Akhilesh Maitra Family Law II SYLLB Notes

GJ Advani College of Law

Long Answer Types

(Most short-notes also incorporated into long answers)
Frequency Distribution All Questions 2011-2017
Q1 Explain the grounds of divorce available to a wife under
the Hindu Marriage Act, 1955. (April 2011, November 2011,
April 2012, November 2012, April 2014, April 2013, April 2015,
November 2015, April 2016, November 2016, April 2017)

Introduction

Before learning about the grounds for divorce under Hindu Marriage Act and Special Marriage Act, we
need to know about what marriage really is? Marriage can be rightly defined as the legally or formally
recognized union of a man and a woman (or, in some jurisdictions, two people of the same sex) as
partners in a relationship. But the concept of marriage is not restricted to this small definition, there is
much more embedded in this relationship which is further stated in the blog.

According to the principles of Hindu religion, marriage is considered as a sacred and pure relationship.
Marriage is undoubtedly the most important transitional point in a Hindus life and the most important
of all the Hindu sanskaras (life-cycle rituals). Parliament of India in the year 1955 enacted The Hindu
Marriage Act which is an Act to amend and codify the laws relating to marriage. During this time three
more acts were also enacted by the Parliament of India which were a part of the HINDU CODE BILLS
which were as follows:

Hindu Succession Act 1956

Hindu Minority and Guardianship Act 1956

Hindu Adoptions and Maintenance Act 1956

This act came into existence on 18th March 1955. This act includes the concept of divorce and
separation. Since this act is applicable specifically to the Hindus and others, so Parliament of India in the
year 1954 enacted Special Marriage Act to provide a special form of marriage for the people of India and
all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party
which basically focused on 3 main objectives:

To provide a special form of marriage in certain cases,

To provide for registration of certain marriages and,

 To provide for divorce.

Divorce means dissolution of marriage by competent court. Earlier divorce was unknown to general
Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu does not
believe in discontinuance of marriage. He declares let mutual fidelity continue till death; this in brief
may be understood to be the highest dharma of the husband and wife.

THEORIES OF DIVORCE

The concept of divorce can be categorized under mainly three theories which are basically:

FAULT THEORY- under Fault Theory marriage can be dissolved only when either party to the marriage
has committed a matrimonial offence.

MUTUAL CONSENT THEORY- This theory states that since two persons can marry by their free will, they
should be allowed to move out of their relationship of their own free will.

IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY- According to this theory, the breakdown of

marriage is defined as such failure in the matrimonial relationships or such circumstances adverse to
that relation that no reasonable probability remains for the spouses again living together as husband &
wife.

GROUNDS FOR DIVORCE

Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954 stated the
grounds and reasons for divorce which are as follows:

Adultery The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is
counted as a criminal offence and substantial proofs are required to establish it. An amendment to the
law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty A spouse can file a divorce case when he/she is subjected to any kind of mental and physical
injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture
are not judged upon one single act but series of incidents.

Desertion If one of the spouses voluntarily abandons his/her partner for at least a period of two years,
the abandoned spouse can file a divorce case on the ground of desertion.
Conversion In case either of the two converts himself/herself into another religion, the other spouse
may file a divorce case based on this ground.

Mental Disorder Mental disorder can become a ground for filing a divorce if the spouse of the
petitioner suffers from incurable mental disorder and therefore cannot be expected from the couple to
stay together.

Leprosy In case of a virulent and incurable form of leprosy, a petition can be filed by the other spouse
based on this ground.

Venereal Disease If one of the spouses is suffering from a serious disease that is easily communicable,
a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to
be venereal diseases.

Renunciation A spouse is entitled to file for a divorce if the other renounces all worldly affairs by
embracing a religious order.

Not Heard Alive If a person is not seen or heard alive by those who are expected to be naturally
heard of the person for a continuous period of seven years, the person is presumed to be dead. The
other spouse need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation It becomes a ground for divorce if the couple fails to resume their co-
habitation after the court has passed a decree of separation.

Apart from this there are certain grounds embedded in the Hindu Marriage Act 1955 in which the
petition for divorce can be filed by wife only.

If the husband has indulged in rape, bestiality and sodomy.

If the marriage is solemnized before the Hindu Marriage Act and the husband has again married
another woman in spite of the first wife being alive, the first wife can seek for a divorce.

A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces
the marriage before she attains eighteen years of age.

If there is no co-habitation for one year and the husband neglects the judgment of maintenance
awarded to the wife by the court, the wife can contest for a divorce.
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of
the Special Marriage Act, 1954.

For this section to apply there are certain requirements which have to be met and fulfilled by both the
parties to the divorce which can be stated as follows:

The parties have been living separately for a period of at least one year

They have not been able to live together, and

They have mutually agreed that marriage should be resolved

The Supreme Court in 2012 ruled that the waiting period of six months can be waived off and a Marriage
Laws Amendment Bill, 2010 was proposed which replaces the words "not earlier than six months" in
Section 13-B with the words "Upon receipt of a petition." However the bill has not been yet passed by
Lok Sabha as there was strong opposition to the bill and is still under a conflict.

We can conclude that prior to this Act; there was no provision for Divorce as this concept was too
radical as the marriage was considered as a sacred and divine bond. In earlier marriages wives were the
victims and were always at the mercy of their husbands and in- laws family and had no source to raise
their voice and revolt. But we can notice that there are pros and cons of every law. So the lawmakers of
our country have a hard role to perform to see the future implications and act in a cautious manner.
Q2. Define the term "Guardian" under Hindu Minority
and Guardianship Act 1956. What are the powers and
liabilities of a guardian? How and when can a
testamentary guardian be removed?
In Hindu dharmashastras, not much has been said about guardianship. Due to the concept of joint families, a child
without parents was usually cared for by the head of the joint family. Further, it was well accepted that the king is the
guardian of all the orphans. Thus, no specific laws were required regarding guardianship. During British period,
guardianship was primarily based on the extension of paternal authority. Thus, after parents, elder brothers,paternal
uncles, and then maternal relations used to look after the interests of the minor. The British also introduced the
concept of testamentary guardians in India.

The concept of guardianship has changed from paternal power to the idea of protection in modern times and the
HMG Act 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.

A person below the age of 18 yrs is considered to be a minor as per Section 4 of HMGA 1956. Such a person is not
capable of taking care of himself or of handling his affairs and thus requires help, support, and most importantly,
protection, which is usually provided by the parents. However, in many unfortunate cases, parents are not available
and in those cases other relatives or persons come to the rescue. Thus, parents and other people who look after a
minor are called as guardians in general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:

Definition as per Section 4 of HMG 1956

Guardian means a person having the care of a person of a minor or of his property or of both the person and his
property. This includes:

natural guardian
guardian appointed by the will of a natural guardian (testamentary guardian)
a guardian appointed or declared by court
a person empowered to act as such by the order of Court of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor without authority of law, can
also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self
appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not
have right to sell or deal with minor's property if he is merely a de factor guardian as per section 11.

Natural Guardian (Sec 6)

Section 6 of HMG Act 1956 defines only three natural guardians:

For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less
than 5 yrs of age will be with the mother.
For an illegitimate boy or a girl, the mother, and after mother, the father.
For a married woman, the husband.

It further states that no person shall be entitled to be a natural guardian of a minor if

he ceases to be a Hindu or
he renounces the world completely by becoming a sanyasi.
Here, by father and mother, natural father and mother are meant. Step father or step mother do not have any right to
guardianship unless appointed by court.

As per section 7, natural guardianship of an adopted son passes on to his adoptive father and after adoptive father,
to adoptive mother.

Position of Father
Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a guardian after his death
even if the mother was alive. This is not the case now. Further, as held in the case of Lalita vs. Ganga AIR 1973
Raj., a fathers right to guardianship is subordinate to the welfare of the child. In the case of Githa Hariharan vs RBI
AIR 1999 SC held the mother to be the natural guardian in spite of the father being alive and further held that the
word "after" means "in the absence" rather than "after the life" of the father. Thus, if a father is incapable of protecting
the interests of a minor due to any reason, he can be removed from guardianship.

Position of Mother
The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the mother has right to
custody of a minor less than 5 yrs of age. This does not mean that mother does not have the right to custody after 5
yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was held that a mother's right to guardianship is not lost upon
conversion to another religion if she is able to provide proper care to the minor. Further, in Kumar vs Chethana AIR
2004, SC has held that the mother's right to guardianship is not lost automatically after her remarriage. In all such
cases, welfare of the child has to be considered above all including the convenience and pleasure of the parents.

Position of Husband
In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the guardianship of a minor
wife belongs to the husband. However, due to section 13, a court may revert the guardianship to the father or mother
depending on the best interests of the minor.

Powers of a natural guardian (Sec 8)

Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:

A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and
proper for the benefit of the minor or the benefit of the minors estate. But the guardian, in no case, shall bind
the minor by a personal covenant.
The guardian cannot, without prior permission from the court,
o mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange,
or otherwise.
o lease the immovable property for a term more than 5 years or where the lease ends one year after
the minor attains majority.
Any sale of immovable property in violation of the above two points, is voidable at the insistence of the
minor.
The court shall not give permission for sale of immovable property unless it is necessary or clearly in the
benefit of the minor.

These powers also include the following

right in education
right to determine religion
right to custody
right to control movement
right to chastisement

In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held that the meaning of "necessity" and
"advantage" of a minor are quite wide and the courts have the power to widen their scope as per the case facts
before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint
property of the minor. However, the court may appoint a guardian for the complete joint family if required.

Custody of a minor
Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount
interest. Regarding a child, who is at the age of discretion, his wishes are also to be considered, though his wishes
may be disregarded in his best interest.

That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal
grandfather is considered to be in favor of the father. In Kumar vs Chethana AIR 2004, SC has held that mother's
remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the
parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and
grand father by SC in case of Poonam vs Krishanlal AIR 1989.
In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long
time demanded the guardianship. His claim was rejected.
In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with friends and may beget children
from others, was not considered appropriate for custody in the minor's interest.

Power over minor's property

In general, a guardian may do all acts that are in the interest of the minor. A third party may deal safely with the
guardian in this respect. However, this excludes fraudulent, speculative, and unnecessary deals. Before this act, a
natural and testamentary guardian had the power to alienate the minor's property if it is necessary as determined by
SC inHanuman Prasad vs Babooee Mukharjee 1856. However, this rule has been restricted through sec 8, which
mandates courts permission before alienating the minor's interest in the minor's property. Also, a guardian does not
have any right over the joint family interest of a minor.
In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of minor's immovable property without
courts permission is voidable and not void ab-initio. It further held that Sec 60 of Limitations Act would be applicable
when the minor repudiates the transaction.

In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the consideration.

Liabilities of a guardian

Since the legal position of a guardian is fiduciary, he is personally liable for breach of trust.
he is not entitled to any compensation unless explicitly specified in a will.
A guardian cannot take possession of minor's properties adversely.
must manage the affairs prudently.
liable to render all accounts.

If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardian's
liability comes to an end.

Rights of a guardian
A guardian has a right to

represent the minor in litigations.

get compensation for legal expenses from minor's property.
sue the minor after he attains majority to recover expenses.
refer matters to arbitration if it is in the best interest of the minor.
have exclusive possession of minor's property.

Removal of a guardian
Court has the power to remove any guardian in accordance to section 13.

ceases to be a Hindu.
becomes hermit or ascetic.
court can remove if it finds that it is not in the best interest of the child.
Testamentary Guardian (Sec 9)
A person who becomes a guardian due to the will of a natural guardian is called a testamentary guardian. Section 9
defines a testamentary guardian and his powers.

For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person to act as the
guardian of the child after the death of the father. However, if the mother is alive, she will automatically
become the natural guardian and after her death, if she has not named any guardian, the person appointed
by the father will become the guardian.
A widow mother who is a natural guardian, or a mother who is a natural guardian because the father is not
eligible to be a natural guardian, is entitled to appoint a person to act as a guardian after her death.
For an illegitimate child, the power of appointing a testamentary guardian lies only with the mother.

Powers

A testamentary guardian assumes all powers of a natural guardian subject to limitations described in this act and to
the limitations contained in the will. A testamentary guardian is not liable personally for the expenses and he can ask
the guardian of the property of the minor to meet the expenses through the property.
The rights of the guardian appointed by will cease upon the marriage of the girl.

Guardianship by Affinity
In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful guardian of a minor widow.
However, this view has not been adopted by Nagpur HC. Madras HC also did not hold this view and held that the
welfare of the child is to be considered first before anything else.

De Facto Guardian
Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the minor merely on the
ground of his being the de facto guardian. There is controversy regarding the status of a de facto guardian. Some HC
consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable (Ashwini Kr vs
Fulkumari, Cal HC 1983), while some HC have held that both are voidable (Sriramulu' case 1949). It is now well
settled that de facto guardian does not have the right to assume debt, or to gift a minor's property, or to make
reference to arbitration.

Welfare of the minor is of paramount importance (Sec 13)

While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the
minor.
No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the
guardianship in marriage if the court believes that it is not in the interest of the minor.

Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the
court may appoint a guardian as per the best interests of the minor.
Q3 What are the conditions for a valid adoption? Who
is eligible for adoption? What are the effects of
adoption?
Historical Perspective
Since the Vedic period, Hindu society has given a lot of importance to male child. It was said that a male child saves
the father from 'put' hell, hence the male child is called Putra. This was the main reason which has prompted the son-
less to adopt a male child.

Manusmriti says that when the natural father and mother give wholeheartedly their son with the offering of water to
another person in distress, it is called Dattak.

Vashistha has given several guidelines on dattak. It says that the father and the mother of an offspring have
complete right on selling or giving the offspring to another. A Dattak cannot be taken from the person who has only
one son. A child whose kinsmen are not known cannot be taken as dattak. A woman had no right to adopt.

Sounaka has said metaphorically that a Dattak son must be a reflection of the father, which means that a Dattak can
only be taken from a mother whom the person could have married before her marriage. Thus, one could not adopt
doughter's son, sister's son, or mother's sister's son.

Thus, the practice of Dattak in the old days had been practiced mostly for religious reasons. This is also evident from
the fact that only a male child was to be adopted because only he can perform the religious duties for the
father. Slowly, the secular reasons such as continuance of the family name also became important. More recently,
ulterior motives such as changing the course of inheritance of property has also prompted people to adopt.

Based on the above three authors and many other customs, the Dattak ceremony primarily involved a Dattak grahan,
i.e. the actual giving and taking of the child and a Dattak homam. However, there were several controversies because
there was no one standard rule. So, in 1956, the Hindu Adoption and Maintenance Act was enforced which
standardized as well as modernized the rules and process for adoption.

Some important features of this act are:

1. Adoption has been made a secular thing. There is no necessity of any religions ceremonies or other
religious aspects.
2. Both a man and a woman can adopt on their own right.
3. Both a boy or a girl can be adopted.
4. Orphans, out of cast children, or children in close relation, can also be adopted.
5. Widow, widower, and bachelors can also adopt.
6. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look into the motives of
adoption.

Requisites for Adoption

Section 6 of the HAM Act 1956 lays down the following 4 requirements

1. The person who is adopting must have the capacity and the right to adopt.
2. The person who is giving the child in adoption must have the capacity to give.
3. The person who is being adopt must be eligible to be adopted.
4. The adoption must satisfy all the rules given in this act.

Section 7 describes which Hindu Male is capable of adoption:

 1. Any Hindu male who has attained the age of majority and who is of sound mind can adopt.
2. If he is married, he must take consent from his wife. If he has multiple wives, consent from all the wives is
required. In the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent of the wife
living with the husband is obtained but the consent of the wife living away has not been obtained then the
adoption is void.
3. A wife's consent is not required is the wife has completely renounced the world and has become a Sanyasin,
has changed her religion and has ceased to be a Hindu, or has been proven by a competent judge to be
mentally unsound.

Section 8 describes which Hindu Female is capable of adoption:

1. She must be a major and must not be mentally unsound.

2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T Shankar, AIR 2001,
SC has held that consent from a co-widow is not required because a widow can adopt on her own right.
3. A married woman is allowed to adopt only if the husband has renounced the world completely, or is of
unsound mind, or has ceased to be a Hindu.

This is a big change from pre-act situation. Earlier, a woman had no right to adopt.

Section 9 describes who has the capacity to give a child in adoption

1. Only the natural father has the right to give a legitimate child in adoption. However, the father must get
consent from the natural mother unless the mother has been declared by a competent court to be of
unsound mind, has renounced the world, or has ceased to be a Hindu.
2. If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is dead, the
mother can give the child in adoption.
3. Only the mother of an illegitimate child has the right to give the child in adoption. However, she cannot adopt
the child herself because a giver cannot be taker at the same time.
4. If both the natural mother and father are dead, or have renounced the world, or have abandoned the child,
or are of unsound mind, a guardian, testamentary or court appointed can give a child in adoption, including
to the guardian himself, upon prior permission of the court.
5. While granting permission, the court must see the welfare of the child and the wishes of the child depending
on the child's age.

In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager or
secretary of an orphanage, or the person in whose case the child is, of the person who has brought up the child can
give the child in adoption.

Section 10 describes who is capable of being adopted

1. The child must be a Hindu.

2. The child must not have already been adopted.
3. The child must be unmarried. However, if a custom to the contrary exists, such an adoption may take place.
4. The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an adoption may
take place.

There is no restriction on who can be adopted regarding Sapinda relationships. Even a daughter's son, or sister's son
can be adopted.

Section 11 describes some other conditions for a valid adoption

1. If a male child is being adopted, the person who is adopting must not already have a son, son's son, or son's
son, whether natural or adopted.
 2. If a female child is being adopted, the person who is adopting must not already have a daughter or son's
daughter.
3. If a male is adopting a female child, then their age difference must be greater than 21 yrs.
4. If a female is adopting a male child, then their age difference must be greater than 21 yrs.
5. Two persons cannot adopt the same child.
6. The actual giving and taking of the child must happen. Only mere intention of giving and taking is not
enough. The child must be transfered from the home of the natural parents, or in case of orphans, from the
place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattak homam is not necessary.

In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998, these conditions were challenged on the
ground that they violate fundamental rights, however, SC held that personal laws do not fall under the ambit of part III
of the constitution.

Effects of Adoption
Section 12 says that an adopted child is deemed to be a natural child of his adopted parents for all purposes. All
relations with the natural parents and family are severed and new relationships with the adopted parents are
established. Only exception is that the adopted child cannot marry anybody from his natural family in contravention of
Sapind and prohibited relationships.
It further says that the adopted child is not divested of his property that has vested in him before adoption and that an
adopted child cannot divest anybody of his vested property after adoption.

An important change from the old law here is that the concept of "relating back", which means that when a widow
adopts a child the adoption is considered to be done from the date the husband died, has been abolished. However,
in the case of Sawan Ram vs Kalawati AIR 1967, SC has held that the deceased father is sill considered the
adoptive father.

Section 13 says that subject to any ante-adoption agreement, the adoptive parents do not lose their right of
alienation of their property after adoption.

Section 14 describes the position of mothers in certain situations:

1. When a male adopts with the consent of the wife, the wife becomes the adoptive mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the step mother.
3. If a single adoptive mother later marries, the husband of the adoptive mother becomes the step father.
4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife becomes the adoptive
mother and other wives become the step mothers.

Section 15 says that a valid adoption cannot be canceled either by the adoptive father or mother. Neither can the
adopted child renounce the adoptive parents and go back to the family of his birth.

Section 16 says that whenever any document made under any law in force at the time, purporting to record an
adoption, and has been signed by the giver and taker of the child, is produced before the court, the court shall
presume that the adoption has been made in accordance with the provisions of this act unless and until it is
disproved.

In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the plaintiff brought a suit for
partition and possession. However, he failed to provide any proof of the adoption. His adoptive father was estranged
from adoptive mother and the adoptive mother had asked for maintenance for herself but not for the adoptive son.
There was no document or agreement. The plaintiff could not provide any essential details such as date of adoption
or fixing of Muhurtam etc. Thus, SC held that there was no adoption and the alleged adopted son had no right in the
property.

Section 17 forbids receipt of any payment as a consideration for the adoption. If any such payment is taken, he shall
be punishable by 6 months imprisonment and/or a fine or both.
Q4 Rules of Succession OR Explain the provisions relating to
the devolution of property of Hindu female dying intestate/
Rules of Succession of Hindu female

Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes
of law however, it holds a different and particular meaning. It implies the transmission or passing of
rights from one to another. In every system of law provision has to be made for a readjustment of things
or goods on the death of the human beings who owned and enjoyed them.

Succession, in the sense of the partition or redistribution of the property of a former owner is, in
modern systems of law, subject to many rules. Such rules may be based on the will of a deceased
person. However, there are cases in which a will cannot be expressed and eventually, there needs to be
some broadly accepted rules upon which the property shall devolve upon those succeeding him. There
can be no doubt, however, that these rules primarily are the characteristics of the social conditions in
which that individual lived. They represent the view of society at large as to what ought to be the
normal course of succession in the readjustment of property after the death of a citizen.

Succession of A Hindu Male Dying Intestate Under The Hindu Succession Act:

Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of
succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession of property
of a Hindu male who dies intestate after the commencement of the Act. These rules are to be read along
with the Schedule as well as other Sections pertaining to the same (Sections 9 to 13).

Section 8 lays down as follows:

Section 8: General rules of succession in the case of males. - The property of a male Hindu dying
intestate shall devolve according to the rules set out in this chapter:
(a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the relatives
specified in class II of the Schedule;
(c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being the
agnates specified in Section 12; and
(d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section 13.

Thus, Section 8 groups the heirs of a male intestate into four groups and lays down that the property
first devolves upon the heirs of Class I of the Schedule. They are the son, daughter, widow, mother, son
of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a
predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son,
daughter of a predeceased son of a predeceased son and widow of a predeceased son of a predeceased
son. All these heirs inherit simultaneously. If heirs of Class I are not available, the property goes to the
enumerated heirs specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over
an heir in a lower entry.

In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates of the
deceased in succession. Now, one person is said to be the agnate of the other if the two of them are
related by blood or adoption wholly through the males. Similarly, one person is said to be the cognate of
the other if the two of them are related by blood or adoption, but not totally through males, i.e. there
has to be some intervention by a female ancestor somewhere.

Now, the term property includes all those properties of the deceased intestate that is heritable under
the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary if he is
survived by any of the female heirs or daughters son as mentioned in Class I of the Schedule. It also
includes the property that he might have inherited from his grandfather or father after the Act came
into force.

(A) Heirs In Class I:

i. The adopted children (sons or daughters) are also to be counted as heirs.

ii. The children born out of void or voidable marriages are considered to be legitimate by virtue of
Section 16, and hence they are entitled to succession.
iii. The widow is also entitled to property along with the other heirs and in case there is more than one
widow, they will inherit jointly one share of the deceaseds property, which is to be divided equally
among them.
iv. The widow is entitled to inherit from her deceased husbands property even if she remarries after his
death.
v. The widow of the predeceased son will inherit with the other heirs. However, her right along with
rights of the children of the predeceased son will exist to the extent of the share of the predeceased
son, had he been alive. However, if she remarries before the death of the intestate, then she is not
entitled to the property.
vi. The daughter inherits simultaneously along with the other heirs in her individual capacity. Moreover,
even if she is married, she is entitled to such property.
vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has been held
in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her inheriting from her
son. Even if she is divorced or remarried, she is entitled to inherit from her son. Here the term mother
also includes an adoptive mother. Moreover, if there is an adoptive mother, the natural mother has no
right to succeed to the property of the intestate. A mother is also entitled to inherit the property of her
illegitimate son by virtue of Section 3(i)(j).

(B) Heirs In Class II:

i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of Entries I
to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry excludes all the heirs
in the lower entries.

ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any property
from the illegitimate son as opposed to the mother. However, he is entitled to share from children born
out of void or voidable marriage under Section 16. Also, a step mother is not entitled to inherit from the
step son.

iii. All brothers and sisters inherit simultaneously. Here the term brother includes both a full and a half
brother. However, a full brother is always preferred to a half brother (according to Section 18). Uterine
brother is not entitled to the intestates property. However, when the intestate and his brother are
illegitimate children of their mother, they are related to each other as brothers under this entry.

(C) Agnates:

A person is said to be the agnate of another if the two of them are related by blood or adoption entirely
or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the intestate do not
include widows of lineal male descendants because the definition of agnates does not include relatives
by marriage but only relatives by blood or adoption. Since these widows would be relatives by marriage
hence they will not fall under the definition of agnates and hence, they will not be entitled to inherit in
this capacity.

Moreover, there is no limit to the degree of relationship by which an agnate is recognized. Hence, an
agnate however remotely related to the intestate may succeed as an heir. Also, this relationship does
not distinguish between male and female heirs. There is also no distinction between those related by full
and half blood. However, uterine relationship is not recognized.

(D) Cognates:

A person is said to be the cognate of another if the two of them are related by blood or adoption, but
not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line of
succession is by one or more females. As long as there is at least one female intervening, it is a cognate
relationship. As in agnate relationship, cognate relationship is also not based on marriage and only on
blood or adoption. Hence widow or widowers of those related by cognate relationship do not fall under
this category and hence they are not entitled to succeed on this ground.

Section 9. Orders of succession among heirs in the Schedule. - Among the heirs specified in the
Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the
first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be
preferred to those in the third entry; and so on in succession.

Section 9 explicitly points out the order of succession between the Class I and the Class II heirs and also
among the Class II heirs interse.

According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the
property first devolves upon them on the death of the intestate. All the Class I heirs succeed
simultaneously and there is no question of any preference or any priority among them. However, when
there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the
nine Entries.

However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in
Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate
groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among
the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son
of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased
daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the
Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brothers son,
the sister being an heir in Entry II of Class II will get preference over his brothers son who is an heir in
Entry IV of Class II.

Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an intestate
shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:
Rule 1- The intestates 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 in the branch of each pre-deceased son or each pre-deceased daughter of the intestate
shall take between them one share.
Rule 4- The distribution of the share referred to in Rule 3-

i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows
together) and the surviving sons and daughters get equal portions; and the branch of his predeceased
sons gets the same portion;

ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving sons and
daughters get equal portions.

Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take
simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do not
mention any priority among them, but it nowhere follows that every individual heir who succeeds as a
heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The
computation of the share of each is done in accordance with Section 10 which may constitute the
Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put the
males and the females on equal footing. So it allots the shares to the males and the females pari passu.

The object of Section 10 is to deal with the amount of shares each person will be entitled to when there
are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will
inherit to the property. However, this does not mean that each one of them will get 1/4th of the
property. The four rules given in this Section are explanatory to the extent of understanding how much
share each one will get.

The rules are:

1) The widows, if there are more than one, shall take together only one share and [read with Section
19(b)] inherit that share equally as tenants-in-common and not joint tenants.

2) When there are more than one son, each son will get a share and similarly each daughter will get a
share and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be
entitled to take together a share of the property of their father or mother as the case maybe, and divide
them equally among themselves. The family of the predeceased son would be entitled to one part that
the predeceased son would have been entitled to, had he been alive. Same thing applies to a
predeceased daughter. Thus these heirs succeed to the intestates property not as per capita but as per
stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of
a propositus, she will take the share of the predeceased son equally with her sons and daughters.

The four rules in Section 10 are to be read in consonance with Section 19 which gives the two basic rules
in case there is more than one heir succeeding to the property of the intestate.

The rules are:

(a) save as otherwise expressly provided in the Act, per capita and not per strip.
(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the
contrary.

Section 11. Distribution of property among heirs in Class II of the Schedule.- The property of an intestate
shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they
share equally.

This Section provides that when there are more than one heirs in one entry of Class II, they shall
inherit equally. For example, Entry III contains four heirs:
(a) the daughters sons son
(b) the daughters sons daughter
(c) the daughters daughters son
(d) the daughters daughters daughter.

Thus according to this Section, they all share equally. It should be noted that the legislation does not lay
down any rule of discrimination between any male or female. If two heirs are enlisted in the same entry,
then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali
jura and take per capita subject to the only exception that full blood is preferred over half-blood.

In the case of Arunachalathammal v. Ramachandran, it was contended that the different heirs
mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry and they
do not inherit simultaneously but here again there is a question of preference i.e. the first subdivision
inherits and then in its absence, the later. The question arose because there were, in his case, one
brother and five sisters of the intestate and no other heir and the brother contended that in a brother
being in subcategory (3) of entry I, was to be preferred over sister who was in subcategory (4) of entry I
and thus he was entitled to the full property. However the same was negated and it was held that all
heirs in an entry inherit simultaneously and there is no preference to an heir in a higher subcategory
within an entry to an heir in a lower subcategory in the same entry. Thus we find that the equality is
between every individual heir of the intestate and not between the sub-division in any particular entry.
In fact, the court went on to say that there were no subdivisions in any entry in Class II. They were just
roman numerals representing the heirs in the entry.

Section 12. Order of succession among agnates and cognates.- The order of succession among agnates
or cognates, as the case may be, shall be determined in accordance with the rules of preference laid
down hereunder:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has
fewer or no degree of descent.
Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take
simultaneously.

This Section deals with the order of succession among agnates and cognates. Agnates come within the
scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of
succession of cognates come only when there are no cognates and the question of succession of agnates
and cognates come only when there are no heirs in Class I and Class II.
Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the fewer or
no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent is the same or
none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays down that in case of a
tie even after applying Rules 1 and 2, they shall take simultaneously.

In accordance with the above three rules, the agnate and cognate relationship maybe categorized as
follows:

Agnates:

(a) agnates who are descendants, for example, sons sons sons son and sons sons daughter.
(b) agnates who are ascendants, for example, fathers fathers father and fathers fathers mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and
descent, for example, fathers brothers son and fathers brothers daughter.

Cognates:

(a) cognates who are descendants, for example, sons daughters sons son and daughters sons sons
son.
(b) cognates who are ascendants, for example, fathers mothers father and mothers fathers father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and
descent, for example, fathers sisters son and mothers brothers son.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred
to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be
preferred over collaterals.

Section 13. Computation of degrees.

1) For the purpose of determining the order of succession among agnates or cognates, relationship shall
be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both,
as the case may be.
2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
3) Every generation constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his agnate and
cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of
relationship with the intestate as the starting point. There is no discrimination or preference between
male and female heirs.

The second rule states that the computation of the degrees of ascent and descent are to be made
inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a
propositus as terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the total
number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act.

The following are examples of rules of computation of degrees:

(a) The heir to be considered is the fathers mothers father of the intestate. Hence there is no degree of
descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestates father,
(iii) that fathers mother and (iv) that mothers father.

(b) The heir to be considered is the sons daughters sons daughter of the intestate. Hence there is no
degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii) the intestates
son, (iii) that sons daughter, (iv) that daughters son and (v) that sons daughter.

(c) The heir to be considered is the mothers fathers sisters son (i.e. the mothers fathers fathers
daughters son) of the intestate. He has four degrees of ascent represented in order by (i) the intestate,
(ii) the intestates mother, (iii) that mothers father and (iv) that fathers father and two degrees of
descent i.e. (i) the daughter of the common ancestor and (ii) her son (the heir).

What is to be remembered is that when degrees, both of ascent and descent, are to be computed in
case of collateral, the degrees of ascent computed from the intestate are inclusive of him, but in
counting the degrees of descent from the ancestor, only generations of descent are computed, that is,
the ancestor does not constitute a degree of descent.

Succession of A Hindu Female Dying Intestate Under The Hindu Succession Act

The great ancient lawgivers Manu and Baudhyana had described the good woman as a profoundly non-
autonomous self, ruled by father in childhood, by husband in youth, by son in old age. In the 19th
century debates, on the contrary, she came to be re-envisaged as a person with a core of inviolate
autonomy, possessing a cluster of entitlements and immunities, even when the family, the community
or religion refused to accept them. The demand for the new laws stemmed from an understanding
about Indian a necessary, autonomous core of female personhood that the state must underwrite.

Under the Hindu law in operation prior to the coming into force of the Act, a womans ownership of
property was hedged in by certain delimitations on her right of disposal and also on her testamentary
power in respect of that property. Doctrinal diversity existed on that subject. Divergent authorities only
added to the difficulties surrounding the meaning of a term to which it sought to give technical
significance. Women were supposed to, it was held and believed, not have power of absolute alienation
of property. The restrictions imposed by the Hindu law on the proprietary rights of women depended
upon her status as a maiden, as a married woman and as a widow. They also depended upon the source
and nature of property. Thought there were some fragmented legislation upon the subject (regard being
made to the Hindu Womans Right to Property Act, 1937), the settled law was still short of granting a
status to woman where she could acquire, retain and dispose off the property as similar to a Hindu
male. The Hindu Succession Act, 1956 and particularly Section 14 brought substantial change, thus, upon
the aspect of a right of a Hindu female over her property and thereby settled the conflict.

Section 15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section
16,-
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter)
and the husband;
(b) Secondly, upon the heirs of the husband ;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother

(2) Notwithstanding anything contained in Sub-Section (1), -

(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of
any son or daughter of the 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 son or daughter of the deceased (including the children of any predeceased 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.

This Section propounds a definite and uniform scheme of succession in the property of a female Hindu
who dies intestate after the commencement of the Act. The rules laid down under this Section are to be
read with Section 16. This Section groups the heirs of a female intestate into five categories as laid in
sub-Section (1).

However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the
general rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue
then,

(i) in respect of property inherited by her from her father or mother, that property will devolve not
according to the order laid down as in sub-Section (1) but upon the heirs of her father, and

(ii) in respect of the property inherited by her from her husband or father-in-law, that property will not
devolve according to the order laid down in sub-Section (1) but upon the heirs of her husband.
It is important to note that the two exceptions herein referred are confined to only the property
inherited from the father, mother, husband and father-in-law of the female and does not affect the
property acquired by her by gift or other by other device. The Section has changed the entire concept of
stridhana and the mode and manner of acquisition of property by the female, which earlier determined
how the property would be inherited, has been changed and amended by the Section. Considering
Section 17, it is important to note that Section 16 does not apply to persons governed by
Marumakkattayam and Aliyasantana laws.

As specified in the beginning of the sub-Section (1), in the devolution of heritable property of a female
intestate, those in a higher entry are preferred to those in a lower entry.

The order of succession, as by the effect of rules under Section 15 can be summarized as follows:
(1) the general order of succession laid down in entries (a) to (e) in sub-Section (1) applies to all property
of a female intestate however acquired except in case of property inherited by her from her father,
mother, husband or father-in-law.

(2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a
predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such
issue regardless of the source of acquisition of the property and such issue takes the property
simultaneously; and if the husband of the intestate is alive they take simultaneously with him in
accordance with entry (a). In such a case, sub-Section (2) does not apply.

(3) In case of a female intestate dying without issue but leaving her husband, the husband will take her
property, except property inherited by her from her father or mother which will revert to the heirs of
the father in existence at the time of her death.

(4) In case of female intestate dying without issue property inherited by her from her husband or father-
in-law (the husband being dead), will go the heirs of the husband and not in accordance with the general
order of succession laid in sub-Section (1).

(5) In case of a female intestate dying without issue property inherited by her from her father or mother
will revert to the heirs of the father in existence at the time of her death and not in accordance with the
general order of succession laid down in sub-Section (1).

Section 16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of
succession among the heirs referred to in Section 15 shall be and the distribution of the intestates
property among those heirs shall take place according, to the following rules, namely:
Rule 1.- Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be preferred
to those in any succeeding entry and those including in the same entry shall take simultaneously.

Rule 2.- If any son or daughter of the intestate had predeceased the intestate leaving his or her own
children alive at the time of the intestates death, the children of such son or daughter shall take
between them the share which such son or daughter would have taken if living at the intestates death.

Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e)
of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and according to the
same rules as would have applied if the property would have been the fathers, the mothers or the
husbands as the case maybe, and such person had died intestate in respect thereof immediately after
the intestates death.

Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs
referred to in prior entry are to be preferred to those in any subsequent entry and those included in the
same entry are to succeed simultaneously.

Rule 2 states that in case of the children of a predeceased son or daughter, they shall not take per capita
with the son and daughter of the intestate but shall take per stripes i.e. the children and the
predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or
daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). This rule 3 is
to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be
ascertained for purpose of distribution of property.
Q5 What is partition? Who is entitled to share on partition.
What is the effect of partition?
Introduction

Partition, is an act by which a coparcener severs his relations with joint family and loses his
status of coparcener and becomes an independent individual from the links of joint family. An
important consequence of such partition is that the share of coparcener or coparceners seeking
partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and
definite, as a result of partition, and thus allotted to the respective members.

According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the
whole, by distributing them into particular portions of the aggregate. Therefore, Mitakshara
partition is used into two distinct senses: firstly, the adjustment into specific shares the diverse
rights of the different members according to the whole family property; secondly; the
severance of the joint status, with the legal consequences resulting therefrom. It has been
defined as the crystallization of the fluctuating interest of a coparcenary into a specific share in
the joint family estate.

According to Lord Westburn- there are two stages in partition under Mitakshara

1. Division of Right Ascertaining and fixing with an intention to become separate, the
share to which each coparcener is entitled.
2. Division of property- Actually making off, and assigning portions of the erstwhile joint
estate to individual coparcener in portion to the share of each.

Under the Dayabhaga law, it means division of property in accordance with the specific share of
the coparcener. It means, splitting up joint possession i.e. parting or dividing the share among
coparcener according to metes and bound. Division of property in accordance with the specific
share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of
possession, while in Mitakshara it is unity of ownership

Under Dayabhaga Law, every adult coparcener whether male or female is entitled to enforce
partition.
Persons not entitled to enforce partition under the Dayabhaga Law are:

1. Sons, Grandsons and great grandsons have no birth interest in ancestor property
against their father, so there is no right for partition.
2. It consider the illegitimate son of shudra becomes a coparcener with legitimate sons
when they inherit the property after the death of the father.
3. Fathers wife-no such right
4. Childless step mother no entitle to a share after partition

PROPERTY LIABLE FOR PARTITION

It is only the coparcenary property which is subject to the partition. The separate property is
not liable to partition at all, as it belongs absolutely to the owner thereof.

Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj.
Nor can family idols and place of worship can be divided. Similarly, the following properties are
not liable to partition:

1. Impartible estate i.e., property which descends to one member only, either by custom
or under any provision of law or by terms of grant.
2. Property indivisible by nature, e.g., ponds, staircase, passage
3. Family idols and relies which are object of warship
4. Separate property of a member
5. The places of worship and sacrifice or the property which has been dedicated to
religious and charitable purposes.
6. The well and the rights to draw water from the well
7. The ornaments and the dress materials given to the wives of the coparceners
8. The headship of a Math

Manu says- following properties are not subject to in division

1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water and
female slaves, as road, garden, utensils, documents, right to way, furniture etc.
2. Properties meant for pious use, or scarifies, object for worship.3.
 3. Separate property of a member

In respect of those properties three methods of adjustment are available-

1. may be enjoyed by coparcenary by jointly or by turn

2. May be allotted to the share of coparcener and its value adjusted.
3. May be sold and distributed the incident
DEDUCTIONS AND PROVISIONS

Some provisions must be made out of the property liable to partition before any partition is
affected.

1. Debts incurred for joint family.

2. Personal debts of the father not incurred for illegal or immoral purposes.
3. Maintenance of dependent female members and disqualified heirs.
4. Marriage expenses of unmarried daughters of the last male holder but not of the
collaterals.
5. Expenses for the funeral ceremony of the widow and the mother of the last male
holder.
PERSONS WHO ARE ENTITLED TO DEMAND PARTITION

Every coparcener has a right of partition and entitle for share in partition.

1. Father- he can impose a partition, partial or total between his minor son and himself
with bonafide intention, else, it will reopen. In case of major son and father, it should
be by mutual consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right
partition without the assent of his father, if the father is join with his own father and in
case of Punjab Customary Law, as under Punjab Customary law son have no right by
birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be
reopen to give the share after born son. However Gautama, Manu, Nerada says the
after born son could get the share of his father alone
According to Mitakshara we have few rule for this-
1. Son conceived at the time of Partition but born after it person in the womb is equated
the person exist. The tax lay down that if the pregnancy is know the partition should be
postponed till the time child birth, if the other coparceners are not ready for this a equal
share should be reserve if the child born son share should be allowed to them, in
case female it should be expand on her marriage.
2. Not in the womb when partition take place if the pregnancy is not known and no share
has been reserved then the partition should be reopen after childbirth.
3. Son begotten and born after partition- in this case two general rule under Mitakshara
4. When Father has taken his share in the partition- son become the coparcener with his
father.
5. When Father has not taken his share in the partition son has a right to reopen the
partition and get his share.
6. Adopted Son- he has right if partition take place after adoption, but if partition
take place before adoption he has no right.
7. Illegitimate Son- not entitle for partition and share but for maintenance only.
8. Son void marriage and annulled marriage-not entitle.
9. Minor Coparcener- no distinction between major or minor.

PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER

PARTITION

No female has a right to partition but if partition takes place, some female (fathers wife,
mother and grandmother) has a right for share in partition. However, after 2005 amendment,
daughters are also entitled for it.

HOW PARTITION IS AFFECTED?

1. Severance of Joint Status or interest-expression of intention- one member of joint family
can express his intention to partition, even though no actual partition take place.
2. by Notice
3. by Will
4. Conversion to another Religion.
 5. Marriage under special marriage act.
6. by agreement
7. by arbitration
8. by father
9. by suit

ALLOTMENT OF SHARES

Sons are not entitled for any share in presence of father. The share of deceased coparcener
passes to his heir.
Q6 What are the rights and duties of coparceners with respect
to the coparcenary property?
The following are the fourteen main rights of a coparcener:

1. Community of interest and unity of possession:

No coparcener is entitled to exclusive possession of any part of the coparcenary property; nor is any
coparcener entitled to any special interest in such property.

As observed by the Privy Council in Katama Natchairv. Rajah of Shivagunga (1893 9 M.I.A. 539), there is
community of interest and unity of possession between all the members of the family.

2. Share of Income:
A member of a joint family cannot, at any given moment, predicate what his share in the joint family
property is. Such a share becomes defined only when a partition takes place. The reason is that his share
is a fluctuating one, which is liable to be increased by deaths, and diminished by births, in the family. It
follows from this that no member is also entitled to any definite share of the income of the property.

According to the principles governing a Hindu undivided family, the whole income of the joint family
property must be brought to the common purse of the family, and then dealt with as per the rights of
the members to enjoy such property.

3. Joint possession and enjoyment:

Each coparcener is entitled to joint possession and enjoyment of the family property. If he is excluded
from doing so, he can enforce this right by way of a suit. He is not, however, bound to sue for partition.
In a suit for joint possession, the Court would declare his right to joint possession, and further direct that
he should be put into such joint possession.

4. Right against exclusion from joint family property:

If a coparcener is excluded by other coparceners from the use or enjoyment of the joint property, the
Court may, by an injunction, restrain such coparceners from obstructing him in the enjoyment of the
property.

In one case, A and were members of a joint family. A prevented from using a door which was the
only means of access to the rooms which were in Bs occupation. It was held that, in the circumstances,
the Court could, by injunction, restrain A from disturbing in the use of the door. (Anani v. Gopal, 1895,
19 Bom. 269)
In another case, A and were members of a joint family, which owned a shop in Poona. A prevented
from entering the shop, inspecting the account books, and taking part in the general management of the
shop. sued A for an injunction, restraining A from excluding from the joint possession and
management of the shop, and the Bombay High Court held that was entitled to succeed. (Ganpat v.
Annaji, 1899 23 Bom. 144)

5. Right of maintenance and other necessary expenses:

Every coparcener is entitled to be maintained out of the estate of the family. For this purpose, he is
entitled to receive, from the coparcenary property, maintenance for himself, his wife and children, as
also for those whom he is bound to maintain. Besides such maintenance, a coparcener is also entitled to
get money from the coparcenary property for the purpose of the marriage of his children and for the
performance of the sradha and upanayana ceremonies.

6. Right to restrain improper acts:

Every coparcener has the right to restrain improper acts on the part of other coparceners, where such
acts cause substantial injury to his rights as a member of the family. Thus, if a coparcener erects a
building on land belonging to the joint family, so as to materially alter the condition of the property, he
may be restrained by an injunction from doing so.

7. Right to enforce partition:

Every adult coparcener is entitled to enforce a partition of a coparcenary property. He cannot, however,
file a suit for a declaration of the amount of his share, as he has no definite share, until partition.

In one leading case (Appaji v. Ramchandra, 16 Bom. 29), the Bombay High Court held that there is one
important exception to the above rule, namely, that where the father is joint with his own father or
other collateral members, a son cannot enforce a partition against the will of the father. This exception
is also recognised in the State of Punjab also, but not in other parts of India.

8. Right to account:
A coparcener has no right to ask for accounts from the manager as regards his dealing with the
coparcenary property and the income thereof, unless of course, such coparcener is suing for a partition,
in which case, he would have such a right.

9. Right of alienation:
No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate
such interest for value, except in the State of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat.
An unauthorised alienation is not however, absolutely void; it is merely voidable at the option of the
other coparceners.

However, it is open to a creditor, who has obtained a decree against the coparcener personally, to
attach and sell his undivided interest, and if this is done, the purchaser can have his interest separated
by a suit for partition.

10. Right to impeach unauthorised alienations:

Every coparcener has the right to impeach alienation by the manager, or any other coparcener, in excess
of their powers. Such alienation can be impeached only by a coparcener or by a transferee who has
acquired the entire interest of a joint family in the property alienated.

11. Right to renounce:

A coparcener has the right to renounce his interest in the coparcenary property. He can do so by
expressing his intention to that effect, and if he does so, no other formalities would be necessary. Such a
renunciation must, however, be in favour of the whole body of coparceners. Even if he renounces in
favour of one individual member, the renunciation will operate for the benefit of all the coparceners.

12. Right of survivorship:

All the coparceners of a joint Hindu family have a right of survivorship in respect of the joint family
property. Thus, if one coparcener dies, his undivided interest in such family passes by survivorship to the
remaining coparceners, and not to his heirs by succession. (The circumstances in which this right of a
coparcener does not exist have already been considered earlier.)

13. Right to make self-acquisition:

A coparcener has the right to acquire property of his own, and keep it as his self-acquired property. The
other coparceners would have ho claim on such property.

14. Right to manage:

A coparcener, who is the senior-most member of the family, is entitled to manage the coparcenary
property and business, and to look after the interests of the family on behalf of the other coparceners,
unless he is incapacitated from doing so by illness or other like and sufficient cause.
Q7 Discuss the bars to matrimonial relief under Hindu
Marriage act. Discuss Accessory, Condonation & Collusion as
bars to matrimonial relief.
Read: https://www.scribd.com/doc/83080891/Bars-to-Matrimonial-Remedies - Very exhaustive
and detailed answer.
Q8 What are the essential conditions of a valid Hindu
marriage?
Introduction

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the
parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non
Hindu or both are Non Hindus, the marriage will not be a subject matter of this Act but will relate to
some other law i.e. Special Marriage Act etc. The essential conditions of valid Marriage are given and
discussed below.

Clause (i) Condition of monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression neither
party has a spouse living depicts that the spouse must not be alive at the time of marriage. If
the spouse is alive at the time of marriage that could bar the remarriage of a person. However
one must note that the first marriage of a person should be a legally valid marriage. In spite of
ones valid marriage if the person remarries in violation of Section 5(i), the second marriage will
be null and void and he will be subjected to penal consequences. The Scheduled Tribes are
exempted from the application of the Act. But there must be a proved custom to this effect.

Bigamy Section 5 (i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the
parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the second wife has no status of wife.

Clause (ii) Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.
Sub clause (b) Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a
degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan
Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from
schizophrenia within short period after marriage and the disease was not disclosed to the
husband before marriage.

Sub clause (c) Recurrent attacks of insanity: If a person has been subject to recurrent attacks
of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry
even during a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.

Clause (iii) Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation
of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.

According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has
also raised the age of marriage of girl to eighteen.

Clause (iv) Avoidance of degrees of prohibited relationship

The parties to marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(g) of the Act. According to Section 3(g) degree of
prohibited relationship means when two persons are related to each other in any of the
following manners:

1. By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda
relationship which extends up to fifth degree in the line of father and third degree in the line of
the mother. The distinction of this category is that it extends even beyond the Sapinda
ascendants.
2. By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other.
For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and
step son or step-father and step daughter are thus within the degrees of prohibited relationship.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

void. It is also punishable under section 18(b) of the Act.

1. A marries his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship.
2. A marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the
degree of Prohibited relationship.
3. A marries his stepmothers sister. It is not a valid marriage, A is related to his step-mother by
half-blood relationship.

Clause (v) Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage Pinda means body and therefore those
who are related by body or blood or consanguinity are sapindas among themselves. The Hindu
Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda
relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent
through the mother.

According to Section 3(f)(ii) two persons are said to be sapindas of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common
lineal ascendant to each of them.

Whereas Section 3(f)(i) states that sapinda relationship with reference to any person extends
as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced upwards in each case
from the person concerned, who is to be counted as the first generation.

Rules for determining Sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the mother
in case of both the parties.
2. The relationship extends as far as the fifth generation in the line of ascent through the father in
case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case of both
through the mother; or it may subsist in case of one of them through the father and on case of
the other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted
inclusive of the persons concerned and the common ancestor or ancestress.
5. Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by
adoption. It also includes both, legitimate and illegitimate blood relationship.
Q9 Who can be a Karta? Elucidate the rights & Liabilities of a
Karta.

Introduction to Karta

The joint Hindu family is a patriarchal organization and the head of the family is known as Karta.
He is the senior most male member of the family and as a head or manager of the family, he is
the representative of the family and acts for or on behalf of the family. A Karta is a person in
whom, others in the family repose confidence, so between the Karta and the family members
there is a fiduciary relation because there is always a need for a manager to look after the
welfare of minor members and females in a joint Hindu family. Such manager of the joint Hindu
Family is known as the Karta of family and he enjoys immense powers in respect of the
management of the affairs of family and its property.

The position of Karta in a joint Hindu family is unique. He is that person who takes care of the
whole family and its property and administers it and all the members of the family remain in
discipline under his control and are bound by his decisions. A Karta incurs unlimited liability and
is representative of the family in all the affairs. It has been said regarding the position of Karta
that no one else is equivalent to him in the family. The position and powers are wider than
anyone.

POWER
1. Power over income and expenditure
2. Power to manage joint family business
3. Power to contract debt for family purposes
4. Power to enter into contracts
5. Power to refer to arbitration any matter involving the interest of joint Hindu family and
the other members of the family including minors
6. Power to enter into compromise in any matter relating to joint Hindu family property
7. Power to give discharge to the debt due to joint family
 8. Power to acknowledge debts or make a part payment of it, so as to extend the period of
limitation.
9. Power to represent in suits
10. Power of alienation of joint Hindu family property

But this does not mean that he is a dictator. His position is extremely sensitive. He has to move
along with all the members. Thus the position of the Karta is a mixture of rights and duties. He
has to maintain the balance between rights and duties.

DUTIES AND LIABILITIES

1. He has the duty to render accounts to the other coparceners regarding the income from
joint family property and expenditure thereon
2. He has the duty to realize the debt due to the family
3. He has the duty to spend the joint family funds only for the purposes of the family and
should spend reasonably
4. It is the duty of the Karta not to start a new business without the consent of other
coparceners.
5. It is the duty of Karta not to alienate the coparcenary property without legal necessity or
benefit to the estate.

WHO CAN BE A KARTA

1. Hindu Law believes that the senior most coparcener is the Karta of the family. Refer
case of Ram v. Khera -1971.
2. Any coparcener becomes Karta of the family because of his seniority not because of
anyone appointed him. Refer a case to this effect Mann v. Jayani-1918 it was held that
such a person till he lives continues as the Karta of the family although he may be aged,
handicapped, weak or ill.
3. However, any Karta becomes unsound mind then the senior most coparcener would
become the Karta.
WHETHER A JUNIOR MOST COPARCENARY BECOMES KARTA.

Generally, it does not happen but in a case of Narendra Kumar v. Income Tax Commissioner-
1976,it was held that a junior coparcener can be the Karta with the consent or agreement of all
the coparceners.

In another case of Harihar Sethi v. Ladu Kishore Sethi -2002, it was held by the Orissa High
Court that junior coparcener can be the Karta when the senior most coparcener waives his right
of Karta then a junior member can become Karta.

Whether mother can become the Karta.

In the case of Pandurang v. Pandurang -1947 it was held by the Nagpur High Court that the
mother can become Karta if there is no other adult coparcener here the Supreme Court does
not agree to this view in the case of Commissioner of Income-tax v. Seth Govind Ram -1986.

The Karta of Joint Hindu Family at a time can only one not more, but with the consent of other
coparceners there can be more than one Karta: refer a case of Mudrit v.
Ranglal 1902 and Shankar v. Shankar 1943.
Q10 Explain the concept of Separate Property
Introduction

In a Landmark Judgment pronounced by Supreme Court of India in case titled Uttam vs Subagh
Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the Concept of
Ancestral Property.

Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act,
1956, after joint family property has been distributed in accordance with section 8 on principles
of intestacy, the joint family property ceases to be joint family property in the hands of the
various persons who have succeeded to it as they hold the property as tenants in common and
not as joint tenants.

The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his
fathers three brothers. He claimed a 1/8th share in the suit property on the footing that the
suit property was ancestral property, and that, being a coparcener, he had a right by birth in
the said property in accordance with the Mitakshara Law. It was ruled by SC that on the date of
the birth of the appellant in 1977 the said ancestral property, not being joint family property,
the suit for partition of such property would not be maintainable.

Concept of Ancestral Property

Property inherited by a Hindu from his father, fathers father or fathers fathers father, is
ancestral property.

Any property acquired by the Hindu great grand father, which then passes undivided down the
next three generations up to the present generation of great grand son/daughter.

o This property should be four generation old.

o It should not have been divided by the users in the joint Hindu family as once a division
of the property takes place, the share or portion which each Coparcener gets after the
division becomes his or her self acquired property.
o The right to a share in ancestral or coparcenary property accrues by birth itself, unlike
other forms of inheritance, where inheritance opens only on the death of the owner.
 o The rights in ancestral property are determined per stripes and not per capita. Share of
each generation is first determined and the successive generations in turn sub divide
what has been inherited by their respective predecessor.
o Properties inherited from mother, grandmother, uncle and even brother is not ancestral
property. Property inherited by will and gift are not ancestral properties.
o Self acquired property can become ancestral property if it is thrown into the pool of
ancestral properties and enjoyed in common.

In Mullas Principles of Hindu Law (15th Edition), it is stated at page 289:

. if A inherits property, whether movable or immovable, from his father or fathers father,
or fathers fathers father, it is ancestral property as regards his male issue. If A has no son,
sons son, or sons sons son in existence at the time when he inherits the property, he holds
the property as absolute owner thereof, and he can deal with it as he pleases . A person
inheriting property from his three immediate paternal ancestors holds it, and must hold it, in
coparcenary with his sons, sons sons and sons sons sons but as regards other relations he
holds it and is entitled to hold it, as his absolute property.

In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others,
(1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956 the
traditional view that on inheritance of an immovable property from paternal ancestors up to
three degrees, automatically an HUF came into existence, no longer remained the legal position
in view of Section 8 of the Hindu Succession Act, 1956.

This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed
by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the
Supreme Court reiterated the legal position that after coming into force of Section 8 of the
Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an
HUF property and inheritance of ancestral property after 1956 therefore does not result in
creation of an HUF property.

Thus in law ancestral property can only become an HUF property if inheritance is before 1956,
and such HUF property therefore which came into existence before 1956 continues as such
even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the
same HUF with its properties continues, the status of joint Hindu family/HUF properties
continues, an Classification of property under Hindu Law only in such a case, members of such
joint Hindu family are coparceners entitling them to a share in the HUF properties.

Classification of property under Hindu Law

The property under Hindu Law can be classified under two heads:-

o Coparcenary property; and

o Separate property.

Coparcenary property is again divisible into:-

o ancestral property and

o joint family property which is not ancestral.

This latter kind of property consists of property acquired with the aid of ancestral property and
property acquired by the individual coparcener without such aid but treated by them as
property of the whole family.

Law laid by Delhi High Court

In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January,
2016 Honble Mr. J. Valmiki Mehta of Delhi High Court ruled-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing
at the time of the death of such a person, inheritance of an immovable property of such a
person by his successors-in-interest is no doubt inheritance of an ancestral property but the
inheritance is as a self acquired property in the hands of the successor and not as an HUF
property although the successor(s) indeed inherits ancestral property i.e a property belonging
to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence
after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individuals
property is thrown into a common hotchpotch. Also, once a property is thrown into a common
hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation
of an HUF for the first time by throwing a property into a common hotchpotch have to be
clearly pleaded and mentioned and which requirement is a legal requirement because of Order
VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be
clearly stated.

Thus, if an HUF property exists because of its such creation by throwing of self-acquired
property by a person in the common hotchpotch, consequently there is entitlement in
coparceners etc to a share in such HUF property.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such
status of parties qua the properties has continued after 1956 with respect to properties
inherited prior to 1956 from paternal ancestors. Once that status and position continues even
after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek
partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral
property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of
individual property into a common hotchpotch. If such an HUF continues even after 1956, then
in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.

Law laid by Supreme Court now

The law, therefore, insofar as it applies to joint family property governed by the Mitakshara
School, prior to the amendment of 2005, could therefore be summarized as follows:-

(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having
at the time of his death an interest in Mitakshara coparcenary property, his interest in the
property will devolve by survivorship upon the surviving members of the coparcenary (vide
Section 6).

(ii) To proposition (i) an exception is contained in Section 30 Explanation of the Act, making it
clear that notwithstanding anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed of by him by will or other
testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6,
which states that if such a male Hindu had died leaving behind a female relative specified in
Class I of the Schedule or a male relative specified in that Class who claims through such female
relative surviving him, then the interest of the deceased in the coparcenary property would
devolve by testamentary or intestate succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6
proviso, a partition is effected by operation of law immediately before his death. In this
partition, all the coparceners and the male Hindus widow get a share in the joint family
property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu
leaving self-acquired property or by the application of Section 6 proviso, such property would
devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been
distributed in accordance with section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various persons who have succeeded to it
as they hold the property as tenants in common and not as joint tenants.
Q11 What are the Types of Family?

Types of Families in India

Families in India may be viewed from different view-points and the classifications obtained
thereby are indeed varied in nature. We are to examine the types of family from different
angles:

From the point of structure:

From this view-point, we can divide family into three basic types:

Simple, elementary or nuclear family: It is composed of the following members a man, his wife,
and unmarried children. It is most conspicuous in the modem European and Indian societies as
well among the tribal societies like the Lodha, the Santal, and the Oraon.

Joint family: If two or more nuclear families live together under a common shelter, and share a
common hearth, and a common purse, then this type of family is known as joint family. The
Hindu joint family is the best example of such type of family in which several uterine brothers
live together. In Santal, Munda, Oraon societies such type of family is not uncommon. Joint
family may split up into simple families at any moment as in the case of urban societies.

Extended family: When the nuclear family is found to be extended on all sides by certain
adhesions in the form of relatives of both sides i.e. husbands and wifes sides, then it can be
declared as an extended family. In most of the partrilineal societies of India, we do find such
type of family in which the parents of the ego, his widowed sister with her children and even
the old widowed fathers sister may live. These persons are originally of some other nuclear
families but due to some adverse circumstances; they forced to live in the egos family. It is
interesting to note that these adhesions cannot leave this family so easily. In modem and tribal
societies, such a type of family is seldom met with.

From the point of blood relation:

In view of the blood relationship, the family may be classified into two types:

Family of Orientation: It is the family in which one is born. His identity in this family is as son,
the fathers family of the Hindus and the Muslims of India.
Family of procreation: The family which one helps to set up after ones marriage. His affiliation
to this family will be as father.

From the point of marriage:

On the basis of marriage, the family can be classified into three types:

Monogamous family: This type grows out of monogamy i.e. single marriage involving two
adults of opposite sexes. It is the common type of family found among the advanced and tribal
societies of India.

Polygynous family: The family which grows around polygene i.e. multiple marriages on the part
of a man. In former days, the Hindu zamindars and the Muslim Sultans had such type of family.
Multiple marriages were then the symbol of prestige and high social status in some specific
societies. The Kulin Brahmin and Kayasthas had such familial affiliations.

Polyandrous family: The family which grows out of polyandry i.e. multiple marriage on the part
a woman as found among the Todas of Nilgiri hills of South India. The disparity in numerical
strength between the male and female had led them to go for such marriage owing to the cruel
custom of female infanticide practiced earlier. When the husbands are related as brothers, and
if they remain in the same family then it can be termed as fraternal polyandrous family. Non-
related husbands with their wife or wives from the non-fraternal polyandrous family.

On the basis of succession:

On the basis or succession the family it can be classified into two broad divisions:

Patrilineal family: The family in which authority and succession flow through the male line.
Sons of such families live permanently in their parental house and the daughters have to leave
it after their marriages. They are to live in their husbands house. Family property is shared by
the sons. Daughter inherits nothing.

Matrilineal family: The family whose authority and succession flow through the female line, as
among the Khasi and the Garo. Married daughters with their husbands live in the house of their
mother. Sons move out after their marriages.

On the basis of residence:

Family may be classified into six broad categories on the basis of residence where the married
couple choose to reside after their marriage.
Patrilocal family: After marriage, if the bride goes to reside in the fathers residence of the
groom, such a type is known as patrilocal family. In most of the patrilineal society such type is
found.

Matrilocal family: In this type of family, husband goes to reside in the residence of the wife i.e.
her mothers household. Among the Khasi and the Garo, the daughters live permanently in the
household of their mother and the sons come out of the family after their marriages. Mother,
in such type of family, is the person in supreme command and the next position is held by her
brother. Due to the impact of rapid modernization, matrilineal system is now in the process
disintegration, at least in some aspects of their corporate living.

Neolocal family: If the newly married couple settles in new apartment without any attachment
to the parents families of both the husband and the wife, then such a type is known as
Neolocal family. In modern Bengal and some enlightened tribal societies such type of family is
met with.

Bilocal Family: In some societies, a married couple may live with or near the parents of either
of the spouses. This rule of residence is called bilocal and hence, the family will be designated
as bilocal family.

Avunculocal family: It prescribes that a married couple shall reside with or near a maternal
uncle of the groom rather than with parents of either of the spouses or in separate home of
their own, as found among the Nayars of South India.

Matri-Patrilocal family: In some societies, it is found that the husband, goes to the house of the
wife to live after marriage but a few years later or after the birth of the first child, the husband
comes to his own parents house with his wife and children to live permanently there. This type
of family is found among the Chenchus of Andhra Pradesh.
Q12 Explain the character of Mitakshara & Dabhyanga Schools

HINDU law:

Hindu law as an historical term, refers to the code of laws applied to Hindus, Buddhists, Jains
and Sikhs in British India.

There are two types of schools of Hindu law:

1. MITAKSHARA school of Hindu law.

2. DAYABHAGA school of Hindu law.

MITAKSHARA:

The Mitakshara is legal treaties on inheritance, written by Vijnaneshwara a scholar in Western

Chaiukya court in 12th century. It became one of most influential texts in Hindu law, and its
principles regarding property distribution, property rights, and succession are still in practice
across most of India except for West Bengal and Assam where the Dayabhaga system is
practiced. A salient feature is the principle of division of ancestral property held by the Hindu
joint family. The Mitakshara School exists throughout India except in the State of West Bengal
and Assam.

There are four Sub-Schools under Mitakshara School:

i. DRAVIDA SCHOOL (MADRAS SCHOOL).

ii. MAHARASHTRA SCHOOL (BOMBAY SCHOOL).

iii. BANARAS SCHOOL.

iv. MITHILA SCHOOL.

DAYABHAGA:

A Dayabhaga is a legal treatise dealing with various aspects of hindu law. It was written by
Jimutavahana and Hemadri, and has much influenced the Hindu civil code of modern India.
The provisions relating to property rights are followed in West Bengal and Assam. Unlike the
Mitakshara system, ancestral property of the hindu joint family can be partitioned among
offspring generally after the fathers death, but in special circumstances the son has a right
before the fathers death. Right to Stridhan is an absolute right, the wife having the right to sell,
mortgage or use without even the husbands consent.

Right of unmarried sons and daughters over the Stridhan is recognised. The owner has absolute
right of disposing property at will. Ownership is determined according to Shastras. It exists in
West Bengal and Asam only. It has sub-school. it differs from Mistakshara School in many
respects. Dayabhaga School is based on the code of Yagnavalkya commented by Jimutvahana,
Inheritance is based on the principle of spiritual benefit. it arises by pinda offering i.e. rice bali
offering to deceased ancestors. Sapinda relation is by pinda offerings. This has led many
scholars to conclude that the Mitkar represents the orthodox doctrine of Hindu law, while
the Dyabhga represents the reformed version. [1]

This is in direct contrast to the Mitkhar, which gives the sons a claim upon birth[2]. Each
brother has ownership over a definite fraction of the joint family property and so can transfer
his share. The widow has a right to succeed to husbands share and enforce partition if there
are no male descendants. On the death of the husband the widow becomes a coparcener with
other brothers of the husband. She can enforce partition of her share.

APPLICATIONS:

The Mitakshara Law applies to the whole of India except Bengal and Assam. Under this law as
it existed until the amendments made by The Hindu Succession (Amendment) Act, 2005, the
son acquires by birth an interest in the ancestral property. Ancestral property, under the
Mitakshara Law, thus devolves on the death- of a coparcener by survivorship. Mitakshara law
recognizes two kinds of devolution of property as follows:

a ) Devolution by Succession is applicable to the Joint family property and

b) Devolution by Survivorship is applicable to Property held in severaltys by the last owner.

The Dayabhaga Law applies to communities like Bengalis and Assamese living in States of
Bengal and Assam and other parts of world. According to this law, the son doesnt acquire any
right by birth in the ancestral property. The sons right arises for the first time on fathers death.
All properties thus, devolve by inheritance and not by survivorship. Under this school of law,
the coparcenary is formed only on death of the father. Females can also be coparcener.
Dayabhaga law thus recognizes only devolution by succession and it doesnt recognize the
devolution by survivorship as it recognizes in case of Mitakshara Law.
DIFFRENCE BETWEEN MITAKSHARA AND DAYABHAGA:

The differences between the Dayabhaga and the Mitakshara schools of law may be categorized
under the following:-

1.Joint Family: According to the Mitakshara law school a joint family refers only to the male
member of a family and extends to include his son, grandson and great-grandson. They
collectively have co-ownership/Coparcenary in the Joint Family.Thus a son by birth acquires an
interest in the ancestral property of the joint family. Under the Dayabhaga law school the son
has no automatic ownership right by birth but acquires it on the demise of his father.

2.Coparcenary/Co-ownership:-Under the Mitakshara law school all the members of the Joint
family enjoy coparcenary rights during the fathers lifetime. Under Dayabhaga School when the
father is alive the sons do not have coparcenary rights but acquire it on the death of the father.
In the Mitakshara School the coparceners share is not defined and cannot be disposed. In the
Dayabhaga the share of each Coparcener is defined and can be disposed.

3. Partition: While both the Mitakshara and the Dayabhaga schools hold that the true
test of partition is in the intention to separate the manifestation of this intention is different in
each of the schools. In the case of the Mitakshara School the intention involves holding the
property in defined definite shares while in the Dayabhaga School there has to be a physical
separation of the property into specific portions and assigning of separate share to each
coparcener.

4.Rights of Woman: In the Mitakshara system the wife cannot demand partition. She
however has the right to a share in any partition affected between her husband and her sons.
Under the Dayabhaga this right does not exist for the women because the sons cannot demand
partition as the father is the absolute owner.

In both the systems, in any partition among the sons, the mother is entitled to a share equal to
that of a son. Similarly when a son dies before partition leaving the mother as his heir, the
mother is entitled to a share of her deceased son as well as share in her own right when there is
a partition between the remaining sons.[3]

5. The widow succeeds the fathers property rights on his death, even in cases where he
held property jointly with his brother.[4]
Conclusion

Through this research paper we get the basic idea of the Mitakshara system which is
Conservative. It provides good security in times of difficulties as a member can rely on the joint
family. However, sometimes a member can become a parasite. The Dayabhaga system is more
liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of
individualism, individual enterprise and economic compulsions.

This has elucidated the concept of partition and coparcenary. Thus this paper eill give the fair
and gist idea of divisions of Hindu Law Schools and the sub divisions under these school of
thoughts.
Q13 Explain Uniform Civil Code with case laws
[Authors Note: Please refer to the section at the bottom which reads [REFERENCE]
whenever citations appear (eg: [1], [2], [3] etc) for more information and relevant details.]

The mere three words and the nation breaks into hysterical jubilation and frantic wailing. These
three words are enough to divide the nation into two categories - politically, socially and
religiously. Politically, the nation is divided as BJP, which propagates implementation of the
Uniform Civil Code (hereinafter referred to as the UCC) and the non BJP including the Congress
party, Samajwadi party, who are against the implementation of the UCC. Socially, the
intelligentsia of the country, who analyse logically the pros and cons of the UCC and the
illiterate who have no opinion of their own and succumb to the political pressure are at
opposite poles. And, religiously, there is a dangerous widening schism between the majority
Hindus and the minority community mostly the Muslims. Being a law student, I would like to
consider the legal implications of UCC.

I strongly support the crusade for the implementation of UCC and homogenising the personal
laws. I support it, not because of any bias, but because it is the need of the hour. It is high time
that India had a uniform law dealing with marriage, divorce, succession, inheritance and
maintenance.

Indian case law:

Recently, the Supreme Court of India again called for a UCC. The Supreme Court first directed
the Parliament to frame a UCC in the year 1985 in the case ofMohammad Ahmed Khan v. Shah
Bano Begum[1], popularly known as the Shah Bano case. In this case, a penurious Muslim
woman claimed for maintenance from her husband under Section 125 of the Code of Criminal
Procedure[2] after she was given triple talaq from him. The Supreme Court held that the
Muslim woman have a right to get maintenance from her husband under Section 125. The
Court also held that Article 44[3] of the Constitution has remained a dead letter. The then Chief
Justice of India Y.V. Chandrachud observed that,

"A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies"

After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv
Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women
(Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for
maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for
implementing this Act was that the Supreme Court had merely made an observation for
enacting the UCC, not binding on the government or the Parliament and that there should be
no interference with the personal laws unless the demand comes from within.

The second instance in which the Supreme Court again directed the government of Article 44
was in the case of Sarla Mudgal v. Union of India[4]. In this case, the question was whether a
Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second
marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be
dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And,
thus, a second marriage solemnised after converting to Islam would be an offence under
Section 494[5] of the Indian Penal Code.

Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where
it is lying since 1949. The Honble Justice referred to the codification of the Hindu personal law
and held,

"Where more then 80 percent of the citizens have already been brought under the codified
personal law there is no justification whatsoever to keep in abeyance, any more, the
introduction of the uniform civil code for all the citizens in the territory of India."

The Supreme Courts latest reminder to the government of its Constitutional obligations to
enact a UCC came in July 2003[6] when a Christian priest knocked the doors of the Court
challenging the Constitutional validity of Section 118[7] of the Indian Succession Act. The priest
from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of
the said Act was discriminatory against the Christians as it impose unreasonable restrictions on
their donation of property for religious or charitable purpose by will. The bench comprising of
Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down
the Section declaring it to be unconstitutional. Chief Justice Khare stated that,

"We would like to State that Article 44 provides that the State shall endeavour to secure for
all citizens a uniform civil code throughout the territory of India It is a matter of great regrets
that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will help the cause of
national integration by removing the contradictions based on ideologies."

Thus, as seen above, the apex court has on several instances directed the government to realise
the directive principle enshrined in our Constitution and the urgency to do so can be inferred
from the same.

Secularism v/s Uniform Civil Code:

The spine of controversy revolving around UCC has been secularism and the freedom of religion
enumerated in the Constitution of India. The preamble of the Constitution states that India is a
"secular democratic republic" This means that there is no State religion. A secular State shall
not discriminate against anyone on the ground of religion. A State is only concerned with the
relation between man and man. It is not concerned with the relation of man with God. It does
not mean allowing all religions to be practiced. It means that religion should not interfere with
the mundane life of an individual.

In S.R. Bommai v. Union of India[8], as per Justice Jeevan Reddy, it was held that religion is the
matter of individual faith and cannot be mixed with secular activities. Secular activities can be
regulated by the State by enacting a law.

In India, there exist a concept of "positive secularism" as distinguished from doctrine of

secularism accepted by America and some European states i.e. there is a wall of separation
between religion and State. In India, positive secularism separates spiritualism with individual
faith. The reason is that America and the European countries went through the stages of
renaissance, reformation and enlightenment and thus they can enact a law stating that State
shall not interfere with religion. On the contrary, India has not gone through these stages and
thus the responsibility lies on the State to interfere in the matters of religion so as to remove
the impediments in the governance of the State.

Articles 25[9] and 26[10] guarantee right to freedom of religion. Article 25 guarantees to every
person the freedom of conscience and the right to profess, practice and propagate religion. But
this right is subject to public order, morality and health and to the other provisions of Part III of
the Constitution. Article 25 also empowers the State to regulate or restrict any economic,
financial, political or other secular activity, which may be associated with religious practice and
also to provide for social welfare and reforms. The protection of Articles 25 and 26 is not
limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and,
therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship,
which are the integral parts of religion.[11]

UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the
concept that there is no necessary connection between religion and personal law in a civilised
society. Marriage, succession and like matters are of secular nature and, therefore, law can
regulate them. No religion permits deliberate distortion[12]. The UCC will not and shall not
result in interference of ones religious beliefs relating, mainly to maintenance, succession and
inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or
a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property,
maintenance and succession, there will be a common law.

Justice Khare, in the recent case[13], said,

"It is no matter of doubt that marriage, succession and the like matters of secular character
cannot be brought within the guarantee enshrined under Articles 25 and 26 of the
Constitution."
The Chief Justice also cautioned that any legislations which brought succession and like matters
of secular character within the ambit of Articles 25 and 26 is a suspect legislation. Article 25
confers right to practice and profess religion, while Article 44 divests religion from social
relations and personal law.

The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said,

"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the
slightest of deviation shakes the social fibre. But religious practices, violative of human rights
and dignity and sacerdotal suffocation of essentially civil and material freedoms are not
autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the
oppressed and for promotion of national unity and solidarity."[14]

Codification:

The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the
drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to
the constitutional mandate? There is a lot of literature churned out on UCC but there is no
model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed on
all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime Minister
Atal Bihari Vajpayee when he said that there will be a new code based on gender equality and
comprising the best elements in all the personal laws.
The UCC should carve a balance between protection of fundamental rights and religious
dogmas of individuals. It should be a code, which is just and proper according to a man of
ordinary prudence, without any bias with regards to religious or political considerations.

Here is an overview of the essentials of the UCC:

Marriage and divorce:

The personal laws of each religion contain different essentials of a valid marriage. The new code
should have the basic essentials of valid marriage which shall include:

(i) The new code should impose monogamy banning multiple marriages under any religion.
Polygamy discriminates against the women and violates their basic human rights. Thus,
monogamy should be imposed, not because it is the Hindu law, but because it adheres to
Article 21 of the Constitution[15] and basic human values.

(ii) The minimum age limit for a male should be 21 years and for a female should be 18 years.
This would help in curbing child marriages. Punishment should be prescribed for any person
violating this provision. Also, punishment for other persons involved in such an act, like the
relatives, should be prescribed which would have a deterrent effect on the society.

(iii) Registration of marriage should be made compulsory. A valid marriage will be said to have
solemnised when the man and the woman sign their declaration of eligibility before a registrar.
This will do away with all the confusion regarding the validity of the marriage.

(iv) The grounds and procedure for divorce should be specifically laid down. The grounds
enumerated in the code should be reasonable and the procedure prescribed should be
according to the principles of natural justice. Also, there should be a provision for divorce by
mutual consent.

Succession and inheritance:

This area throws up even more intractable problems. In Hindu law, there is a distinction
between a joint family property and self acquired property which is not so under the Muslim
law. The Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and own
agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to be
abolished. There are also fetters imposed on the extent to which one can bequeath property by
will under the Muslim law. Considering all these, the UCC should include:

(i) Equal shares to son and daughter from the property of the father, whether self acquired or
joint family property. There should be no discrimination based on sex in the matters of
inheritance. The provisions of the Hindu Succession (Maharashtra Amendment) Act, 1994 can
be taken as guiding principles wherein the daughter of a coparcener shall by birth become the
coparcener in her own right in the same manner as a son and have the same rights in the
coparcenary property as she would have had if she had been a son, inclusive the right to claim
by survivorship and shall be subject to same liabilities and disabilities as the son.

(ii) Provisions for inheritance of the property of mother, which she has self acquired or acquired
through her father or relatives.

(iii) The provisions relating to will should be in consonance with the principles of equity. There
should be no limitations imposed on the extent to which the property can be bequeathed, the
persons to whom such property can be bequeath and the donation of the property by will for
religious and charitable purpose.

(iv) The essentials of valid will, the procedure for registration and execution of the will should
be provided for.

(v) Provisions for gifts should not contain any limitations, though essential of valid gift and gift
deed should be specified.
Maintenance:

The maintenance laws for the Hindus and Muslims are very different. Apart from personal laws,
a non-Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure.
A Muslim woman can claim maintenance under the Muslim Women (Right to Protection on
Divorce) Act, 1986. Apart from maintenance of wife, there are also provisions for maintenance
of mother, father, son and unmarried daughter under the Hindu law. The UCC should contain
the following with regards to maintenance:
(i) A husband should maintain the wife during the marriage and also after they have divorced
till the wife remarries.
(ii) The amount of alimony should be decided on basis of the income of the husband, the status
and the lifestyle of the wife.
(iii) The son and daughter should be equally responsible to maintain the parents. The reason for
this being that if she claims equal share of the property of her parents, she should share the
duty to maintain her parents equally.
(iv) The parents should maintain their children - son till he is capable of earning on his own and
daughter, till she gets married.
Thus based on these fundamental principles, an unbiased and fair UCC can be framed which will
be in consonance with the Constitution.

Working of UCC and the Indian scenario:

How foolproof will be the UCC? Will there be more abuse and less obedience of UCC? Will UCC
have negative effect on the society? Such questions are bound to be raised after the
implementation of the UCC. All laws are formulated to be obeyed, but they are abused. This
doesnot mean that law should not be implemented. Similarly, there is a great possibility of the
UCC being abused, but this should not eschew the Parliament from enacting the UCC; the social
welfare and benefits resulting from the implementation of UCC are far greater.

While explaining the reason for including Article 44 in the Directives Principles, it was
observed,

"When you want to consolidate a community, you have to take into consideration the benefits
which may accrue to the whole community and not to the customs of a part of it. If you look at
the countries in Europe, which have a Civil Code, everyone who goes there forms a part of the
world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the
minorities."[16]
Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be
created in which all sections feel secure enough to sit together and cull out the most
progressive of their personal laws. But this can be answered by an example of Hindu law. When
the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious
denominations of Hindus, was notified, there was a lot of protest. And the then Law Minister,
Dr. Ambedkar, had said that for Indias unity, the country needs a codified law. In a similar
fashion, the UCC can be implemented, which will cover all the religions, whether major or
minor, practiced in India and any person who comes to India has to abide by the Code.

Not many know that a UCC exists in the small state of Goa accepted by all communities. The
Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese
colonial rulers through various legislations in the 19th and 20th centuries. After the liberation
of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws to
the territory but made the exception of retaining the Family Laws because all the communities
in Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed
regarding the disposal of immovable and movable property in the event of divorce or death.
During matrimony, both parents have a common right over the estate, but on dissolution, the
property has to be divided equally; son and daughters have the equal right on the property. As
the procedure involves compulsory registration of marriage, this effectively checks child and
bigamous marriage.

The philosophy behind the Portuguese Civil Code was to strengthen the family as the backbone
of society by inculcating a spirit of tolerance between husband and wife and providing for
inbuilt safeguard against injustice by one spouse against the other.

Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief
Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken the
rest of bigoted India."[17]

Conclusion:
The section of the nation against the implementation of UCC contends that in ideal times, in an
ideal State, a UCC would be an ideal safeguard of citizens rights. But India has moved much
further from ideal than when the Constitution was written 50 years ago.
But to conclude, I would like to say that citizens belonging to different religions and
denominations follow different property and matrimonial laws which is not only an affront to
the nations unity, but also makes one wonder whether we are a sovereign secular republic or a
loose confederation of feudal states, where people live at the whims and fancies of mullahs,
bishops and pundits.

[REFERENCE]
[1] AIR 1985 SC 945
[2] "(1) If any person having a sufficient means neglects or refuses to maintain- a) his wife,
unable to maintain herself, or b) his legitimate or illegitimate minor child, whether married or
not, unable to maintain itself, or c) His legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or d) his father or mother, unable to maintain
himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate mat from time to
time direct: Provided that the Magistrate may order the father of a minor female child refereed
to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of sufficient
means."
[3] "The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India."
[4] AIR 1995 SC 153
[5] "Whoever, having a husband or wife living, marries in any case in which such marriage is
void by reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine."
[6] John Vallamattom v. Union of India AIR 2003 SC 2902
[7] "No man having a nephew or a niece or any nearer relative shall have power to bequeath
any property to religious or charitable uses, except by a Will executed not less than twelve
months before his death, and deposited within six months from its execution in some place
provided by law for sak\fe custody of the Will of living persons."
[8] (1994)3 SCC 1
[9] "(1) Subject to public order, morality and health and to the other provisions of this part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law
or prevent the State from making any law - a) regulating or restricting any economic, financial,
political or other secular activities which may be associated with religious practice; b) providing
for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus."
[10] "Subject to public order, morality and health, every religious denomination or any section
thereof shall have a right- a) to establish and maintain institutions for religious and charitable
purposes; b) to manage its own affairs in matters of religion; c) to own and acquire movable
and immovable property; and d) to administer such property in accordance with law."
[11] Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4 SCC 522
[12] Sarla Mudgal v. Union of India AIR 1995 SC 1531
[13] John Vallamattom v. Union of India AIR 2003 SC 2902
[14] Sarla Mudgal v. Union of India AIR 1995 SC 1531
[15]"No person shall be deprived of his life or personal liberty except according to procedure
established by law"
[16] Constitutional Assembly Debates Volume VII pg. 547
[17] Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945