning:- 'Ad hoc' means "for this purpose". Before a person can be described as guardian de facto there must be some course of conduct in that capacity, it implies some continuity of conduct, some management of the property beyond the isolated act of alienation which is being challenged. A person who, over many years, has never intermeddled or acted as a guardian cannot come forward and claim to be a guardian de facto and authorised to sell property on behalf of a minor. Such a person would be a guardian ad hoc not a guardian de facto. An alienation by a guardian ad hoc is void. The ad hoc guardian too has no place in this Act.
Section 8 of the Act deals with powers of a natural guardian with respect of minor's person or property. Section 8 runs as follows:-
Section 8:-
1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate : but the guardian can in no case bind the minor by a personal covenant.
2) The natural guardian shall not, without the previous permission of the court -
a) mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or
b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
3) Any disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him.
4) No court shall grant permission to the natural guardian, to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
5) The guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respect as if it were an application for obtaining the permission of the court under Section 29 of the Act, and in particular -
a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;
b) the court shall observe the procedure and have the powers specified in sub-section (2), (3) and (4) of Section 31 of that Act; and
c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (1) of this section to the court to which appeals ordinarily lie from the decision of that court.
6) In this section 'court' means the City Civil Court or a District Court of a court empowered under Section 4-A of the Guardians and Wards Act, 1890, (8of 1890) within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the local limits of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
This section deals with all the posers which a natural guardian may exercise in respect of the person and property of his ward. It also enumerates the powers, which such guardian may exercise subject to the sanction and control of the court. The manner, the method and the form obtaining the sanction of the court in such matters which the guardian may do, subject to the permission and control of the court, are also herein- mentioned.
Under the old law powers of the natural guardian to alienate a minor's property was a limited and qualified power. It could only be exercised in a case of legal necessity or for the benefit of the estate.
In Arun Kumar v. Chandrawati Agrawal the Allahabad High Court has held that the provisions of Section 6 exclude a Hindu minor having a natural guardian as defined by the Act for his undivided interest in joint family property. This would therefore, exclude a natural guardian as understood by the Act applying for permission of the court to alienate property of the minor under Section 8 (2) of the Act. The result would be that so long as the Hindu law shall apply, a father or a natural guardian can alienate a minor's interests in coparcenary property subject to the well-known conditions regarding benefit of the estate, etc.
Legal necessity has to be proved and cannot be inferred from mere recitals in the deeds. Where however due to lapse of time, direct evidence has become scanty, then such recitals assume importance and may fill in the inevitable lacuna in the evidence. The transferee must show positivity that in the circumstances of the family, the alienation was the only course left open to the natural guardian. If he failed to do so then the transaction cannot be upheld. The powers of a natural guardian continue even if the minor is not living with him.
Rights and liabilities of guardians:-
A guardian is entitled to the custody of his ward and exclusive possession of his property. As a guardian he alone is entitled to sue or be sued on behalf of the minor as his next friend, and do all such acts as many be necessary for contesting the case in the interest of the minor. The guardian can also enter into a compromise or can agree to refer the dispute to arbitration in order to preserve the interest of the child. The compromise would be binding only when it fulfils the test of minor's interest and is approved by the court. Where the guardian incurs any expenses out of his own pocket he would be duly reimbursed or indemnified out of the minor's property.
The legal position of guardians is fiduciary in nature. They are personally liable for breach of trust. They are not entitled to any remuneration for their guardianship unless it has been specifically provided in the will. He cannot appropriate minor's property or can not use minor's property to meet his own ends. He is bound to manage the minor's property and estate prudently. Whatever pecuniary advantage and profits are received out of the minor's estate, the guardian is bound to hold them in trust from the minor. He is bound to render all accounts to the minor because of his fiduciary relationship with the minor.
If the minor, after attaining majority discharges the guardian after knowing the acts and omissions of the guardian, then the liability of the guardian for those acts and omissions comes to an end.
Introduction:- The right to maintenance arises from the concept of an undivided family. The heat of such a family is bound to maintain its members, their wives and their children. All members of a joint family, whatever be their status and whatever be their age, are entitled to maintenance.
It is a right to get the necessities which are reasonable. Section 3 (b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to it maintenance includes - (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. It does not rest upon contract. It is a liability created by Hindu Law and arises out of jural relations of the parties.
The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother.
Persons entitled to maintenance :- According to Hindu Law a member of the family is entitled either to a share in the ancestral property or maintenance out of the income of the property. The following persons are entitled to such maintenance as enumerated in Hindu Adoptions and Maintenance Act, 1956, and as mentioned in pure (old) Hindu Law:
II. Wife
III. Widower daughter- in- law.
IV. Children and aged parents.
V. Dependants of the deceased :-
1) his or her father,
2) his or her mother,
3) his widow,
4) his or her son, son of pre-deceased son, or son of a pre-decreased son of a pre-deceased son,
5) his or her unmarried daughters, or the unmarried daughter of predeceased son or unmarried
daughter of a pre-deceased son of a pre-deceased son,
6) his widowed daughter,
7) widow of his son or a son of pre-deceased son,
8) his minor illegitimate son,
9) his unmarried illegitimate daughter.
Section 18 of the Hindu Adoptions and maintenance Act, 1956, deals with the maintenance and separate residence of a wife. Prior to this Act the Hindu married Women's Right to Separate Residence and Maintenance Act, 1946, was in force but this Act has now been repealed by Section 29 of the Hindu Adoptions and Maintenance Act, 1956.
What is in the rule. - A wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection. As a rule a wife is not entitled to separate residence from her husband, unless she proves that by reasons of his misconduct or refusal to maintain her in his own place or residence or other justifying cause, she is compelled to live apart from him.
Exception to the Rule. - Sub section (2) of Section 18 of the Act enumerates the contingencies in which a wife may live separately with her husband without forfeiting her right of maintenance. Sub - clauses (a) to (g) of Section 18 92) lays down the grounds for claiming separate residence.
The Orissa High Court in Pankajini Das v. Hrusaikersh, has held that ordinarily, a Hindu wife is bound to live with her husband under the same roof and protection of her husband as has been held in large number of cases. Sub-section (2) of Section 18 of the Act, however, lays down the circumstances in which a wife may live separately from her husband without forfeiting her claim to maintenance. The law relating to the claim of maintenance by a wife while living separately from her husband is substantially the same all through, though such a right got the statutory recognition for the first time in the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
Wife when not entitled to separate residence and maintenance:- The circumstances under with a Hindu wife shall not be entitled to separate residence and maintenance may be enumerated as under :-
a) When she ceases to be Hindu by conversion.
b) When she is unchasty
c) When she is living without any cause justifying the same
d) When the separate living is by agreement between the husband and wife and wife forfeits her claim
for maintenance.
Section 18 (3) of the Hindu Adoptions and Maintenance Act, 1956, has mentioned only two grounds (1) and (2) disentitling the wife to claim separate residence and maintenance. Other grounds arose out of judicial pronouncements made by various High Courts. These grounds too, it is submitted will disentitle the wife to claim separate residence and maintenance if there is nothing inconsistent with the provisions of the Act.
a) Ceasing to be Hindu - Section 18 (3) of the Act clearly lays down that a Hindu wife shall not be entitled t separate residence and maintenance when she ceases to be a Hindu by conversion to another religion. As soon as the ceases to be Hindu, she forfeits her right to separate maintenance. Cessation from Hinduism would not arise from loss of caste or a lapse from orthodoxy; cessation under this sub-section would arise only if she is converted to another religion.
b) Unchastity- Meaning - If the wife is living in adultery and persists in that course she would be deemed to be unchasty.
c) Living separate without justifying cause - A Hindu wife before she becomes entitled to separate maintenance, must satisfy the curt that she had a justifying cause which compelled her to live separately. So there must be some justification for separate maintenance. She is not entitled to separate maintenance when the husband is willing to keep her in his house and she refuses to accept his offer without sufficient justification. A wife voluntarily deserting her husband becomes disentitled to claim separate maintenance. The justifying causes which entitle the wife to claim separate maintenance are mentioned in Section 18 (2) of the Act.
Suspension of wife's right maintenance - A wife living apart from her husband for no improper purpose may at any time return and claim to be maintained by him. Her right is not forfeited, but is only suspended so long as she commits a breach of duty, by living apart from him without any justifiable cause. So where she subsequently comes back and offers to live with him, his refusal to take her back entitles her to demand maintenance. The suspension causes when the husband dies. He cannot under the provisions of Succession Act execute a will to defeat such a right.
d) Agreement to live separately and not to claim maintenance - The right to claim maintenance is a right which has now been granted by Statute. It is open to the party, enforcing the right to force or waive his right either in full or in part. So it is open to the wife to enter into an agreement with her husband not to claim the maintenance. Such agreement is valid and enforceable provided that it has not been entered into by fraud, coercion, force, mistake, etc. An agreement not to claim enhancement to the maintenance is a binding agreement and must be enforced. After such agreement, the right of wife to claim maintenance or enhancement, as the case may be, is extinguished.
Maintenance of aged, infirm parents and the children :-
Section 20, Hindu Adoptions and Maintenance Act, reads as follows:-
1) Subject to the provisions of this section a Hindu is bound, during his or her life time to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or property.
Explanation - In this section "parent" includes a childless step-mther".
a. Illegitimate son - Under the old Hindu law, only father was bound to maintain his children but under the Act not merely father but mother is also under a legal obligation to maintain children.
As the law now stands, son whether legitimate or illegitimate and whether adopted or natural born can claim maintenance from either of his parents rill he attains majority under the provisions of this Act. The liability is personal and is not dependent on the possession of property and would cease with the death of the Hindu liable to maintain.
b. Daughter and Illegitimate daughter - A father, under the old Hindu Law, was bound to maintain his unmarried daughters. On the death of their father, they were entitled to be maintained out of his estate. There was no provision in Hindu Law for the maintenance of illegitimate daughter, but they were entitled to claim maintenance under Section 125. Cr.P.CUnder Hindu Law an illegitimate daughter is not entitled to maintenance from the estate of her putative father which has descended to his legal heirs. According to this Act daughter whether legitimate or illegitimate both can claim maintenance from their patents (i.e., both father and mother). But the obligation of parent to maintain them would arise only if the daughters are unable to maintain themselves by their own separate earnings and property. Such condition has not been imposed in case of sons.
Daughter can claim maintenance from her parents as long as she unmarried. Sub-section (3) of Section 20, Hindu Adoptions and Maintenance Act gives statutory recognition to the rule under the prior law that a Hindu male or female is under an obligation to maintain his or her unmarried daughter regardless of age so long as she is not able to maintain herself.
In Chandra Kishore v. K\Nanak Chana, Delhi High Court has held that the obligation of a Hindu father includes the obligation to maintain unmarried daughter not only for purpose of her day to day expenses but also in respect of reasonable expenses her marriage. Thus a Hindu is obliged to meet marriage expenses of his daughter whether there is a joint family property or not.
c. Aged and infirm parents - Section 125 of Cr.P.C casts a liability on the son and the daughter to maintain their aged and infirm parents, who are unable to maintain themselves out of their own property and earnings. Under the old Hindu Law a son was under a legal obligation to maintain his aged parents. Now this liability has been imposed upon the daughter also, probably because under Hindu Succession Act, 1956, daughter has also been given share in the property of the father. Grand-father or grandmother do not come under the word "Parent".
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