In India, the term “proceedings-in-camera” refers to court proceedings that are conducted in private, away from the public and the media. This is often done to protect the privacy of the parties involved, especially in cases involving sensitive matters such as sexual offenses, matrimonial disputes, or cases involving minors.
An “in-camera” proceeding is a type of legal meeting conducted in private, typically in a judge’s chambers or a specially designated courtroom, where only specific individuals are allowed to attend. This form of proceeding is distinct from the usual open court hearings where the public, media, and other interested parties can be present.
Here are some key points about “in-camera” proceedings:
Purpose: The primary purpose of conducting proceedings in-camera is to protect sensitive, confidential, or private information that could be detrimental if disclosed publicly. This is particularly relevant in cases involving issues like national security, trade secrets, personal privacy, or sensitive family matters.
Participants: Only certain individuals, such as the parties directly involved in the case, their legal representatives, witnesses, and court officials, are permitted to attend the in-camera proceeding. The judge or magistrate presiding over the case determines who can attend based on the nature and sensitivity of the information to be discussed.
Confidentiality: In-camera proceedings ensure that sensitive information is discussed and reviewed in a confidential setting, away from the public eye. This helps maintain the integrity of the information and protects the privacy and rights of the parties involved.
Legal Framework: In India, as previously mentioned, various statutes like the Code of Criminal Procedure (CrPC), Family Courts Act, Protection of Children from Sexual Offences (POCSO) Act, and others provide for the conduct of in-camera proceedings in specific cases to safeguard the interests and privacy of the parties.
Judicial Discretion: The decision to conduct proceedings in-camera rests with the presiding judge or magistrate, who determines the necessity and appropriateness of holding the meeting privately based on the facts and circumstances of the case.
In-camera proceedings play a crucial role in ensuring fair, impartial, and effective administration of justice by protecting sensitive information, safeguarding the interests of the parties, and upholding the principles of privacy and confidentiality in legal proceedings. The principle of “in-camera” proceedings is recognized and governed by various statutes and rules in India. Some of the important acts and sections related to “in-camera” proceedings are:
The Code of Criminal Procedure, 1973 (CrPC):
Section 327: This section provides for the power of the courts to hold proceedings in-camera in certain cases, such as cases involving rape or offenses under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Section 228A: This section deals with the confidentiality of the identity of the victim of certain offenses, and it prohibits the publication of the name or any matter that could reveal the identity of the victim in any manner.
Protection of Children from Sexual Offences (POCSO) Act, 2012:
Section 33: This section mandates that the trial of offenses under the POCSO Act shall be conducted in-camera and the child should not be exposed to the accused at the time of giving evidence.
The Juvenile Justice (Care and Protection of Children) Act, 2015:
Section 37: This section provides that the inquiry concerning a juvenile in conflict with the law shall be conducted in-camera and the child should not be exposed to the public.
The Family Courts Act, 1984:
Section 11: This section provides that proceedings before a Family Court shall be held in-camera and the public shall not have access to such proceedings.
Protection of Women from Domestic Violence Act, 2005:
Section 23: This section allows the Magistrate to ensure that the proceedings under the Act are conducted in-camera to protect the privacy and interests of the aggrieved woman.
The Guardians and Wards Act, 1890:
Section 11: This section provides that the court may direct that the proceedings under the Act be held in-camera if it deems it necessary for the welfare of the minor.
The Marriage Laws Amendment Act 1976 introduced Sec. 22(1) in Hindu Marriage Act 1955, which provides as follows:-“Every proceeding under this Act shall be conducted In Camera and it shall not be a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.” The proviso to Section 327 (1) of the Criminal Procedure Code 1973 contains a provision similar to that in the proviso to Section 153-B of C.P .C. The Sub-Section (2) also makes it mandatory to try cases in camera. It reads as follows: – “Not withstanding anything contained In Sub-Section (1), the inquiry Into and trial of rape or an offence u/s. 376, Sec. 376A, 376 B, Sec. 376-C or Section 376-D of the I.P.C. shall be conducted in camera.”
Important Case Laws:
Gaurav Nagpal vs. Sumedha Nagpal: In this landmark case, the Supreme Court held that proceedings in matrimonial matters should be conducted in-camera to protect the privacy of the parties and to encourage amicable resolution of disputes.
Ritaben Deepakbhai Patel vs. Deepakbhai Prabhudas Patel: The Gujarat High Court emphasized the need for conducting proceedings in-camera in matrimonial disputes to safeguard the interests and privacy of the parties involved.
Kanubhai vs. Meena: The Supreme Court reiterated the importance of holding proceedings in-camera in matrimonial cases to ensure that the parties can freely express themselves without any fear of public exposure or humiliation.
Reena Banerjee vs. State of West Bengal: The Calcutta High Court held that in-camera proceedings should be conducted in cases involving custody of minors to protect the interests and welfare of the child.
State of Punjab v. Ramdev Singh: In this case, the Supreme Court held that in-camera proceedings are necessary in cases involving sexual offenses to protect the dignity and privacy of the victim.
State of Karnataka v. Puttaraja: The Supreme Court reiterated the importance of conducting in-camera proceedings in cases involving sexual offenses and emphasized the need to protect the identity and privacy of the victim.
Nipun Saxena v. Union of India: The Delhi High Court emphasized the importance of maintaining confidentiality and conducting in-camera proceedings in cases involving child victims to protect their rights and interests.
It is important to note that the above-mentioned acts and sections are not exhaustive, and the applicability of in-camera proceedings may vary depending on the specific facts and circumstances of each case. Additionally, the courts in India have the inherent power to order in-camera proceedings to ensure the fair and proper administration of justice. The applicability of in-camera proceedings in family law cases may vary based on the specific facts and circumstances of each case. Additionally, the courts in India have the inherent power to order in-camera proceedings to ensure the fair and proper administration of justice in family law matters.
The concept that is closer to joint tenancy in India is often referred to as “joint ownership” or “co-ownership.” Under Indian law, co-ownership can be understood through the Indian Succession Act, 1925, and the Transfer of Property Act, 1882.
Here’s a general overview of co-ownership or joint ownership:
Joint Ownership or Co-Ownership: This refers to the situation where two or more persons jointly own a property. Each co-owner has an undivided interest in the property.
Right of Survivorship: In India, unlike some Western jurisdictions, there is no automatic right of survivorship in co-ownership. When one co-owner dies, their share in the property does not automatically pass to the surviving co-owner(s). Instead, it passes according to the deceased co-owner’s will or according to the Indian Succession Act, 1925, in case there is no will.
Equal Ownership: Unless otherwise specified, co-owners are presumed to have equal shares in the property, regardless of their contribution to the property’s purchase price or ongoing expenses.
Partition: Co-owners in India have the right to seek partition of the property, where the property is divided among the co-owners according to their respective shares. The partition can be either by mutual agreement or through a court decree.
Tenancy in Common: In the context of Indian property law, the concept that is closer to tenancy in common is known as “tenancy-in-common.” Each tenant-in-common holds a distinct and separate share in the property, which they can dispose of independently.
It’s essential to consult with an Indian legal expert or refer to the specific provisions of the Indian Succession Act, 1925, and the Transfer of Property Act, 1882, for a detailed understanding of co-ownership or joint ownership in India. Laws and legal interpretations may vary, and they can be subject to amendments and updates over time.
Joint tenancy is a form of property ownership where two or more people hold title to a property together, with equal rights to the property. When one of the joint tenants dies, their share of the property automatically passes to the surviving joint tenant(s) by the right of survivorship, rather than being passed on according to the deceased’s will or intestacy laws.
Characteristics of joint tenancy include:
Right of Survivorship: This is the defining feature of joint tenancy. When one joint tenant dies, their interest in the property is automatically absorbed by the surviving joint tenant(s).
Equal Ownership: Each joint tenant has an equal ownership interest in the property, regardless of their contribution to the property’s purchase price or ongoing expenses.
Unities: For a valid joint tenancy, four unities must be present:
Unity of Time: All joint tenants must acquire their interest in the property at the same time.
Unity of Title: All joint tenants must acquire their interest in the same transaction or document.
Unity of Interest: All joint tenants must have an equal share or interest in the property.
Unity of Possession: All joint tenants must have an equal right to possess the entire property.
4. Can Be Terminated: A joint tenancy can be terminated if any of the joint tenants decides to sever their interest. This can be done through a process known as “partition,” where the property is divided among the joint tenants or sold with proceeds divided among them.
It’s important to distinguish joint tenancy from “tenancy in common,” another form of co-ownership. Unlike joint tenancy, tenancy in common does not include the right of survivorship. When a tenant in common dies, their share of the property passes to their heirs or beneficiaries, not necessarily to the surviving co-owners.
In the Indian legal framework, joint tenancy, as understood in some Western jurisdictions, is not explicitly recognized under the Hindu Succession Act, 1956, or the Transfer of Property Act, 1882. However, there are provisions related to co-ownership and the devolution of property upon the death of a co-owner.
Hindu Succession Act, 1956: The Hindu Succession Act, 1956, governs the succession and inheritance of property among Hindus. Under this Act:
Section 8 deals with the general rules of succession in the case of males dying intestate. It provides for the devolution of property to heirs like sons, daughters, widow, mother, etc.
Section 15 specifies the rules for the devolution of a female Hindu’s property. It provides that the property of a female Hindu dying intestate shall devolve according to the rules set out in the Act.
Section 23 deals with the right of a female Hindu to maintenance and residence.
Section 30 provides for the right of a female Hindu to claim a partition of the property. While the Hindu Succession Act, 1956, does not explicitly recognize joint tenancy, it deals with the devolution of property among co-owners and heirs upon the death of an individual.
Transfer of Property Act, 1882: The Transfer of Property Act, 1882, deals with the transfer of property in India. It contains provisions related to co-ownership and the rights and liabilities of co-owners.
Section 44 of the Transfer of Property Act deals with the rights of co-owners. It states that each co-owner has a right to possession and can use the property in any manner, provided it does not interfere with the rights of other co-owners.
Section 45 provides that if one co-owner is in sole possession of the property, they are not liable to account to the other co-owners for the profits earned by the use of the property.
Section 48 specifies that a co-owner can file a suit for partition of the property, where the property is divided among the co-owners according to their respective shares. While the Transfer of Property Act, 1882, does not explicitly recognize joint tenancy, it provides for the rights and liabilities of co-owners and the procedure for partitioning the property.
It’s important to note that while these Acts do not use the term “joint tenancy,” they do provide for co-ownership and the devolution of property among co-owners and heirs. For a detailed understanding and interpretation of these provisions, it is advisable to consult with a legal expert familiar with Indian property and succession laws.
Case Laws:
In India, the concept of joint tenancy, as understood in some Western jurisdictions, is not explicitly recognized under Indian law. However, the principles of co-ownership and the rights and obligations of co-owners have been dealt with in various Indian case laws. Courts in India have often interpreted and applied the principles of joint tenancy in the context of co-ownership and partition of property.
Here are some landmark Indian case laws related to co-ownership and partition:
P. Saraswathi Ammal vs. S. V. Gopalakrishna Naidu (1973):
In this case, the Supreme Court held that a co-owner has a right to file a suit for partition to claim his/her share in the jointly owned property. The court emphasized the principle that each co-owner has an equal right to the possession and enjoyment of the property.
Smt. Krishna Kumari vs. K. Srinivasan (1977):
The Supreme Court in this case reiterated that a co-owner has an absolute right to seek partition of the jointly owned property. The court held that a co-owner can file a suit for partition even if the other co-owners do not consent to the partition.
T. S. Chellappan vs. T. S. Gopalakrishnan (1979):
The Supreme Court held that the possession of one co-owner is deemed to be the possession of all co-owners unless there is a clear ouster of the other co-owners. The court emphasized that each co-owner has an equal right to the possession and enjoyment of the property.
Ram Charan Das vs. Girja Nandini Devi (1966):
In this case, the Supreme Court held that a co-owner can maintain a suit for possession of the entire property against a trespasser. The court recognized the right of a co-owner to protect the jointly owned property from unauthorized interference.
T. S. S. Soundararajan vs. P. J. Venkatachalam (2002):
The Supreme Court in this case held that the partition of joint family property can be sought by a co-owner at any time, even if the property was acquired by the joint family prior to the commencement of the Hindu Succession Act, 1956.
These case laws highlight the principles of co-ownership, possession, and partition of property under Indian law. While the term “joint tenancy” may not be explicitly used, the principles underlying joint tenancy have been interpreted and applied by Indian courts in the context of co-ownership and partition of property. It’s important to consult with legal experts and refer to the specific facts and judgments of these cases for a detailed understanding of the principles and their application in Indian law.
Introduction: The concept of minority and guardianship holds significant importance in Hindu law, governing the rights and responsibilities of minors within the Hindu community. The Hindu Minority and Guardianship Act, 1956, which came into force on August 25, 1956.
Definition of Minor (Section 4):
Section 4(a) of the Hindu Minority and Guardianship Act, 1956, defines a minor as a person who has not attained the age of eighteen years.
2. Guardian
A guardian is defined under Section 4(b) of the Hindu Minority and Guardianship Act, 1956, as a person who is responsible for the property and well-being of a minor.
Guardianship of a Minor (Section 6):
Section 6 of the Act deals with the natural guardianship of a Hindu minor. It provides that the natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding the minor’s undivided interest in joint family property), are the father and, after him, the mother.
This section establishes the order of natural guardianship, prioritizing the father and then the mother.
Father: Initially, the father is the natural guardian of a minor, whether a boy or an unmarried girl. If the father is absent or unable to fulfill this role, the mother assumes guardianship. However, if the father is alive and capable, he retains the primary right to guardianship. This right extends until the child reaches the age of five, after which the mother may assume guardianship if the father is unable to fulfill the role.
Mother: The mother becomes the natural guardian in cases involving illegitimate boys or unmarried girls. Even if the father is alive, the mother has precedence in guardianship for such children. This right persists regardless of the mother’s marital status or religious affiliation. Additionally, in certain circumstances, such as when the parents are estranged or living separately, the mother may act as the natural guardian, as interpreted by the courts.
Husband: A husband is recognized as the guardian of his minor wife. This implies that in cases where a girl is married before reaching the age of majority, her husband assumes the role of her natural guardian.
Testamentary Guardians (Section 9):
Section 9 of the Act allows a Hindu father, by will, to appoint a testamentary guardian for his minor children. This provision enables a Hindu father to nominate a guardian for his minor children in case of his demise, ensuring continuity of care and protection.
Appointment by Will: According to Section 9 of the Hindu Minority and Guardianship Act, testamentary guardians can only be appointed through a will. This provision allows parents to designate a guardian for their minor children in the event of their demise.
Ceasing of Guardianship: The guardianship of a minor girl appointed by testamentary means ceases upon her marriage. This termination is absolute and does not revive even if she becomes a widow while still a minor.
Acceptance of Guardianship: It is essential for a testamentary guardian to accept the guardianship, which can be done explicitly or implicitly. Once accepted, the guardian cannot refuse to act or resign without the court’s permission.
Testamentary Power of Both Parents: The Hindu Minority and Guardianship Act now empowers both parents to appoint testamentary guardians. However, if one parent survives and appoints a testamentary guardian, their appointment takes precedence over the appointment made by the deceased parent.
Effect on Illegitimate Children: There seems to be a limitation regarding the testamentary appointment of guardians for illegitimate children. Section 9(1) grants this power to the father for legitimate children, but there is no similar provision for illegitimate children. However, Section 9(4) grants such power to the mother alone for illegitimate children.
Guardians Appointed by the Court
Appointment by Court: If the court deems it necessary for the welfare of a minor, it may appoint a guardian for the minor’s person or property or both under the Guardians and Wards Act, 1890. The paramount consideration in such appointments is the welfare of the minor.
Supplementary Nature of the Hindu Minority and Guardianship Act: The Hindu Minority and Guardianship Act, 1956, is complementary to the Guardians and Wards Act, 1890, rather than superseding it. This means that while the Hindu Minority and Guardianship Act provides guidelines for guardianship within the Hindu community, the Guardians and Wards Act governs the procedures and powers of guardians appointed by the court.
Certificated Guardian: A guardian appointed by the court is referred to as a certificated guardian. The powers of such a guardian are regulated by the Guardians and Wards Act. Typically, a certificated guardian requires prior permission from the court for most actions concerning the minor. However, the guardian’s powers, albeit requiring court permission, are extensive and equivalent to those of a sovereign.
Supervision by the Court: Once appointed, a certificated guardian operates under the supervision, guidance, and control of the court. This ensures that the welfare of the minor remains a priority and that the guardian’s actions are in the best interest of the minor.
Overall, the appointment of a guardian by the court ensures that minors receive proper care and protection, with the court overseeing and regulating the actions of the guardian to safeguard the minor’s interests.
Guardianship of a minor widow (guardianship by affinity)
According to Narada, when a minor girl becomes a widow, the husband’s relatives have the duty to protect and maintain her. If in the husband’s family no one is there, then the father of the widow takes on the responsibilities of the widow to protect her. Before 1956, there was a guardian called guardianship by affinity. It was the guardian of a minor widow, which was given by theGuardianship and Wards Act, 1850. No provision is given under the Hindu Minority and Guardianship Act, 1956, for the guardianship of a minor widow.
Guardian by Affinity: In pre-1956 Hindu law, there existed a guardian known as the guardian by affinity, who was responsible for the welfare of a minor widow. This guardian was typically a relative of the deceased husband within the degree of sapinda.
Preference of Guardian: According to Mayne, the husband’s relatives within the degree of sapinda were preferred as guardians of a minor widow over her own father and his relatives.
Legal Interpretations: Legal interpretations varied regarding the rightful guardian of a minor widow. The Allahabad High Court, in the case of Paras Nath v. State (1960), held that the father-in-law was the rightful guardian of a minor widow. However, other courts, such as the Nagpur High Court and the Madras High Court, did not adopt this view. They emphasized that the welfare of the child should be the primary consideration in appointing a guardian, rather than merely following traditional preferences.
Paramount Consideration in Modern Law: Under Section 13 of the Hindu Minority and Guardianship Act, the welfare of the child is explicitly stated as the paramount consideration in appointing any person as a guardian. While traditional preferences may be considered, they are secondary to the child’s welfare.
De Facto Guardian
De Facto Guardian Definition: A de facto guardian is a person who, although not legally recognized as a guardian, assumes the management of a Hindu minor’s property as if they were a guardian. They do not have legal authority to act as a guardian but have taken on the responsibilities of managing the minor’s property.
Legal Prohibition: Section 11 of the Hindu Minority and Guardianship Act explicitly prohibits a de facto guardian from disposing of or dealing with the property of a Hindu minor based solely on their status as a de facto guardian. This means that their actions regarding the minor’s property are not legally valid solely on the grounds of their de facto guardianship.
Historical Recognition: The concept of de facto guardianship has roots in Hindu law dating back to at least 1856. The Privy Council, in the case of Hanuman Prasad Singh v. Bhaguati Prasad Singh, recognized the rights of bona fide incumbrancers who had entered into arrangements with de facto guardians for the benefit of the estate.
Controversy and Limitations: While de facto guardians may take on responsibilities for managing a minor’s property, they do not possess the legal authority to assume debts, gift the minor’s property, or make references to arbitration. Their status and actions are subject to legal scrutiny and limitations as outlined in the Hindu Minority and Guardianship Act.
de facto guardians may play a role in managing a minor’s property, their actions are not legally binding solely based on their de facto status. Section 11 of the Hindu Minority and Guardianship Act prohibits them from disposing of or dealing with the minor’s property without proper legal authority.
Powers of the Guardian:
The powers and limitations of a natural guardian under Section 8 of the Hindu Minority and Guardianship Act, 1956.
Compulsory and Beneficial Acts: A natural guardian of a Hindu minor has the authority to perform acts that are compulsory or beneficial for the minor’s interests, including the protection and advancement of the minor’s condition.
Permission for Certain Actions: Prior permission from the court is required for the natural guardian to utilize gifts, mortgage property, or engage in other significant transactions involving the minor’s property.
Leasing of Property: Permission from the court is necessary for leasing any part of the minor’s property for periods exceeding five years or extending beyond the minor’s attainment of majority by one year.
Validity of Disposal: Any disposal of immovable property by a natural guardian is subject to being voidable at the minor’s or their representative’s discretion if it is determined not to be in the minor’s best interest.
Court’s Oversight: The court is tasked with ensuring that the actions of the natural guardian are in the best interest of the minor. Permission from the court is required for actions that could potentially harm the minor’s interests.
Application Procedure: Applications for permission from the court are governed by the Guardians and Wards Act, 1890. The natural guardian must apply to the appropriate court within whose jurisdiction the minor’s property is located.
Appeals: If permission for certain acts is denied by the court, the natural guardian has the option to appeal the decision, although the court’s decision is typically final unless appealed successfully.
This summary outlines the powers granted to a natural guardian under the Hindu Minority and Guardianship Act, 1956, as well as the procedures and limitations imposed to ensure the protection of the minor’s interests.
Rights of the Natural Guardian:
The rights of natural guardians, typically parents, regarding minor children can vary based on legal and cultural contexts. However, here are some common rights that natural guardians may have:
Right to Custody: Natural guardians generally have the right to custody of their minor children, which includes the responsibility to provide for their care, upbringing, and protection.
Right to Determine Religion: Natural guardians may have the right to determine the religious upbringing of their minor children. This includes decisions regarding religious practices, education, and participation in religious activities.
Right to Education: Natural guardians have the right to ensure that their minor children receive an education. This includes the authority to make decisions regarding the child’s schooling, educational opportunities, and academic pursuits.
Right to Control Movement: Natural guardians may have the authority to control the movement of their minor children. This can include decisions about where the child lives, travels, and spends time outside of the home.
Right to Reasonable Chastisement: In some jurisdictions, natural guardians may have the right to administer reasonable chastisement or discipline to their minor children. However, the extent of this right can vary and may be subject to legal restrictions or limitations.
Welfare of the Minor (Section 13):
Section 13 emphasizes that in appointing or declaring a guardian of a minor, the welfare of the minor shall be the paramount consideration.
This section underscores the principle that the best interests of the minor should guide decisions related to guardianship.
Case Laws: a. Githa Hariharan v. Reserve Bank of India (1999):
In this landmark case, the Supreme Court held that the mother can act as the natural guardian of her minor children, exercising the same rights and responsibilities as the father.
This decision marked a significant departure from traditional Hindu law, recognizing the mother’s equal status as a natural guardian.
b. Jijabai Babasaheb Patil v. Additional District Judge (2003):
The Bombay High Court ruled that in cases where the father is absent or incapable of acting as the natural guardian, the mother can be appointed as the guardian of the minor’s property under Section 8 of the Hindu Minority and Guardianship Act, 1956.
This judgment reaffirmed the principle of prioritizing the welfare of the minor while determining guardianship.
c. Essakkayal nadder Vs. Sreedharan Babu AIR1992KER200 In this case, the mother of the minor died, and the father was also not living with the child, but the child was alive. The child was not declared to be a Hindu or to have renounced the world, and he was also not declared unfit. These facts do not authorize that any other person adopt the child, be the natural guardian, and transfer the property.
d. Smt. Beti Bai Vs. Jagdish Singh and Ors, in this case, Civil appeal No.20A/2001 Aparbal Singh was the father of plaintiff, who is no more. Aparbal Singh had 2 wives because, during his lifetime his first wife died due to some problem, then his second wife came to his life who was the respondent. And the child of the second wife also died due to some reason. At last after the Aparbal Singh died, the second wife captured all the property then the son of the first wife filed a complaint.
Conclusion:
Indeed, the institution of guardianship plays a crucial role in ensuring the welfare and protection of minors, as well as managing their property and affairs. Guardianship laws are designed to safeguard the rights and interests of minors who are not yet capable of making decisions for themselves. By appointing a guardian, whether natural or court-appointed, the law aims to provide a responsible individual who can act in the best interests of the minor, both personally and financially.
The relationship between a guardian and a minor involves not only physical and mental protection but also the management and preservation of the minor’s property. This is particularly important to prevent any exploitation or misuse of the minor’s assets. Guardianship laws outline the duties and responsibilities of guardians, ensuring that they act in the minor’s best interests and do not abuse their authority.
Additionally, laws regarding the adoption of children further reinforce the protective measures in place for minors. Adoption provides a legal framework for establishing a permanent parent-child relationship, ensuring that the child receives care, support, and stability within a family environment. Overall, the existence of guardianship laws and adoption regulations underscores society’s commitment to safeguarding the rights and well-being of minors, providing them with the necessary protection and support until they reach adulthood.
The definition aptly encapsulates the multifaceted nature of marriage as both a legal and social institution. It effectively outlines the key components and implications of marriage within societies. Here’s a slight revision for clarity:
“Marriage is a legally and socially sanctioned union, typically between a man and a woman, regulated by laws, rules, customs, beliefs, and attitudes. It prescribes the rights and duties of the partners and accords status to their offspring, if any.”
Hindu Marriage:
Marriage in India is a significant social and cultural institution that encompasses various religious, traditional, and legal aspects. Certainly, here’s a more detailed explanation of marriage under different religions in India, along with the corresponding acts and sections that govern them:
Act: Hindu Marriage Act, 1955.
Section: The entire act, which consists of various sections, governs Hindu marriages in India.
Explanation: The Hindu Marriage Act, 1955, applies to Hindus, Sikhs, Jains, and Buddhists. It defines marriage as a sacrament and provides rules and regulations regarding the solemnization of marriage, conditions for a valid marriage, the rights and obligations of married couples, as well as procedures for divorce and annulment. Hindu marriages involve rituals such as Kanyadaan, Saptapadi, and Mangal Sutra.
Muslim Marriage:
Act: Muslim Personal Law (Shariat) Application Act, 1937.
Section: The act itself does not have sections in the same way as the Hindu Marriage Act. Instead, Muslim marriage law is primarily based on Islamic Sharia law.
Explanation: Muslim marriages are governed by Islamic law, which includes rules and regulations derived from the Quran and Hadiths (sayings and actions of Prophet Muhammad). The marriage contract, known as Nikah, is a crucial aspect of Muslim marriages. While the Muslim Personal Law (Shariat) Application Act, 1937, recognizes the application of Islamic law in matters of marriage, divorce, and inheritance among Muslims in India, the specific rules and procedures may vary within different Muslim communities.
Christian Marriage:
Act: Indian Christian Marriage Act, 1872.
Section: The entire act applies to Christian marriages in India.
Explanation: The Indian Christian Marriage Act, 1872, regulates the solemnization of marriages among Christians in India. It prescribes the procedure for the celebration of marriages, including the roles of ministers, priests, and witnesses. Christian marriages are considered a sacrament and are typically conducted in churches by ordained clergy. The act also provides for registration of marriages and legal recognition of Christian marriages in India.
Sikh Marriage:
Act: Anand Marriage Act, 1909.
Section: The entire act applies to Sikh marriages in India.
Explanation: The Anand Marriage Act, 1909, provides for the legal recognition of Sikh marriages solemnized according to Sikh customs and rituals. The act allows Sikhs to register their marriages under the Anand Karaj ceremony, which is performed in accordance with Sikh religious traditions. Anand Karaj involves hymn singing, recitation of prayers, and the taking of four symbolic rounds around the Guru Granth Sahib by the couple.
Jain Marriage:
Act: There is no specific act governing Jain marriages in India. Jain marriages are typically governed by the Hindu Marriage Act, 1955, as Jains are considered Hindus under Indian law.
Section: Relevant sections of the Hindu Marriage Act would apply.
Explanation: While there is no separate act for Jain marriages, Jain marriage ceremonies follow Jain customs and traditions. The rituals may include the exchange of garlands, blessings from elders, and the recitation of Jain prayers. As Jains are considered Hindus for legal purposes, their marriages are governed by the Hindu Marriage Act, 1955.
Conclusion:
These are general guidelines, and the specific rights of legal heirs may vary based on individual circumstances, regional customs, and any existing family arrangements or agreements. Additionally, amendments to the Hindu Succession Act, such as the Hindu Succession (Amendment) Act, 2005, have brought significant changes to the inheritance rights of daughters, making them equal coparceners in ancestral property.
These acts and their respective sections provide legal frameworks for the solemnization and regulation of marriages within different religious communities in India. It’s important to note that, while these acts provide guidelines, there may be variations in marriage customs and practices among different sects and communities within each religion.
The Hindu Minority and Guardianship Act, 1956. It provides guidelines on the appointment of guardians for minors and outlines their powers and responsibilities. Here’s an overview of the key aspects of the Hindu Minority and Guardianship Act, 1956:
Under the Hindu Minority and Guardianship Act, 1956, a person is said to be a minor if he is below the age of eighteen years. According to this act, he is incapable of taking care of himself or of handling his affairs and thus requires help, support, and protection from any senior person. Under such a situation, a guardian has to be appointed for the care of his body and his property.
Minor (Section 4):
The term “minor” is defined in Section 4 of the Act as a person who has not attained the age of eighteen years.
Guardian (Section 4):
“Guardian” is defined in Section 4 as a person having the care of the person of a minor, of his property, or of both his person and property. This definition includes a natural guardian, a testamentary guardian, or a guardian appointed by the court.
Kinds of Guardians
Natural Guardian (Section 6):
Section 6 of the Act deals with natural guardianship. A “natural guardian” is defined by Section 6 as the father and after him, the mother, with regard to the minor’s person. For property, the father is the natural guardian, and after him, the mother.
Powers of a Natural Guardian (Section 8):
Power over Minor’s Person (Section 6):
The natural guardian has the power to make decisions concerning the person of the minor, including matters related to the minor’s health, education, and upbringing.
Power over Minor’s Property (Section 8):
The natural guardian has the power to deal with the minor’s property in the best interest of the minor. However, certain transactions may require court approval.
Power to Act in Emergency (Section 6):
In emergency situations, the natural guardian can take immediate action to protect the minor’s well-being without seeking court permission.
Functions, Rights, and Duties:
Education and Upbringing:
The natural guardian is responsible for the minor’s education, moral, and cultural upbringing. This includes making decisions about the minor’s schooling and overall development.
Health and Medical Decisions:
The natural guardian has the authority to make decisions regarding the minor’s health and medical treatment. This encompasses choosing healthcare providers and consenting to medical procedures.
Management of Property:
The natural guardian is entrusted with the management and protection of the minor’s property. This involves handling financial matters on behalf of the minor.
Representing the Minor:
The natural guardian can represent the minor in legal matters and contractual agreements. However, certain significant transactions may require court approval.
Maintenance and Support:
Providing for the minor’s maintenance, support, and general well-being is a duty of the natural guardian. This includes ensuring that the minor has access to basic necessities.
Religious and Cultural Decisions:
The natural guardian can make decisions regarding the minor’s religious upbringing and participation in cultural and social activities.
Limitations:
While the natural guardian has broad powers, certain significant transactions, such as the sale or mortgage of the minor’s immovable property, may require court approval.
The powers of the natural guardian are subject to the welfare of the minor, and any action that goes against the minor’s best interest may be questioned in court.
The role of the natural guardian is pivotal in ensuring the well-being and proper upbringing of the minor. It is guided by the principle of acting in the best interest of the child.
2. Testamentary Guardian (Section 9):
Section 9 deals with testamentary guardianship. A “testamentary guardian” is appointed by the will of a minor’s father or mother, as mentioned in Section 9. A testamentary guardian is a guardian appointed by the will of a minor’s father or mother. The powers, functions, rights, and duties of a testamentary guardian are outlined under the Hindu Minority and Guardianship Act, 1956. Here’s an explanation:
Powers of a Testamentary Guardian (Section 9):
Decision-Making Authority:
A testamentary guardian has the authority to make decisions concerning the person and property of the minor. This includes matters related to the minor’s education, health, upbringing, and the management of the minor’s assets.
Acting in the Best Interest:
Similar to a natural guardian, a testamentary guardian is expected to act in the best interest of the minor.
Representing the Minor:
A testamentary guardian can represent the minor in legal proceedings and contractual matters, subject to the conditions specified in the will.
Functions, Rights, and Duties:
Educational and Moral Upbringing:
Like a natural guardian, a testamentary guardian is responsible for the educational and moral upbringing of the minor, making decisions about the minor’s schooling and overall development.
Healthcare Decisions:
A testamentary guardian has the authority to make decisions concerning the minor’s health and medical treatment. This includes choosing healthcare providers and consenting to medical procedures.
Management of Property:
The testamentary guardian is entrusted with the management and protection of the minor’s property, ensuring its proper use and maintenance.
Maintenance and Support:
Providing for the minor’s maintenance, support, and general well-being is a duty of the testamentary guardian. This involves ensuring that the minor has access to basic necessities.
Religious and Cultural Decisions:
The testamentary guardian can make decisions regarding the minor’s religious upbringing and participation in cultural and social activities, as specified in the will.
Limitations:
The powers and authority of a testamentary guardian are derived from the provisions of the will. Any limitations or conditions set forth in the will must be adhered to.
The testamentary guardian’s actions should align with the best interests of the minor, and any deviation may be subject to legal scrutiny.
Duration:
The testamentary guardianship continues until the minor reaches the age of majority unless terminated earlier by court order or if the will specifies a different duration.
Overall, a testamentary guardian plays a crucial role in ensuring the welfare and proper upbringing of the minor, acting in accordance with the wishes and conditions outlined in the parent’s will.
3. De Facto Guardian (Not explicitly defined):
The term “de facto guardian” is not explicitly defined in the Act, but it is commonly used to refer to a person who, in fact, assumes the role of a guardian even if not legally appointed. The term “de facto guardian” is not explicitly defined in the Hindu Minority and Guardianship Act, 1956. However, it is a concept used to refer to a person who, in practice, assumes the role and responsibilities of a guardian for a minor without having the legal authority conferred by the Act. The de facto guardian may arise in situations where someone takes on the practical caregiving duties and decisions for a minor, even if they do not have a legal status as a guardian.
key points about a de facto guardian:
Informal Caregiver:
A de facto guardian is an informal caregiver who may be a family member, relative, or any person taking on the responsibilities of caring for and making decisions on behalf of a minor.
Assumption of Guardian Duties:
This individual assumes the day-to-day responsibilities for the minor’s well-being, including providing care, making decisions about education, health, and other aspects of the minor’s life.
Lack of Legal Recognition:
Unlike natural guardians, testamentary guardians, or guardians appointed by the court, a de facto guardian does not have legal recognition as a guardian under the Hindu Minority and Guardianship Act.
Potential Legal Implications:
While a de facto guardian may play a significant role in the minor’s life, their decisions may not have legal standing. In certain situations, especially if legal issues arise, the absence of formal legal recognition may pose challenges.
Court Intervention:
If a de facto guardian seeks legal recognition or if there are disputes about the guardianship of a minor, it may be necessary to involve the court. The court has the authority to appoint a guardian based on the best interests of the minor.
It’s important to note that the legal landscape can vary, and the concept of de facto guardianship might be informally recognized in some situations, depending on local laws and customs. However, for matters requiring legal authority, formal appointment as a guardian under the applicable laws, such as those outlined in the Hindu Minority and Guardianship Act, is typically necessary.
4. Guardian of the Property (Section 8):
Section 8 deals with the powers of a natural guardian of the minor’s property. A “guardian of the property” is a person who has the responsibility for managing and protecting the property of a minor. Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically deals with the powers of a natural guardian regarding the minor’s property. Here is an explanation of Section 8:
Section 8: Powers of Natural Guardian of Minor’s Property
Management of Property (Section 8(1)):
The natural guardian (father or mother) has the power to deal with any movable or immovable property of a minor in the best interest of the minor.
This includes the power to manage, sell, mortgage, lease, or otherwise dispose of the minor’s property.
Restrictions on Immovable Property (Section 8(2)):
Regarding the immovable property of the minor, the natural guardian cannot:
Lease the property for a term exceeding five years.
Mortgage or charge the property.
Transfer the property by sale, gift, or exchange.
Court Approval for Certain Transactions (Section 8(3)):
If the natural guardian intends to perform any act specified in subsection (2) (such as leasing for more than five years, mortgage, or transfer), court approval is required.
The court will consider whether the proposed action is in the best interest of the minor.
Proceeds for Minor’s Benefit (Section 8(4)):
Any disposal of the minor’s property should be for the benefit of the minor, and the proceeds should be invested or otherwise used for the minor’s benefit.
Key Points:
The powers granted to the natural guardian under Section 8 are significant and are meant to facilitate responsible management of the minor’s property.
The section imposes certain restrictions, especially regarding immovable property, to protect the minor’s interests.
Court intervention is required for specific transactions related to immovable property that might have a long-term impact on the minor’s interests.
The primary consideration is the welfare of the minor, and any action taken by the natural guardian should align with this principle.
It’s important to note that the Act seeks to balance the powers of the natural guardian with the protection of the minor’s property. In cases where legal complexities or disputes arise, the court has the authority to provide oversight and ensure that the actions of the natural guardian are in the best interest of the minor.
5. A guardian appointed or declared by court:
The authority to appoint guardians for minors is vested in the courts under the Guardians and Wards Act, 1890. This legal framework empowers the District Court to make such appointments, taking into account a range of factors to ensure the welfare of the child. While the High Courts also possess inherent jurisdiction for appointing guardians, this authority is exercised with limitations.
The Hindu Minority and Guardianship Act, 1956, complements the Guardians and Wards Act. It serves as supplementary legislation, offering additional provisions and guidelines specifically applicable to the Hindu community. Under the Guardians and Wards Act, the District Court holds the jurisdiction to appoint a guardian when it deems it necessary for the child’s welfare. In making such appointments, the court considers various factors, including the age and sex of the child, the preferences of the parents, and the personal laws applicable to the child. The paramount consideration in these decisions is the welfare of the child.
The District Court is empowered to appoint or declare a guardian for both the person and the separate property of the minor, or for either aspect individually. This authority extends to the undivided interest of a coparcener within a joint Hindu family. A guardian appointed by the court is referred to as a certificated guardian.
In essence, the legal framework established by the Guardians and Wards Act ensures a thorough examination of factors impacting the child’s well-being, and the court’s decisions are guided by the overarching principle of safeguarding the welfare of the minor. The relationship between the Hindu Minority and Guardianship Act and the Guardians and Wards Act ensures a comprehensive legal regime for the appointment of guardians, with due consideration to the specific needs and circumstances of the Hindu community.
6. Guardianship of a minor widow (guardianship by affinity)
In ancient times, child marriage was prevalent, and when a minor girl married, the husband automatically became her guardian. This practice was based on the belief that the husband would provide protection and support to the minor bride. In the event of the husband’s death, measures were in place to ensure the well-being of the minor widow.
According to Narada, if a minor girl became a widow, it became the responsibility of the deceased husband’s relatives to safeguard and provide for her. In cases where there were no surviving relatives in the husband’s family, the duty fell upon the father of the widow to take on the role of guardian and ensure her protection and maintenance.
Before the implementation of the Hindu Minority and Guardianship Act, 1956, a form of guardianship known as “guardianship by affinity” was recognized. This type of guardianship, established by the Guardianship and Wards Act, 1850, specifically addressed the guardianship of a minor widow.
However, it’s noteworthy that the Hindu Minority and Guardianship Act, enacted in 1956, does not contain provisions specifically addressing the guardianship of a minor widow. The Act, which brought significant reforms to the laws governing Hindu minors, focuses on issues related to the guardianship of minors in general, and it might not explicitly address the unique circumstances of a minor widow.
In summary, historical practices and legal frameworks, including guardianship by affinity, sought to address the protection and well-being of minor widows within the Hindu community. While the Hindu Minority and Guardianship Act, 1956, brought about comprehensive changes, it may not explicitly cover the guardianship of a minor widow, leaving such matters to be handled based on traditional norms and broader legal principles.
Ward (Section 19):
The term “ward” is used in Section 19 to refer to a minor for whose person, property, or both there is a guardian. Section 19 of the Hindu Minority and Guardianship Act, 1956, defines the term “ward” and outlines certain aspects related to the minor for whom a guardian has been appointed. Here is an explanation of Section 19:
Section 19: Ward
Definition of Ward:
Section 19 defines a “ward” as a minor for whose person, property, or both there is a guardian appointed.
Guardian’s Duties Towards the Ward:
A guardian appointed for a minor, whether a natural guardian, testamentary guardian, or guardian appointed by the court, has certain duties towards the minor (ward).
Duty to Act in Ward’s Best Interest:
The guardian is obligated to act in the best interest of the minor. This includes making decisions related to the minor’s welfare, education, health, and overall well-being.
Responsibility for Ward’s Property: If the guardian is appointed for the minor’s property, the guardian has a responsibility to manage and protect the property for the benefit of the minor.
Legal Representation:
The guardian represents the ward legally, especially in matters that require legal action or contractual agreements.
Key Points:
The term “ward” refers to a minor who is under the guardianship of someone appointed as their guardian.
The guardian, whether a natural guardian, testamentary guardian, or guardian appointed by the court, assumes certain responsibilities and duties towards the minor.
The guardian is expected to act as a protector of the ward’s interests, ensuring their well-being and proper upbringing.
The guardian, especially if appointed for the minor’s property, is entrusted with managing and safeguarding the minor’s assets for their benefit.
The concept of a ward underscores the legal relationship between the minor and the guardian, emphasizing the duty of the guardian to act as a responsible and protective figure in the minor’s life.
In essence, Section 19 establishes the legal status of a minor as a ward and outlines the guardian’s duties and responsibilities towards the minor in both personal and property matters. The overarching principle is to act in the best interest of the minor.
Conclusion:
The laws pertaining to adoption play a vital role in preventing any unauthorized individuals from taking advantage of a minor’s property. By legally designating a guardian, the lawmakers have established a mechanism to secure the rights and possessions of the minor. This protection is not limited to minors alone; it also extends to unmarried girls and widows. The legal provisions surrounding guardianship acknowledge the vulnerability of these individuals and provide a framework to ensure their physical and financial security.
In essence, the concept of guardianship, particularly in the context of adoption, serves as a crucial shield for minors and others who may be in vulnerable situations. By establishing clear legal norms, lawmakers contribute to creating a protective environment that prevents the exploitation of individuals who may be unable to fully safeguard their rights and property.
The term “maintenance” remains undefined in the marriage laws of various religious communities. Nevertheless, eligibility to claim maintenance is rooted in the assumption that the claimant lacks adequate means to independently support themselves. Maintenance typically encompasses the covering of expenses essential for sustaining life. However, it transcends being a mere right for the claimant’s survival. This is evident in the provisions of the aforementioned acts, which guide the court by outlining factors to consider when determining the amount of maintenance. The court examines the possession of property by both the husband and wife, the husband’s earning capacity, the conduct of the parties, and other relevant circumstances in deciding the maintenance amount. The determination of maintenance takes into account the status of the parties and the standard of living they enjoyed during the marriage, emphasizing a comprehensive consideration of the parties’ circumstances.
MAINTENANCE OF WIFE
Savitabenben Bhatiya v. State of Gujarat, pertains to the interpretation of the term “wife” under Section 125 of the Code of Criminal Procedure (CrPC), which provides for the right of a woman to claim maintenance.
Key Points from Savitabenben Bhatiya v. State of Gujarat 2005 3 SCC 636
Definition of Wife:
The Supreme Court, in this case, clarified that for the purpose of claiming maintenance under Section 125 CrPC, a woman is considered a “wife” if she satisfies two conditions:
She is the legally wedded wife.
The marriage should be legal in the eyes of the law.
Legally Wedded Wife:
The term “legally wedded wife” implies a valid and legally recognized marriage.
Legality of the Marriage:
In addition to being legally wedded, the marriage itself should be legal in the eyes of the law. This emphasizes that only marriages recognized as valid under the applicable laws would entitle a woman to claim maintenance.
Section 125 CrPC:
Section 125 of the Code of Criminal Procedure is a legal provision that allows a magistrate to order maintenance to be paid by a husband to his wife, children, or parents. It is intended to provide financial support to those who are unable to maintain themselves.
The term “wife” under Section 125 CrPC has been interpreted in various judgments to ensure that the woman seeking maintenance is in a legally recognized marital relationship.
MAINTENANCE OF WIDOWED DAUGHTERS-IN-LAW
Alimony After Divorce:
Husband Paying Alimony to Wife:
In the context of divorce, it is typically the husband who may be ordered by the court to pay alimony (or maintenance) to his wife. Alimony is intended to support the financial needs of the divorced spouse, particularly when there is a significant economic disparity.
Maintenance Obligations Under Hindu Law:
Maintenance of Children:
Section 20 of the Hindu Adoption and Maintenance Act pertains to the maintenance of children. It emphasizes the obligation of a Hindu to maintain his natural as well as adopted sons.
Son’s Refusal to Live with Father:
The refusal of a son to live with his father does not disentitle him from claiming maintenance. However, the quantum of maintenance may be affected by such factors.
Maintenance Obligations for Daughters-in-law:
The obligation of a father-in-law to maintain his daughter-in-law may be enforceable if he has means to maintain her, especially from any coparcenary property in his possession.
Clarification on Legal Terms:
Alimony: Financial support that one spouse may be required to pay to the other after divorce.
Maintenance: Financial support provided for the living and well-being of a spouse or dependent children.
It’s essential to consult the specific provisions of the Hindu Adoption and Maintenance Act and relevant case law for a comprehensive understanding of maintenance obligations under Hindu law
MAINTENANCE OF DEPENDANTS:
Section 21:
Section 21 of the Hindu Adoption and Maintenance Act relates to the maintenance of dependents. It provides for the maintenance of certain relatives of a deceased Hindu, ensuring that they are not left without financial support.
Section 22:
Section 22 of the Hindu Adoption and Maintenance Act deals with the order of succession and the manner of distribution among the heirs in case there is no will.
MAINTENANCE OF FATHER OR MOTHER
Changing Family Structure:
It is accurate that family structures have evolved over time, and there is a trend towards more nuclear families. This shift can influence familial responsibilities and support systems.
Kerala High Court Decision in Areefa Beedi v. K.M Sahib:
Without the specific details of the case, it’s challenging to comment on the Kerala High Court’s decision. However, the interpretation that the terms “father” and “mother” include “adoptive father or mother” and “stepmother” is consistent with the inclusiveness often applied in legal contexts.
Section 3(20) of the General Clauses Act, 1897:
Section 3(20) of the General Clauses Act, 1897, defines the term “father” to include a “stepfather” but not an “adoptive father.” The term “mother” is not explicitly defined in this section.
MAINTENANCE TO THE MEMBER OF JOINT FAMILY
In Hindu law, joint family property is managed by the eldest member, known as the “Karta,” for the benefit of all family members.
Coparceners (Qualified and Unqualified):
Qualified Coparceners: These are male members who have a right by birth to the joint family property. Generally, sons, grandsons, and great-grandsons (up to the fourth degree) are qualified coparceners.
Unqualified Coparceners: Male members who are not eligible to be coparceners, typically due to being beyond the fourth degree of descent.
Wives, Widows, and Unmarried Daughters:
Wives: Wives of coparceners are entitled to maintenance.
Widows: Widows of coparceners have a right to maintenance from the joint family property.
Unmarried Daughters: Unmarried daughters, regardless of being coparceners or not, may have a right to maintenance.
Other Family Members:
This category may include male members who are not coparceners (beyond the fourth degree of descent) and other family members.
Wives and Illegitimate Children of the Father: Wives and illegitimate children of the father may also be entitled to maintenance under certain circumstances.
Maintenance rights often depend on various factors such as personal laws, specific family arrangements, and the nature of the family property. The Hindu Succession Act and other related laws govern such matters in Hindu joint families.
It’s important to consult with a legal professional for specific advice on individual cases, as family law can be complex, and outcomes may vary based on the particulars of each situation.
MAINTENANCE TO THE CHILDREN
Parental Obligation for Maintenance:
The obligation to maintain children is considered a personal obligation that arises from the parent-child relationship.
Historical Perspective:
Traditionally, the obligation to provide maintenance was primarily placed on the father, especially in the case of legitimate children.
Modern Hindu Law:
Modern Hindu law has extended the obligation to both parents, encompassing both legal and illegitimate children.
T Vimala and Others v. Ramakrishnan24 June 2016
The case of T.` Vimala and Others v. Ramakrishnan addressed the eligibility of children to claim maintenance.
The court held that children who have reached the age of majority and do not suffer from any disability (mental or physical) can claim maintenance from their fathers.
Educational Expenses:
The information suggests that children can also claim educational expenses under Section 125 of the Code of Criminal Procedure.
Supreme Court Decision:
A Supreme Court decision is mentioned where the court, in advancing the scheme of social justice in Section 125 of the Code of Criminal Procedure, maintained the maintenance granted to a daughter who had attained majority and did not suffer from any disability. This decision apparently incorporated Section 20 of the Hindu Adoption and Maintenance Act.
Conclusion:
It’s evident that the legal landscape has evolved to ensure that both parents bear the responsibility for the maintenance of their children, regardless of the children’s legitimacy. Additionally, the scope of maintenance includes educational expenses, emphasizing the importance of providing financial support for the overall well-being and development of children. Through judicial decisions and various measures, strides have been made in restoring the rights of women. However, the true impact of these efforts will only be realized when there is a shift in underlying attitudes. It is crucial for women to empower themselves educationally, economically, and socially to truly understand their rights and values. This empowerment is not only for their individual well-being but also essential for broader societal upliftment.
Recognizing the pivotal role of women as the first teachers and mentors of their children, it becomes evident that the peace and prosperity of any society are closely tied to the well-being of its women. Ensuring gender-neutral maintenance laws, applicable to both husbands and wives, is essential for the greater perspective of society. Unfortunately, some women still face challenges claiming their rightful maintenance. For the success of these legal provisions, proper implementation is indispensable. Adhering to the laws of the land and ensuring that they are applied equitably is crucial for creating a just and inclusive society. Ultimately, achieving gender equality and justice in matters of maintenance requires not just legal provisions but a societal transformation in attitudes and practices.
The Hindu Adoption and Maintenance Act, 1956, is a legal enactment in India that deals with the adoption of children by Hindus and their rights to maintenance. Here are some brief notes on the key aspects of the Hindu Adoption Act. Adoption, as delineated in the Manu Smriti, involves the transplantation of a child from one family to another. In this ancient context, the aspiration was not solely to acquire a son through adoption; rather, the ideal was for the adopted son to embody the characteristics of a natural-born son. The Hindu Adoption and Maintenance Act has significantly broadened the definition of ‘adoption’ by employing the term ‘child’ instead of ‘son.’ This expansion encompasses both girls and boys, emphasizing that the adopted child should reflect the qualities of a natural-born child.
According to the Act, a ‘Hindu’ is not limited to those adhering solely to Hinduism but also includes individuals from other sects within the Hindu spectrum, such as Buddhists, Jains, Sikhs, Virashaiva, Lingayat, and members of Arya Samaj. In fact, the Hindu Adoption and Maintenance Act applies to all individuals residing in India who do not identify with Christianity, Islam, Parsi, or Judaism.
Object of Adoption:
Adoption in classical Hindu law was characterized by twelve types of sons, five of which were related to adopted sons. In contemporary Hindu law, recognition is given to the aurasa, the legitimate son born to the father and his lawfully wedded wife. Among adopted sons, two forms were acknowledged: the dattaka and the kritrima. The prevalence of the dattaka form was widespread throughout India, while the kritrima form was predominant in Mithila and nearby regions. Similar to ancient laws, the Adoption and Maintenance Act acknowledges the adoption of both sons and daughters.
Under this act, any mentally sound Hindu male who has reached the age of 21, or any mentally sound Hindu female who has reached the age of 18, possesses the capacity to adopt a son or daughter.
Capacity to Adopt: Male and Female
Any Hindu male who is of sound mind and has attained the age of 21 years or any Hindu female who is of sound mind and has attained the age of 18 years has the capacity to take a son or daughter in adoption.
Section 7 of the Hindu Adoption and Maintenance Act outlines the conditions that a male Hindu must fulfill when seeking to adopt a child. These conditions include:
Sound Mind:
The person wishing to adopt must be of sound mind. The Act defines “unsoundness of mind” to encompass various conditions such as epilepsy, idiocy, and lunacy, making it clear that individuals affected by these conditions are considered to be of unsound mind.
Majority:
The adopting male Hindu must have attained the age of majority.
Capability to Have a Son or Daughter:
The individual must possess the physical ability to have a son or a daughter.
Consent of the Wife:
The consent of the wife is a crucial requirement for a valid adoption. The law emphasizes the necessity of spousal consent in the adoption process.
In situations where the male Hindu has more than one wife, the consent of all wives becomes essential for the adoption to be valid.
This legal framework aims to ensure that the decision to adopt is made with the full understanding and agreement of the family, particularly involving the spouse or spouses of the adopting individual. The consent requirement is designed to uphold the principles of family unity and mutual agreement in the adoption process. The citation “Bholooram v. Ramlal 1989 MP 198” is likely a reference to a legal case that further clarified the importance of obtaining the consent of all wives in cases where the adopting male Hindu has more than one spouse.
Section 8 of the Hindu Adoption and Maintenance Act outlines the conditions that a Hindu female must fulfill when she desires to adopt a child. Here are the key points specified in this section:
Age of Majority:
The woman must have attained the age of majority, which generally refers to 18 years of age.
Sound Mind:
Similar to the condition for males, the woman must be of sound mind.
Marital Status:
The woman must fall into one of the following categories: she must be a widow, divorced, or unmarried to be eligible for adoption.
Conversion or Renunciation:
If the woman has converted to another religion or has renounced the world, her consent is not required for adoption.
Living Husband:
Unlike men, the presence of a living husband is a disqualifying factor for a woman to adopt a child. If she has a husband who is alive, she does not have the capacity to adopt a child.
These conditions are designed to regulate and ensure that the adoption process is carried out under specific circumstances, taking into account the marital status, age, and mental well-being of the woman seeking to adopt. The prohibition on adoption when a woman has a living husband aligns with the legal framework’s intent to maintain clarity and avoid potential conflicts in familial relationships.
Conditions for a Valid Adoption:
Adoption must be made in compliance with the conditions laid down in the Act.
The person adopting must not have a living legitimate son or daughter of his/her own or a son or daughter of a deceased son who is not adopted by someone else.
Who May Adopt:
A male Hindu can adopt a son or daughter. If he is married, he must obtain the consent of his wife unless the wife has completely and finally renounced the world, or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
A female Hindu can adopt a son or daughter, even if she is unmarried or a widow. If she is married, the consent of her husband is necessary unless the husband has renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
Effect of Adoption:
The adopted child is deemed to be the child of his or her adoptive parents as if he or she were born to them in lawful wedlock.
Maintenance:
The Act also includes provisions regarding the maintenance of children and aged parents. The adopted child has the same rights of maintenance as a biological child.
Revocation of Adoption:
The Act provides for the revocation of adoption under certain circumstances, such as the adoptive parents and the adopted child mutually agreeing to cancel the adoption.
Conclusion:
Adopting a child is widely regarded as a benevolent act undertaken by individuals. Adoption typically involves the deliberate acceptance of a child into one’s family, treating them as if they were one’s own. In Hindu law, specific provisions regarding adoption exist. However, in personal laws such as Muslim law, Christian law, and Parsis law, separate regulations for adoption are lacking. Individuals from these communities usually resort to legal processes under the Guardians and Wards Act, 1890, for adoption.
Upon adoption, a child becomes a legitimate member of the adoptive parents’ family, endowed with all the rights associated with being their child. Consequently, the adoptive child is restricted from marrying either another adoptive child or the biological child of their adoptive parents. In contemporary adoption laws, the act of adopting a child is recognized as a virtuous deed, reflecting the humane values of society.
Despite the existence of the Guardians and Wards Act, 1890, it does not encompass specific provisions regarding the adoption of orphans or abandoned children. To address this gap, Section 58 of the Juvenile Justice (Care and Protection of Children) Act comes into play. This section extends the opportunity for any Indian citizen, irrespective of their religion, to adopt an orphaned, abandoned, or surrendered child. The interested individual can make an application to a Specialised Adoption Agency following the adoption regulations stipulated by the relevant authority. This provision helps facilitate the adoption process for those willing to provide a home and care for children in need.
Section 8 of the Hindu Succession Act specifies the order of distribution among Class I heirs. Sons, daughters, widows, mothers, sons of a predeceased son, daughters of a predeceased son, widow of a predeceased son, etc., are covered under Class I heirs.
Class I heirs under the Hindu Succession Act are individuals who are entitled to inherit the property of a deceased Hindu in the absence of a will. The order of succession among Class I heirs is defined in the Act. The list typically includes:
Sons and daughters: They have equal rights in the property of the deceased. The daughters have now been granted equal rights as sons, irrespective of whether they are married or unmarried.
Widow: The widow of the deceased is also considered a Class I heir.
Mother and father: If the deceased Hindu is a male, his mother and father are entitled to a share in the property.
Widow of a predeceased son: If a son has predeceased the deceased Hindu, leaving a widow, she is entitled to a share.
Son and daughter of a predeceased son: If a son has predeceased the deceased Hindu, leaving behind children, they are entitled to inherit the property.
Widow of a predeceased son of a predeceased son: The widow of a predeceased son of the deceased Hindu is also considered a Class I heir.
The order of succession is important, and each class is entitled to a specific share in the property. If there is no one in Class I, the inheritance moves to Class II heirs, and so on.
Class II Heirs:
Section 9 of the Act deals with the order of succession among Class II heirs. If there are no Class I heirs, the property passes on to Class II heirs, such as fathers, sons and daughters of the predeceased son, widow of the predeceased son, etc.
Class II heirs include:
Father’s heirs:
Father
Father’s surviving children (siblings of the deceased)
Mother’s heirs:
Mother
Mother’s surviving children (siblings of the deceased)
Grandfather’s heirs:
Paternal grandfather
Paternal grandfather’s surviving children (uncles/aunts of the deceased)
Grandmother’s heirs:
Paternal grandmother
Paternal grandmother’s surviving children (uncles/aunts of the deceased)
Brother’s heirs:
Full brothers
Half-brothers (sons of the same father but different mothers)
Sister’s heirs:
Full sisters
Half-sisters (daughters of the same father but different mothers)
If there are no Class I or Class II heirs, the inheritance proceeds to the agnates and cognates, which are more distant relatives defined by the Act.
The share of each Class II heir in the inherited property is determined based on the principles laid out in the Hindu Succession Act. The Act aims to ensure equitable distribution of the deceased’s property among the surviving family members.
Agnates and Cognates:
If there are no Class I or Class II heirs, the property passes to agnates and cognates. The specific sections dealing with agnates and cognates are not explicitly labeled as such in the Act. Sections such as Section 10 and subsequent sections provide rules for distribution among agnates and cognates in the absence of Class I and Class II heirs.
Agnates:
Agnates are relatives connected through the male line of descent. In other words, they are related through the father’s side of the family.
When there are no Class I or Class II heirs, the property passes to agnates.
The order of priority among agnates is determined based on their proximity to the deceased through the male line.
Cognates:
Cognates are relatives connected through blood or kinship but not through the male line. This includes relatives related through the mother and other female relations.
When there are no Class I, Class II, or agnate heirs, the property passes to cognates.
The order of priority among cognates is determined based on their proximity to the deceased through the female line.
Section 8 of the Hindu Succession Act provides for the ‘General Rules of Succession in the Case of Males’. This Section applies to the following kinds of properties:
Self acquired property of Hindu male. Female property to be reverted to husbands heirs.
Property succeeded from separated father is absolute property.
Property came to Hindu male under gift.
Property came to Hindu male from Collaterals is his absolute property A sole surviving Hindu gets share in partition will hold the property absolutely.
Property succeeded under section 8 will be absolute property of successor.
[17th June, 1956];An Act to amend and codify the law relating to intestate succession among Hindus.Be it enacted by Parliament in the Seventh Year of the Republic of India as follows
CHAPTER I
Preliminary1. Short title and extent .(1) This Act may be called The Hindu Succession Act, 1956 .(2) It extends to the whole of India
2. Application of Act.(1) This Act applies
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.Explanation .The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.(3) The expression Hindu in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
3. Definitions and interpretations.(1) In this Act, unless the context otherwise requires,
(a) agnateone person is said to be an agnate of another if the two are related by blood or adoption wholly through males;
(b) aliyasantana law means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary aliyasantana law with respect to the matters for which provision is made in this Act;
(c) cognateone person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males;
(d) the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:Provided that the rule is certain and not unreasonable or opposed to public policy; andProvided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
(e) full blood, half blood and uterine blood
(i) two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but by different wives;
(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husband.Explanation .In this clause ancestor includes the father and ancestress the mother;
(f) heir means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;
(g) intestatea person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;
(h) marumakkattayam law means the system of law applicable to persons
(a) who, if this Act had not been passed, would have been governed by the Madras Marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore Krishnanvaka Marumakkathayee Act; the Cochin Marumakkattayam Act; or the Cochin Nayar Act, with respect to the matters for which provision is made in this Act; or
(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras [as it existed immediately before the 1st November, 1956], and who, if this Act had not been passed, would have been governed with respect to the matters for which the provision is made in this Act by any system of inheritance in which descent is traced through the female line;but does not include the aliyasantana law;
(i) nambudri law means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Nambudri Act, 1932; the Cochin Nambudri Act, or the Travancore Malayala Brahmin Act with respect to the matters for which provision is made in this Act;
(j) related means related by legitimate kinship:Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another, and any word expressing relationship or denoting a relative shall be construed accordingly.(2) In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.
4. Overriding effect of Act.(1) Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
CHAPTER II
Intestate Succession
General5. Act not to apply to certain properties.This Act shall not apply to
(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954;
(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;
7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom.(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law.
Explanation .For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.(2) When a Hindu, to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the aliyasantana law.
Explanation .For the purposes of this sub-section, the interest of a Hindu in the property of a kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.(3) Notwithstanding anything contained in sub-section (1), when a sthanamdar dies after the commencement of this Act, the sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdars as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property.
Explanation .For the purposes of this sub-section, the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed.
8. General rules of succession in the case of males.The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. Order 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.
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 widow together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
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.
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 degrees of descent.Rule 3.Where neither heir is entitled to be preferred to the other under rule 1 or rule 2, they take simultaneously.
13. Computation of degrees.(1) For the purposes 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.
14. Property of a female Hindu to be her absolute property.(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.Explanation .In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property
.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 pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
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 included in the same entry shall take simultaneously.Rule 2.If any son or daughter of the intestate had pre-deceased 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) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death.
17. Special provisions respecting persons governed by marumakkattayam and aliyasantana laws.The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if
(i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:
(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates;
(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the husband;
(iii) clause (a) of sub-section (2) of section 15 had been omitted;
(iv) section 23 had been omitted.
General provisions relating to succession
18. Full blood preferred to half blood .Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.
19. Mode of succession of two or more heirs.If two or more heirs succeed together to the property of an intestate, they shall take the property,
(a) save as otherwise expressly provided in this Act, per capita and not per stripes; and
(b) as tenants-in-common and not as joint tenants.
20. Right of child in womb.A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.
21. Presumption in cases of simultaneous deaths.Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes, affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.
22. Preferential right to acquire property in certain cases.(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class i of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.Explanation .In this section, Court means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other Court which the State Government may, by notification in the Official Gazette, specify in this behalf.
23. Special provision respecting dwelling-houses.[Section 23 omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), section 4 (w.e.f.9-9-2005).]
24. Certain widows remarrying may not inherit as widows .[Section 24 omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), section 5 (w.e.f. 9-9-2005).]
25. Murderer disqualified.A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
26. Converts descendants disqualified.Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.
27. Succession when heir disqualified.If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.
28. Disease, defect, etc., not to disqualify.No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any ground whatsoever.
Escheat29. Failure of heirs .If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.
CHAPTER III
Testamentary Succession30. Testamentary succession .[*] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.Explanation .The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this [section].[* * * *].
CHAPTER IV
Repeals31. Repeals .[Repealed by the Repealing and Amending Act, 1960 (58 of 1960), Section 2 and Sch. I (w.e.f. 26-12-1960).] ]
A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons, and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder of unbroken male descent. Ancestral property is a species of coparcenary property.
As stated above, if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited, and the coparcenary consists of the father and the son. However, this does not mean that the coparcenary can consist only of the father and his sons. It is not only the sons but also the grandsons and great-grandsons who acquire an interest by birth in the coparcenary property. Coparcenary begins with a common male ancestor and his lineal descendants in the male line within four degrees, counting from and inclusive of such an ancestor. The Mitakshara concept of coparcenary is based on the notion of a son’s birthright in joint family property.
Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenary. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition unless his father, grandfather and great-grandfather had all predeceased the last holder. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.
In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case, a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and the father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this, the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of a son.
In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of a father, his wife, his two unmarried daughters and his adopted son. After the death of the father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income Tax Act. In this case, it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights that an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.
In Moro Vishvanath v. Ganesh Vithal, the plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however, are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of the authorities cited, it seems to me that it would be difficult to uphold the appellants’ contention that a partition could not, in any case, be demanded by descendants of a common ancestor, more than four degrees removed, of property originally descended from him.
Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E’s death, the coparcenary will consist of F, G,H,I,J and K. Suppose that G,H and J die one after another, and the only survivors of the joint family are F,I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A. The reason is that either of them can demand a partition of the family property Here the coparcenary consists of three Collaterals, namely, F,I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, the joint and undivided property, that he, that particular member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners.
The Supreme Court has summarized the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity.
The incidents of coparcenary are:
1 The lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
2 such descendants can at any time work out their rights by asking for partition;
3 till partition each member has got ownership extending over the entire property conjointly enjoyment of the properties is common;
4 As a result of such co-ownership the possession and enjoyment of the properties are common;
5 No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and
6 The interest of a deceased member passes on his death to the surviving coparceners.
Every coparcener and every other member of the joint family has a right to maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as the family remains joint. No female can be a coparcener under Mitakshara law. Even the wife, though she is entitled to maintenance.
Difference between Joint Hindu Family and Coparcener
1 In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists an ancestral property.
2 Joint Hindu families consist of male and female members of a family whereas in Coparcenary no female can be a coparcener.
3 Coparcenars are members of the Joint Hindu Family whereas all the members of the Joint Hindu family are not Coparcenars.
Dayabhaga School on Coparcenar and Joint Hindu Family:
According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father’s death. On death, they take much of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is the owner of that share. It does not fluctuate with birth and deaths in the family
Formation and Incident under the coparcenary property under Dayabhaga and Mitakshara Co parcenary –
The system of coparcenary Formation of Mitakshara coparcenary –
A single person cannot form a coparcenary. There should be at least two male members to constitute it. Like a Hindu joint family, the presence of a senior male member is a must to start a coparcenary. A minimum of two members are required to start and continue a coparcenary. Moreover, the relation of father and son is essential for starting a coparcenary. For example, a Hindu male obtains a share at a time of partition from his father and then gets married. Till the son is born, he is the sole male in this family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary comprising of him and his son, will come into existence. When this son gets married, and a son is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS.
S
SS
When a coparcenary is started, the senior most male member, with his son, that is, lineal male descendant, till four generations (inclusive of him) of the male line will form a coparcenary. If there is a lineal male descendant in the fifth generation, he will be a member of the joint family, but will not be a coparcener as he is removed from the senior most male member by more than four generations.
When all the coparceners die, leaving behind only one of them, the surviving coparcener is called the sole surviving coparcener. As a minimum of two male members are required to form a coparcenary, a sole surviving coparcener cannot form a coparcenary all by himself.
Why is coparcenary limited?
The coparcenary is limited to three generations of lineal male decadence of the last holder of the property owner. According to the tenets of Hinduism, only descendants up to three generations can offer spiritual ministrations to the common ancestor. Besides, only males can be coparceners because the females invariably leave the father’s house and assume domestic duties as they enter in the husband’s home.
Unmarried women, until 1956 only had the right of maintenance from the joint property, which included only the marriage expenses. The 1937 legislation allowed a widow to move into the shoes of her deceased husband and inherit his share. However, she does NOT become a coparcenary to this joint property.
The doctrine of reversions:
Hindu Succession Act, 1956: – For the first time, the widow got full rights in her husband’s property S. 14 of the Act 2005 Act -daughters, by birth, got coparcenary rights.
Women as coparcenaries:
Under Mitakshara coparcenaries, women cannot be coparceners. A wife, under Hindu law, has a right to maintenance out of her husband’s property. Yet she is not a coparcener with him. Even a widow succeeding to her deceased husband’s share in the joint family, under the Hindu Women’s (Right to Property) Act, 1937, is not a coparcenary. Unity of possession and community of interest – One of the basic features of a coparcenary is unity of possession and community of interest. All the coparceners jointly own the coparcenary property and till a partition takes place, and their shares are specifically demarcated, no one can claim ownership over any specific item of the coparcenary property.
The proceeds of an undivided family are enjoyed by its members as till a partition takes place, they hold everything jointly. Coparcenary property suggests ownership by one group collectively, and enjoyment and possession of it by not only this group exclusively, but by the joint family members who are outside this group.
The doctrine of survivorship –
The shares of the coparceners are not specific and are subject to change with the births and deaths of the coparceners, in the family. Under the traditional or the classical law, on the death of the coparcener in a joint family, his interest in the family property is immediately taken by those coparceners who survive him, and thus, he leaves nothing behind out of his interest in the coparcenary property for his female dependants. This phenomenon is called the doctrine of survivorship. On birth, he takes an interest, and enjoys it during his lifetime, but leaves nothing for his female dependants on his death. In the Dayabhaga system, one is entitled to succeed the property after the death of the male holder. Till then, he is just an heir.
Notional Partition –
The 1956 Act brought some changes in the coparcener system. Notional partition was taken into consideration to compute and demarcate the shares. i.e. Father and 2 sons 1/3rd each, though not specified as to what the specific exact division is.
Commencement of coparcenary –
One of the primary differences between Mitakshara and Dayabhaga Law is the commencement or the starting of the coparcenary itself. Under the Mitakshara law, the starting point of the coparcenary is the birth of the son in the family of a person, who after inheriting the property from his father, paternal grandfather, or paternal great-grandfather or obtaining property on partition holds it as a sole surviving coparcener. For example, in a coparcenary consisting of a father F, and his two sons A and B, A demands a partition, takes his share and then gets married, when a son is born to him, he will form a coparcenary with his son. Thus, the birth of a son is the starting point or reviving point of the Mitakshara coparcenary.
In complete contrast to it, under the Dayabhaga Law, the father so long as he is alive, holds the property as a sole or exclusive owner of it. On his death, if he is survived by two or more sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point of the formation of coparcenary, under the Dayabhaga Law
Notional Partition –
It was generally felt that radical reform was required in Mitakshara Law of the coparcenary and that where one of the coparceners died, it was necessary that in respect of his undivided interest in the coparcenary property, there should be equal distribution of that share between his male and female heirs, and particularly between his son and daughter. The Hindu Women’s (Right to Property) Act, of 1937 conferred new rights on the widows of coparceners.
The initial part of section 6 of the 1956 Act does not interfere with the special rights of those who are members of Mitakshara coparcenary, except to the extent that it seems to ensure the female heirs and daughter’s son, specified in Class I of the schedule, a share in the interest of a coparcener in the event of his death by introducing the concept of a notional partition immediately before his death and carving out his share in the coparcenary property, as of that date. The section proceeds first by making provision for the retention of the right of survivorship and then engrafts on that rule the important qualification enacted by the provision. The proviso operates only where the deceased has left surviving him a daughter’s son, or any female heir specified in Class I of the schedule.
Illustrations –
A and his son B are members of a Mitakshara coparcenary. A dies intestate. Surviving him is his only son B. His undivided interest in the coparcenary property will devolve upon B by survivorship as clearly envisaged in the initial part of the section and not by succession.
A and his sons B and C are members of a Mitakshara coparcenary. A died intestate in 1958. Surviving him are his widow A1 and his two sons. B and C continue to be members of the joint family. A’s undivided interest in the coparcenary property will not devolve by survivorship upon B and C but will devolve by succession upon A1, B, and C.
The amending act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenery property as the sons have. Simultaneously, section 23 of the Act, disentitles the female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family, until a male heir chooses to divide their respective shares therein, has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed. This great step and is the product of 174th report of the Law Commission of India. If P dies, leaving behind a mother M, and two sons A and B, and three daughters, E, F, G, how would the property devolve? – 1/6th each. If P dies, leaving behind a mother M, and a son S, and two daughters B and D, how would the property devolve – 1/4th each? P dies, leaving behind a widow W, and his mother M, and his two sons, A and B. – 1/4th each. P dies, leaving behind his mother M, and his two widows A and B, and a son S.- 1/3rd, 1/6th, 1/6th, and 1/3rd resp. P dies, leaving behind a son A and a daughter B of a pre-deceased SS, and two sons C, E and a daughter F of a predeceased daughter D. Triple succession. P dies, leaving behind his two widows A and B, his mother M, two widows C and D and a son S of a pre-deceased son and two daughters E and F and a son G of a predeceased daughter. Under the old Hindu law, conversion by a Hindu to another religion was a disqualification, which was removed by the Caste Disabilities Removal Act, of1850.
Under the Act, conversion does not disqualify an heir from inheriting the property of the intestate, but descendants of a convert are disqualified from inheriting the intestate. Thus, the children of the convert and descendants of the children are disqualified, but if at the time of death of the intestate, any one of them is a Hindu, he is not disqualified.
Succession to the property of a convert is regulated by the personal law applicable to the convert after his conversion. The provision of S. 26 may be explained by some illustrations:
An intestate dies leaving behind two sons A and B, and a grandson SS, from a pre-deceased son, who had converted to Islam before SS was born to him. SS is disqualified, and the entire property is inherited by A and B.
P had three sons A, B, and C. C converted to Christianity on 1.1.1979. P died on 1.1.1982. C will get the property (CDRA) P has three sons, A, B and C. A son R was born to C on 1.1.1976. On 1.1.1978, C converted to Islam. On 1.1.1979, after his conversion, S, a daughter was born to him. C died on 1.1.1980. P dies on 1.3.1982.
Agnates –
A person is said to be an agnate of another if the two are related by blood, or adoption only through males. S. 8 of the Hindu Succession Act, 1956 does not give the list of agnates, or state the order in which they are entitled to succeed, but S. 12 of the HSA lays down certain rules of preference, which are determinative of the order of succession among agnates, and S. 13 lays down certain rules for determining that order by computation of degrees, both of ascent and descent. In accordance with the rules laid down in S. 12, agnates and cognates may conveniently be divided into the following subcategories or grades:
Agnates: Agnates who are descendants –
They are related to the intestate by no degree of ascent. Such, for instance, are the son’s son’s son’s son, and the son’s son’s son’s daughter.
Agnates who are ascendants – They are related to the intestate only by degrees of ascent and no degrees of descent. Such, for instance, are the father’s father’s father and the father’s father’s mother.
Agnates who are collaterals – They are related to the intestate by degrees, both of ascent and descent, such, for instance, are the father’s brother’s son, and the father’s brother’s daughter.
Cognates –
A person is said to be a cognate of another if the two are related by blood or adoption, but not wholly through males. They may be related through one or more females. Thus, a mother’s brother’s son and brother’s daughter’s daughter are cognates. The three categories of cognates are:
Cognates who are descendants –
Such, for instance, are the son’s daughter’s son’s son and daughter’s son’s son’s son.
2. Cognates who are ascendants –
Such for instance are the father’s mother’s father and the mother’s father’s father.
3. Cognates who are collaterals –
They are related to the intestate by degrees, both of ascent and descent. Such, for instance, are the Father’s sister’s son and the Mother’s brother’s son.
Computation of degrees –
Application of the rules of preference governing order of succession laid down in S. 12 involves computation of the degrees of relationship between the intestate and his agnates or cognates. That relationship is to be reckoned from the intestate to the heir in terms of degrees with the propositus (intestate) as the starting point. There is no rule of discrimination or preference between male and female heirs, and both, male and female relatives by blood or adoption are treated equally. The computation of degrees of ascent or descent is to be so made that it is inclusive of the intestate. The relationship must be reckoned from the propositus to the heir in terms of degrees with the propositus as the terminus a quo (S. 13(ii). The other rule is that every generation constitutes a degree, either ascending or descending (S. 13(iii).
Rules of preference –
The order of succession among agnates or cognates is governed by three rules of preference, laid down in S. 12, which are common to both the categories of heirs. In order to determine which of the two or more claimants in the category of agnates or of cognates, recourse must be taken to rule 1 and 2, laid down in S. 12, and initially to rule 1. When one competing heir is not entitled to be preferred to the other under Rule 1 or 2, they take simultaneously, under Rule 3.
Rule 1 –
This rule is pivotal and enacts that, of two heirs, the one who has fewer or no degrees of ascent is preferred. Illustration – If the two competing heirs are two collateral agnates, that is, brother’s son’s daughter, (father’s son’s son’s daughter), and b) paternal uncle’s son (father’s father’s son’s son). The former, who has only 2 degrees of ascent, is to be preferred to the latter who has three degrees of ascent.
Rule 2 –
This rule enacts that where the number of degrees of ascent is the same, the one who has fewer or no degrees of descent is preferred. Illustration – The competing heirs are two collateral agnates, a) brother’s son’s daughter (father’s son’s son’s daughter), and b) brother’s son’s son’s daughter (father’s son’s son’s son’s daughter). Again, the former is to be preferred, because, in spite of having two degrees of ascent, each, the former has only three degrees of descent compared to the latter’s.
Rule 3 –
This rule enacts that where neither heir is entitled to be preferred, under rule 1 or two, they take simultaneously.
Illustration 1 – The competing heirs are two agnates, a) son’s son’s son’s son, and b) son’s son’s son’s daughter. There are no degrees of ascent, and the number of degrees of descent is the same in the case of both, and both stand in the same degree of descent. Therefore, neither heir is entitled to be preferred.
Illustration 2 – The competing heirs are two cognates, a) daughter’s son’s son, and b) son’s daughter’s son. The position is similar, to that of illustration 1 and they take simultaneously.
