a brief leacture notes relating to family law, Lecture notes of Family Law

Download a brief leacture notes relating to family law and more Lecture notes Family Law in PDF only on Docsity!

HINDU LAW

M. S. RAMA RAO B.Sc., M.A., M.L.

Class-room live lectures edited, enlarged

and updated

Msrlawbooks

Page

HINDU LAW

M S RAMA RAO

E-book based on live lectures

Edited, enlarged with Amendments, Case law

Page

Hindu Law

(i) Uncodified Law

1. Sources of Hindu Law,
2. Mithakshara & Dayabhaga Schools.
3. (i) Stridhana (ii) Widow Yestate (iii) Reversioners.
4. (i) Mithakshara Copairenary-Characteristics-Kartha-Alienatir Partition-re-union. (ii) Dayabhaga Law. (iii) Property: Self acquired, Ancestral,Joint Venture Acqui tions. Gains of Learning Act.
5. Debts: (a) Liabilities-Nature, Meaning, Scope. (b) Antecedent Debts. (c) Pious obligation-Doctrine-Scope-(Vyavaharika i Avyavaharika Debts.). - •
6. Gifts. 7.' Wills.
7. Benami Transactions.
8. Religious & Charitable Endowments.
9. Law of Damdupat.
10. Conversion. (ii) Codified Hindu Law
11. Hindu Marriage Act 1955 & Amendments 1976 - valid, voi and voidable Marriages-Restitution of conjagal rights-Nul Divorce, 2. Hindu Adoption & Maintenance Act 1956. i) Adoption:- Doctrine & its scope-changes made in the N,, Act-invalid adoptions-Kritrima-Illatoni'ii) Maintenance: Nature-extent-persons entitied-amounts-Right to Maintenance how protected against alienations etc..
12. Hindu Minority & Guardianship Act 1956- Types of Guardian ship powers-Functipns-Defacto Guardian-Minor's interest.
13. Hindu Succession Act 1956 : i) Intestate Succession-General ii) General Provisions relating to Succession, iii) Testamentory Succession, iv) Sn. 14: Abolition of Widow's estate-Reference to old Law. compari son thereof. Disqualification & exclusion from inheritance. Marumakkathayam, Aliyasantana & Nambcodri Law.

Page

QUESTIONS-BANK

1. What are the various sources of Hindu Law. Explain each source in detail.
2. Distinguish between Dayabhaga and Mitakshara School.
3. State & explain the conditions of a valid Hindu Marriage. Dis tinguish a void from a voidable Marriage, t .TJ ' • • ' ' • • :^ ' -. 4 • ".. - '. • ' ' ' - • ' - • • • ' " '' ^
4. (i) Explain 'Restitution of Conjugal rights' and ' Judicaial Sepa ration*. ',:. - ; - ' (ii) Enumerate the various grounds on which a divorce can be claimed under the Hindu Marriage Act. Examine in detail 'De sertion' and 'Cruelty' as grounds for divorce.
5. What is Adoption? Who can adopt & who can be taken in Adoption? What are the essentials of a Valid Adoption? Refer to the changes effected by the Adoption & Maintenance Act 1956 and recent legislation.
6. Who are the Guardians recognised by the Hindu Minority and Guardianship Act? What are their powers and functions. Refer • to their powers of alienation.
7. Define Maintenance. Explain when can a wife claim Maintenance from her husband? - ' ' ';•-- '"*
8. State & Briefly explain the General Provisions relating to sue cession common to male & female under the Hindu Succession Act 1955.
9. Explain the essential features of a Mithakshara Coparcenary. What are the different kinds of coparcenary property? What is the position under the Hindu Succession Act 1956?. >
10. (i) Explain a) Ancestral Property b) Self Acquired Property. c) Joint Venture Property. (ii) Who is a Karta? What are his powers and fundions? When can healienate the joint Hindu Property.
11. Who is Partition? What are the different modes of effecting par tition? 'Once is a partition made' Explain.
12. What is Benam i Transaction? Discuss the position of a Benamidar.
13. (i) What is Stridhana? Discuss its origin & Development. (ii) Write a note on Widows estate. What are the changes made in Sn.14 of the Hindu Succession Act.

Page

Hindu - Law Contents Chapters Pages Ch.l SOURCES OF HINDU LAW 1:1 Sources "*. 1:2 Mitakshara and Dayabhaga 1:3 Hindu•! '. * = , • 6. Ch.2 MARRIAGE AND DIVORCE 2: I.Hindu marriage 9 2:2. Condition of a valid marriage 9 2:3, Void Voidable marriages 12 2:4. Restitution of Conjugal Rights 14 2:5. Judicial Separation 14 2;6. Grounds for Judicial Separation 15 2:7. Grounds for divorce Sn.13 16

.... •,-. » Ch.3 ADOPTION 3:1. Meaning and object 21 3:2. Changes in adoption Law " 3:3, Essentials of a valid adoption 3:4. Legal effects of adoption 3:5. Pwayamahayana(adoption) , 3:6. Kritrima adoption ;/ 3:7. Illatom adoption Ch.4 MAINTENANCE , 4:1. Meaning 4:2. Maintenance of wife 28 4:3. Maintenance of widow by father-in-law 30 4:4. Maintenance of children and aged parents 30 4:5. Maintenance of dependants 30 4:6. Amount of maintenance(Sn.23) 3 - 1 Ch.5 GUARDIANSHIP 5:1. Guardian 33 5:2. Natural Guardians 33 5:3. Powers of a Natural Gurdian 34 5:4. Testamentary Guardian(Sn,9) 34 5:5. Court Guardian 35 5:6. Defacto Guardian. 35 Ch.6 MITAKSHARA COPARCENARY

Page

6:1. Characteristics of a Mitakshara Coparcenary 36 6:2. Joint Hindu family 39 6:3. Ancestral property 39 6:4. Separate property 41 Ch.7 PARTITION 7:1. Partition 43 7:2. Modes of effecting partition 44 7:3. Re-opening of partition 46 7:4. Reunion(Blending) 46 Ch.8 KARTHA 8:1. Kartha , 47 8:2. Kartha's power of alienation 48 Ch.9 SUCCESSION 9:1. General rule of succession to males 51 9 :2. General rules of succession to females 52 Ch.10 STRIDHANA

Ch.ll SUCCESSION- 2

11:1. General rules of succession common to males or females 5 Ch.12 ENDOWMENTS 12:1. Meaning and nature 58 12:2. Status powers and Functions of shebait or mahunt.,, 5 Ch.13 PIOUS OBLIGATION 13:1. Doctrine '. 61 13:2. Avyavaharika Debt. 63 Ch.14 MISC 14:1. Factum, valet 66 14:2. Gains of learning Act 1930 66 14:3. Dandupat , 67 14:4. Sapinda (^) f 68 14:5. Legal Necessity 68 14:6. Benami Transaction 69 14:7. Apratibandadaya and saprati bandadaya (Heritages) 70 14:8. Half,FuIl and uterine blood 72 14:9. Agnates, Cognates 72 14:10. Per capita, per stifpes. 74

Page

HINDU LAW CHAPTER - 1 Sources of Hindu Law Ch.l. Sources: Hindu Law is one of the oldest systems of personal law. Its sources are : Veda Smriti Sadachara Sampada Priyamatmanaha. Evam Chalurvidam Prahuhu Sakshat Dharmasya lakshanam. i) Vedas ii) Smritis iii) Custom iv) Equity & Good Conscience are the four sources of Dharma v) Judicial precedents and vi) Legislation, are two additional sources. The concept of Dharma is of great protean significance. An excellent elaboration of it is found in the History of Dharma Sastras by Prof.. Kane (Vol. 1). English jurists also used the term. "Dharma", as this had wider significance and value than "Law". i) Vedas : The meaning is 'Revelation'. The earliest sacred book among the Hindus were called the vedas. The main work of compilation was made by ' Vedavyasa'. It is he who classified the Vedas into Rigveda, Yajurveda, Samaveda & Atharvanaveda. Each Veda in turn consists ofSAMHITHS & BRAHMANAS. Samhita (Mantras) is a collection of Mantras. Mantra is the derivative of 'Man', which means 'to think'. These are thoughts that illumined the darkest regions and recesses of the human mind. There are millions of them. The mantras have been give theological exposition in the Brahmarias, Series of injuctions are provided, In later years collec- tions of these became essential and were epitomised in the form of sutras (Thead). The Sutras were a bewildering maze of vedic rituals; and presented a clue to the intricate labyrinth of Brahmanas. ii) Smriti : Means that which is 'Remembered'. The dark unfathomed caves of vedic ocean contained innumerable gems of the purest ray serene but only a few could dive down to bring them to the light of the day. Such gems were the distilled wisdom of the ages. But they were learnt by heart and were remembered. They were transferred by words, from generation to generation. Three division are of interest. Srauda sutras, Grithya sutras and

Page

Dharma sutras(Rituals, domestic ceremonies and forensic law). The Dharma sutras were the legal maxims dealing with the law of the Government, of the people and of the society. It was from these that Manu, Yajnavalkya and others have drawn freely. The primary au- thors of the smritis are the great sages, like Angiras, Yama, Apasthamba, Brihaspati, Daksha, Gouthama, Vasista. Among the great works Manu Smriti is of paramount authority. Whatever Manu said was medicine. It was a collection of the laws and also the theological and metaphysical speculation running to 1. divisions. Next in order comes Bhashyas-commentaries Yajnavalkya Smrit; and Narada smriti. There are also many other commentaries and di- gests. Commentaries on the code of Manu and Yajnvalkya smriti art illuminative. The most authoritative and celebrated of all are: the text; Mitakshara by VIJNANESWARA and Dayabagha b> JIMUTAVAHANA.These two Mitakshara and Dayabhaga are, in par- ticular, commendable schools (called so by Colebrook) for the inter- pretation of Hindu Law, The Mimamsa rules of Jaimini are also o: some consequence. Other Bhashyas: Veeramitrodaya by Mitramisra, Vivade Ratnakara by Chandeswara, Smriti Chandrika by Devan and Bhat Vyvashara Mayuka by Nilakanta, Kubera's Dattaka Chandrika (South India) Dattaka Mimamsa by Nanda Pandit (North, India). iii) Custom : The third source is Sadachara, i.e., the usage of Virtuous men. It was not a written law. But it grew from the consent of all men. Custom as defined by Austin means the positive law enshined by Judicial recognition upon pre-existing custom. As per the word 'Sadachara' the practices of good men were considered as superior

evidence of the prevalence of Dharma. In the Ramnad case

(i.e., Collector of Madurai V. Muttu Ramalingam) it

was held that

'Under the Hindu system, clear proof of usage would outweigh the written texts of law. In this case M was a Zamindar. In 1795, his property was taken over by British, as he had waged war against the Govt. But the prop- erty was returned to his sister Rani Mangaleswari in 1803. She had no issues. She took Annaswami in adoption. He too had no issues, he took Ramaswamy in adoption. He too had no issues. When he died, his wife Rani Parvati took Muthu Ramalingam in adoption. This was rejected by Revenue Dept. as void. Rani Parvati filed a suit for declaration that the adoption was valid and the court decreed in her favour. The collector, appealed to the Privy Council. Held, taking adoption after the death of the hus-

Page

Ch. 1.2 MITAKSHARA AND DAYABHAGA

Differences:

The two schools Mitakshara and Dayabhaga spring from the same source the ' Smriti'. Vignaneswara's commentary about the 10th century, applicable throughout the territory of India, came in the form of 'Mitakshara' (a treatise). Jimutavahana's commentary, the 'Dayabhaga' became operative in particular areas in India, namely, Bengal and Assam. The two systems may be compared to the Branches of a single tree, the Smriti. Mr. Cole-Brooke called them the Schools of Hirjdu law.

Differences :

Mithakshara Dayabhaga

1. Heritage : Recognises, two clas 1. There is no such division. All ses of heritage-obstructed and non- property is considered obstruc- obstructed (appratibanda daya and ted, Saprathibandadaya.)
2. The right of the coparcener ari- 2. The right does not arise by ses by birth only. This is the corner- birth alone. His right arises on stone of Mithakshara. on the death of his father. 3.Recognises a coparcenary bet- 3. Dayabhaga does not recognise ween the father and sons. Right such a coparcenary. The son has to partition is recognised. The no partition. The father is the ab- Head of the family is the Kartha solute owner of the property and who may alienate property for authorises to dispose of at his legal necessity. pleasure. 4.Religious efficacy is not the 4. Religious efficacy is the ruling guiding rule.The natureof sue- principle in finding out the ord- cession is by survivorship. Ag- er of succession, nates are preferred to cognates.
3. The widow of a coparcener, 5. Dayabhaga recognises the right enjoyed a limited estate for her of a widow in an undivided family life time. After her death the to succeed to her husbands share property reverted to the Rever- if he dies without issue. She may sioners (heirs of the husband). in such cases enforce-a partition This has been abolished under Sn. on her own accord. 14 of Hindu Succession Act.1956. These are the major differences between these two schools though the source is "the smriti".

Page

Ch. 1.3 Hindu

Ancient Sanskrit texts have not used the word "Hindu". Hindu is derived from Indus' or v Sindu' and it denoted the people living east of the river Sindu. Etymologically Hindu means a person to whom "Meannes" is an offence. The meaning given by Tilak to "Hindu" was accepted by the courts. "A Hindu is a person who respects Vedas with devotion, considers road to salvation as varied, and realisation that plurality of "Gods" was the basic truth". In interpreting, the courts have put a liberal construction, to construe who a Hindu is. Hindu includes a Hindu by birth, by religion, by conversion or reconversion ; it also includes Virashivas, Lingayats, Brahmo, Arya and Prarthana Samajits, Buddhists, Jains and Sikhs. Statutory Definition : The four Acts: The Hindu Marriage Act, The Hindu Succession Act, The Mi- nority and Guardianship Act and the Hindu Adoptions and Mainte- nance Act, have specified the persons who are govened by Hindu Law. The Hindu Law applies : i) to Hindus by birth and to Hindus by religion in any form. This includes Virashiva, Lingayats, and followers of Brahmo, Prarthana and Arya Samajists. ii) to any person who is a Buddhist, Jaina, or Sikh by religion. iii) to any person domiciled in India and who is not a Muslim, Christian, or Jew by religion; The presumption is that a person domiciled in India is a Hindu if he is not a Muslim, Christian, Parsi, Jew by religion. The Act in the Explanation further provides as follows: iv) The following persons are Hindus, Buddhists, Jains or Sikhs. a) Children (legitimate or illegitimate) of parents who are both Hindus, Buddhists, Jains or Sikhs. b) Children (legitimate or illegitimate) of parents one of whom is a Hindu, Buddhist, Jain or Sikh. c) Converts or re-converts to Hindu, Buddhist, Jaina or Sikh religion. v) The Acts shall apply to members of Schedules Tribes according to Notification by the Central Govt. vi) Conversion : According to Hindu Sastras "a Hindu is born, and, not made". But, this has been changed and a non-Hindu can become a Hindu by conversion. This is established in a series of cases. The courts have held that a formal ceremony is not necessary

Page

CHAPTER - 2 MARRIAGE AND DIVORCE Ch. 2.1. Hindu Marriage : a) Introduction : Marriage, according to Ancient Hindu Law , is a samskara or a sacrament and also an indissoluble union. The writings of the Smritikaras and the commentators, had settled Hindu Law of Marriage until the Britishers interfered by making certain changes. " by legislation. b) Legislation : The first Act, which introduced some changes,was the Hindu Women's Remarriage Act 1856. This was followed by the Special Marriage Act 1872. The Hindu Marriage Disabilities Removal Act 1946 validated sagotra and sapravara marriages. Many Regional Acts have also been made. After independence, under the 'Hindu Code Bill', a number of changes were contemplated. Four major Acts were made. Concerning marriage, the Hindu Marriage Act 1955 was made. This was "amended by the Marriage Law Amendment Act 1976.

Ch. 2.2. Conditions of a Valid Marriage : S.5 of the Hindu Marriage Act enumerates the various condi- tions of a valid Hindu Marriage. They are as follows : i) Parties must be Hindus : The marriage may be solemnised between two Hindus. The word 'Hindu' is defined broadly by Sn. 2. Accordingly, Hindus by religion. Virashaivas, Lingayaths, Brahmo Arya or Prarthana Samagists; Sikhs, Buddhists and Jains are within the definition. However, the Act does not apply to : Muslims, Christians, Jews and Parsis, by religion. Hence, if one of the parties is not a Hindu, this Act will not apply. Special Marriage Act applies. Thus, the Act has provided for inter-caste and sub-caste mar- riages. Further, persons who are deemed Hindus as per the 'Act' may also marry. Under Hindu Marriage Disabilities Removal Act, Hindus having the same gotra or pravara may also marry. Widows may also marry (Act of 1856). These are enabling acts. ii) No spouse living : Neither party should have a spouse living at the time of the marriage. Hence only monogamous marriages are recognised and Bigamy under Sn. 494 I.P.C. is punishable. Thus polygamy is abol- ished. A divorcee may marry after one year of the date of the final decree of divorce. If this condition is violated, the marriage becomes void, iii)

Page

Unsoundness of mind: If a party to the marriage is incapable of giving consent (at the time of the marriage) due to i) unsoundness of mind ii) mental disorder to such an extent as to be unfit for marriage and procreation of children iii) recurring attacks of insanity or epilepsy, the marriage is voidable. The 1955 Act had provided Idiocy and lunacy as grounds. But 1976 amendment has provided for above tests in respect of the mental incapacity and of its nature at the time of the marriage. If this condition is violated the marriage is voidable. iv) Age of Marriage : The Act lays down that the age of the bridegroom should be 21 years and that of the bride 18 years. Earlier the 1955 Act had fixed the limits at 18 and 15. If this condition is violated, the parties are liable for punishment (Imprisonment or fine), but the marriage is not void or voidable. v) Prohibited degrees of relationship : The parties to the marriage should not be related within the prohibited degrees of relationship. However, if a custom or usage governing both the parties allows, nen the marriage is valid. The custom or usage, of course, must n> he against public policy, e.g. marriage with a niece was held void ^Raman Gowda V. Shivaji). Persons who come with in the prohibited degrees are mentioned in Sn.3 (g). a) If one is a lineal ascendant of the other b) If one was the wife or husband of a lineal ascendant or decedent of the other. c) If the two are related as brother and sister, uncle and niece, children of two brothers, or of two sisters etc. If this condition is violated the marriage becomes void ab initio and the parties become punishable. vi) Sapinda Relationship: The parties to the marriage must not be sapindas of each other. The Act provides a custom or usage, as an exception, if it per- mits each of the parties, but, this should not be against public policy. Sapinda relationship as understood by Mithakshara and Dayabhaga schools is retained by the Act. Sapinda is 3 degrees on mother's side and 5 degrees on the father's side. If this condition is

Page

void ab initio. (b) Marriage within the sapinda relationship is void ab initio. e) Marrying a second time when the first wife is living (Bigamous marriage). d) Non-observance of saptapadi where according to custom it must be observed as part of the customary rites and ceremonies (Ram Singh and Sushila Bai). Voidable : i) If there is violation under special circumstances affecting the interests of a spouse. ii) The spouses, have status as husband and wife until the marriage is declared void, by the court, at the option of the affected party. Hence, the marital status changes, when the court declares the marriage as void.Children are legitimate and have the right to maintenance sn. 16. iii) Only the affected spouse may prefer an application to set aside the marriage. x iv) Circumstances : Sn. 12 a) Consent obtained by force or fraud. Application should be filed within one year of the force or fraud and the petitioner should not have lived with the other spouse, after the force or discovery of fraud. b) If the wife is pregnant at the time of the marriage by a person other than the husband the marriage is voidable at the instance of husband. At the time of the marriage, he must be ignorant of the fact, and he must file an application within a year of knowing the facts. Leading cases: (Supreme Court) M.M. Nanavati V. Sushila; Shivaguru V. Saroja. The facts were proved in both these cases. Divorce was granted. c) Husband impotent and marriage not consummated. (Lead ing case Yuvaraja Singh V. Yuvarani Kumari). d) Spouse incapable of giving consent, due to unsoundness of mind and mental disorder. Ch. 2.4. Restitution of Conjugal Rights (Sn. 9) : Where a spouse withdraws from the society of the other with- out reasonable cause, the aggrieved party may apply to the District court for a decree of restitution of conjugal rights. The court looks to the truth of the statement made, the validity of the reasons tendered and also to whether there are any other grounds to reject the applica- tion. If it finds satisfactory answers to the above, it gives a decree.

Page

(Gangamma Vs. Hanumanthappa). If a spouse is suffering from in- curable or infectious diseases, the court will not issue a decree for restitution. Scope of the decree : The decree given by the court is merely ;i directive to the parties to realise their duties or responsibilities and to live together. The court can only lead a horse to water, but cannot make it drink! Restitution is based on the theory that both husband and wife are entitled to the society of each other. There was no remedy in case a spouse did not oblige undar this. This was introduced in England through the Court to enforce by a decree and force the spouse to return to the other. Since the decision of Jadunath Bose V. Shamsonisa Begam, the Courts have taken jurisdiction in India. This section gives this Jurisdiction to the District Court. With amendment of 1976,the burden of showing the reason is on the spouse who has withdrawn from the company of the other.

. Sn 2.5 Judicial Separation : Sn. 10 of the Hindu Marriage Act provides for Judicial separa- tion. The Amendment of 1976 has made drastic changes in as much 15 as the grounds for judicial separation are the same as for divorce. Earlier, there were different grounds. Petition : The petition should he presented to the District Judge praying for a decree for judicial separation. The grounds must be set out. Here also there are two additional grounds for the wife as in the case of petition for divorce. When the decree is passed, it shall no longer be obligatory for the petitioner to cohabit with the other spouse. Such a decree may he rescinded if the court is satisfied with the truth of the statements made by a party or by both. This is an extraordinary power of the Court. A petition may be made for marriage solemnised before or after the Act. This remedy is opposed to restitution of Conjugal rights. In restitution, the party seeks a direction from the court to force the other spouse to resume cohabitation but in judicial separation the party seeks permission to secure freedom from the other. The marriage tie is not broken in either case. Ch. 2.6. Grounds for Judicial Separation : Briefly the Grounds are :

1. Adultery.
2. Cruelty.
3. Desertion for 2 years.