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Source of Hindu Law#
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Sruti-
It is a ter term that that desc descri ri$e $es s the the sacr sacred ed te%t te%ts s com& com&ri risi sing ng the the cent centra rall cano canon n of Hind Hindui uism sm and is one one of the the three three main main sour source ces s of dharma and there therefor fore e is in'uential within Hindu Law# Law# It does not contain any statement of law# It is the word of god# Sruti means to hear( the liturgical cores of each of the )edas are su&&lemented $y commentaries on each te%t( which all $elong to the *ruti canon+
,rahmanas,rahmanas- e%&lanation of mantra#
Aranya.as
!&anishads
/
#Mantras #Mantras in 0ed de&ict de&ict the cultural conditio conditions ns of Hindu Soeity( and social social life( $ut does not e%&lain any a ny law# law# 1ommentary is a&&lica$le in law# law#
Smrti- that which is remem$ered
2he literature which com&rises the Smriti was com&osed after the )edas around 344 ,1E# Smriti also denotes tradition in the sense that it &ortrays the traditions of the rules on dharma( es&ecially those of lawful 0irtuous &ersons# Smriti is the second source of authority for dharma# 2he 5rst source of dharma is Sruti+ Sruti+ the the )edas edas or 6e0el e0elat atio ion# n# "ith ith regar egards ds to Hind Hindu u law( law( scho schola lars rs ha0e ha0e commonly translated Smriti as 7tradition8# Although Smriti is also considered a written source9 it di:ers from Sruti in that Smriti does not ha0e di0ine origins# Smriti;s literal translation( 7to remem$er8 e%&lains this# In a sense( Smriti consists of the memories of wisdom that sages ha0e &assed on to their disci&les# 2hese memories consist of traditions# It is these memories that ma.e u& the second source of dharma and consequently ha0e $een recorded to $ecome a written source9 commentaries such as Laws of Manu( for e%am&le# 2he Smrti te%ts ha0e $ecome a $inding of 7sacred literature8 2here are two im&ortant sides of Smriti+ Smriti as 2radition and Smriti as 2e%ts# Smriti as 2radition consists of Smriti as memories# It is from these memories that the rules of dharma are &reser0ed and &assed down# It &re&ared $y the di:erent writer( it has more weight then sruti in the &re0iew of law# 2here are following smrtis/# Manu Manu Smrt Smrti# i# <# =a>na0l a>na0l.y .ya a Smrti Smrti ?# Nara Narad d Smrt Smrtii Manu- 344$c
2he Manu M anu Smriti is written with a focus on the 7shoulds8 of dharma rather than on the actuality of e0eryday &ractice in India at the time# Still( its &ractical a&&lication shou should ld not not $e unde underresti estima mate ted# d# 2hr 2hrough ough inte interrmedi mediat ate e forc forces es(( such such as the the instruction of scholars( the teachings did indeed ha0e indirect e:ects on ma>or segmen segments ts of the the Indi Indian an &o&ul &o&ulati ation on## It is also also an in0al in0alua ua$l $le e &oin &ointt of comm common on reference in scholarly de$ates# <
#Mantras #Mantras in 0ed de&ict de&ict the cultural conditio conditions ns of Hindu Soeity( and social social life( $ut does not e%&lain any a ny law# law# 1ommentary is a&&lica$le in law# law#
Smrti- that which is remem$ered
2he literature which com&rises the Smriti was com&osed after the )edas around 344 ,1E# Smriti also denotes tradition in the sense that it &ortrays the traditions of the rules on dharma( es&ecially those of lawful 0irtuous &ersons# Smriti is the second source of authority for dharma# 2he 5rst source of dharma is Sruti+ Sruti+ the the )edas edas or 6e0el e0elat atio ion# n# "ith ith regar egards ds to Hind Hindu u law( law( scho schola lars rs ha0e ha0e commonly translated Smriti as 7tradition8# Although Smriti is also considered a written source9 it di:ers from Sruti in that Smriti does not ha0e di0ine origins# Smriti;s literal translation( 7to remem$er8 e%&lains this# In a sense( Smriti consists of the memories of wisdom that sages ha0e &assed on to their disci&les# 2hese memories consist of traditions# It is these memories that ma.e u& the second source of dharma and consequently ha0e $een recorded to $ecome a written source9 commentaries such as Laws of Manu( for e%am&le# 2he Smrti te%ts ha0e $ecome a $inding of 7sacred literature8 2here are two im&ortant sides of Smriti+ Smriti as 2radition and Smriti as 2e%ts# Smriti as 2radition consists of Smriti as memories# It is from these memories that the rules of dharma are &reser0ed and &assed down# It &re&ared $y the di:erent writer( it has more weight then sruti in the &re0iew of law# 2here are following smrtis/# Manu Manu Smrt Smrti# i# <# =a>na0l a>na0l.y .ya a Smrti Smrti ?# Nara Narad d Smrt Smrtii Manu- 344$c
2he Manu M anu Smriti is written with a focus on the 7shoulds8 of dharma rather than on the actuality of e0eryday &ractice in India at the time# Still( its &ractical a&&lication shou should ld not not $e unde underresti estima mate ted# d# 2hr 2hrough ough inte interrmedi mediat ate e forc forces es(( such such as the the instruction of scholars( the teachings did indeed ha0e indirect e:ects on ma>or segmen segments ts of the the Indi Indian an &o&ul &o&ulati ation on## It is also also an in0al in0alua ua$l $le e &oin &ointt of comm common on reference in scholarly de$ates# <
It does not say anything a$out the women rights it says women ha0e no right to hold @ dis&ose o: the &ro&erty and ( and also stress less serious &unishment for any crime#
Yajnavlkya Yajnavlkya Smrti- 1 ad. ad.
Has Has $een $een calle alled d the the $est $est com&o om&os sed ed and and most most homo homoge gene neo ous te%t of the harma*Bstra tradi adition# It re'e e'ects a su&erior 0oca$ulary ary and and le0el of so&histication in com&arison to many of the other te%ts of its time# It was written $y Sage =a>na0al. =a>na0al.ya ya of Mithila during the &ea. in'uence of the Gu&ta dynasty in India# It de&tict the $udhist way of life( and &rofound the ,udisht doctrine# It su&&ort he women rights it says women ha0e no right to hold @ dis&ose of the &ro&erty( and stress more serious &unishment for any crime# It also esta$lish the rule of law( &rocedure and e0idence# Narad 400-500 ad.
2he structure of the NBradasmCti is $ased on the eighteen titles of law( which are also mentioned in the ManusmCti $ut with some 0ariation in names#DF names#DF 2he 2he te%t $egins with a $rief introduction into law and the courts $efore del0ing into these / titles( de0oting a cha&ter to each# 2he way in which this te%t is written ma.es it clear that the authors was a&&ealing to a community of &ractitioners( interested in directly a&&lying the law to e0ery day cases#
Who is Hindu Surajmani Stella Kujur v. ur!a "haran Hansdah
Section < of the Act s&eci5es the &ersons to whom the Act is a&&lica$le# 1lauses a( b and c of su$-section / of Section < ma.e the Act a&&lica$le to a &erson who is a
Hind Hindu u $y relig religio ion n in any of its its form forms s or de0elo de0elo&m &men ents ts inclu includi ding ng a
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)irashai0a( a Lingayat or a follower of the ,rahmo( ,rahmo( Prarthana or Arya Sama> and to a &erson who is a ,uddhist( Jain or Si.h $y religion# religion# It is also a&&lica$le to any other &erson domiciled in the territories territories of India who is not a Muslim( 1hristian( Parsi or Jew $y religion# 2he a&&lica$ility of the Act is( therefore( com&rehensi0e and a&&lica$le to all &ersons domiciled in the territory of India who are not Muslims( 1hristians( Parsis or Jews $y religion# 2he term 7Hindu8 has not $een de5ned either under the Act or the Indian Succession Act or any other enactment of the legislature# As far $ac. as in /4? the Pri0y 1ouncil in Bhagwan Koer v. J.C. Bose
2he Act( is( therefore( a&&lica$le to+ / All Hindus including a )irashai0a( a Lingayat( a ,rahmo( Prarthana Sama>ist and an Arya Sama>ist( < ,uddhists9 ? Jains9 Si.hs#
Hindu Law #- Who is Hindu and to $hom Hindu %a$ a&&lies' (lso state to $hom it does not a&&ly' Ho$ )ar it is true to say* +a Hindu is ,orn not made' t is true to say* +Hindu la$ is not %e/ %oi ,ut a la$ o) status.
()ter readin! an interestin! ud!ment o) kerala Hi!h "ourt in Mohandas 2s. e$as$om 3oard* the ratio is Who is Hindu' elaration ,y a non Hindu Hind u is suient suient to ,e treated as a Hindu. Hindu. Many uestio uestions ns s&arked s&arked in my mind*
(re the suient riteria )or ,eomin! a Hindu' What is the &rovision o) delarin! a &erson as Hindu under Modern Hindu %a$' Ho$ and $hen Hinduism esta,lish. Hinduism in our vedi test. 6he sim&le de7nition de7nition is Hinduism is is a on!lomeration on!lomeration o) reli!ious* reli!ious* &hiloso&hial** and ultural ideas and &raties that ori!inated in ndia* &hiloso&hial harateri8ed ,y the ,elie) in reinarnation* one a,solute ,ein! o) multi&le mani)estations* mani)estations* the la$ o) ause and e9et* )ollo$in! the &ath o) ri!hteousness* and the desire )or li,eration )rom the yle o) ,irths and deaths. : r in other sim&le $ords a reli!ion and then $hoever is ,orn in that reli!ion $ould ,e onsidered a Hindu* i.e. a Hindu ,y ,irth or a Janma Hindu. Hindu. Ho$ever* really do not $ant to have a narro$ a&&roah to$ards it* so $ent to a dee& study o) 2edi te/t and la$ and jud!ments; o) many ourts. Hinduism has its ori!ins in suh remote &ast that it annot ,e traed to any one individual. Some sholars ,elieve that Hinduism must have e/isted even in ira 10000 3.". and that the earliest o) the Hindu sri&tures < 6he =i! 2eda < $as om&osed $ell ,e)ore >500 3.". 6he $ord ?Hinduism? is not to ,e )ound any$here in the sri&tures* and the term ?Hindu? $as introdued ,y )orei!ners $ho re)erred to &eo&le livin! aross the =iver ndus or Sindhu* in the north o) ndia* around $hih the 2edi reli!ion is ,elieved to have ori!inated. History says the ori!in o) Hinduism dates ,ak to 5*000 or more years. 6he term Hindu ome into e/istene $hen @reek $ho alled the inha,itant o) the ndus valley as indo. (ordin! to sholars* the evolution o) Hinduism divided into three &eriodsA the anient B>500 3"C-1000 (D* the medieval B1000-1E00 (D* and the modern B1E00 ( to &resentD. Hinduism is ommonly thou!ht to ,e the oldest reli!ion in the history o) human ivili8ation.
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,efore the ad0ent of Muslim in India( the term Hindu had no creedal connotation# It had only the territorial signi5cance9 &ro$a$ly it also denote the nationality# 2he term Hindu come into e%istence when Gree. who called the inha$itant of the Indus 0alley as indo. it is also signi5cant that $efore the codi5cation of some $ranches of Hindu Law in /33-KK( it had not strictly de5ne as a term of religion# ,efore /33 a &erson who was Hindu $y religion $y certainly a Hindu( $ut the con0erse was not true# 2here was a &erson who could hardly $e called Hindus $y religion ( yet Hindu law a&&lies to them( since Hindu law a&&lies to them they were called Hindus# After the codi5cation of Hindu law( it gi0es the negati0e de5nition means+ A person who was not a Muslim, Christian, Parsi or Jew was a Hindu.
"ho is Hindu Hindu is a general term( it denotes all those &erson who Profess Hindu religion either $y $irth or $y con0ersion to Hindu faith# Ya!na Furusdasji vGs Muldas- S" held Acceptance of Vedas with reverence, recognition of the fact that the means or ways of salvation are diverse and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religio.
Hindu is ,orn not made
Ac to Hindu theory Hindu is $orn not made( $ut this statement is not fully correct# !nder old Hindu law no one could $e Hindu $y con0ersion# 2he status of a &arent he is a Hindu unless he changes his e%isting status $y $ecoming a mem$er of such a religion as would destroy his status as Hindu( and gi0e him a new one# A Hindu on his con0ersion to any other religion ceases to $e go0erned $y Hindu law# (G to Frivy "ounil
2hose $orn as Hindus and also those who $ecome con0erts to Hinduism# (&&liation o) Hindu %a$ 1. Hindu 3y =eli!ion- Any &erson who is a Hindu( Jain( Si.h or ,uddhist $y
religion( i#e# Hindu $y religion# !nder this category two ty&es of &erson falls+ K
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6hose $ho are ori!inally Hindus* ain* Sikhs or 3uddhist ,y reli!ion. . 6hose $ho are onverts or re onverts to Hindu* ain* Sikhs or 3uddhist reli!ion. . Hindu 3y 3irth- Any &erson who is $orn of Hindu &arents 0i# when $oth
the &arent or one of the &arents is a Hindu( Jain( Si.h( or ,uddhist# I. Any &erson who is not a Muslim( 1hristian( Parsi or Jew( and who is not go0erned $y any other law# Hindu la$ not a&&lies Sheduled 6ri,es- the odi)y Hindu la$ lays do$n that its &rovisions do not a&&ly to the mem,er o) the Sheduled tri,es omin! $ithin the meanin! o) clauses (25 o! Article "## o! the Constitution o! $ndia unless the "enter @overnment noti7ation in the oial @a8ette direts that any o) the enatments shall a&&ly to them also.
It does not mean that any Scheduled tri$es which were go0erned $y Hindu Law $efore the 1odi5cation of Hindu Law( not $eing go0erned $y Hindu Law( they will continue to $e under the &eri&hery of it#
m&ortant 6o&is1. . I. 4.
"onet& o) Hindu Marri!e. 6heroy o) divore. @round o) Maintenane. Hindu Suession (t.
M(==@C S ( S("=(MCN6 := ( ":N6=("6.
#- Hindu marria!e is a sarament not a ontrat e/&lain $ith the essential onditions )or a valid Hindu Marria!e.- B00JD. #- HM a sarament or only a ivil ontrat* $ith the hel& o) ase la$. B00D.
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#- s HM a sarament or a ontrat $ould it ,e use)ul ontrat kee&in! in)at the sarament ritual- disuss in the li!ht o) old and modern H%.B00D. #-Ho$ )or the HM (t 1J55 has undermined the sarament harater o) HM. #-Nature o) HM.
HNQ,LE J!GES+ A6IJI2 PASA=A2 AN AL)EE6 ,HANA6I( JJ IN APPELLAN2S+ SM2# MA=AE)I )S# 6ESPNEN2+ JAGISH P6ASA 2HE R!NA2IN R A S!N MA66IAGE IS 2LE6AN1E( AJ!S2MEN2 AN 6ESPE12ING NE AN2HE6# 2LE6AN1E 2 EA1H 2HE6QS RA!L2 2 A 1E62AIN ,EA6A,LE E2EN2 HAS 2 ,E INHE6EN2 IN E)E6= MA66IAGE# PE22= T!I,,LES( 26IRLING IRRE6EN1ES SH!L N2 ,E EAGGE6A2E AN MAGNIRIE 2 ES26= "HA2 IS SAI 2 HA)E ,EEN MAE IN HEA)EN# ALL T!A66ELS M!S2 ,E "EIGHE R6M 2HA2 PIN2 R )IE" IN E2E6MINING "HA2 1NS2I2!2ES 16!EL2= IN EA1H PA62I1!LA6 1ASE AN AS N2E A,)E( AL"A=S UEEPING IN )IE" 2HE PH=SI1AL AN MEN2AL 1NI2INS R 2HE PA62IES( 2HEI6 1HA6A12E6 AN S1IAL S2A2!S#
A 2
2E1HNI1AL AN H=PE6-SENSI2I)E APP6A1H "!L ,E 1!N2E6P6!12I)E 2 2HE INS2I2!2IN R MA66IAGE#
2HE 1!62S N2 HA)E 2 EAL "I2H IEAL H!S,ANS AN IEAL "I)ES# I 2
HAS 2 EAL "I2H PA62I1!LA6 MAN AN "MAN ,ER6E I2
C2:%L6:N : 6HC NS66L6C : M(==(@C#
"hen the institution of Marriage was not esta$lished( well the man was not more than an animal# 2he disco0ery of twin was meant for ful5llment of &hysical needs# 1i0iliation drawn on man with the acquisition of .nowledge of family relationshi& some sort of se% regulation come to $e esta$lished &ro$a$ly it $egan with grou& of marriage and later on cou&le marriage# ":N"CF6 : M(==(@C
In Hindu;s religion system marriage treated as a holly $ond or union $etween the two soul# It is not the union for the life $ut the coming life as well# Marriage treated as a essential Sans.aras and e0ery Hindu must marry#
According to Sat&atha 3rahman- "ife is considered as ardhangani# In addition( no religion duty can $e ful5lled without wife or marriage# It has $een treated that marriage is the tie( which cannot $e untied# Manu says- Hus$and and wife are united to each other not merely is this life $ut e0en after death# In the other world its im&liations has ,een that W:W =CM(==(@C H(S N:6 3CCN =C":@NSC N HNL %(W. (&astham,a says < marria!e $as meant )or doin! !ood deeds )or attainment o) Moksha.
2hus HM is one of the oldest and essential institution of Hindu;s# it occu&ies a 0ery im&ortant role in their social life# It is regarded as one of the most im&ortant Sans.ara out of 2en Sans.ara( which can not $e a$olished or &rohi$ited( any one irres&ecti0e of cast and se% it is com&ulsory for all Hindu;s# N(6L=C : HNL M(==(@C H$%&' MA$A)* $+ A +ACAM*% A%& %- A C-%AC . @:F(% KSH(N 2GS M6H%CSH KLM(=- AAHABA& HC :3SC=2C
2he institution of matrimony under the HL is a sacrament and not a mere socio legal contract( it is not &erformed for mere emotional grati5cation in its conte%t it is religious a hus$and and wife $ecome one# 2he $ride on the Se0enth Ste& of the Sa&ta&adi losses her orrigional gothra and acruire the gotra of the $ridegroom# SH2(N(NY 2GS 3H(@(W(N6HY(MM(
Marriage is $inding for life $ecause the marriage tie com&leted $y Sa&ta&adi and once it tie it cannot $e untied# It is not a mere contract in which a consenting mind is indis&ensa$le# HNL M(==(@C ( ":N6=("6 (%S:
2he modern conce&t of marriage is as a contract it is an outcome of industrialiation which $ased on the &rinci&le that V all human and soial relationshi& must ,e ,ased on the )ree volition o) individual. 3H(@W(6 S(=(N SN@H 2GS F(=MCSH2(= M(N:H(= SN@H
Marriage is not only a sacrament $ut also a contract# ML6HLS(M 2GS M(H(%(M
Marriage whate0er else it is i#e# a sacrament or an institution( is undou$tedly a contract enters into for consideration with correlati0e rights#
(N(N( C2 2GS @H:SC
Suits relating to marriage deal with that which in the eye of law must $e treated as a ci0il contract and im&ortant ci0il right arise out of that contract# HNL M(==(@C ("6 1J55
2his Act has introduced some far reaching consequences which ha0e undermined the sacramental character of marriage and rendered it contractual in nature to a great e%tant# Setion 5* 11 and 1 o) this (t are the &ertaining &ro0isions which deals
whether marriage is a contract or sacrament# Setion 5 o) HM (t 1J55- deals $ith the ondition o) Marria!e. "lause BiiD o) Setion 5 deals $ith the MCN6(% "(F("6Y. "lause BiiiD o) Setion 5 deals $ith the (@C : 6HC F(=6CS.
2his means Age and Soundness of mind is the essential conditions of a 0alid marriage# If we com&are it with the SC"6:N 11 : N(N ":N6=("6 ("6- it says6he onsent o) minor or a &erson o) unsound mind is void.
,ut the fact of the matter is thatMarria!e o) a &erson $ho is o) unsound mind is a valid marria!e under this at* not merely the violation o) the reuirements o) lause BiiD O BiiiD o) Setion 5 not render the marria!e void. 6HLS 6HC SC"6:N 11 : " (t S N:6 (FF%"(3%C 6: M(==(@C M(==(@C =C@(=C (S ( ":N6=("6. LGS 1 : HM (t 1J55 -
0iolation of Section 3 render the marriage merely 0oida$le while ! Law of 1ontract for want of ca&acity is totally 0ide# 2hus HM Act does not consider the question of consent of much im&ortance# 3ut the only onern is the onsent is o,tain ,y )ored or )raud the marria!e is voida,le $hih )ollo$ the same line o) " (t 1E # "onlusion
It has $een seen that the sacramental marriage among Hindu;s has three charater/# Permanent and indissolu$le union# /4
<# Eternal union ?# Holy union# 2he 5rst element has $een destroyed $y the Act( i0orce is recognied# 2he second element destroyed in /3K when the widow remarriage was gi0en statutory recognition# And the third element is still restrained# 2hus the Hindu marriage has not remained a sacramental marriage and has not $ecome a contract through it has sem$lance of $oth# HM (t-1J55- under mind the sacrament and contract character#
Section 3 V Mental ca&acity S#//- Age of Marriage If we com&are it with I1 Act V S//- contract with minor or a &erson of unsound mind is 0oid# )iolation of S#3 ii @ iii not render the marriage 0oid# If we regarded marriage as contract then s#// of I1 Act not a&&lica$le on it# LGs 11 o) HM (t < S# 3 of HM Act render the marriage merely 0oida$le while
uLaw of 1ontract for want of ca&acity is totally 0oid# And also the consent is also not im&ortance# ,ut concern consent shd not $e o$tained $y fraud or forced# "onluson- Sacrament lies on ? &rinci&les- Permanent( eternal union( holy union#
Rirst destroyed $y this act recognition of di0orced( second destroyed $y widow remarriage( third is still there#
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Essentials of a 0alid marriage according to HMA /33# EndogamyX for$idden a men to marry a women who is not his .indred# E%ogamyX rule requiring one can only marry outside his own tri$e#
T-Cssentials. What is void and voida,le marria!e' C/&lain the distintion ,et$een t$o. What aordin! to Manu* $ere the ei!ht )orm o) marria!e uGold Hindu la$. What are the im&ortant han!e ,rou!ht a,out ,y the HM(* 1J55 and su,seuent (mendment (t 1J>'
Marriage confers a status of Hus$and and "ife on &arties to the marriage( and a status of Legitimacy on the children of marriage# Ror a 0alid marriage in most system( there are two comm on conditions/# Parties must ha0e ca&acity to marriage <# 2hey must undergo necessary ceremony and rituals of the marriage In some ancient community these were the nominal requirements( and &ro0ided that any two &eo&le( a man and woman could li0e together if they intended to do so
"onditions )or Hindu Marria!e S5
Section 3 &ro0ide a negati0e de5nition of a 0alid marriage Section say a marriage can $e solemnied $etween any two Hindus( if the following conditions are ful5lled( namely(I# II#
Neither &arty has s&ouse livin! at the time o) marria!e (t the time o) the marria!e* neither &arty*-
a Is ina&a,le o) !ivin! a valid onsent to it in consequence of unsoundness o) mind 9 or /<
$ 2hough ca&a$le of gi0ing 0alid consent( has $een su9erin! )rom
III# I)#
)#
mental disorder o) suh a kind or to suh an e/tent as to ,e un7t )or marria!e and the &roreation o) hildren;9 or c Has $een su$>ect to reurrin! attaks o) insanity 2he $ridegroom has om&leted the a!e o) B1 yearsDand the ,ride B1E yearsD at the time of marriage 2he &arties are not $ithin the de!rees o) &rohi,ited relationshi&( unless the custom or usage go0erning each of them &ermits of a marriage $etween the two 2he &arties are not sa&indas o) eah other ( unless the custom or usage go0erning each of them &ermits of a marriage $etween the two
Neessary "eremonies )or a Hindu Marria!e Neither Farty has s&ouse livin! at the date o) marria!e- this is condition
&recedent for e0ery Hindu Marriage( and it allow only monogamy( means only one hus$and or one wife at a time of marriage# HMA not only ma.es $igamous and &olyandry marriage 0oid $ut also &unisha$le us /O of HMA rw and 3 of IP1 In @o&al %al vGs State o) Maharashtra S" Held < what is to be establish is that the second marriage is valid but for this provision and the spouse to the rst marriage is the legally wedded spouse and that marriage is having its existence on the date the second marriage is solemnized.
Lnsound Mind or Su9erin! )rom Mental disorder 6ulsi 3ai vGs Manoharan held that- Suering from schizophrenia as a sound ground for a decree of nullity. !hether the disease is curable or not does not ma"e any dierence. !here in due course the disease is cured. n 3ala Krishna vGs %alitha < held that if a person is insane or suering from the recurrent attac"s of insanity it amount to nullity of marriage. Farties should not ,e $ithin &rohi,ited de!ree o) relations
2he &rohi$ition is also $ased on the rule of e%ogamy# 2he haramshastra consider se% relationshi& which one;s mother( sister( daughter( son;s wife as the highest sin#
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e!ree o) Frohi,ited relationshi&- two &erson cannot merry if they related to
each other within the degree of &rohi$ited relationshi& unless customs and usages &ermits# Sa&inda =elationshi&- two &erson cannot marry with each other if they are into
sa&inda relationshi& with each other means u&to 3 lenient descendent from &aternal side and ? lenient descendent form maternal side S#O Neessary "eremonies )or a Hindu Marria!e 2o &erform the necessary ceremonies or rituals is the essential condition for 0alid Hindu marriage li.e sata&adi etc#
"hat are the )oid @ 0oida$le Marriages S//@ S/< S // &ertaining to )oid and S/< &ertaining to )oida$le Marriage# S// says- any marriage solemnied after the commencement of this Act shall $e null and 0oid and may( on a &etition &resented $y either &arty thereto against the other &arty $e so declared $y a decree of nullity if it contra0ene any one of the conditions s&eci5ed in clause i(i0 and 0 of section 3# 2herefore( there are only three grounds( which declared marriage null and 0oid a$ initio# In Suresh Kr. 2Gs Smt. (sha =ani* held that* any &arty means only the actual &arties not any third &arty# Grounds for 0oid marriages 3i!amy- lause BiD o) setion 5- Prohi$etate the $igamy( and section says-
neither &arty has s&ouse li0ing at the time of marriage# - this is condition &recedent for e0ery Hindu Marriage( and it allow only monogamy(
means only one hus$and or one wife at a time of marriage# HMA not only ma.es $igamous and &olyandry marriage 0oid $ut also &unisha$le us /O of HMA rw and 3 of IP1 In @o&al %al vGs State o) Maharashtra S" Held < what is to be establish is that the second marriage is valid but for this provision and the spouse to the rst marriage is the legally wedded spouse and that marriage is having its existence on the date the second marriage is solemnized. /
Farties should not ,e $ithin &rohi,ited de!ree o) relations
2he &rohi$ition is also $ased on the rule of e%ogamy# 2he haramshastra consider se% relationshi& which one;s mother( sister( daughter( son;s wife as the highest sin# e!ree o) Frohi,ited relationshi&- two &erson cannot merry if they related to
each other within the degree of &rohi$ited relationshi& unless customs and usages &ermits# Sa&inda =elationshi&- two &erson cannot marry with each other if they are into
sa&inda relationshi& with each other means u&to 3 lenient descendent from &aternal side and ? lenient descendent form maternal side
2oida,le marria!e- S1I )oida$le means it is not 0oid a$ inito( it remain 0alid or has got some legal sanity till &etition for its nullity is granted $y the court# Section /? S&ea.s a$out the 0oida$le marriageAny marriage solemnie whether $efore or after the commencement of this Act( shall $e 0oida$le and may $e annulled $y a decree of nullity on any of the following grounds(Marria!e has not ,een onsummated o$in! to the im&ortane o) the res&ondent Marria!e is in ontravention o) the ondition s&ei7ed in lause BiiD o) setion 5 6he onsent o) &etitioner or onsent o) the !uardian in marria!e $as o,tained ,y )ore or ,y )raud =es&ondent $as at the time o) the marria!e &re!nant ,y some &erson other than the &etitioner
m&oteny -Marria!e has not ,een onsummated o$in! to the im&ortane o) the res&ondent
1om&anionshi& is also a main &ur&ose of marriage( and an indi0idual has a li$erty to marring li.e an im&ortant( eunuch( &rocreation of child is the secondary as&ect and it can $e $ridged $y way of ado&tion# A &arty is im&otent if his or her &hysical or mental condition ma.es consummation of marriage a &ractical im&ossi$ility( or ina$ility to &erform to se%ual act# Singh J # e5ned V "onsummation is somethin! re)erred to as vera o&ula* means eretion*
intromission B&enetrationD ,y the male o) the )emale. Rull and com&lete
&enetration is an essential ingredient of ordinary and com&lete inter-course( though the degree of se%ual satisfaction o$tained $y the &arties is irrele0ant# /3
After the amendment of /OK* in =ajinder vGs Shanti held a &erson who is ca&a$le of consummation of the marriage naturally or after a surgical o&eration of medical treatment cannot $e called im&ortant as the consummation of marriage is &ossi$le# Marria!e is in ontravention o) the ondition s&ei7ed in lause BiiD o) setion 5 . .
III#
na&a,le o) !ivin! valid onsent due to unsound o) mind Su9erin! )rom mental disorder* un7t )or marria!e or un7t )or &roreation o) hildren Su,jet to reurrent attaks o) insanity
E%ce&tions V No &etition for annulling a marriage on the grounds s&eci5ed in clause c of su$ section / not $e entertain ifI# II# III#
Petition is &resented after the one year of consent o$tain $y force 2he &etitioner has with or her full consent li0ed with the other &arty Petition on ground d of su$ section / if the &etitioner was at the time of marriage ignorant of the fact alleged
riginally under the Hindu Marriage Act /33( it was laid down that- if at the time of marriage one of the &arties to marriage was im&ortant and continued to $e so till the &resentation of the &etition ( the other &arty could sue for annulment of marriage# 6he marria!e la$ (mendment (t 1J>- has re$orded the luse6he marria!e has not ,ein! onsummated on aount o) im&oteny o) the res&onded.
/K
Sa&inda 6elationshi& 2he &rohi$ition is also $ased on the rule of e%ogamy# 2he haramshastra consider se% relationshi& which one;s mother( sister( daughter( son;s wife as the highest sin# 2wo theories I#
.
:,li!ation theory- Hindus $elie0e that &ind dan is the o$ligation to their
ancestors( and e0ery year they o:er &ind dan to their ancestor# "hen two &ersons o:er &indas to the same ancestor( they are called sa&indas to each other Fartile o) the same ,ody- it was &ro&ounded $y )i>naneshwara( he change the meaning of &inda from $all to &article of $ody# He said one ought to .now that whate0er the word sa&inda is use( there e%ist $etween the &ersons to whom it is a&&lied a connection with one $ody( either immediately or $y descent# ,ut he has gi0en a 0ery wide de5nition meaning who e0er ha0e the same $lood are related to each other# ,ecause such relationshi& can e%ist u& to /4
#
/O
=emem,er------Cvolution o) the institute o) marria!e- Animal( se%ual relation shi&# "one&t o) Marria!e-
Holy union( essential sans.araSat&ath ,rahman V 6eligious duty# Manu- Hus$and and wife tied not for this life $ut coming life also# No widow remarriage# A&astham$a V way of attainment of Mo.sha# Nature o) Hindu Marria!e. Sarament-
not a mere social legal contract it is a sacrament hus$and and wife $ecome one( wife losses his original gotra# @o&al Kishan vGs Mithiliesh Kumari-
Shivanandy vGs 3ha!a$anthyamma-
once the tie it cannot $e untied( it is
fore0er# "ontrat
1ause of industrialiation( and conce&t of freedom of indi0idual 3ha!$ati saran sin!h vGs &armeshvari manohar sin!h-
not only a
sacrament $ut contract also# Muthusami vGs mahala/mi-
undou$tly
a contract consideration with co
relati0e rights and duties# (njana dasi vGs !hosh- suits relating in the eye of law as a ci0il contract and
im&ortance ci0il rights arise out of that contract# /
#- "ritial note on the restitution o) onju!al ri!hts under HM(. s it violation o) the ri!ht o) the &ersonal li,erty uGa 1 o) the onstitution. What de)enses may ,e taken in ans$er to &etition )or the restitution o) onju!al ri!hts.
Necessary im&lication of marriage is that &arty li0e together( and coha$itation is the $asic and essential thing for matrimonial life# Section &ro0ide the legal grounds which com&el to other &arty if he or she withdraw from once society( without any reasona$le cause# us a decree of restitution of con>ugal rights im&lies that the guilty &arty is ordered to li0e with the aggrie0ed &arty# 2he conce&t of restitution of con>ugal rights $orrowed from Jews Law( it gi0es the im&ression of ancient days when wife consider a &ro&erty of her hus$and( and therefore he was therefore required to li0e all the time at home &ro0ided $y the hus$and( and if she refuse to do so or ran away from the home( she could com&elled to li0e with him# "ith the &assage of time the sco&e of this rights has $een wider and $oth the &arties hus$and and wife comes under this &rinci&le# (nalysis o) SetionSetion underlines the )e$ thin!s• • •
Cither &arty has a ri!ht. Withdra$n )rom the soiety With reasona,le e/use
Mulla;s says V a wife 5rst duty to her hus$and to su$mit herself o$ediently to his authority and remain under his roof# Pun/a0 and Har1ana High Court and Madh1a Pradesh high court sa1s in some cases that $n the modern societ1 wi!e is no longer the propert1 o! hus0and hose hold, it is open !or 0oth the hus0and and wi!e to choose their /o0, and i! an1 one due to his /o0 o0ligation li3e separatel1 it dows not amount to withdraw !rom the societ1. o hold otherwise would 0e 3iolation o! Constitutional law pro3ision o! e4uit1 o! se Art 67 and Art 26 . "onstitutional 2alidity o) Se Jn Sareetha vGs 6. 2enkata Su,,ih held thatS. J violative o) ri!ht o) (rt 1 o) the onstitution o) ndia is ultra vires o) the onstitution. Not only this ,ut it also violate the (rt 14.
/
:n the other hand S" in Saroj =ani vGs Sudarshan* says that the o,jet o) the restitution deree is to ,rin! a,out oha,itation ,et$een the &arties* so that they an live to!ether in the matrimonial li)e. So it is not ultravirus and snath the li,erty &rovided under (rt 1 o) onstitution
What han!es have ,een made ,y the (mendment (t 1J>' What remedy may the ourt &rovide to the a!!rieved &arty'
Matrimonial causes- legal action in res&ect of marriage #- isuss the !round o) divore and judiial se&aration as &rovided to Hindu s&ouse u HM( 1J55. :n $hih s&ei7 !rounds a $i)e an 7le a &etition )or divore and hus,and annot. istin!uish ,et$een judiial se&aration and divore Whether marria!e an ,e dissolved ,ased on mutual onsent' ) yes* state the &rovisions o) HM( in this re!ard. What re the Matrimonial auses.
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Means legal action in res&ect of marriage( $efore /33 in their real sense did not e%ist in Hindu Law# HMA /33 recognied four matrimonial causes . .
. 2.
Nullity o) marria!e Se&aration Se&aration ,y (!reement udiial Se&aration issolution o) marria!e =estitution o) onju!al ri!hts
the law of nullity relates to &re marriage im&ediment o$structions( the su$>ect matter of im&ediment is co0er underNullity o) Marria!e-
•
"a&aity to marria!e- if the &arty marry des&ite the im&ediment the marriage
may not $e 0alid# It can $e di0ided in two ty&es/# (,solute na&aity- it is 0oid a$ inito( it is also called the 0oid marriage which attract clause i( i0( and 0 of Section 3 li.e V $igamy( &rohi$ited degree of relation( or sa&inda relationshi& <# =elative na&aity- it is at the will of the &arty( if they want to continue the marriage# It usually attract clause ii( iii( of section 3( and Section /<# Li.e im&otency( mental ca&acity( age etc# Se&aration- Parties may each other $y the decree of court or $y an mutual agreement#
/# Se&aration ,y (!reement- HMA is silent on se&aration $y agreement( it was &re0ail $efore the HMA( and not its also e%ist# According to Indian contract act all agreement must $e in &resent( future agreement are 0oid# A consensual se&aration is essentially a contract $etween the &arties# Se&aration agreement sometimes sti&ulates co0enants not to see. against restitution of con>ugal rights( or not to molest each other# A co0enant against restitution is enforcea$le( $ut courts are not $ound $y it# udiial se&aration- Section /4 says &arties my se&arate from each other $y the decree
of the court # Judicial se&aration either leads to reconciliation or to di0orce# In e%ce&tional circumstances( it may mean &ermanent se&aration# It granted on certain s&eci5ed grounds which s&eci5ed in su$ section / of section /? grounds for di0oce( and in the case of a wide also on any of the grounds s&eci5ed in su$section < thereof( as ground on which a &etition for di0orce might ha0e $een &resented# Su,setion BD o) setion 10 says where a decree for >udicial se&aration has $een
&assed( it shall no longer $e o$ligatory for the &etitioner to coha$it with the res&ondent( $ut the court may( on the a&&lication $y &etition of either &arty and on $eing satis5ed of the truth of the statement made in such &etition( rescind the decree( if it consider it is >ust and reasona$le to do so# issolution o) Marria!e- ivore
i0orce &uts the marriage in an end( and &arties free to remarriage# Section /? s&ea.s a$out the di0orce( Marriage Laws Amendment Act /OK( equalie grounds for di0orce and >udicial se&aration# HMA /33 originally $ased di0orced on the fault theory( and tal. a$out grounds which sti&ulated in Section /?/# In /K $y amendments are also added which is called the $rea.down of marriage# In /OK Marriage Laws Amendments inserted new section /?, and recognied two additional grounds for di0orce under fault theory# ollo$in! are the $ays under $hih ivore an ,e o,tained 1. ault 6heory @rounds on $hih either &arty an o,tain divore @rounds on $hih $i)e alone an o,tain divore. . 3reak do$n theory. I. ivore ,y mutual onsent 4. "ustomary divore and divore under s&eial la$
<<
& a 8 C S r1 B th o n i u Bth I l .F ivre 3 t l 1 r1 : a e o D 9 cr0stie r c , & i a isd e rh ia N e 0! w o n tu , n 1yto 0 i r e a & 0t io m se @ l1 h o n cu r" y! ie h sto u u 0 ro , ) a t d n t m l0it1 o , sa iu n 0o e m jn t S i ! i & m u se a i0 r& , a n ) ri3 tle d i o a r$ e e vo cd r si! p r n h e y0e cts, h i u h e l, a s t& r, a $ e d ti e a n * ce sn th t o ) e m r$ o & n i a t ts2ra i& sr e it e h d o ) r i )h o a st o & o n e rie y0 o l a e d r o th o ) ri o ! u e n . & a $ ye rd a r o & u $ r a
aulty 6heory ault means $hen either o) the &arty at $ron! side. Setion 1IB1D talks a,out J !rounds relatin! to )ault theory. Whih are1. (dultery - when either of the &arty 0oluntary se%ual intercourse with any &erson other than his or her s&ouse# In Sanjukta Fradhan vGs %a/mi Narayan Fradhan held that < it is not the reuirement that there must ,e diret &roo) o) adultery. . "ruelty- when &etitioner treated $y other &arty cruelly# n ayahandra vGs (nil Kaur- held that -2he e%&ression of cruelty used in
relation to human conduct or human $eha0ior in relation to or in res&ect of matrimonial duties and o$ligations# 1ruelty is the course of conduct of one which ad0ersely a:ecting the other# It may $e &hysical or mental( intentional or unintentional# n =an!arao vGs 2ijaya la/mi held that- when wife threat to commit suicide is amount to cruelty# n =adhay Shayam vGs Kusum- held that- when wife refuse to se%ual intercourse without any reasona$le cause it amount to cruelty at hus$and# I. esertion- when one &arty desert the other &arty without any reasona$le cause without the consent or against the will of other &arty for a &eriod which not less than < years amount to desertion# It is not merely an act $ut also conduct( which includes willful neglect#
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4. "onversion o) another reli!ion. 5. Lnsound mind or has ,een su9erin! ontinuously ro intermittently )rom mental disorder. >. Su9erin! )rom a virulent and inura,le )orm o) le&rosy. . 2enereal disease in a ommunia,le )rom E. =enouned the $orld ,y enterin! any reli!ious order J. Not ,ein! heard o) ,ein! alive )or a &eriod o) years.
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Ado&tion( Maintenance( Minority and Guardianshi& #- $hat is ado&tion' What are the reuirements o) a valid ado&tion under H(M( 1J5>' isuss the a&aity o) a male and )emale Hindu to take a son or dau!hter in ado&tion. Who are a&a,le to !ive a hild in ado&tion' (lso* state that $ho an ,e ado&ted' What are the le!al e9ets o) a valid ado&tion' isuss the validity o) the )ollo$in! ado&tionsa. (;s )ather and mother are dead ,ut 3 has ado&ted him. ,. (;s $i)e has !one to her )ather and is not a,le to join the &hysial at o) !ivin! and takin! the ,oy in ado&tion* an (do&t 3 under the a,ove ontin!eny' . 3; a stran!er* has ,een ado&ted ,y (. d. (;s )ather is dead and mother has renouned the $orld* 3;s ,rother has !ivin! in ado&tion. e. (;s a!e at the time o) ado&tion is 1> years and has not married* 3 takes him in ado&tion. "an a valid ado&tion ,e su,seuently anelled' C/&lain the dotrine o) the =elation 3ak 6heory ,ased on deided ased. Ho$ )ar they are &revalent at &resent. Cnumerate the im&ortant han!es ,rou!ht a,out ,y the Hindu (do&tion and Maintenane (t.
What are the
A * 9 + = sd it.h s 6 o < = h p n e 6 t2m t a A i 8 1 o a o d ) A l o d M p n l d o a p 2 o tt p ! w i t h & t o ri e e 2; n o ! a g rn 1i i0 cl 1 ! n d o tM h A i d n a *8 t d i l e i o t e im p o 2i a ) n t o l n i e u so n m o u s n *t d cn o p tm 0l e a & w a i , lt *h e 2 m o n th e r 0 n a d o t h a t
What are the le!al e9et o) a valid (do&tion-
Ado&tion one of those function of law which ha0e $een marshaled for furtherance of the indi0idual interest#
F = W % l& C o id $ t a r n 0 ! s S , e h k G6 v ( )u -u y d io t a n r & e h s , )l.H it d n a ! le m o )h , s d n *e 0 a io t & $ r , k 0 h t e im o )d a
Law of ado&tion made a children less &erson ena$le to treat someone else children as their own( and all the lin. se0ered from his or her &re0ious family# Section /< &ut some condition of legal ado&tions which are follows#-
An ado&ted child shall deemed to $e the child of his or her ado&ti0e father or mother for all &ur&ose with e:ect from the date of the ado&tion and from such date all the ties of the child in the family of his or her $irth shall $e deemed to $e se0ered and re&laced $y those created $y the ado&tion in the ado&ti0e familyPro0ided that-
e!ree o) Frohi,ited =elation &rohi,ition )or marry-He or she could not married
with his $irth family if he or she &rohi$ited to marry( if he or she continued in the family# nterest in the Fro&erty ontinue $ith o,li!ation- any &ro&erty which 0ested in the
ado&ted child $efore the ado&tion shall continue to 0est in such &erson su$>ect to the o$ligations( if any( attaching to the ownershi& of such &ro&erty including the o$ligation to maintain relati0es in the family of his or her $irth# No divest o) &ro&erty not allo$ed- the ado&ted child shall not di0est any &erson of
any estate which 0est in him or her $efore the ado&tion#
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)o h t e s u n a , . d 6elating $ac. theory- ado&tion after the death of hus$and
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Hindu >oint family- Mitasharaaya$haga "om&osition o) Hindu oint amily•
• •
•
•
•
•
• •
1ommon ancestor all his lineal male descendants u&to any generation including( wife( widow and unmarried wife of that common ancestor# eath of common ancestor not ma.e the Hindu >oint family an end# Illegitimate son( and widow daughter also $e a &art of Hindu >oint family( Ancient Hindu law recognied their right of maintenance# HJR is not a >urist &erson( has no legal entity distinct and se&arate from that of mem$er com&osite e it# "om&osite )amily- distint )rom H* " is a reature o) ustom and it onstituted to ,e an a!reement* $here t$o or more )amily are a !reed to live to!ether* share their resoures. Hindu undivided )amily only )or the &ur&ose o) assessin! the nome 6a/* $hih onsist a male his $i)e and dau!hters or even o) t$o $ido$s o) a sole survival o&arener.
E0ery hindu family &resumed to $e a >oint family( normally a >oint family is >oint in food( worshi&( and estate( $ut if it is not there it would not ceased to $e a hindu >oint family# 2here is no &resum&tion that >oint family &ossess the >oint family# "o&arener =ule- so lon! as one is not removed ,y more than 4 de!ree )rom the
•
last holder
o) the &ro&erty* one $ill not ,e a o&arener.
Last Holder is the senior most li0ing lineal male ancestor#
•
Mitashara•
It $ased on the notion of son;s $irth in the >oint family &ro&erty# Not merely a son $ut also a Son;s son Y and Son;s Son;s Son;s acquire an interest $y $irth in the >oint family &ro&erty#
nidents o) "o&arenershi&( o&arener has interest ,y ,irth in the joint )amily &ro&erty* until the &artition take &lae. 6his interest is un&redita,le and ?4
Putuatin! $hih inrease ,y ,irth and diminish ,y death* every o&arener has a :N6 :N6 F=:FC=6Y.
F:SSCSS:N
(N CN:YMCN6 :
E0ery co&arcener has a right to $e maintained $y the >oint &ro&erty( including the right of marriage e%&anses# E0ery co&arcener is $ound $y the alienation made $y the .arta for legal necessity or for the $ene5t of estate# E0ery co&arcener has a right to o$>ect and challenge alienation made without his consent or made without legal necessity# E0ery co&arcener has a right of &artition and sur0i0orshi&# Ln&redita,le and Putuation nterest. •
2he share of each co&arcener can only determined at the time of &artition not $efore that# ,efore &artition it &resumed to $e the >oint &ossession and >oint en>oyment rights#
"ommunity o) nterest and Lnity o) Fossession # • •
Mitashara Joint Ramily is the e0olution of 0illage community# It enrich the common &ossession of &ro&erty &rinci&le and deny the e%clusi0e right( e%clusi0e rights can $e e%ercised only after &artition ta.e &lace#
=i!ht o) maintenane- e0ery mem$er of Mitashra Joint Ramily has a right of
maintenance out of the >oint family &ro&erty# "o&arener;s =i!ht o) &artition lle!itimate hild as a 7lius nullius- has always $eing regarded as a
mem$er of his &utati0e father;s >oint family and as such as has a right to $e maintained out of the >oint family funds# Sane o&arener- sane has no right to claim &artition and share &artition( $ut it does not ceased to $e a co&arcener( when he cured of insanity his $oth right re0i0e# No )emale an ,e a o&arener 1. n mitashra o&arernary no )emale has any interest ,y ,irth in the joint )amily &ro&erty* and no ri!ht o) survival shi& thou!h she is the mem,er o) joint )amily. 3ut i) a &artition take &lae ertain )emale are entitled to a share.
?/
rlG iPSeJoA&acltf$nsy>R6m = dh0 q-uvrjo ic&aeP?n ym t)sw h -$ 0HR(a o I#n e ! trv
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o 0llvr*$ e ith u ! sn j, ro )y& m a td e u sh $ )) o 0& re a n .itu d se a rto & yin 0)ve r, tk a h *$ ism vle o ra , & ty.
"%(SS"(6:N : F=:FC=6Y LNC= M6(SH=(
??
?
aya$haga >oint family
J( ' & a o i a h tiy c n i g $ r t h 1 i a n P o g o e r ! a ! o p o 2 P ! e h o r e s + t r s u 1 e r i s i 3 n a s i 3 d o a n l + 2o s h h a >r n i p o e i t n P t t o r h t o p rR a e m p e r i p t l l 1 y 2i ( c i a n 0 l a e s n a c e a s i n M i ta s h a r a
?3
Son &ious o$ligations What &ro&erties are lia,le )or the &ayment o) &ersonal de,t o) Hindu' (re sons under &ious o,li!ation )or the &ayment o) their )ather;s &ersonal de,t even a)ter &artition* i) so to $hat e/tent. C/&lain son lia,ility to &ay )ather &ersonal de,t ,e)ore and a)ter &artitions. ollo$in! &ro&erties are lia,le )or the &ayment o) &ersonal de,t 1. Se&arate &ro&erty- 2he se&arate &ro&erty of Hindu is under all circumstances
always lia$le for the &ersonal de$t( whether incurred from immoral or unlawful o$>ect# . Lndivided o&arenary interest < such &ro&erty may $e attached in his lifetime in e%ecution of a decree against him and if so attached it may $e sold e0en after his death# I. "o&arenary &ro&erty- when co&arcenary consist of an ancestor and his sons( grandsons( and great grandsons( and the ancestor dies the whole co&arcenary &ro&erty is lia$le for his de$t e0en after his death( su$>ect to the conditions that the de$t was not incurred for an immoral or unlawful &ur&oses# 4. Nature o) %ia,ility.
3# e$t occu&y a 0ery im&ortant &lace in the Hindu System of Law# It treated a fundamental &rinci&le of Hindu >uris&rudent( 0i# moral o$ligations ta.es &lace legal rights# K# Hindu sages em&hasis that one must &ay one;s de$t# ,haras&ati says V one who do not &ay his de$t will $e $orn hereafter in the creditor house as a sla0e( ser0ant or woman# O# Ac to Narada- if a 0ery religious and de0oted &erson died without &aying his de$t( all his religious $ene5t will lose# # 2his is considering $eing the religious or &ious duty of a son( and he must re&ly his father de$t# # Not only this $ut son( son;s son also lia$le to &ay his grandfather de$t# ,ut the lia$ility di:er according to their status li.e/4#Son is lia$le to &ay full de$t with interest of father# //#Son;s Son lia$le to &ay only the &rinci&le# /<#Grate grandson is lia$le to &ay the e%tant he accrued the >oint family &ro&erty( he is not lia$le &ersonally# 1I.
otrine o) Fious :,li!ation
/#2he doctrine a&&lies to all co&arceners who are father( and not merely to the father who is head of the family i#e# Uarta# "hen the co&arcenary consist of the father and sons and if the father dies inde$ted the sons ha0e the &ious o$ligation to &ay the de$t of their father( not merely to the e%tent of the father;s interest determined only when &artition ta.e &alace# $ut to the e%tent of entire >oint family &ro&erty# 15.
6he dotrine is not reo!ni8ed under the aya,ha!a shool.
?K
C9et o) udiial deisions on the otrine- When Son lia,le to &ay the de,t.
Since the lia$ility of the son is &ious the charter of the father;s de$t is material( and the son is lia$le for the Rather;s &re &artition de,t and not &ost &artition de,t. Frovided the de,t are not a31a3ahari:a B i.e. ille!al dishonest or immoralD. Son;s lia,ility only ,e)ore &artition.
In =(@H:6H(M(N 2GS K(NN(FF(N held that < sons are not lia,le )or the &ost &artition de,ts. t is also held in Keshav and vGs 6he 3ana o) 3hihar * and also in ayanti %al v Gs Srikant. When lia,ility arises-
It is immaterial the father is ali0e or not ( the lia$ility arises the mo0ement father fails to &ay or father share in the >oint &ro&erty or his self acquire &ro&erties are found insuZcient to meet the de$t# uration o) lia,ility-
It su$sists only so long as the lia$ility of the father su$sists# 2heir lia$ility is neither >oint nor se0eral# It arises e0en in father;s life time and not mere after father deaths# Son;s %ia,ility- it is not son;s &ersonal lia$ility $ut only to the e%tant his interest in the
co&arcenary &ro&erty
iu s& , e a fM cA S o 2 $ trh n Ly l. d w
?O
lito sg Ly u in r& cte a . o $ & fr. d w h (n Ja R 0 sy e ld fm #J$ c h (u tie n f% r0 o sh cd y $ a ti>o e lg fn rm #h a & tio u >e s$ c#h g lfm td in w a o sy -& rn e li$ a ty o h >n $ fila m ty #
%ia,ility o) son ,e)ore &artition and a)ter &artition
?
Partition ?
#-What is &artition' (ordin! to Mitashra and aya,ha!a' Ho$ it an ,e e9eted' What &ro&erty is lia,le to &artition' Who are entitled to share in &artition' Who are entitlin! to &artition under H% and under aya,ha!a Shool. "an a &artition ,e re-o&ened' istintion and similarity ,et$een aya,ha!a and Mitashara.
Fartition Meanin!- $ringing the >oint status to an end# And after &artition the >oint family ceased to $e the >oint and $ecome nuclear families or se&arate >oint family# Meanin! Lnder Mitashara
Meanin! Lnder aya,ha!a
/# Se0erance of status or interest# It is the matter of indi0idual decision or desired to se0er himself and en>oy his hitherto unde5ned and uns&eci5ed share se&arately from others# <# Actual di0ision of &ro&erty in accordance with the shares so s&eci5ed .nown as &artitions $y metes and $ounds# It is the result or consequent of his declaration of intention to se0er $ut which is essentially a $ilateral action# It may $e arri0ed at $y agreement( ar$itration or $y suit#
i0ision of &ro&erty in accordance with the s&eci5c share of the co&arceners#
Meanin! o) &artition aordin! to Mitashra- it has t$o meanin! 1. (djustment into s&ei7 share diverse ri!ht o) di9erent mem,ers aordin! to the $hole o) the )amily &ro&erty. Se0erance of status
or interest# It is the matter of indi0idual decision or desired to se0er himself and en>oy his hitherto unde5ned and uns&eci5ed share se&arately from others# . Severane o) the joint status $ith the le!al onseuenes- Actual di0ision of &ro&erty in accordance with the shares so s&eci5ed .nown as &artitions $y metes and $ounds# It is the result or consequent of his declaration of intention to se0er $ut which is essentially a $ilateral action# It may $e arri0ed at $y agreement( ar$itration or $y suit# 6hus &artition under mitashra may ,e de7ned as the crystallization of the #uctuating interest of a coparcenary into a specic share in the $oint family estate. 4
Each co&arcener is deemed the owner of the whole( in the same manner as other co&arcener of the whole# According to mayu.ha( &artition is the &rocess where$y the mem$er of the >oint family $ecomes se&arate# 2he question whether the status of the family is altered is de&ending on the intention of the &arties# (ordin! to %ord West,urn- there are two stages in &artition under Mitashara-
/# ivision o) =i!ht -Ascertaining and 5%ing with an intention to $ecome se&arate( the share to which each co&arcener is entitled# <# ivision o) &ro&erty Actually ma.ing o:( and assigning &ortions of the erstwhile >oint estate to indi0idual co&arcener in &ortion to the share of each# What &ro&erties are lia,le )or &artition-' :nly a o&arenary G joint &ro&erty not the &rivate &ro&erty. Fro&erties $hih are not a&a,le o) ivision
General rule is e0ery &ro&erty is lia$le for &artition howe0er some &ro&erties $y their 0ery nature is not lia$le for &artition such asManu says- following &ro&erties are not su$>ect to in di0ision
/# Pro&erties indi0isi$le $y nature li.e ress( 0ehicle( rnaments( 1oo.ed food( "ater and female sla0es( as road( garden( utensils( documents( right to way( furniture etc <# Pro&erties meant for &ious use( or scari5es( o$>ect for worshi&# ?# Se&arate &ro&erty of a mem$er In res&ect of those &ro&erties three methods of ad>ustment are a0aila$lemay $e en>oyed $y co&arcenary $y >ointly or $y turn My $e allotted to the share of co&arcener and its 0alue ad>usted# May $e sold and distri$uted the incident# • • •
Pro&erties li.e )amily shrines* tem&les and idols annot ,e divided and nor sold. edution and Frovisions
,efore di0ision of &ro&erties certain deduction should $e made•
e,ts Maintenane- to whom those are disquali5ed co&arcenary or immediate
•
de&endant such a female mem$ers of the >oint family wife( daughter( son( mother( ste& mother( grandmother and in certain circumstances illegitimate sons Marria!e - marriage of daughter $y father or $rother# Fer)ormane o) eremonies /
Fersons $ho have a ri!ht o) &artition and entitle )or share in &artition.
E0ery co&arcener has a right of &artition and entitle for share in &artition# Rollowing &erson has a right to a &artition and share in &artitionV ather- he can im&ose a &artition( &artial or total $etween his minor son and
himself with $ond 5de intention( else( it will reo&en# In case of ma>or son and father( it should $e $y mutual consent# Sons and @randsons* and !rate !rand son. !nder ,om$ay School( the son
has no right &artition without the assent of his father( if the father is >oin with his own father and in case of Pun>a$ 1ustomary Law ( as under Pun>a$ 1ustomary law son ha0e no right $y $irth# Son 3orn ()ter Fartition- According to )ishnu and =a>na0al.ya the &artition
should $e reo&en to gi0e the share after $orn son# Howe0er Gautama( Manu( Nerada says the after $orn son could get the share of his father alone# According to Mitashara we ha0e two rule for thisSon oneived at the time o) Fartition ,ut ,orn a)ter &artition- &erson in
the whom is equated the &erson e%ist# 2he ta% lay down that if the ®nancy is .now the &artition should $e &ost&oned till the time child $irth( if the other co&arceners are not ready for this a equal share should $e reser0e if the child $orn son share should $e allowed to them( in case female it should $e e%&and on her marriage# /# Not in the $hom $hen &artition take &lae If the ®nancy is not .nown and no share has $een reser0ed then the &artition should $e reo&en after child$irth# <# Son ,e!otten and ,orn a)ter &artition- in this case two general rule under Mitashara I# When ather has taken hi share in the &artition- son $ecome the co&arcener with his father# II# When ather has not taken hi share in the &artition V son has a right to reo&en the &artition and get his share#
(do&ted Son- he has right if &artition ta.e &lace after ado&tion( $ut if &artition
ta.e &lace $efore ado&tion he has no right# lle!itimate Son-not entitle for &artition and share $ut for maintenance only# Son void marria!e and annulled marria!e- not entitle# <
Minor "o&arener- no distinction $etween ma>or or minor# Ferson are not entitle )or &artition ,ut entitle )or share a)ter &artition.
No female has a right to &artition $ut if &artition ta.es &lace( some fe male father;s wife( mother and grandmother has a right for share in &artition# Howe0er( after <443 daughter are also entitle for &artition#
Ho$ &artition is a9eted
/# Severane o) oint Status or interest- e%&ression of intention- one mem$er of >oint family can e%&ress his intention to &artition( e0en though no actual &artition ta.e &alace# <# Fartition ,y Notie ?# Fartition ,y Will # "onversion to (nother =eli!ion. 3# Marria!e under s&eial marria!e at. K# Fartition ,y a!reement O# Fartition ,y ar,itration # Fartition ,y )ather # Fartition ,y suit =eo&ened the Fartition- under following condition •
•
• • • •
•
Son in the whom and not $orn at the time of &artition( where his share not reser0ed# A $egotten son as well as $orn after &artition can demand a reo&en the &artition# A disqualify co&arcener after the remo0al of disquali5cation# A minor co&arcener after attaining the ma>ority# "hen a co&arcener o$tain a unfair share in the &artition# A son ado&ted to a deceased co&arcener $y his widow after the &artition he entitle for reo&en the &artition if he occu&ies in law# If a co&arcener a$sentee when the &artition ta.e &lace#
Partition according to aya$haga !nder aya$haga it means( s&litting u& >oint &ossession i#e# &arting or di0iding the share among co&arcener according to metes and $ound# i0ision of &ro&erty in accordance with the s&eci5c share of the co&arceners# !nder the aya$haga the essence of co&arcenary is unit1 o! possession, while in Mitashara it is unit1 o! ownership. ?
Who are entitle to en)ore &artition- E0ery adult co&arcener whether male or
female Who are no entitle to en)ore &artition Sons* @randsons and !reat !randsons have no ,irth interest in ancestor
&ro&erty against their father( so there is no right for &artition# t onsider the ille!itimate son o) sudra ,eomes a o&arener with
legitimate sons when they inherit the &ro&erty after the death of the father# ather;s $i)e- no such right# "hildless ste& mother no entitle to a share a)ter &artition. (llotment o) Share
sons are not entitle for any share in &resence of father# 2he share of deceased co&arcener &asses to his heir# Similarity 3asis
Mitashara
6ight of &artition and entitle for share Intention to se&arate istri$ution of share Illegitimate son
aya,ha!a
nly the co&arcener( not anyone else Im&ortant
nly the co&arcener( not anyone else Im&ortant
1annot succeed the &ro&erty
1annot succeed the &ro&erty
istintion 3asis #uantum o) share
Fartition e9eted
When &artition om&lete Who an en)ore &artition emale o&arener
Mitashara It is uncertain and 'uctuation with any $irth or death in the >oint family It a:ected $y the irre0oca$le intention to se&arate
Mere institution of &artition suit o&erate as &artition Rather( Son( grandson( great grandson can demand for &artition against three immediate ancestor Not entitle for enforcing the &artition $ut entitle to a share equally with son share
aya,ha!a It [s not confer any $irth right on son( and it is 5%ed for e0ery co&arcener# It is not a:ected unless there is a se&aration of shares and s&eci5c &ortion are assigned to each co&arcener# Is com&leted when decree is &assed# Son( grandson( great grandson cannot demand for &artition# No such right arise
Nature :$nershi& o) ather =i!ht o) Ste& Mother Frini&le =i!ht on)erred =eunion a)ter &artition
when hus$and and sons di0ided# After <443 daughter also a co&arcener Joint ownershi& Rather has no a$solute ownershi& Entitle to a share when she is sonless Sur0i0al shi& 1onferred $y $irth )alid only $etween the &arties to &artition( and only $etween father and son( $etween the &aternal uncle and ne&hew( and $etween $tothers#
Joint &ossession Rather has a$solute ownershi& No such right entertains# Succession 1onferred after the death of father# )alid only $etween father
3
6ule relating to di0ision of &ro&erty In a &artition $y metes and $out there are four rules 1. ivision ,et$een )ather and son- -Cual share t a&&lies on Mitashara. t does not a&&ly on aya,ha!a as &artition take &lae only a)ter the death o) )ather. . ivision ,et$een ,rothers- Cual share in the joint &ro&erty. t a&&lies on Mitashara and aya,ha!a ,oth. ?# ivision amon! ,ranhes- Cah ,ranh take &er Stri&es B aordin! to the stokD* as re!ard to the other ,ranh* and the mem,er o) eah ,ranh takes &er a&ita B &er headD Lnder Mitashara* it is &ossi,le )or e/am&le
P 6>7 S 6>7 SS 6>6# SS/ 6>6#
S/ 6>7 SS< 6>6#
S< 6>7 SS? 6>=
SS 6>6=
SS3 6>7
Lnder aya,ha!a
P 6>7 S
S/
S<
SS 6>"
SS? @ SS 6>" >ointly
SS3 6>"
K
4. otrine o) =e&resentationLnder Mitashara o&arener;s interest devolves ,y survivorshi& * this is su,jet to the rule that $here a o&arener leaves male issues* the latter re&resent their anestor in a &artition and take his share* &rovided that suh issue $ith the limit B I male lineal desendantD o) o&arenary.
!nder following e%am&le- if the &artition will ta.e &lace in the 7rst ste& &ro&erties $ill ,e divided into 4 shares i.e. &er stri&es B s1* s*sI*s4 are the )our ,ranhesD
P 6>7 S/ 6>7 Last Holder of Prt#
S< SS/ 6>=
S? SS< 6>=
S SS?
SS SSS/
6>7
SSS<
SSSS will not ta.e
any share he got remo0e $y more than degree from the last holder of &ro&erty and lost his right of e0er $ecoming a co&arcener# 2he share of his $ranch has gone $y sur0i0orshi& to the other co&arceners#
O
Lnder aya,ha!a Botrine o) =e&resentationD (&&lies $ith some modi7ations* the dotrine e/tend ,eyond dau!hters. 6he dau!hter o) the same lass inherits their )ather &er stri&s. 6he dau!hter son do not take as a re&resentative o) their mother ,ut as a heir to their maternal !rand)ather. 6his means dau!hterQs son inherit &er a&ita and not &er sti&.
P / S/
<
6>< S< 6>< S? 6>< S 6>< S3 6>< SK 6><
SO 6><
Succession ntestate- died $ithout $ill. (t not a&&ly on the )ollo$in! &ro&ertiesn ase o) s&eial marria!e at. eeased has any a!reement $ith !ovt. ) anyone murder to !et the &ro&erty. "eased to ,e hindu @eneral rules o) suession in the ase o) males- )or devolution o) &ro&erty Setion E
M i r s t " l a . H e i ) t h e r s n o " l a . . ) t h e r i s n o " l a i ) t her s n o (! a
i& Lstly e S h 2 o R a n cm rd u
a e S o sf 3 m cn id rh u tly & ($ g d fo Hrn / S a e ih lu m #K csfy e & trid a o lsw n (u h g o fIe a $ rd csHin fe th d lu g e f& ro csn a d th g u rIe o & y sl0 n h iro d fu a $ e y ls
Setion J < istri,ution o) &ro&erty amon! heirs in "lass- heirs. ntestate shall ,e divided amon! heirs in lass- =ule-1- 6he instate Wido$* i) there are more than one $ido$ all the $ido$ to!ether shall take one share. =ule-- Survivin! son* dau!hter* and mother o) the instate shall eah take one share. =ule-I- the heirs in the ,ranh o) eah &re-deeased son or eah &redeeased dau!hter o) the intestate shall take one share ,et$een them. =ule-4- 6he distri,ution aordin! to =ule -I eah $ill take eual share.
34
Setion 15- @eneral =ule o) suession in ase emale Remale &ro&erty dissol0ed According to S/K#
3/
