Royal college of law dasna
HINDU LAW
PRATICAL QUESTIONS
Q. Discuss the sources of Hindu Law.
Hindu Law
From thousands of years people living in the Indian subcontinent have
been leading their lives by following the guidelines and concepts given in the
Vedas. These guidelines have evolved into rules followed by the people and
enforced by the rulers and have thus become de facto law. In this modern times,
the same laws have been retrofitted to suit present conditions and have been
codified in the form of several acts of which the important ones are - Hindu
Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and
Guardianship Act 1956, and Hindu Succession Act 1956.
Application of Hindu Law
A precise definition of Hinduism does not exist. Hence, it is impossible to
define a fixed criteria for determining who is a Hindu. So a negative
definition of 'who is not a Hindu' is used. Further, in this land, several
religions have been born and they they follow the same customs and practices.
So it cannot be said that Hindu Law can be applied only to people who are
Hindus by religion. Due to these reasons, in general, the following people are
considered to be Hindu with respect to application of Hindu Law.
1. Hindu by Religion - A person
who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v Muldas
SC AIR 1961, SC has held that various sub sects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they
follow the same basic concept of Hindu Philosophy. Converts and Reconverts are
also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has
held that a person can be a Hindu if after expressing the intention of becoming
a Hindu, follows the customs of the caste, tribe, or community, and the
community accepts him. In Mohandas vs Dewaswan board AIR 1975,
Kerala HC has held that a mere declaration and actions are enough for becoming
a Hindu.
2. Hindu by Birth - A person
who is born of Hindu parents. If only one parent is a Hindu, the person can be
a Hindu if he/she has been raised as a Hindu. In Sapna vs State of
kerala, Kerala HC, the son of Hindu father and Christian mother was
held to be a Christian.
3. Persons who are not
Muslim, Christian, Jew, or Parsee by religion.
4. Persons who are not
governed by any other religious law will be governed by Hindu Law.
Origins of Hindu Law
It is believed that Hindu law is a divine law. It was revealed to the people by
God through Vedas. Various sages and ascetics have elaborated and refined the
abstract concepts of life explained in the Vedas.
Sources of Hindu Law
Sources of Hindu Law can be divided into two parts - Ancient and Modern.
1. Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only
source of the law. These sources can be divided into four categories:
A. Shruti
Shruti means "what is heard". It is believed that
the rishis and munis had reached the height of spirituality where they
were revealed the knowledge of Vedas. Thus, shrutis include the four vedas -
rig, yajur, sam, and athrava along with their brahmanas. The brahmanas
are like the apendices to the Vedas. Vedas primarily contain theories about
sacrifices, rituals, and customs. Some people believe that Vedas contain no
specific laws, while some believe that the laws have to be inferred from the
complete text of the Vedas. Vedas do refer to certain rights and duties,
forms of marriage, requirement of a son, exclusion of women from inheritance,
and partition but these are not very clearcut laws.
During the vedic period, the society was divided into varns and life was
divided into ashramas. The concept of karma came into existence during
this time. A person will get rewarded as per his karma. He can attain salvation
through "knowledge". During this period the varna system became quite
strong. Since vedas had a divine origin, the society was governed as per the
theories given in vedas and they are considered to be the fundamental source of
Hindu law. Shrutis basically describe the life of the Vedic people.
The vedic period is assumed to be between 4000 to 1000 BC. During this time,
several pre-smriti sutras and gathas were composed. However, not much is known
about them today. It is believed that various rishis and munis incorporated
local customs into Dharma and thus multiple "shakhas" came into
existence.
B. Smruti
Smrit
means "what is remembered". With smrutis, a systematic study
and teaching of Vedas started. Many sages, from time to time, have written down
the concepts given in Vedas. So it can be said that Smrutis are a written
memoir of the knowledge of the sages. Immediately after the Vedic period, a
need for the regulation of the society arose. Thus, the study of vedas and the
incorporation of local culture and customs became important. It is
believed that many smrutis were composed in this period and some were reduced
into writing, however, not all are known. The smrutis can be divided into two -
Early smritis (Dharmasutras) and Later smritis (Dharmashastras).
Dharmasutras
The Dharmansutras were written during 800 to 200 BC. They were mostly
written in prose form but also contain verses. It is clear that they were meant
to be training manuals of sages for teaching students. They incorporate the
teachings of Vedas with local customs. They generally bear the names of their
authors and sometime also indicate the shakhas to which they belong.
Some of the important sages whose dharmasutras are known are : Gautama,
Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.
They explain the duties of men in various relationship. They do not pretend to
be anything other than the work of mortals based on the teachings of Vedas, and
the legal decisions given by those who were acquainted with Vedas and local
customs.
Gautama - He belonged to Sam veda school and deals exclusively with legal and
religious matter. He talks about inheritance, partition, and stridhan.
Baudhayan - He belonged to the Krishna Yajurved school and was probably
from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also
refers to various customs of his region such as marriage to maternal uncle's
daughter.
Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda
school from Andhra Pradesh. His language is very clear and forceful. He
rejected prajapatya marriage.
Vashistha - He was from North India and followed the Rigveda school. He
recognized remarriage of virgin widows.
Dharmashastras
Dharmashastras were mostly in metrical verses and were based of Dharmasutras.
However, they were a lot more systematic and clear. They dealt with the
subject matter in three parts
- Aachara : This includes the
theories of religious observances,
- Vyavahar : This includes the
civil law.
- Prayaschitta : This deals
with penance and expiation.
While early smrutis deal mainly with Aachara and Prayaschitta, later
smrutis mainly dealt with Vyavahar. Out of may dharmashastras, three are most
important.
Manusmriti
This is the earliest and most important of all. It is not only defined the way
of life in India but is also well know in Java, Bali, and Sumatra. The name of
the real author is not known because the author has written it under the
mythical name of Manu, who is considered to the the first human. This was
probably done to increase its importance due to divine origin. Manusmriti
compiles all the laws that were scattered in pre-smriti sutras and gathas.
He was a brahman protagonist and was particularly harsh on women and
sudras. He holds local customs to be most important. He directs the king
to obey the customs but tries to cloak the king with divinity. He gives
importance to the principle of 'danda' which forces everybody to follow the
law.
Manusmriti was composed in 200 BC.
There have been several commentaries on this smruti. The main ones are:
Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's
Manutika.
Yajnavalkya Smriti
Though written after Manusmruti, this is a very important smruti. Its language
is very direct and clear. It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below the law. He considers law
to be the king of kings and the king to be only an enforcer of the law. He did
not deal much with religion and morality but mostly with civil law. It includes
most of the points given in Manusmriti but also differs on many points such as
position of women and sudras. He was more liberal than Manu.
This was composed in around 0 BC.
Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important
legal treatise followed almost everywhere in India except in West Bengal and
Orissa.
Narada Smriti
Narada was from Nepal and this smriti is well preserved and its complete text
is available. This is the only smriti that does not deal with religion and
morality at all but concentrates only on civil law. This is very logical and
precise. In general, it is based on Manusmriti and Yajnavalkya smriti but
differ on many points due to changes in social structure. He also gives a lot
of importance to customs.
This was composed in 200 AD.
C. Commentaries and Digest:
After 200 AD, most the of work was done only on the existing material given in
Smrutis. The work done to explain a particular smriti is called a commentary.
Commentaries were composed in the period immediately after 200 AD. Digests were
mainly written after that and incorporated and explained material from all the
smruitis. As noted ealier, some of the commentaries were, manubhashya,
manutika, and mitakshara. While the most important digest is Jimutvahan's
Dayabhag that is applicable in the Bengal and Orissa area.
Mitakshara literally means 'New Word' and is paramount source of law in all of
India. It is also considered important in Bengal and orissa where it
relents only where it differs from dayabhaga. It is a very exhaustive treaties
of law and incorporates and irons out contradicts existing in smritis.
The basic objective of these texts was to gather the scattered material
available in preceeding texts and present a unified view for the benefit of the
society. Thus, digests were very logical and to the point in their approach.
Various digests have been composed from 700 to 1700 AD.
D. Customs
Most of the Hindu law is based on customs and practices followed by the people
all across the country. Even smrutis have given importance to customs. They
have held customs as transcendent law and have advised the Kings to give
decisions based on customs after due religious consideration. Customs are of
four types:
1. Local Customs - These are
the customs that are followed in a given geographical area. In the case
of Subbane vs Nawab, Privy Council observed that a custom gets it
force due to the fact that due to its observation for a long time in a
locality, it has obtained the force of law.
2. Family Customs - These are
the customs that are followed by a family from a long time. These are
applicable to families where ever they live. They can be more easily abandoned
that other customs. In the case of Soorendranath vs Heeramonie and Bikal
vs Manjura, Privy Council observed that customs followed by a family
have long been recognized as Hindu law.
3. Caste and Community
Customs - These are the customs that are followed by a particular
cast or community. It is binding on the members of that community or caste. By
far, this is one of the most important source of laws. For example, most of the
law in Punjab belongs to this type. Custom to marry brother's widow among the
Jats is also of this type.
4. Guild Customs - These are
the customs that are followed by traders.
Requirements for a valid custom
1. Ancient : Ideally, a custom is valid if it
has been followed from hundreds of years. There is no definition of
ancientness, however, 40yrs has been determined to be a ancient enough. A
custom cannot come into existence by agreement. It has to be existing from long
before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu
marriage was not recognized in Tamil Nadu.
In the case of Rajothi vs Selliah, a Self Respecter’s Cult started
a movement under which traditional ceremonies were substituted with simple
ceremonies for marriage that did not involve Shastric rites. HC held that in
modern times, no one is free to create a law or custom, since that is a
function of legislature.
2. Continuous: It is important that the custom is
being followed continuously and has not been abandoned. Thus, a custom may be
400 yrs old but once abandoned, it cannot be revived.
3. Certain: The custom should be very clear in
terms of what it entails. Any amount of vagueness will cause confusion and thus
the custom will be invalid. The one alleging a custom must prove exactly what
it is.
4. Reasonable: There must be some reasonableness
and fairness in the custom. Though what is reasonable depends on the current
time and social values.
5. Not against morality: It should not be
morally wrong or repugnant. For example, a custom to marry one's granddaughter
has been held invalid.
In the case of Chitty vs. Chitty 1894, a custom that permits
divorce by mutual consent and by payment of expenses of marriage by one party
to another was held to be not immoral. In the case of Gopikrishna
vs. Mst Jagoo 1936 a custom that dissolves the marriage and permits a
wife to remarry upon abandonment and desertion of husband was held to be not
immoral.
6. Not against public policy: If a custom is
against the general good of the society, it is held invalid. For example,
adoption of girl child by nautch girls has been held invalid. In the case
of Mathur vs Esa, a custom among dancing women permitting them to
adopt one or more girls was held to be void because it was against public
policy.
7. Not against any law: If a custom is
against any statutory law, it is invalid. Codification of Hindu law has
abrogated most of the customs except the ones that are expressly saved. In the
case of Prakash vs Parmeshwari, it was held that law mean statutory
law.
Proof of Custom
The burden of proving a custom is on the person
who alleges it. Usually, customs are proved by instances. In the case
of Prakash vs Parmeshwari, it was held that one instance
does not prove a custom. However, in the case of Ujagar vs Jeo,
it was held that if a custom has been brought to notice of the court repeated,
no further proof is required. existence
of a custom can also be proved through documentary
evidence such as in Riwaz-i-am. Several treaties exist that detail
customary laws of Punjab.
1-
From the person who alleges it.
2-
Documentary Evidence
Usage and Custom
The term custom and usage is commonly used in commercial law, but "custom" and "usage" can
be distinguished. A usage is a repetition of acts whereas custom is the law or
general rule that arises from such repetition. A usage may exist without a
custom, but a custom cannot arise without a usage accompanying it or preceding
it. Usage derives its authority from the assent of the parties to a transaction
and is applicable only to consensual arrangements. Custom derives its authority
from its adoption into the law and is binding regardless of any acts of assent
by the parties. In modern law, however, the two principles are often merged
into one by the courts.
Modern Sources
Hindu law has been greatly influenced by the British rule. While it might seem
that the British brought with them the modern concepts of equity and justice,
these concepts existed even in dharamashastras albeit in a different form.
Narada and Katyayana have mentioned the importance of dharma (righteousness) in
delivering justice. However, we did not have a practice of recording the cases
and judgments delivered. So it was not possible to apply stare decisis. This
process started from the British rule.
The following are the modern sources of Hindu law:
1. Equity, Justice, and Good conscience
Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial. True justice can only be delivered through equity and good
conscience. In a situation where no rule is given, a sense of
'reasonableness' must prevail. According to Gautama, in such situation, the
decision should be given that is acceptable to at least ten people who are
knowledgeable in shastras. Yagyavalkya has said that where ever there are
conflicting rules, the decision must be based on 'Nyaya'.
This principle has been followed by the privy council while deciding cases.
2. Precedent
The doctrine of stare decisis started in India from the British rule. All cases
are now recorded and new cases are decided based on existing case laws.Today,
the judgment of SC is binding on all courts across India and the judgment of HC
is binding on all courts in that state.
3. Legislation
In modern society, this is the only way to bring in new laws. The parliament,
in accordance with the needs society, constitutes new laws. For example, a new
way of performing Hindu marriages in Tamil Nadu that got rid of rituals and
priests was rejected by the SC on the basis that new customs cannot be
invented. However, TN later passed an act that recognized these marriages.
Also, most of the Hindu laws have now been codified as mentioned in the
beginning.
Critical Comments
In the past, due to the vast size of the country, various kinds of customs
prevailed. Further, due to lack of effective communication, there were several
contradictions among the practices and the judgment delivered. Thus, the
country went on the way to being divided. Instead of becoming the law of the
land (lex-loci), Hindu Law became the law of a person. However, this can only
be an excuse for the past. Today, because of media and communication, judgement
delivered in one place is felt in another. A practice or custom followed in a
village can be repugnant to people in cities. We must take advantage of this
situation and put the country on the course of a unified law. Instead of being
a country of personal laws, we should true have a single law of the land. Time
is ripe for implementing article 44. This will ensure the future unity and
integrity of our country.
Q. Define the term "Guardian"
under Hindu Minority and Guardianship Act 1956
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.
We also have such like Ad Hoc
Guardian this is a person who has never for many years become a guardian of
a minor but later want to be or made himself a guardian of a minor.
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.
Q. What are the powers and liabilities of a guardian?
Powers of a natural guardian (Sec 8)
Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:
- A guardian can do any act,
subject to provisions of this section, that are necessary or are
reasonable and proper for the benefit of the minor or the benefit of the
minors estate. But the guardian, in no case, shall bind the minor by a
personal covenant.
- The guardian
cannot, without prior permission from the court,
- mortgage, charge, or
transfer the immovable property of the minor by way of sale, gift,
exchange, or otherwise.
- 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 in Hanuman 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.
Q. How and when can a testamentary
guardian be removed?
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.
Q. What are the requisites/essential conditions of a valid adoption
according to Hindu Adoption and Maintenance Act 1956? What are the effects of a
valid adoption? Can a valid adoption be canceled?
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.
Q. What are the effects of a valid adoption?
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 ofSawan 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.
Q. Can a valid adoption be canceled?
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.
Q. Who are "dependents"
for the purpose of maintenance under Hindu Adoption and Maintenance Act,
1956?
Historical Perspective
Joint family system has been a main feature of the Hindu society since vedic
ages. In a joint family, it is the duty of the able male members to earn money
and provide for the needs of other members such as women, children, and aged or
infirm parents.
In Manusmriti, it has been said that wife, children, and old parents must be
cared for even by doing a hundred misdeeds.
HAMA 1956 codifies a lot of principles governing the maintenance of dependents
of a Hindu male. Under this act, the obligation can be divided into two categories
- personal obligation and obligation tied to the property.
Dependents based on personal obligation
Personal obligation means that a Hindu is personally liable, irrespective of
the property that he has inherited or his earnings, to provide for certain
relations who are dependent on him. These relations have been specified in the
following sections of HAMA 1956.
Section 18(1) declares that whether married before or after this
act, a Hindu wife shall be entitled to claim maintenance by her husband during
her lifetime. Sec 18(2) says that a wife is entitled to live separately
without forfeiting her right to claim maintenance in certain situations. 18(3)
that a wife shall not be entitled to separate residence and maintenance of she
is unchaste or ceases to be a Hindu.
In the case of Jayanti vs Alamelu, 1904 Madras HC held that
the obligation to maintain one's wife is one's personal obligation and it
exists independent of any property, personal or ancestral.
Section 20(1) declares that a Hindu is bound to maintain his
children, legitimate or illegitimate, and aged or infirm parents. 20(2) says
that a child, legitimate or illegitimate, can claim maintenance from father or
mother, until the child is a minor. 20(3) says that the right to claim maintenance
of aged or infirm parents and unmarried daughter extends in so far as they are
not able to maintain themselves through their other sources of income.
In this case, a childless step-mother is also considered a parent.
Dependents based on obligation tied to property
A person has obligation to support certain relations of another person whose
property has devolved on him. In this case, this obligation is not personal but
only up to the extent that it can be maintained from the devolved
property.
Section 21 specifies these relations of the deceased who must be supported by
the person who receives the deceased property.
1. father
2. mother
3. widow, so long as
she does not remarry
4. son, predeceased
son's son, or predeceased son's predeceased son's son until the age of
majority. Provided that he is not able to obtain maintenance from his father or
mother's estate in the case of grandson, and from his father or mother, or
father's father or father's mother, in the case of great grandson.
5. daughter
or predeceased son's daughter, or predeceased son's predeceased son's
daughter until she gets married. Provided that he is not able to obtain
maintenance from his father or mother's estate in the case of granddaughter,
and from his father or mother, or father's father or father's mother, in the
case of great granddaughter.
6. widowed daughter,
if she is not getting enough maintenance from her husband's, children's, or
father in law's estate.
7. widow of
predeceased son, or widow of predeceased son's son, so long as she does not
remarry and if the widow is not getting enough maintenance from her husband's,
children's or her father or mother's estate in the case of son's widow.
8. illegitimate son,
until the age of majority
9. illegitimate
daughter, until she is married.
Section 22 (1) says that heirs of a Hindu are bound to maintain the
dependents of the deceased out of the estate inherited by them from the
deceased. Thus, this obligation is to be fulfilled only from the inherited
property and so it is not a personal obligation. 22(2) says that where a
dependent has not received any share, by testamentary or intestate succession,
he shall be entitled to maintenance from those who take the estate. 22(3) says
that the liability of each heir is in proportion to the estate obtained by him.
22(4) says that a person who himself is a dependent cannot be forced to pay any
amount of maintenance if the amount causes his share to reduce below what is
required to maintain himself.
Q. What do you understand by maintenance?
Maintenance
Maintenance means the right of dependents to obtain food, clothing, shelter,
medical care, education, and reasonable marriage expenses for marriage of a
girl, from the provider of the family or the inheritor of an
estate. The basic concept of maintenance originated from the existence of
joint families where every member of the family including legal relations as
well as concubines, illegitimate children, and even slaves were taken care of
by the family. However, maintenance does not mean unreasonable expectations or
demands.
In the case of Ekradeshwari vs Homeshwar in 1929, Privy Council had
enunciated certain principles in governing the amount of maintenance. It said
that maintenance depends on a complete analysis of the situation, the amount of
free estate, the past life of the married parties and the family, the
requirements of the claimants, and a consideration regarding future changes.
How much maintenance
Section 23(1) says that courts will have complete discretion upon whether and
how much to maintenance should be given. While deciding this, the courts shall
consider the guidelines given in sections 23(2) and 23(3).
Section 23(2) says that that while deciding the maintenance for wife, children,
and aged or infirm parents, the courts will consider:
1. the position and
status of the parties.
2. the reasonable
wants of the claimants.
3. If a claimant has a
separate residence, is it really needed.
4. the value of the
estate and the income derived from it or claimant's own earning or any other
source of income.
5. the number of
claimants.
Section 23(3) says that while determining the maintenance for all other
dependents the courts shall consider the following points:
1. the net value of
the estate after paying all his debts.
2. the provisions, if
any, made in the will in favor of the claimants.
3. the degree of the
relationship between the two.
4. the reasonable
wants of the dependent.
5. the past relations
between the deceased and the claimants.
6. claimant's own
earnings or other sources of income.
7. the number of
dependents claiming under this act.
Discretion of Court
In the case of Mutyala vs Mutyala 1962 AP HC held
that amount of maintenance cannot be a matter of mathematical certainty.
Position and Status of parties
In the case of Kiran Bala vs Bankim 1967 Calcutta
HC observed the living standard of the wife, and her reasonable wants
in determining the maintenance amount.
Reasonable wants
In the case of Kiran Bala vs Bankim 1967 Calcutta
HC observed that the husband had a second wife and so the fact that
the claimant is living separately will not go against her in determining the
amount.
In the case of Krishna vs Daimati 1966 Orrisa HC held
that when a minor child lives with the mother, the necessities of the child
constitute reasonable demands of the mother.
Separate earning of the claimant
Whether the claimant has separate earning on income is a
question of fact and not a question of presumption. It cannot be, for example,
presumed that a college educated girl can maintain herself.
In the case of Kulbhushan vs. Raj Kumari wife
was getting an allowance of 250/- PM from her father. This was not considered
to be her income but only a bounty that she may or may not get. However, income
from inherited property is counted as the claimant’s earning.
Arrears of Maintenance
In the case of Raghunath vs Dwarkabai 1941 Bom HC held
that right of maintenance is a recurring right and non-payment of maintenance
prima facie constitutes proof of wrongful withholding.
Q. In what cases a wife can claim separate
residence without forfeiting her right to maintenance from husband?
Wife's right to separate residence without forfeiting the right to
maintenance
Section 18(2) says that a wife can live separately and still claim
maintenance from husband in the following situations.
1. Desertion: It the
husband is guilty of deserting the wife without her consent, against wife's
wishes, and without any reasonable cause, the wife is entitled to separate
residence. In the case of Meera vs Sukumar 1994 Mad, it
was held that willful neglect of the husband constitutes desertion.
2. Cruelty: If husband
through his actions creates sufficient apprehension in the mind of the wife
that living with the husband is injurious to her then that is cruelty. In the
case of Ram Devi vs Raja Ram 1963 Allahbad, if the husband treats
the wife with contempt, resents her presence and makes her feel unwanted, this
is cruelty.
3. If the husband is
suffering from a virulent form of leprosy.
4. If the husband has
another wife living. In the case of Kalawati vs Ratan 1960
Allahbad, is has been held that it is not necessary that the second wife is
living with the husband but only that she is alive.
5. If the husband
keeps a concubine or habitually resides with one. In the case of Rajathi
vs Ganesan 1999 SC, it was held that keeping or living with a concubine are
extreme forms of adultery.
6. If the husband has
ceased to be a Hindu by converting to another religion.
7. For any other
reasonable cause. In the case of Kesharbai vs Haribhan 1974 Mah, it
was held that any cause due to which husband's request of restitution of
conjugal rights can be denied could be a good cause for claiming a separate
residence as well as maintenance. In the case of Laxmi vs Maheshwar
1985 Orrisa, it was held that if the husband fails to obey the order of
restitution of conjugal rights, he is liable to pay maintenance and separate
residence. In the case of Sobha vs Bhim 1975 Orrisa, mere drinking
habit is not a sufficient cause for separate residence.
Section 18(3) says that a wife is not
eligible for separate residence and maintenance if she is unchaste or has
ceased to be a Hindu.
In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere
cohabitation does not by itself terminate the order of maintenance passed under
18(2). It depends on whether the cause of such an order still exists.
Q. Concept of Marriage - Sacramental or
Contractual?
Historical Perspective - Manu, ardhangini, marriage is an essential sanskara,
man is incomplete without wife. Once performed, it cannot be dissolved.
Modern Perspective - Civil contract. Can be dissolved. Cannot force to live
together. Equality of sexes. Can't be done without consent.
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Why is it Sacramental?
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Why is it Contractual?
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As per Contract Act 1872, contract with a minor is void ab initio.
Even though section 5(2) says that valid consent is required and section 5(3)
says that the boy should be above 21 yrs and the girl should be above 18 yrs,
marriage done in contravention of these provisions is not void. Marriage with
a minor is not even voidable only on that ground. In the case of Venkatacharyalu
vs Rangacharyalu 1980, it was held that the person married may be a minor
or even of unsound mind, yet if the marriage rite is duly solemnized, it is a
valid marriage.
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The fact that consent of the boy and the girl is required means that
it is contractual.
If the consent is obtained by force or fraud, the marriage is
voidable.
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Section 7 of HMA1955 requires that religious ceremonies are a must to
complete a marriage. A marriage done without "saptapadi" is void.
In the case of Dr. A N Mukherji vs State 1969, a person could not
be convicted of bigamy because he performed 3 marriages without doing
necessary ceremonies.
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Marriage is no more permanent since divorce is available by mutual
consent.
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Marriage is no more eternal since widow remarriage is permissible.
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Even now bachelors are not eligible to perform several religious
ceremonies. Only married couples are allowed. Thus, it still retains its
sacramental property.
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Marriage is no more holy because a marriage can be done without all
the
ceremonies such as vivah homam. Only saptapadi is required.
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No-fault divorce, as available in western countries, is not
available in HMA 1955. Thus, breaking up of a marriage is very difficult.
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Conclusion: It is has a unique blend of sacramental and contractual
characteristics.
Essential conditions of a valid Hindu marriage. Is there a provision for
punishment for violating the conditions?
Section 5
1. Section 5 (1) Must
not have a spouse alive.
Kanwal Ram vs H. P. - Essential ceremonies are a must for
committing the offence of second marriage.
Priya vs Suresh - Mere admission by the parties is not enough.
Proof of essential ceremonies is required.
2. Section 5 (2)
neither party is
1. incapable of giving
consent due to unsoundness of mind.
2. though capable of
giving consent, is unfit for marriage and procreation of children due to mental
disorder.
Alka vs Abhinash - MP HC held that "and" must be read as
"or".
3. suffers from
recurrent attacks of insanity.
Balakrishna vs Lalitha - "Incurable" is not a
requirement. Only recurrent attacks, irrespective of whether curable or
incurable, provided enough ground.
3. Boy is over 21 and
girl is over 18.
Rabindra vs Sita - Marriage in contravention of this clause is,
nevertheless, valid.
4. parties are not within
degrees of prohibited relationship.
5. parties are not
sapindas
Punishment
Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and
495 (bigamy with concealment - 10 Yrs + fine) of IPC will apply for
bigamy.
Section 18(a): 15 days + 1000/- for contravention of 5(3)
Section 18(b) : 30 days + 1000/- for contravention of 5(4) and 5(5)
Q. What is the difference between Void
and Voidable marriage? What are the consequences of a Void marriage?
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Void
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Voidable
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Defined by section 11
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Defined by section 12
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Grounds -
1. Performed in
contravention of 5(i), 5(iv), or 5(v)
2. Ceremonies in
section 7 not performed.
3. In contravention
of section 15 - Divorce not granted yet or time to appeal has not elapsed.
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Grounds:
1. Unable to
consummate - Impotence (not same as incapacity to conceive or impregnate)
Samar vs Snigdha - Full and complete penetration (vera copula) is
an essential ingredient of ordinary intercourse though degree of satisfaction
is immaterial.
Kanthy vs Harry - Unduly large male organ amounts to physical
abnormality and thus impotence.
Laxmi vs Babulal - Absence of vagina, even though an artificial
vagina was created, was held impotence.
Jagdeesh vs Seela - Husband lived with wife for 3 days and nights
immediately after marriage but could not consummate. Held that it was because
of incapacity, \
2. nervousness, or
hysteria. Thus, was impotent.
Shewanti vs. Bharua 1971 - Wife was sterile and suffering from
non-menses, though she was capable of normal sexual intercourse. Held not
impotent because
3. capacity to bear children is not impotence.
Impotence only refers to sexual intercourse.
4. In contravention
of 5(ii) - Mentally unsound. Alka vs Abhilash, Balakrishna vs Lalitha (see
above)
5. Consent obtained
by force or fraud.
Force - Rice vs Rice -
threatened with pistol.
Fraud - Rama vs Mohinder 1996 - Did not tell that she had a
child with cesarean.
Fraud - Purbi vs Basudev 1969 - Husband's pre-marriage
boasting about high prospects in life is not fraud.
Fraud - Som Dutt vs Raj Kumar 1986 - Wife concealed her age.
She was 7 yrs elder.
6. Girl was pregnant
by some other person
Mahendra vs
Sushila 1965 -Girl's admission to pre-marriage pregnancy when husband had no
access to her.
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Marriage does not exist at all.
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Marriage is fully valid until it is declared void by the court.
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No consequences of marriage - right in property, conjugal rights,
maintenance.
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Full consequences while marriage lasts.
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No decree of court is necessary. Decree can be obtained by either
person.
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Court decree is necessary. Marriage can be avoided only on the
petition of one spouse. If one person does not petition for annulment,
marriage will remain valid. If one person dies,
the marriage will remain valid
for ever.
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If someone calls the wife a concubine, it will not amount to
defamation.
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Decree is given retroactively.
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Effects of a void marriage
Section 16 - Children of void (sec 11) or annulled voidable (sec
12) marriage, though termed legitimate under section 16, do not get any
right in the joint family of parents. They have right in personal self earned
property of parents.
Spouses cannot claim any matrimonial reliefs.
Illustration - A and B are brothers. W is B's wife but marriage is void. A dies
without any children. B can claim all of A's property.
In the case of Sudarsan vs State 1988, it was held that this
legitimacy is conferred only in cases when marriage is void on account of sec
11 and not if a marriage is void due to another reason such as lack of proper
ceremonies.
Explain Judicial separation. What is the difference between Judicial
Separation and Divorce? On what grounds can a decree of Judicial Separation be
passed?
Judicial separation is a state of marriage authorized by the court where a
husband and wife do not live like a married couple. In many situations it
becomes impossible for either spouse to live with the other person. At the same
time, they either do not want a divorce or do not have enough ground for
divorce. In such a situations, court may grant a decree of judicial
separation.
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Judicial Separation
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Divorce
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Section 10 - Marriage still exists therefore cannot do adultery
etc.
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Section 13 - Marriage ends.
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Not obligatory for the petitioner to cohabit with the partner.
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Can remarry
subject to sec 15.
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Can be rescinded by petition of either party if court is satisfied.
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Cannot be undone.
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Grounds for Judicial separation are same as given in section 13(1), which are
applicable for divorce. A wife has the grounds given in section
13(2) as well. These are given below under Divorce.
Section 13 (1) At fault Grounds
(i)
Adultery - Voluntary intercourse with third person. Does not
include rape.
Vira Reddy vs Kistamma 1969 - One single act of adultery is enough
for divorce or judicial separation.
Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt
but now only high probability is required.
Sanjukta vs Laxmi 1981 - Circumstantial evidence is sufficient.
Cruelty
Legal concept of cruelty has varied from time to time, place to place, and
situation to situation. In early law, intention was considered an essential
element of cruelty but in modern law it is not so. The intention of the law is
to protect the innocent party from any harm -physical or mental. Scolding or
nagging have also been considered as cruelty.
Definition
There is no precise definition of cruelty because the term is so wide. Several
situations and cases over past 100 years have shown that cruelty can be mental
or physical. In the case of Dastane vs Dastane 1970 Bom, it was
held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs
Russel 1897, in which it was held that any conduct that poses a danger to
life, limb, or health - physical or mental, or causes reasonable apprehension
of such danger, is cruelty.
Earlier, the petitioner had to show that the act of the respondent caused
reasonable apprehension of danger. Thus, in the case of Sayal vs
Sarla 1961 Punjab, when wife administered love-potion to the husband, causing
his hospitalization, it was held to be cruelty even though she did not mean to
hurt her husband because it caused reasonable apprehension of danger. However,
now it is not required. The clause merely says, "if the
respondent has treated the petitioner with cruelty". In the case of GVN
Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the
act has caused a reasonable apprehension in the mind of petitioner. The
emphasis will be on the act or conduct constituting cruelty. It further held
that social status of the parties, their education must be considered while
determining whether the act constitutes cruelty or not. Thus, what
amounts to cruelty in one case may not amount to cruelty in another.
Intention to be cruel is not material
Earlier intention was necessary but now it is not so. In the case of Jamieson
vs Jamieson 1952, House of Lords observed that unintentional acts may also
amount to cruelty. In Williams vs Williams 1963 Allahbad, the
necessity of intention in cruelty was finally rejected in India. In this case
husband was insane and constantly accused the wife of adultery. This was
cruelty without intention.
Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband
tried to strangulate wife's brother and he younger son in a fit of insanity, he
was held to be cruel. Temporary insanity or schizophrenia cannot be a defense
against the plea of cruelty.
Cruelty need not only be against the petitioner
In Bhagwat vs Bhagwat, cruelty against his step daughter was
held as cruelty against wife.
The act or omission need not only be of the respondent
Since most women have to live in husband's joint family, they have to put up
with their actions also. In the case of Shyam Sundar vs Santa Devi 1962,
the wife was ill treated by the in-laws and husband stood their idly without
caring for wife. This was held as cruelty.
However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband's
stand of neutrality regarding wife and mother and his inaction about his
mother's nagging of his wife was not considered cruelty because it is normal
wear and tear of a married life.
Cruelty of Child
Generally, cruelty by child towards one parent does not amount to cruelty.
However, in the case of Savitri vs Mulchand 1987 Delhi, mother and
son acted in concert and the son tortured the father by squeezing his testicles
to force him to do what they wanted him to do, was considered cruelty against
the wife.
Types of cruelty - Physical and Mental
Physical Cruelty
Injury to body, limb, or health, or apprehension of the same. In the case
of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much
so that she had to lodge police complaint even though injury was not serious.
It was held that serious injury is not required.
Mental Cruelty
In Bhagat vs Bhagat 1994 SC held that a conduct that causes
such a mental pain and suffering that makes it impossible to live with that
person is mental cruelty. Mental cruelty must be such that it cannot reasonably
be expected to live together. This has to be judged on the circumstances of the
case.
In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled
abuses at the husband and quarreled over trivial matters so much so that he
became a laughing stock in the locality. This was held to be mental cruelty
against the wife.
In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery
were held to be mental cruelty.
Yashodabai vs Krishnamurthi 1992 - Mere domestic quarrels with
mother in law is not cruelty.
Shobha vs Madhukar 1988 SC - Constant demand for dowry is cruelty.
In the case of Jyotishchandra vs Meera 1970, husband was not
interested in wife, he was cold, indifferent, sexually abnormal and perverse.
It was physical as well as mental cruelty.
Desertion
3 Types - Actual Desertion, Constructive Desertion, Willful neglect.
Actual Desertion - factum of desertion, animus deserdendi, Without
reasonable cause, without consent, 2 yrs must have passed.
Lachman vs Meena - 1964 - Wife was from rich family. She was
required to live in joint family of husband. She went back to parents. Kept
making fake promises of return but never did. Held desertion.
Jagannath vs Krishna - Wife became brahma kumari and refused
to perform marital obligations. Held desertion.
Bipinchandra vs Prabhavati SC 1957 - Husband went to England.
Husband's friend came to house in India. Husband came back. Alleged affair,
which was refuted by wife. Wife went to her parents for attending
marriage. Prevented her from coming back. Held no desertion by wife.
Sunil Kumar vs Usha 1994 - Wife left due to unpalatable atmosphere
of torture in husband's house. Held not desertion.
Constructive Desertion - If a spouse creates an environment that
forces the other spouse to leave, the spouse who created such an environment is
considered deserter.
Jyotishchandra vs Meera 1970 - Husband was not interested in
wife, he was cold, indifferent, sexually abnormal and perverse. Went to
England. Then came back and sent wife to England for PhD. When wife came back,
did not treat her well. Abused her and his inlaws physically. Wife was forced
to live separately. Held desertion by husband.
willful Neglect - If a spouse intentionally neglects the other
spouse without physically deserting, it is still desertion.
Balihar vs Dhir Das 1979 - Refusing to perform basic marital
obligations such as denial of company or intercourse or denial to provide
maintenance is willful neglect.
Reasonable Cause
1. If there is a ground for matrimonial relief. ( ground for void, voidable
marriage or grounds for maintenance under sec 18 of HAMA).
2. If spouse is guilty of a matrimonial misconduct that is not enough for
matrimonial relief but still weighty and grave.
3. If a spouse is guilty of an act, omission, or conduct due to which it is not
possible to live with that spouse.
Chandra vs Saroj 1975 - Forcing a brahmin wife to eat meat.
Without Consent
Bhagwati vs Sadhu Ram 1961 - Wife was living separately under a
maintenance agreement. Held not desertion.
Other Grounds
Section 13 (ii) : ceased to be a Hindu.
Section 13 (iii) unsound mind. - includes mental disorders such a incomplete
development of brain or psychopathic disorder or schizophrenia
Section 13 (iv) virulent and and incurable Leprosy
Section 13 (v) communicable venereal disease
Section 13 (vi) renounced the world
Section 13 (vii) presumed dead - not heard of in 7 years.
Section 13 (1-A) Breakdown Theory
(i) no cohabitation for 1 yr after passing the decree of judicial separation.
(ii) no cohabitation for 1 yr after passing the decree of restitution of
conjugal rights.
Effected by provisions in section 23.
Section 13(2) Additional grounds for
wife
(i) Another wife of the husband is alive.
(ii) Rape, Sodomy, Bestiality.
(iii) Wife was awarded maintenance under section 15 of HAM 1956 or under
section 125 of CrPC and no cohabitation has occurred for 1 yr after the award.
(iv) If wife was under 15 at the time of marriage and if she repudiates the
marriage before 18.
Section 13-A Alternate relief in
divorce proceedings - If the judge feels that sufficient grounds do
not exist for divorce, he can grant judicial separation.
Section 13-B Divorce by mutual consent
UNIVERSITY
PRACTICAL QUESTIONS ON HINDU LAW BL-504
1- What are the different sources of Hindu law?
Do you agree with the comment that a clear proof of usage will out-weight the
written text of law?
2- Discuss cruelty and desertion as a grounds of
divorce. Supplement your answer with decided cases?
3- What do understand by adoption? Discuss the
doctrine of Relation-Back. State whether this doctrine holds good in the modern
Hindu law?
4- Discuss the provisions of relating to
maintenance of wife under Adoption and Maintenance Act, 1956. When can she claim separate
residence and maintenance?
5- How is the property of a Hindu dying intestate
divided under Section-6 of Hindu Succession Act, 1956?
6- Discuss essential conditions of a valid
marriage under the Hindu Marriage Act, 1955?
7- Who is a minor? Who are the Testamentary
Guardians of minor and what are their powers?
8- Who are the Class 1 and Class 2 heirs under
the Hindu Succession Act, 1956? Also
discuss how they inherit the movable or immovable property?
9- What are the essential conditions for a valid Hindu
Adoption? Who can take in adoption?
10- Write short notes on any two of the
followings:
a- Divorce by Mutual Consent
b- Conversion of Religion
c- Escheat
d- Maintenance of Children and Aged Parents
11- Distinguish
between void and voidable marriage(section 11/12). How has law attempt
to safeguard the interest of the children who may be born of such marriage?
12- What is the nature of Hindu marriage? Discuss
.
13- Describe the power of female Hindu to adopt
under Hindu Adoption and Maintenance Act, 1956?
14- Discuss the law relating to the maintenance of
Daughter-in-law under the Hindu Adoption and Maintenance Act, 1956?
15- Explain the extent of the right under the
Hindu Succession Act, 1956 of a Hindu female to own and alienate immovable
property?
16- Who is a Hindu? Discuss the persons to whom
Hindu Law applies and to whom it does not apply to?
17- Write short notes on the followings:
a- Sapinda
b- Alienation
c- Conversion of Religion
d- Polygamy
