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Hindu Law

Stridhan

Meaning

The term Stridhan literally translates into women’s property. ‘Stri’ means women and ‘Dhan’ means property. It consists of movable and immovable property. The historical background of Stridhan is as old as the Hindu law.As per Hindu Law, Streedhan is whatever a women receives during her life time. Streedhan includes all movable, immovable property gifts etc received by women prior to marriage, at the time of marriage, during child birth and during her widowhood

Characteristic Features of Woman/s Estate:

she is an owner of this property in the same way any other individual can be the owner of his or her protperty, s two conditions are specified .

  1. she cannot ordinarily alienate the corpus, and
  2. on her death, it devolves upon the next heir of the last full owner

Her powers of disposal over the property are limited and it is these limitations which go to define the nature of her property/estate. these limitations are not imposed for the benefit of the revesioner. even when there are no reversion, the estate continues to be a limited estate.

The kinds of Stridhan in Schools of Hindu Law:

Dayabhaga

According to Dayabhaga, there are two kinds of Stridhan:

  1. Yautaka: Yautaka means all gifts given to the bride during the marriage ceremonies while she and her husband are sitting together.
  2. Ayautaka: All the gifts other than Yautaka fall in this category. It includes the gifts and bequests made by the father and other relations before the marriage. Also, the gifts and bequests made to a woman by relations other than the father after the marriage.

Mitakshara

According to Mitakshara, the property is divided into two categories on the basis of the women’s power of disposal over it.

  1. Saudayika Stridhan: The property obtained by a married or unmarried girl, from the husband, or parents, at the husband’s or father’s place, is called Saudayika. The property under Saudayika is at the woman’s disposal and her husband does not have any control over it. Thus, she may spend, sell or give it away at her own pleasure.
  2. Non-Sauyadika Stridhan: The remaining kinds of Stridhan fall under this category. A woman does not have the power to dispose of this Stridhan property without the husband’s consent.

Factors of Stridhan

The following factors determine whether a property is Stridhan or not:

  1. The status of the woman at the time of acquisition of property, i.e. whether she was unmarried, married, or a widow;
  2. The source from which the property was acquired; and
  3. The school of Hindu law to which the woman belonged.

Properties Under Stridhan

1. Gift and bequest from relations:

  1. This is the head of Stridhan.
  2. The gifts received during maidenhood, coverture or widowhood, by her parents and their relations, or by the husband or his relations.
  3. Such gifts are offered by will or inter-vivos.
  4. However, The School of Dayabhaga rejects the husband’s gift of immovable property as Stridhan.

2. Gifts and bequest from strangers:

  1. The gifts are given by the strangers (with inter vivos or the will) other than relations constitutes Stridhan.
  2. The gift received from strangers was under the control of her husband during her husband’s lifetime.
  3. On the death of her husband, they became Stridhan.

3. Property acquired by self-exertion and mechanical arts: By her own self-exertion, and acquired property through labor jobs, employment, singing, dancing, etc., or by any other mechanical art is Stridhan.

4. Property purchased with Stridhan: Any property purchased with Stridhan, or with the savings of Stridhan as well as accumulations and revenue from Stridhan, constitutes Stridhan.

5. Property acquired by compromised:

  1. Under Hindu law, if a woman who obtains property under a compromise will take it as a limited state.
  2. If she gives up her rights to Stridhan of property received under a compromise it would still be Stridhan.
  3. If a woman obtains a property under a family agreement, whether that property is Stridhan or not will depend upon the terms of the arrangement.

6. Property obtained by adverse possession: any property that a woman acquires by adverse possession at any phase of her life is Stridhan.

7. Property obtained in lieu of maintenance:

  1. The payments made to a woman in a lump sum or periodically for her maintenance, including arrears of such maintenance is Stridhan.
  2. all movable and immovable properties transferred to her are still Stridhan by means of an absolute gift in lieu of maintenance.

8. Property obtained by inheritance: A Hindu female can inherit property from a male or a female, she may inherit it from her parent’s side or her husband’s side.

9. Share obtained on a partition:

  1. Section 14 of the Hindu Succession Act,1956, states the share obtained on a partition is considered as Stridhan.
  2. Any property received on the partition after the commencement of the Act is her absolute property.
  3. And, any property she gets on the partition before the commencement of the Act will also be her property, However, only if she possesses it at the time of commencement of the Act.

Section 14 has abolished women’s estate by converting it into stridhan and woman’s estate and has converted existing woman’s estates into full estates. It has introduced fundamental changes in the traditional Hindu law of property of woman. The objects of this section are:
• To remove all disability of Hindu woman to acquire and deal with property, that is, all the property that she acquires will be her absolute property.
• To convert existing woman’s estate into full estate.

RIGHTS OF WOMEN OVER HER STRIDHAN OR ESTATE

The bride enjoys absolute, complete power and ownership over her entire Streedhan earned during her marriage encompassing both movable and immovable property. She also has the power to dispose of, alienate or give away as per her own discretion during her entire life and thereafter. Her husband and the other family members including the Karta have no control over the Streedhan. In the case of Ashok Laxman Kale vs Ujwala Ashok Kale[6], the court noted that it is usually practical and advisable that any girl who is particularly educated today must maintain a list of her Streedhan and should also become capable to look after her own Streedhan in terms of safety and security such as opening a bank locker in their own names for the purpose of storing jewellery and money instruments, property, etc., or keeping it under their lock and key.

Some of the precautionary measures to keep a track on the Stridhan could include:

  • Maintaining a note of all the gifts and assets received from family, husband’s family, friends, and other relatives before, during and after the marriage.
  • Maintaining proof of all the gifts and assets such as digital evidence in the form of wedding pictures, keeping the bills and envelopes of the gifts etc.
  • Maintaining a separate salary account in her name for keeping the salary.
  • Maintaining a record of the bank accounts and investments after investing her Stridhan.
  •  Ensuring the status and title of the properties granted or acquired from her Stridhan must be on her behalf and must be transparent. The investment made from the assets of the stridhan must be in her name.

Power of women over Stridhan

1. Power of Management: she alone is entitled to the possession of the estate and its entire income, and if she saves the income, the savings will also be her Stridhan. The Karta is merely a co-owner of the joint family, there being other coparceners, but she is the sole owner. She alone is entitled to the possession of the entire estate and its income. Her power of spending the income is absolute. She need not save and if she saves, it will be her stridhan. She alone can sue on behalf of the estate and she alone can be sued in respect of it.Sitaji v. Bijendra AIR 1964 SC 601. Any alienation made by her proper or improper is valid and binding so long as she lives. She continues to be its owner until the forfeiture of estate by her re-marriage, adoption, death or surrende

2. Power of Alienation:

She has limited powers of alienation i.e. she can alienate property only in exceptional cases. She can alienate the property for:

  1. A legal necessity, i.e., for her own need and for the need of the dependents of the last full owner,
  2. for the benefit of the estate, and
  3. for the discharge of indispensable religious duties such as the marriage of daughters, funeral rites of her husband, etc.

Under the first two heads her powers are more or less the same as that of the Karta. Restrictions on her powers of alienation are an incident of the estate and not for the benefit of the reversioners.Jaisri v. Rajdewan (1962) SCJ 578. As to the power of alienation under the third head, a distinction is made between the indispensable duties for which the entire property could be alienated, and the pious and charitable purposes for which only small portion of property can be alienated. She can make alienation for religious acts, which are not essential or obligatory but are still pious observances which conduce to the bliss of
her deceased husbands soul. Smt. Kamala Devi v. Mukund Ram AIR 1955 SC 481

3. Surrender:

She is empowered to renounce the estate in favor of the closest reversioner. It means that she can voluntarily accelerate the estate of the reversioner by giving away her own estate.

Three conditions must be satisfied:

  1. The first one is that it must be of the entire estate, though she may retain a small portion of her maintenance.
  2. The second condition is that the estate must be in favor of the nearest reversioner either male or female.
  3. The third condition is that the surrender must be bonafide and not a device of dividing the estate with the reversioners.

For a valid surrender, the first condition is that it must be of the entire estate Natvarlal Punjabhai v. Dahubhai Manubhai AIR 1954 SC 61, though she may retain a small portion of her maintenance Chinnamarappa Goundar v. Narayammal AIR 1906 Mad 169. The second condition is that it must be in favour of the nearest reversioner or reversioners, in case there are more than one of the same category. Surrender can be made in favour of female reversioners also. The third condition is that the
surrender must be bonafide and not a device of dividing the estate with the reversioners.Bhagwant Koer v. Dhanukdhari Prasad Singh AIR 1919 PC 75

4. Reversioners:

  1. If the female owner dies, the estate goes back to the heir or the heirs of the last owner as if the latter died when the limited estate ceased.
  2. Such heirs may be male or female are known as reversioners.
  3. The property of the female is passed on to the reversioners when her estate comes to an end on her death, but it can also come to an end even during her lifetime if she decides to surrender.

5. Right of Reversioners:

  1. The reversioners have a right to prevent the female owner from making wasteful use of the property or improper alienation.
  2. They can sue the woman holder for an injunction to restrain waste.
  3. They are in the capacity of a representative, they can sue for a declaration that alienation made by the widow is null and void and hence will not be binding on them after her death.
  4. However, by such a declaration the property does not go back to the widow nor does it go to the reversioners.

Application under allied laws :


A woman’s right to her Streedhan is protected under law. S. 14 of the Hindu Succession Act, 1956 R/w S. 27 of the Hindu Marriage Act, 1955 , “even if it is placed in the custody of her husband or her in-laws, they would be deemed to be trustees and bound to return the same if and when demanded by her”.
Sec. 12 of the Domestic Violence Act, 2005 provides for women right to her Streedhan in cases where she is a victim of domestic violence. The provisions of this law can be easily invoked for recovery of Streedhan.The magistrate may direct the respondent to return to the possession of the aggrieved person her Streedhan or any other property or valuable security to which she is entitled.
Again u/s 18(ii) of the Domestic Violence Act the law says that a woman is entitled to receive the possession of the Streedhan, jewellery, clothes and other necessary items. The term ‘economic abuse’ has also been provided under the Act.

Case laws:

  • In Sukhram v. Gauri Shankar [1968] 1 SCR 476 it was held that the widow was the full owner of joint Hindu family property as she became entitled to the interest her husband had under the Hindu Women’s Right to Property Act. The Court held that although a male was subject to restrictions on his interest in common Hindu family property, the widow, by virtue of the Act, was not subject to such restrictions.
  • In the case of Bai Vijia v. Thakorbhai Chelabhai, AIR 1979 SC 993 the court observed that there must be two conditions for the applicability of the sub-section of section 14, namely,

(I ) The female Hindu concerned must be in possession of the property;

(ii) Such property must be owned by her as a limited owner

In the case of Ramappa v. Chandangouda 1960 Mys 260, one of the widows of Hanamgouda sold the property of her husband to the first defendant. She was remarried in 1948. The plaintiff’s reversioner then filed a claim for restitution of ownership. It was rejected by the Court of Justice, but it was decreed by the first appellate court, which noted a legal necessity.

Conclusion:

The Hindu Succession Act’s enactment represents an important step in enhancing Hindu women’s property rights. This Act grants women several rights that they have been denied for many years. This is also a significant development for the defence of women’s rights because it now recognises a woman’s right to hold property and assets on her own. Historically, a woman’s ability to dispose of her Saudayika property was always constrained, while her husband retained control over the disposition of any non-Saudayika property. However, all of those limitations set by the old rules have been eliminated by The Hindu Succession Act, 1956.

karta under Hindu Law

The position of Karta in a Hindu Undivided Family (HUF) is equivalent to that of a manager who is in charge of handling the property related affairs of the family. This was established in Suraj Bunsi Koer V. Sheo Prasad (1880) ILR 5 Cal 148. A Karta is thus the overall head of the family who is deputized with several systems to manage the family and its corresponding wealth. The position of Karta is unique in a joint Hindu family. Karta takes care of the whole family and its property and the decision given by the Karta is bound to be followed by the members of Hindu Joint Family. No one is equal to Karta in a Hindu Joint Family. The powers and position of a Karta are wider than any of the members of the Hindu Joint Family. No one can be compared with Karta among the other members of the joint family.

Who can be a Karta:-

It is a presumption that ordinarily senior most male member is the Karta and Karta is always a member in the family no outsider or stranger can become a Karta. The senior most male member so long as he is alive may be, aged, infirm or ailing continues as Karta. By his death Kartaship will pass on to next senior most male member. In the presence of senior most male member a junior cannot act as Karta but if all coparcener agree, a junior also can become a Karta. Karta owes his position by consent or agreement of all coparceners

Characteristics of Karta

The characteristics of a Karta are:

  • Karta’s position is unique (sui generis). His position is independent and no one can be compared with him among the family members.
  • He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner or agent.
  • He controls all the affairs of the family and has wide powers.
  • He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or conversion, he is held responsible.
  • He is not bound to invest, save or economise. He has the power to use the resources as he likes, unless he is not responsible for the above mentioned charges.
  • He is not bound to divide the income generated from the joint property equally among the family members. He can discriminate one with another and is not bound to be impartial. The only thing is he should pay everyone so that they can avail some basic necessities like food, clothing, education, shelter etc.


FEMALES AS KARTA


The concept of Karta was always seen as a male dominated concept since the ancient society was male dominated. This led to only males succeeding as Karta in HUF families and this trend continued in the post independence era as well. The courts in cases such as Commissioner Of Income Tax V. Govindram Sugar Mills 1966 AIR 244, held that as women were not coparceners and this debarred them for being Karta as well as was further held in Sahdeo Singh V. Ramchabila Singh AIR 1978 Pat 258. This was the held position in the pre 2005 era, however with the amendment to section 6 of the Hindu Succession Act coming in the year 2005, women have been allowed as coparcener that also qualifies them to become Karta of the family, provided they are the senior most members.

Mother as Karta

It can be seen that a mother can act as karta, only in cases the succeeding karta is minor and the natural guardian of the child is mother. In general sense, it is seen that a mother or any other female cannot become the karta of Hindu Undivided Family Income Tax v. seth Govind Ram AIR 1966 SC 2.In Sushila Devi Rampura v. Income tax Officer AIR 1959 Cal, it was held that in case the next karta is minor and their natural guardian is mother, then in such a case a female can represent as a Karta of Hindu Undivided Family.

Therefore, it can be seen that the law framed is quite rigid in nature. Though a female cannot be given the position of karta but the other laws related to coparcenary in order to inherit the property are way lot different as have changed with the changing time

MINORS AS KARTA


If any Hindu Undivided family is left in a position where there is only a minor left to become the Karta, he can do so under section 21 of the Guardians and Wards Act 1897, provided the minor has a guardian who is an adult, who represents and guides him in decision making, but this only works if no other members capable of being Karta are alive.


MULTIPLE KARTA


A HUF cannot have multiple that is more than one Karta however there can be provisions made to ensure that there are multiple managing members who are coparceners and who have been collectively conferred that is the right is given after due deliberation amongst all coparceners ,the right to take necessary decisions to protect the interests of the joint family and thus manage the property but ultimately they are co-managers but not joint Karta, this was established in Nemi Chand V. Hira Chand (1) HLR 250 (Raj).

Legal Position of Karta

The karta basically represents or acts as guardian and more of it as a manager to the members of the joint family. He can create a partnership with the other family members where he invests his capital and others invest their labour and skill Chandrakant v. C.T.R AIR 1992 SC 66, but he does not create a principal-agent relationship with the family members which states that his position is ‘sui generis’.

The karta though has a wide management power but this sovereignty and fiduciary relationship does not create him to be trustee. This means that no person can ask him about what he spent unless there occur the charges of misappropriation. If any person lies on the charges of misappropriation on karta then, the burden of proof lies on that person. He has to then prove that the act of karta was malafide in nature.

The karta can also file the law suits in order to safeguard the interest of family members.Sheoshankar v. Jaddokunwar AIR 1914 (41) IA 216. Besides this, he can also represent the family in any legal proceeding even if he is not named, Amrit Sagar v. Sudesh Behai Lal AIR 1970 SC 5.He can even make a compromise provided to be in good faith for the benefit of the family, including minors. Pitam Singh v. Ujgar Singh (1878) 1 AII 651. Thus, it can be seen that the powers and position of the karta is vast and more than just a manager

REMUNERATION TO A KARTA FOR HIS/HER SERVICES


A Karta is a designated role which usually allows a person to handle a family’s wealth and also correspondingly also have his own share among it. However mostly that does not mean that a Karta is given salary/remuneration. There are certain exceptions available to this rule available in certain situations. In case the Karta was involved in some other occupation and left it to pursue this responsibility and this led him to a loss of opportunity to earn greater monetary benefits, he can be allotted some salary. This is seen as a goodwill gesture to appreciate the importance of Karta’s role in the HUF
Such remuneration is not considered as expenditure and thus cannot be deducted under the Income Tax Act; this was upheld in two cases

  1. Jugal Kishore Baldeo Sahai V Commissioner of Income Tax (1967) 63 ITR 238,242
  2. Ashok Kumar V. Commissioner of Income Tax Amritsar, IT Reference 17/1982, decided on 19th July 2000 (Jammu and Kashmir).

There is however certain exceptions allowed to this rule of seniority which allows junior members to become Karta

i. Non availability of the Karta to take important decisions.
ii. Relinquishment of rights by Karta through express or implied actions i.e. the Karta willingly gives away his rights.
iii. Unforeseen, distressed and exceptional situations have arisen and that have forced the Karta to be absent.
iv. The senior most Father in a family is absent, as usually he is the Karta.

v. The father’s current status or place of residence is not known and thus he cannot be reached or contacted via any means.
vi. Karta is in a remote place because of important reasons and cannot be back within a reasonable time period.

Powers of Karta

The power of Karta is vast as it can be seen through the previous descriptions as well. Thereby, here we will discuss the powers of karta in brief along with some case laws-

1.    Power of Management

The karta, being the head of the family has power to manage and run the Hindu Undivided Family. In Bhaskaran v. Bhaskaran, it was held that the power of karta with respect to management is absolute. The powers of karta are inherent and so no interference can be done even if he shows biasness or favouritism towards a family member. The acts done by him cannot be questioned until and unless found to be illegal or immoral. The most important of all is to gain the faith and confidence of the family members in order to maintain all the acts properly.

2.    Power over Income or Revenue and Expenditure Authority

Since, the members live as a part of joint family and it is the responsibility of karta to manage everything thus, any member who earns from outside the family business is liable to pay his income to the karta. Till the time, family lives together as a joint family, no person can individually ask for his share in the income. Therefore, due to this power of karta he is liable to all the funds, revenues and expenditures of the members. This automatically grants him the power to manage accounts and have a control over them.

3.    Power of representation

The karta has right to represent in all legal, religious or social matters in the family. In general, all the acts of the family are represented by the karta be, it for the contracts, business purposes or any other purpose and does not has a corporate existence. Even if a case is filed against the whole family or business suit, then the karta can represent himself instead of other members. The act of karta is bound among all the members of the family, including the minors. A Karta is supposed to be the HUF’s representative on all legal, social, religious and revenue associated situations and litigations that involve immovable property of the HUF. A suit against Karta also binds all members, coparceners and minors as seen in the case of Rajayya V. Singa Reddy AIR 1956 Hyd 200. If a Karta does not fight a case with sincerity or loses it because he willingly wanted so such a decree cannot be reversed on such grounds raised by other members of the HUF- Krishnamurthi V.Chidambaram (1946) ILR Mad 670

4.    Power to enter into Compromise

Karta can enter into any compromise for the issues related to the joint family. The compromise made may be in regard to family debts and other related transactions. Such compromise must not be malafide else can be challenged during partition. A karta can even compromise a suit pending in court for which the members of the family shall be bound. However, a minor in such a case can take the advantage to file a suit in the court, under Order 32, Rule 7 of Civil Procedure Code.

5.    Power to enter into Contract

The karta explicitly has power to enter into the contract on behalf of the family members for which all of them shall be equally bound. However, if the karta enters into a family contract then it is specifically enforceable against the other members as well.

6.    Power to enter into Contract-debts

Since all the actions are binding over other family members, similarly any debt taken by karta is binding upon all the members of the family. They cannot escape the liability to pay off the debt even by the act of partition. The Karta can acknowledge debts accrued by the HUF and pay interest on the, as seen in Ananda Charan V. Jhatee Charan AIR 1935 Cal 648 It is to be noted that karta cannot treat the estate of minor as a security for some loan, not even to start a business of ancestral nature. The debts are binding on the family only if following conditions are fulfilled-

– Debt is incurred for some business purpose

– Debt is taken for some family purpose such as legal necessity, benefit of estate and other purposes

7.    Power to refer arbitration

The karta has right to refer to arbitration for the interest of the family, including minors who are bound by the award provided over it.Karta can arbitrate that is settle disputes amongst the members of the family as seen in the case of Jagannath V. Munnu Lal (1894) ILR 16 All 231. He cannot enter into a compromise for personal gains; this was established in Bhola Prasad V. Ram Kumar (1932) ILR 11 Pat 399. If such compromise is for family’s welfare, coparceners, minors and other members cannot question it- Nawal Kishore V. Sardar Singh AIR 1935 Lah 667.

8.    Power of alienation

The karta has power to alienate the property provide it must be done by-

  • Consent of all co-parceners
  • For legal reason
  • For benefit of reasons

If the property is alienated for the benefit of estate then the consent of other coparceners is not necessary. The karta can even mortgage the property for the benefit of the members. Provided that such as act must be done as a prudent owner G. Shiva Kumari v. Indian Overseas Bank. This sale of mortgage can even be used to pay debts that were taken for the personal gains. During such sale, no third party has right to restrain the karta by injunctionSunil Kumar v. Ram Prasad The karta is liable to show that no malafide or immoral behaviour has been shown by him. However, a karta cannot be prevented to alienate the common property.

DUTIES & LIABILITIES

Deliver details of accounts at time of partition- A Karta is under no obligation to keep details of accounts- money received or spent unless a request for partition is demanded by other coparceners, he can force the Karta to produce such details. This was established in Girijanandini Devi V. Brijendra Narain AIR 1967 SC 1187. In the case of Gopal V. Trimbak AIR 1953 Nag 195, it was established that only present accounts can be rendered on the date of demand by a family member. However when charges or accusations of fraud, misappropriation or conversion of joint family into personal acquisitions are involved or the nature of business requires this, the same can be done as established in Suryanarayana V. Sugamanathi AIR 1961 AP 393

(1) Duty to Render Accounts: It is the prime duty of Karta to render accounts to the other coparceners regarding the income from joint family property and the expenditures thereon. But he is not under any obligation to account for his past dealings with the family property unless there is clear proof of misappropriation or fraudulent use of the family funds or estate by him. He is liable to account at the time of partition only and then only for the family property as it exists at the time. But this does not mean that the parties are bound to accept the statement of the Karta as to what the property consisted of.

(2) Duty to Realise Debt Due To the Family: It is an important duty of the Karta to make sincere efforts to realise the debt due to family. But he cannot give up any debt, although he has got the full power to settle accounts with debtors and to make a reasonable reduction either towards interest or towards principal in the interest of the family.

(3) Duty to Spend Reasonably: It is the duty of the Karta to spend the joint family funds only for the purposes of the family. It is not his duty to save by resorting to economy unnecessarily. He must spend reasonably. If he spends unreasonably and it is not approved by other members of the family, the remedy would be to demand partition.

(4) Duty Not To Start New Business without the Consent of Other Coparceners: The Karta must obtain the consent of other coparceners before starting a new business, as he cannot impose the risk of a new business upon the minor as well as adult members of joint family. In P.S. Sairam v. P.S. Rama Rao Pisey, Karta of the family uses joint family property for his separate business. He has started business by taking loan from market, in the premises of Joint-Hindu property. This property was not used only by the Karta, but also by junior members of Joint family. In this case, the Supreme Court observed that business carried on by Karta cannot be treated to be the joint family business and that properties acquired out of income of said business, have got to be treated as self acquisitions of Karta.

(5) Duty not to alienate coparcenary property except for legal necessity and benefit to the estate:It is the duty of the Karta to obtain the consent of adult coparceners before alienating the joint family property. But if he alienates the property for legal necessity or for benefit to estate, he need not obtain the consent of other coparceners. Whether the transaction is sought to be justified on the ground of legal necessity or benefit to the estate, the real question to be considered is whether it is fair and proper transaction, such as, a prudent owner would enter into, with the knowledge available to him at the time

Responsibility of Karta.

1)    Maintenance

Having the wide powers and liabilities it is the responsibility of karta to maintain the family members. If the karta does not takes care of the family then he can be even sued in the court for maintenance.

2)    Marriage

For the unmarried members of the family, the karta is liable for their marriage especially the daughters. The funds required for the marriage are taken from the joint family ownership and these expenses can be incurred by joint family funds.x

  • Accounts at time of Partition

It is stated in the statutes that once; a partition is done it is difficult to unite them. However, if the partition occurs in a family then it is considered that the joint family status comes to an end. Under Mitakshara Law it means severance of interest and status which means that if members wish to separate from joint family then he has such right. After the severance, the karta will render the accounts in a manner as that of trustee or agent.

  • Representation

The power of karta to be representation of the family is discussed above. Apart from having power of such representation, it is also his responsibility to represent the family in the government activities or in front of other outsiders. He is liable to pay all the taxes and can even sue or be sued on behalf of other family members.

Deliver details of accounts at time of partition- A Karta is under no obligation to keep details of accounts- money received or spent unless a request for partition is demanded by other coparceners, he can force the Karta to produce such details. This was established in Girijanandini Devi V. Brijendra Narain AIR 1967 SC 1187. In the case of Gopal V. Trimbak AIR 1953 Nag 195, it was established that only present accounts can be rendered on the date of demand by a family member. However when charges or accusations of fraud, misappropriation or conversion of joint family into personal acquisitions are involved or the nature of business requires this, the same can be done as established in Suryanarayana V. Sugamanathi AIR 1961 AP 393

Conclusion:

The concept of kartha in the Hindu joint family is not just a position of power but also serves a very particle position weather it is regarding the legal issues or regarding property issues, the karta represents the entire joint family and this saves the trouble of multiple claims of actions. centralization is the key to good management and this is provided by the karta laws has provided enough remedies to the members of the joint family to protect their interest in case of any despotic behavior by the karta

The codified Hindu family laws have done a great job by making the position of Karta more organized, equitable and accountable, thus transforming it from an ancient concept to a fully functional modern one. This system has also modified itself to allow women to become a Karta as it has changed the qualifications to become one.

It is so concluded that the karta holds the position of the manager or guardian in the Hindu Undivided Family. He does not acts as a trustee or agent. He not only holds the power of management but also to manage accounts, provide maintenance, enter into contracts, take loans or pay debts for which he has a wider power. However, the power vested in karta must not be used in a malafide intention. Since all the coparceners vest their trust in him. If the karta performs any such activity that is against the interest of family members then for such a case the law has provided them several remedies. The remedies are to prevent themselves from such illicit and immoral behaviour of the Karta

Custody of the Children (Sec 26 of Hindu Marriage Act 1955 )

Meaning:

Custody is the legal right to keep and look after a child, especially the right given to a child’s mother or father when they get divorced

The Hindu laws regarding the guardianship are covered under the Hindu Minority and Guardianship Act 1956, which is similar to the Guardians and Wards Act 1890. Here, the custody of a child who is below five years old is given to the mother, while a child above nine years of age can be consulted by the court regarding his preference for the parent he wants to stay with. For older boys, typically fathers are made the custodians and for older girls, mothers are chosen custodians by the court though there is no law mandating this.As per law, there are various

Under Section 26 of the Act, the court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act in any case between the parents of the children. In the absence of any such proceeding only the Guardian Courts can pass such order.

The Act makes provision only in respect of minor children. The orders made under the section can be varied, suspended or revoked from time to time and even after the termination of the proceedings. The object of the section is to enable the court to make just and proper provision for the welfare of minor children.

Types of custodians: granted to parents, which can include the following:

a) Physical custody: This implies that one of the parents acts as a primary guardian and the child stays with him, while the other parent is granted visitation rights and can meet and spend time with the child.
b) Joint custody: Here both the parents get the child’s custody in rotation. This implies that the child stays with each parent for a fixed duration.
c) Legal custody: This means that one or both the parents get the right to take all major life decisions for the child, including those for his education, finances, religious preferences or medical needs, till he turns 18.
d) Sole custody: If one parent is considered unfit to take care of the child, the other parent is given full custody of the child.a) Third-party custody: If both the parents are either deceased, or are unfit to take care of the child, or are abusive, then the court provides custody of the child to a third party such as grandparents or a relative.

Factors Judges Use When Deciding Custody

  1. children’s ages.
  2. needs of the children.
  3. each parent’s ability to meet the children’s needs.
  4. relationship between the children and each parent.
  5. relationship between the children and other family members.
  6. keeping stability in children’s lives.
  7. children’s physical and mental health.

The expression ‘child’ in the section covers both legitimate or illegitimate child. The court has got the jurisdiction to make an order for custody of an illegitimate child under Section 26 of the Act. The father has got primacy over the mother with respect to custody of minor’s person as well as property. However, welfare of the child is the paramount consideration.

After, Marriage Laws (Amendment) Act of 2001, in Section 26 of the Hindu Marriage Act, the following provision shall be inserted that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.

The object of making such a provision is that the interest of children is not adversely affected or neglected on account of the proceedings between their parents. Whenever the court proceeds to pass such an order it would take into consideration the wishes of the children as far as possible.

In Kartar Chand v. Smt. Tarawati, AIR 1991 All 255 Bombay High Court laid down that Section 26 provided for interim order from time to time as also for making provisions in the decree with regard to custody, maintenance and educations of minor children consistently with their wishes. Section 26 therefore empowered the court to provide for the maintenance of minor children. It provided for the maintenance of both pendente lite as also after the passing of the decree.

Some general rules of child custody applicable on Hindus are:

  1. The custody of a child to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.
     
  2. It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father.

    In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.
     
  3. The ultimate rule for granting of child custody is that such custody should be in the ‘best interest of the child’. All the rules laid down above can be disregarded on a strong implication of affecting the ‘best interests of the child’ adversely.
  4. If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case, close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
     
  5. There are certain persons who cannot be given child custody – i. a person who has certain bad habits that will adversely affect the proper upbringing of the child; ii. a person who has ceased to be a Hindu or converted to any other religion; iii. a person who has renounced the world and does not believe in any materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person who is not able to carry out the development of the child in his best interest (in such a case even mother of a child of a tender age can be denied custody).
     
  6. Further, the court while deciding on custody can provide the other parent (who is not entitled to custody rights) with visitation rights wherein the other parent can be given some time to visit the child. Such rights can be passed by interlocutory orders and can be modified to suit the changed circumstances.
     
  7. In Vikram Vohra v. Shalini Bhalla, the Supreme Court allowed the relocation of the mother and the child in Australia and thereby modifying the visitation rights. But in my opinion, in such a situation it has to be analysed that the reason for relocating is not to adversely affect the other parent and is in the best interest of the child. If this is not the case, then the relocating to adversely impact the visitation rights should not be allowed.

Conclusion

Child custody is a legal custody that is given either to parents or guardians of that child, it all depends on the child’s decision with whom he/she wants to live. After this, the custody of the child is given to that person. Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously. Both parents have equal rights on the child after Divorce. But deciding the right on a minor is a question, but only the court has a right to decide this. But according to section 6(a) of the Hindu Minority and Guardianship Act, 1956 mothers will get custody because considering the welfare of the child and other little things all are seen by the mother

Divorce by Mutual Consent (Sec. 13-B)

Sec 13 B of the Act deals with “Divorce by Mutual Consent” this sec was inserted under the Amendment Act of 1976. It means ” both the parties agree to dissolve their marriage”. in other words, both the wife and husband are willing to get separated by Divorce. According to Sec.13-B (I) he such a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also that they have agreed that the marriage should be dissolved.

“Living Separate” means that parties are not living as husband and wife, irrespective of the fact that they are living in the same house or in different houses.

Unilateral withdrawal of consent by one party: Bombay, Haryana and Kerala high Court have expressed the view that a spouse is free to withdraw his or her consent unilaterally at any time .

There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi Venkata Chitti Abbai AIR 1999 AP 91 case, the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so when the parties started living separately for a considerable time. Thus s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta, AIR 2005 MP 106 it was held that the waiting period is directory in nature and it can be brought down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi,AIR 2000 AP 364 it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

If the parties who have filed for divorce under mutual consent and after the end of the 6 month period what is to be done if either of them do not turn up. Will it amount to withdrawal of consent? Rajasthan High Court in the case of Suman v Surendra Kumar AIR 2003 Raj 155 has answered these issues. In this case the husband after filing a joint consent petition for divorce did not appear for hearings. The family court held that no decree could be passed in the absence of both the parties. On appeal it was held by the court that- “When one party has himself left the matter for inference, the inference ought to be drawn in favour of consent rather than for absence of consent.” It was held that silence cannot be taken to amount to withdrawal of consent.

Important Legislations Under Which Mutual Consent Divorce Can Be Filed

  • Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
  • Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
  • Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.

What points to incorporate in the joint mutual consent divorce petition?

Best Divorce Lawyers should consider incorporating the following legal points while drafting a divorce petition:

  • The parties have completely separated from each other as they were unable to pull together on account of lack of understanding and temperamental differences between them. Several meetings have already taken place between the parties with the due intervention of common relatives, however, no fruitful results could be obtained
  • The marriage has now broken down irretrievably and irreparably.
  • The parties have not lived together as husband and wife for more than one year and since then they have been living separately.
  • The parties have voluntarily arrived at an amicable settlement resolving their disputes and deciding to part ways.
  • One-time settlement/agreement in full and final.
  • Nothing remains due about any item/Sridhar, maintenance-past present and future.
  • Mutually agreed by both the parties that if any complaint/case/application is pending before any competent court of law/competent authority, which is not in the knowledge of either of the parties or has escaped their attention shall also be withdrawn by them.
  • The consent for filing the present petition has not been obtained by the parties by force, fraud, inducement, or undue influence of any kind.
  • The petition has not been presented in collusion with the parties.

How to File for Mutual Consent Divorce:

There are several steps involved in order to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:

1. Filing a Joint Petition:

The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.

2. Appearance of Both Parties in Court:

The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.

3.Scrutiny of the Petition by Court:

The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.

4.Recording of statement and passing of the order on First Motion:

After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6-month period is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.

5.Appearing for Second Motion:

After 6 months of the first motion or by the end of the reconciliation period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording statements before the court. In a recent judgment, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.

6.Decision of the Court:

The most important requirement for a grant of divorce by mutual consent is the free consent of both parties. In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.

What is not essential for divorce by mutual consent?

For parties to seek divorce by mutual consent, they must be living separately for a period of atleast one year, and must resolve towards the end of the marriage. They must not be performing marital obligations – physical separation is not a criteria.

How long does divorce by mutual consent take?

So in case of divorce by mutual consent, it usually takes 6-18 months. In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

Can wife file case after mutual divorce?

If a woman agrees to waive her right to claim maintenance from her husband, and opts for a divorce by mutual consent, she cannot later demand maintenance under the Code of Criminal Procedure (CrPC), the Madras High Court has held.

Conclusion:

Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.

Restitution of Conjugal Rights (Sec 9) Hindu Marriage Act 1955

Restitution of Conjugal rights is the right to stay together. Section 9 of the Hindu Marriage Act, 1955 provides a remedy to an aggrieved person if the his\her spouse has left the person without giving any reasonable ground. The remedy is provided in the form of Restitution of Conjugal rights.

Restitution : The restoration of something lost.

Conjugal rights: rights relating to marriage or the relationship between husband and wife.

Restitution of Conjugal Rights concept is based upon English Matrimonial Law. In India it was applied by the Privy Council for the first time in 1866 in Moonshee Bazloor V. Shamsoonaissa Begum.

Essential Elements of Restitution of Conjugal Rights:

Following are the key components of Section 9 of the Hindu Marriage Act of 1955 (restitution of conjugal rights):

  • The parties must be legally married to one another
  • One should exclude themselves from another’s social circle
  • This withdrawal has to be made without a valid justification
  • The assertion that there is no legal justification for rejecting the decree must be proven to the court’s satisfaction.
  • In Ranjana Kejriwal v. Vinod Kumar Kejriwal AIR 1997 Bom 380 , Petitioner Wife alleged that the husband was already married and had suppressed the fact from her. The Court held that the petition for restitution of conjugal rights is not maintainable since there is no legal marriage.

SPECIFIC PROVISIONS :The provisions dealing with restitution of conjugal rights in the various personal laws, the remedy is available under:

  1. Section 9 of the Hindu marriage act, 1955.
  2. Section 32 or 33 of the Indian divorce act 1869
  3. Section 36 of the Parsi marriage & divorce act 1969

Section 22 of the Special Marriage Act, 1954 in case of inter-caste marriage. In order to get the decree of restitution of conjugal rights, the either party has to file for the decree under the above mentioned provisions and then it will not be obligatory on the parties to cohabit after such decree.

Burden of Proof:

An explanation has been amended to the section in the year 1976 which places the burden of proving reasonable excuse upon the spouse who has withdrawn from the society.

The petitioner would first prove his case that the other spouse has withdrawn from his society without any reasonable cause. The burden would then shift to the other spouse for the defense of a reasonable excuse.

Reasonable Clause:

What constitutes a reasonable excuse or a just cause is left to the subjective determination of each court. No straitjacket formula as such has been laid out. What would be a reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.

Restitution of Conjugal Rights Violated:

  • Association Freedom – Article 19 (1) (c)
  • Freedom to live and work wherever in India – 19(1) (e).
  • Any profession may be practised freely – 19 (1) (g).

Infringement of Freedom of Association:

In our country every citizens have a fundamental right to associate with anyone according to his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is violated as a wife is compelled to have a association against her will, with her husband. In Huhhram Vs Misri Bai AIR 1979 MP 144, the court passed the restitution against the will of the wife. In this case though the wife had clearly stated that she would not wish to live with her husband, still the court went ahead and gave the judgement in favour of the husband. The opposite thing happened in Atma Ram. v. Narbada Dev AIR 1980 RAJ 35,where the judgement was passed in favour of wife.

Infringement of Freedom to reside and to Practice any Profession:

We live in a society where there is complete freedom as to which profession to choose. At times under the restitution of conjugal rights a person is forced to live with the partner with no general wish or interest. And thus, this freedom to freely reside and practice any profession of choice, seems to be violated. Several times in the past courts have tried to give a remedy. The apex court in the case of Harvinder kaur v. State AIR 1984 Delhi 66 it was said that, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bill in a shop”

In T. Saritha Vengata Subbiah v. State AIR 1983 AP 356, the court had ruled that that S.9 of Hindu Marriage Act relating to restitution of conjugal rights as unconstitutional because this decree clearly snatches the privacy of wife by compelling her to live with her husband against her wish. Justice Choudary held that section 9 is a savage and barbarous remedy, violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution. It denies the women her free choice whether, when and how her body is to become the vehicle for the procreation of another human being. The woman loses her control over her most intimate decisions. Clearly therefore, the right to privacy guaranteed by Article 21 is flagrantly violated by a decree of restitution of conjugal right. As a result the section 9 of Hindu marriage act 1955 was unconstitutional. The court observed that the object of the section is to bring about cohabitation between estranged parties so that they can live together. That in the privacy of home and married life neither article 21 nor article 14 has any place.

In Harvinder Kaur v. Harminder Singh AIR 1984 Delhi 66,  the judiciary again went back to its original approach and help Section 9 of Hindu Marriage Act as completely valid. “The legislature has created restitution of conjugal rights as an additional ground for divorce”. The ratio of this case was upheld by the court in Saroj Rani Vs. S.K. Chadha AIR 1984 SC 1562. The Judge recognises restitution of conjugal rights is an archaic remedy “I cannot agree that S.9 is unconstitutional howsoever the remedy may be outmoded or out of tunes with the times. The restitution decree in the scheme of the Act is a preparation for divorce if the parties do not come together”. Para 91 shows “in the end I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike it down in the ground that it is unconstitutional. In my opinion the Courts to strike it down in the ground that it is unconstitutional. In my opinion the existing laws tie his hands.

Conclusion:

The restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.the marriage. The decree of restitution of conjugal right or right to stay together is not obeyed for a period of more than one year, subsequent to the date of the decree, it becomes a good ground for divorce.

Nullity & Annulment of Marriage (Hindu Law)

Marriage

A decree of nullity is a declaration by a court that your marriage never existed in the eyes of the law. It means that no valid marriage exists between you and your partner. Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid marriage never existed.

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with voidable marriages. All other marriages which are not covered by these two sections are valid.

Nullity decree; decree absolute of nullity = for void marriages

Annulment = for voidable marriages

Valid marriage(Sec.5) HMA

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It contains such conditions that if
violated shall result in a void marriage. Section 5 of the Hindu Marriages Act says A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent has been suffering from a mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them
permits marriage between the two;
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits marriage between the two

Void marriages (Nullity of Marriage)

A void marriage is a marriage that is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is invalid from its beginning and is generally treated under the law as if it never existed and requires no formal action to terminate.

Section 12 of the Hindu Marriage Act, provides for a decree of nullity of marriage, which is voidable, on any of the following
grounds:
(a) that the marriage has not been consummated owing to the impotence of the respondent. A party is impotent if his or her mental or physical condition makes the consummation of marriage a practical impossibility.
(b) that the marriage is in contravention of the conditions specified in clause (ii) of section 5, i.e., at the time of the marriage, any party was incapable of giving valid consent to it in consequence of unsoundness of mind, or if even capable of giving valid consent, such party has been suffering from mental disorder .of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or the other party has been subject to recurrent attacks of insanity.
(c) that the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child’s Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. However, it is significant to note that no such petition for annulling a marriage on the ground specified in clause (c) of sub-section (1) of section 12 i.e., on the ground of consent by force or fraud, shall be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.

Therefore, where your consent in the marriage is obtained by fraud, you have to file a petition for annulment of marriage within one year from the time when the fraud is discovered. Also remember that no such petition shall lie before the Court, in case you continued to live with the other party to the marriage as husband or wife, even after the force ceased to operate or the fraud was discovered. In case of a petition for annulment of marriage on the ground that at the time of marriage, the other party was pregnant by some other person, the court is to be satisfied that you were ignorant of this fact at the time of marriage. Furthermore, a petition on this ground has to be filed within one year from the date of the marriage. Also remember, that in case of a petition on this ground, marital intercourse with the consent of the petitioner should not have taken place ever since the discovery of the fact that the other party was pregnant by some other person

What Is Annulment Of Marriage

In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Grounds For Annulment

The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

1) Either spouse was already married to someone else at the time of the marriage in question;

2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse’s reaching marriageable age);

3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;

4) Either spouse was mentally incompetent at the time of the marriage;

5) If the consent to the marriage was based on fraud or force;

6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;

7) The marriage is prohibited by law due to the relationship between the parties. This is the “prohibited degree of consanguinity”, or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.

8) Prisoners sentenced to a term of life imprisonment may not marry.

9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Basis Of An Annulment

In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.

Section 5 Condition for a Hindu Marriage – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:

An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage

Voidable Marriages

Section 12 of Hindu Marriage Act, 1955 deals with

Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Marriage between Close Relatives

.A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Nullity of marriage and divorce- Void marriages –

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

Bigamy –

If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. Inter family Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Impotency –

If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.

The Constitutional validity of subjecting parties to andrological and gynecological tests to determine potency of parties was challenged in B.Madan Vs. N.S. Santhkumar AIR 2015 Mad 78

Lack of Mental Capacity –

If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder

A Party was Under the Age of Consent –

If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force –

If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply

Marriage solemnized under the influence of drugs administratered by husband and his sister is voidable as it lacks free consent held in Shitij Khurana Vs. Shreha Khurana, AIR 2014 All 27.

Unbeknownst Pregnancy:

If a spouse is pregnant with a child and the father is not the husband and the husband was unaware of such a pregnancy, the spouse is within the rights to file for an annulment.

A petition for annulment under Section 12 for nullity of a voidable marriage shall be allowed only if the following few conditions are fulfilled:

  1. The petition should be filed within one year of the practice of force or fraud and discovery of the same
  2. The petitioner, at the establishment of the marriage, should not have had knowledge of the fact alleged in the petition.
  3. The petition should be filed within one year from the time when parties got the knowledge of fact alleged.
  4. The parties should not have been sexually involved with each other since the fact alleged had been discovered.

Rights of Children From Annulled Marriages

Section 16 of the Hindu Marriage Act after the amendment act of 1976, states that the children born, before or after the commencement of the Act, out of a voidable or void marriage is legitimate, to reiterate children conceived from an annulled marriage are legitimate. The court will also have the ability to establish rights and obligations in relation to the children from such marriages.

Pawan Kumar Vs. Mukesh Kumar AIR 2001 Raj 1, in this case wife was pregrant by some other person and marriage had broken down immediately though petition was filed belatedly. The fact of premarriage pregnancy by other person itself was held in causing cruelty and mental agony, therefore the application was held into decree of divorce.

Annulment Process

Now that no-fault divorce is readily available, marriage annulment is not very common. To get an annulment, a person first needs to meet the residency requirements of the state that they live in. The jurisdictional requirements are similar to those required for dissolution or divorce: one of the parties must live in the state where the marriage annulment is filed for a continuous ninety-day period. Similar to a divorce filing, marriage annulment case proceeds with a filing, petition, summons, and ancillary documents. An annulment case can be initiated by either the husband or the wife in the marriage. The grounds for marriage annulment are stated in the petition. A divorce can be much more complicated than an annulment

Conclusion

The Act was established and the concept of Nullity of Marriage was enacted while keeping in mind the religious sentiments of the citizens of our country. Hence, Section 11 and 12 of the Act is a remedy for parties who are in a voidable or void marriage. The concept of Annulment of marriage is very important in the foundation of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized and established on the strength of fraud or where the marriage is established despite the fact that the one of the spouse was already married. With the establishment of the Amendment Act, 1976, children born out of a void or voidable marriage are also awarded a title of legitimacy, which is a blessing for such children. Annulments are very important for the growth of the society as it allows for the growth of the human being which in turn allows for a harmonious and beautiful society.

LAW OF GUARDIANSHIP (Hindu Law)

Introduction

Due to the persisting familial structure in Vedic culture and the unwavering existence and power of the Karta, the topic of guardianship has received very little attention in the ancient Indian writings. As a result, India has few laws governing guardianship. As a legal idea, guardianship emerged with the British Empire, and as time went on, these laws were gradually absorbed into Hindu law.

To properly understand the subject, it is important to have a firm grasp on its foundational concepts before delving further and talking about a guardian’s legal obligations under Hindu law. The Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, which deal with the fundamental concepts and laws underlying the appointment of a guardian, govern guardianship in a Hindu family in India. Along with examining the obligations outlined in the Minority and Guardianship Act, 1956, this article touches on other relevant topics covered by the Act that would help us comprehend it better.

Definition of the terms ‘Minor’ and ‘Guardian’ under Hindu Law

Section 4 of the Hindu Minority and Guardianship Act, 1956 deals with the relevant definitions but while reading the definitions one must always keep in his mind that the definitions must always be read in subject to the qualification that their application must not be inconsistent to the subject matter. In applying this, if there appears a repugnancy between the context and the words and expression of the statute, it should be resolved harmoniously and read in consonance as well as to effectuate the intention of the legislature. For example, the term Guardian has a wide connotation but in this act it is reserved to a minor and to his/her property. This definition can be inapplicable in case of any other enactment. Sec 4 encompasses definition of the terms – minor, guardian and a natural guardian.

Minor

Minor as defined u/s 4 (a) Act means a person who has not completed the age of 18 years.

Guardian

A Guardian as defined u/s 4(b) of the Hindu Minority and Citizenship Act, 1956 means a person taking care of the minor physically or of his property or of both him and his property and includes the following:

  • A Natural Guardian:Father, Mother and Husband (impliedly repealed).
  • Testamentary Guardian:A person appointed by the will of the minor’s father or mother.
  • Certified Guardian:Appointed or declared by the court.
  • A Person empowered by any enactment relating to any Courts of Wards.

Types of Guardians

Guardians are appointed to ensure the welfare of the child. Apart from the three major types that are defined and included in Section 4 of the Act i.e. natural, testamentary and the ones appointed by the court, there also exist de facto guardians (Self appointed Guardians) and guardians by affinity(Guardians of a minor widow). De-facto Guardians are mentioned in Sec 11 of the Hindu Minority and Guardianship Act, 1956 .

Natural Guardian of a Hindu Minor

Section 6 of the Hindu Minority and Guardianship Act, 1956 recognises three persons as natural guardians, the father, the mother and the husband.

Clause (a)- In case of a boy or an unmarried girl- The father, and after him, the mother: provided that the i case of a minor child less than the age of 5 years, the custody shall rest with the mother.

Before 1956, a father would have been successful in curtailing the guardianship rights of the mother by appointing a testamentary guardian before his death but after the 1956 Act, the appointment of a testamentary guardian is rendered ineffective if the mother of the child is still alive.

Although, the law states that the father when alive is the natural guardian of the child and only after his death would the mother become a natural guardian, there are certain exceptions to it. The Supreme Court has clarified that the word ‘after’ as mentioned in the section doesn’t only connotes ‘after the death of’ but also entails ‘in absence of’ as well. Where the father hasn’t raised any objection to any actions of the mother due to his indifference or where the minor has been in the exclusive care of the mother and the father hasn’t taken care of the property of the minor or of him in person due to some mental or physical incapacity, he would be deemed absent for the purpose of this section The mere fact that the mother has remarried won’t fetter her rights and her request wouldn’t be disqualified. When it comes to custody, as a general rule, the court would not deprive the father of custody of the minor, but in all such cases the court has always kept the welfare of the child as the paramount interest and factor in delivering the pronouncements and has not given the custody of the minor child to his father where the child’s interest was being compromised.

Clause (b)– Mother lawful Guardian of her illegitimate children:

Mother is held to be the natural guardian of the illegitimate child even if the father of such minor is alive. No preferential right is given to the father.

Clause (c)– Husband lawful guardian of a minor wife:

This clause stands impliedly repealed due to the provisions of s.3 of the Prohibition of Child Marriage Act, 2006.

Proviso to Section 6 of the Act states that a person shall not be entitled to act as the natural guardian of a minor only if he has either ceased to be a Hindu or he has completely renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Testamentary Guardian

Testamentary guardians are the ones that are appointed by the will of the parents of the minor. Section 9 of the Hindu Minority and Guardianship Act deals with the provisions related to the testamentary guardians. Sub-section 1 and Sub-section 2 deals with the rights of the father and states that the hindu father has the right to appoint a guardian and if he dies before the death of the mother, then such an appointment shall fail. It will only revive if the mother dies without appointing, by will, any person as guardian.

The rights of the mother include appointing a guardian for her illegitimate child. In this case even if she has predeceased the father, the father won’t have the right to appoint the guardian though he would be deemed at the natural guardian of the child. The testamentary rights are also vested in the widows and mother who are entitled to act as the natural guardian due to disentitlement of the father. In the case of a minor girl, as soon as she gets married, the testamentary rights of the guardian extinguish.

Testamentary Guardians have the same rights and limitations as that of a natural guardian. 

Guardians appointed by the court (Certified Guardians)

The Guardians appointed by the court are termed as certified Guardians and the Court appoints a Guardian keeping in mind various psychological, physical and financial factors. The powers of such Guardians are regulated by the Guardians and Wards Act, 1980. The power to appoint a guardian in respect of as mitakshara hindu family minor who has an undivided interest only rests with the High Court (sec 12 of the The Hindu Minority and Guardianship Act, 1956.) 

Powers of the Guardians

Section 8(1) of the Hindu Minority and Guardianship Act, 1956 vests in the natural guardian the power to take all the actions that are necessary or reasonable and proper for the benefit of the minor or take any action to realise, benefit or protect minor’s estate. A minor’s estate means a minor’s definite property and not his fluctuating indefinite interest in the joint Hindu family estate. Section 8 is in pari materia with sec 29 of the Guardianship and Wards Act, 1890.

Liabilities of the Guardians

  1. The Guardian in carrying out the above mentioned powers can in no case bind the minor by a personal covenant. This means that though the guardian may impose a financial liability on the minor’s estate yet cannot make him personally liable for the losses or the liabilities that arise later due to such contract.
  2. Sub section 2 of Section 8 read with section 5 of the Hindu Minority and Guardianship act, 1956 supersedes the power vested in a natural minor to dispose of the immovable property of a Hindu minor. It is laid down explicitly that a natural guardian without the previous permission of the court-
  • Can not Mortgage, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or
  • Can not Lease any part of such property for a term more than that of five years or for a term more than that of one year after the date from the minor’s majority. 

It has been expressly mentioned in the Section that no court shall grant permission in aforementioned conditions unless it is proven that there is a case of necessity or an evident advantage of the minor. Section 31 of the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court. Only a civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 within whose jurisdiction the property is situated or a part of the property is situated shall have the power to adjudicate upon the application. Where the property is being acquired by the guardian for the benefit of the minor, no permission of the court is necessary

  1. As per Sec 8(3) of the Hindu Minority and Guardianship Act, 1956, any disposal of the immovable property by a natural guardian contravening the conditions is voidable at the instance of the minor or any other person claiming under him. Where the property is sold by the guardian for the benefit of the minor even then can a minor challenge the transaction only after attaining the age of majority if it was done without the prior permission of the court.
  2. The limitations are not only enforced on the natural guardians but also on the de facto guardians as per section 11 of the Hindu Minority and Guardianship Act, 1956. Strictly put, though a de facto guardian is nowhere defined in the law yet it is a person who hasn’t been appointed by the court or through a testament or naturally but is a person who takes care of the guardian out of love and affection.
  3. Section 12 of the Hindu Minority and Guardianship Act, 1956 has prohibited an appointment of a guardian for the minor who has undivided interest in the Hindu property which is being taken care of by an adult member of the family. Only the high court if it deems fit based on the facts of the case has the power to appoint a guardian for the same.
  4. Sec 13 of the Act acts as a general principle of over every other provision mentioned in the act and states that all the decisions and all the appointments that are to be taken are to be done with the sole intention that is securing the welfare of the child. 

Conclusion

The welfare of the minor and providing a safe and nurturing environment for the minor’s development can be clearly drawn as the biggest liability or the responsibility of the guardians and as the foremost guiding concept for the judiciary after reading the laws produced and the numerous precedents set by the judiciary.

PIOUS OBLIGATION

Introduction

Nowhere has the term “Hindu Undivided Family” (HUF) been defined. It derives its meaning and rules from the two schools of Hindu Law, Dayabhaga School in West Bengal and Mitakshara School in the rest of the country. 

HUF has steadily expanded from its original basic principles because of the favorable business potential and the fact that it is governed by the criteria of the 1956 Hindu Succession Act. In case you weren’t aware, the HUF is exempt from paying income taxes, lowering the overall amount of taxes the family must pay and increasing their liquidity in the process. It does not, however, take away the need to monitor the business in terms of the obligations they accrue and the associated legal repercussions.

Debt liability of joint Hindu family

The Hindu Undivided Family is composed primarily of the Karta and the Coparceners. Due to the position’s predominately male orientation, the Karta position rarely passes to the oldest woman in the family. Positively, the Hindu Succession (Amendment) Act of 2005 to the 1956 Act gave daughters the coparcenary rights that they had previously been denied and permitted them to partake in the property in the same way as sons. The oldest child overall and the unmarried daughter will take over as the Karta after her father’s passing, according to this as well. Even after she marries, she will continue to have her rights as a coparcener.

The same cannot be said for the wife of the deceased Karta or the female members who join the family by the relation of marriage, they are treated as members of the HUF only. They are entitled to maintenance and shares when the partition occurs but not to the actual partition.

Liability of Karta

The liability of the Karta is unlimited against the coparceners. Unlimited liability means that in case Karta is unable to repay the loan, it is to be recovered by the sale of his personal assets. His liability spreads out as six principle points-

  • Liability to maintain: The Karta must take care of everyone, even the daughters of the joint family. He is responsible for maintaining the members and their house, and if he doesn’t, they can sue him and get money damages.
  • Liability to provide account: Usually, the Karta is not needed to keep business documents, but this responsibility arises when the company is divided and the coparceners ask for them. He is responsible for any form of fraud or misrepresentation.
  • Liability to spend reasonably: The Karta is in charge of the family’s resources, earnings, and outgoings. As a result, he is the only one in charge of keeping the surplus that is generated. He cannot spend the money irresponsibly and must be open and honest about every transaction. 
  • Liability to not start a new business: Karta is the oldest male figure in the joint family and thus, the head. He is the owner of the business and cannot deviate from his duty and liability to be faithful to his own business. If he has to start a new business, it should be after the consultation and agreement with the coparceners. 
  • Liability to not alienate property: Hindu Joint Family comes into existence on the sole basis of undivided ancestral property. This in itself suffices for the Karta to not alienate the property and maintain it with adequate costs and expenses. Only in the exceptional cases of family benefit can the Karta be allowed to alienate the property, which also after due notification and consent from the coparceners. 
  • Liability to recover and repay debts: 

Any contract debt that the Karta enters into has the consequence of making the family liable for the debt. Instead, Karta is ultimately responsible for the correctness of the records, so if he has given something on credit, he must make sure that the arrears are paid back.

The liability of Karta is not limited to only the above-mentioned activities, he has responsibility for other family-related issues like marriage and representation. 

The pious obligation of a son

In the Hindu Undivided Family, male members are of priority when it comes to carrying out the duties and obligations of the Karta. After the death of the Karta, the male member second to the Karta, either a male relative or the eldest son, takes over the business. 

Once again, the history of this principle may be traced back to the ancient Hindu Laws that served as the foundation for the company. Hindu law mandates that whatever the father was unable to repay during his lifetime must be completed equally by both of his sons, and even if they were to get divorced, they would still be required to fulfill the debt according to their respective divided portions. This keeps the commitment from going unfulfilled and the sons’ obligations from becoming too heavy.

On these terms considering the Karta is the Father, the son has various pious obligations, the most important being discharging his father’s debts unless the debts are illegal in nature. Lord Dunedin had given his decision on the question of at what stage can a debt be considered illegal. He has said that any debt can only be considered illegal when the entire motive for obtaining the money was illegal and not if the father had legally obtained the sum but afterward misappropriated it. Thus, for a debt to be considered illegal to enable the exoneration from fulfilling its repayment, two conditions have to be met:

  1. The debt must be prior in time.
  2. The debt must be prior in fact.

Another point to be noted is that, for the acquittal of the son from repaying his father’s debts, it is not necessary that the debt has to be illegal only. It could be obtained through immorality or dishonesty and still would be considered a valid ground for the son’s relief. 

In a nutshell, once the son takes over the family as the Karta, he has to fulfill all of his father’s incomplete obligations as well as perform the duties expected from a Karta and enjoy the powers conferred upon him unless corrupted by any kind of immoral, unlawful or dishonest conduct.

Landmark judgments

The lack of laws is balanced by the numerous key judgments given by the Apex Court and High Courts. Some of the judgments are old but still serve their purpose as upholding the principles of a Hindu Undivided Family and thus, are still in use and relied upon. 

The following case laws under the points of their importance have been enlisted, spanning a wide range of time, going back to the immediate post-independence years and some principles given during the British era as well.

  • Position and Capacity of Karta
    • Chandrakant Manilal Shah and Anr Vs. Commissioner of Income Tax (AIR 1992 S 66): In this case, the issue was that a HUF was afterward changed over into an association, but the child had not brought within the capital in cash, and in this way, the enrollment of the firm was denied by the CIT on grounds that it was not a substantial organization. And so was maintained by the Re-appraising Tribunal and the Tall Court. Be that as it may, the Supreme Court chose that similar to when a person brings in cash resources it is valuable for the operations of the firm in case a person gives aptitude and work to the firm, it is comparable to the same. From this judgment, it was induced that Karta being the proprietor of the HUF turned organization, needs to bring in capital. The same isn’t an obligation for the children. This encouragement drives the point that the Karta being capable of the support of the family needs to bring cash assets to meet the essential prerequisites since there’s a plausibility that the child might not bring in any capital.
  • Alienation of the property and legal necessity
    • M/s Nopany Investments Ltd.(P) Vs. Santokh Singh (HUF) AIR 2008 SC 673: In this case,there were numerous questions of law but here, the center is on the address whether a more youthful male part of the HUF seem to act with the capacity of the Karta indeed in case there were other more seasoned individuals and the Karta himself was lively. The administering given by the Preeminent Court said that in a case due to a few unavoidable circumstances the Karta is incapable to carry out his obligations and commitments, he has the control to name another part of his family, be it more youthful, as the modern Karta with the information and assent of the other coparceners and individuals of the HUF, in this way diminishing himself from his commitments towards the property and the family. 
    • Dev Kishan and Ors. Vs. Ram Kishan AIR 2002 Raj 370 : In this case,the significance of “legal necessity” was emphasized by the Rajasthan Tall Court. Besides, the Court ruled the distance of the property by the Karta illegal since he had sold and sold the joint family property for the reason of marriage of two minor young ladies, which is illegal beneath the Child Marriage Restriction Act, 1929 and does not motivate the certainty of legitimate need.
  • Position of women as Karta and Coparceners 

As discussed above, initially there were a lot of restrictions upon the women on the terms of their contribution to the HUF. The cases below show the transition in the position and power of women in the HUF. 

  • Gangoji Rao and Anr. Vs. channappa (AIR 1982 Kant 222): In this case, the sons had challenged the alienation of the property by their mother who was the widow of the father. The Karnataka High Court had then ruled that women cannot be either the Karta or a coparcener in a HUF. 
  • Mrs. Sujata Sharma Vs. Shri Manu Gupta (2016) 226 DLT 647 : This case is one of the most historic judgments for women and their involvement in a family business. In this case, the Delhi High Court in the year 2015 decided that a female member of the family can also become the Karta and shall enjoy all the equal rights the sons do. 
  • Duty to bear expenses

Nanak chand Vs. handra Kishore Agarwa;la (AIR 1970 SC 446): Marriage is one of the foremost sacred and esteemed connections within the culture and conventions of Hinduism. Because it is, the HUF as well as values the significance of marriage. Karta incorporates an obligation to urge the single individuals of the family in wedlock particularly the girls as their marriage is considered sacrosanct beneath Hindu law. He must bear all the costs of the marriage through the stores of the family and on the off chance that he has got to pool within the assets from the exterior, he must see them reimbursed in time.

Conclusion

In any case of the truth that laws supervising Hindu Bound together, Family is not codified and composed, other than the framework given by Hindu laws and the Hindu Movement Act, 1956, the legal solutions to be associated to the issues rising out of blunders inside the family have been well-founded by the measures and point of intrigued judgments verbalized by the Apex Court.

 KARTA

Introduction

The Joint Hindu family is a patriarchal structure, and Karta serves as the family’s leader. As the oldest male family member and the family’s official spokesperson, Karta makes decisions on their behalf. Because every family needs a head person who can watch out for the welfare of younger family members and females in a Joint Hindu Family, there is a fiduciary relationship between the Karta and the other family members.The members of the Hindu Joint Family are required to abide by the Karta’s decisions about the entire family and its property. In a Hindu Joint Family, only Karta is equal to everyone. A Karta has more authority and a more prominent position than any other member of the Hindu Joint Family. Among the other members of the joint family, Karta is unmatched.

Who can be a Karta?

The senior most male member is entitled to become a Karta and it is his right. Karta is always from the members of the family; no outsiders or stranger can become a Karta. If the senior most male member of the family is alive then he will continue as Karta, if he dies then the second senior most member of the family will take the charge of Karta. Karta takes his position by consent or agreement of all the coparceners.

If the coparceners agree, then a junior can also become a Karta of the family. By making the agreement with the coparceners, a junior male member can be a Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family then in that situation female can act as a Karta. If in case male members are present but they are minors, at that time also, females can act as a Karta.

Characteristics of Karta

The characteristics of a Karta are:

  • Karta’s position is unique (sui generis). His position is independent and no one can be compared with him among the family members.
  • He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner or agent.
  • He controls all the affairs of the family and has wide powers.
  • He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or conversion, he is held responsible.
  • He is not bound to invest, save or economise. He has the power to use the resources as he likes, unless he is not responsible for the above mentioned charges.
  • He is not bound to divide the income generated from the joint property equally among the family members. He can discriminate one with another and is not bound to be impartial. The only thing is he should pay everyone so that they can avail some basic necessities like food, clothing, education, shelter etc.

The powers of Karta are:

Powers of Management

Karta’s power of management is absolute. No one can question the duties of the Karta like, he can manage or mismanage the property, family, business any way he likes. Karta cannot deny the maintenance and occupation of property to any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta. Then it is the responsibility of the Karta to allot the funds to the members for fulfilment of their needs. Karta controls the expenditure of the funds. The scope of his power is only to spend such funds on family purposes like management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and decisions of the Karta are binding on the members. Karta can enter into any transaction on behalf of the family.

Right to Compromise

Karta has the power to compromise the disputes relating to management or family property. He can compromise family debts, pending suits and other transactions. The compromises made by the Karta, can be challenged in court by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the arbitration. If the award by the arbitration is valid then it will be binding on the members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits and property of the family. Such acts are bound to be followed by the members of the family. Even, Karta when taking a loan for the family purpose or for family businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the family. The contracts are binding on the members of the joint family.

Power of Alienation

No one among the family members can alienate joint family property. But Karta has the power to alienate the property under three circumstances.

  1. Legal Necessity
  2. Benefit of estate
  3. Indispensable duties

Legal Necessity

This term has not expressly defined in any judgement or in any law. It includes all the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and defendant are members of the Joint Hindu Family. Defendant 2 is the Karta, who is under the influence of Defendant 1, sold and mortgaged the property for an illegal and immoral purpose which is for the marriage of minor daughters Vimla and Pushpa. The defendant contended that he took the loan for the legal necessity.

The court held that the debt was used for the unlawful purpose. Since it contravened the Child Marriage Restraint Act, 1929, therefore, it can be called as lawful alienation.

Benefit of estate

Benefit of Estate means anything which is done for the benefit of the joint family property. Karta as a manager can do all those things which are helpful for family advancement.

Indispensable Duties

These terms refer to the performance of those acts which are religious, pious or charitable. Examples of indispensable duties are marriage, grihapravesham etc. A Karta can alienate the portion of the property for the charitable purpose. In this case, the power of the Karta is limited i.e he can alienate only a small portion of the family property, whether movable or immovable.

Loan on Promissory Note

When Karta takes any loan for any family purpose or executes a promissory note, then all the members and the members who are not the party to the note will be sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta

Liability to maintain- Karta is to maintain all the members of the Joint Family. If he does not maintain any member then he can be sued for maintenance and also can be asked for compensation.

Liability of render accounts– As long as the family remains joint, Karta is not supposed to keep accounts of the family, but when partition takes place at that time he will be liable to account for family property.

 If any of the heir is not satisfied with his accounts, then he can constitute a suit against Karta to bring the truth and to know if any misappropriation is done by Karta or not.

Liability of recovery debts due to the Family– He has the liability to realize the debts due to the family.

Liability to spend reasonably- He has the liability to spend the joint family funds only for the family purposes.

Liability not to eliminate coparcenary property– It is the liability of the Karta not to alienate the coparcenary property without any legal necessity or benefit to the state.

Liability not to start a new Business- It is the liability of the Karta not to start a new business without the consent of other coparceners.

Responsibilities of Karta 

The duty of a Karta is to provide clothing, food, shelter etc, to the members of the joint family. There are several responsibilities of Karta which include:

Maintenance

Every member of the family including Karta has the right to maintenance. The Responsibility of Karta is to maintain all the members of the family. If he does not maintain any member properly, then he can be sued for both maintenance and dues of maintenance. 

Marriage

The Karta is responsible for the unmarried members especially the daughters. The expenses for the marriage will be taken out of the Joint Family property.

Representation

Karta acts as a representative on behalf of the family. This is because he must perform some responsibilities and liabilities on account of the family. He must pay all the dues and the taxes. He can be sued on behalf of the family during any agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the joint family and enjoy undefined and unspecified share separately.

Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a bilateral action.

Opening of assets means the inquiry of the assets of joint family. This includes all the items of family property. Karta under Mitakshara Law is required to disclose the accounts only if there are any charges of fraud, misappropriation or conversion of assets or property of the joint family against him. If there is no proof of misappropriation, fraud or conversion against the Karta, the coparceners who follow the partition process cannot demand the disclosure of the past dealings of Karta with joint family property or assets. After the severance of status, the Karta must give the accounts of the expenditure and income in a manner similar to which a Trustee or agent has to render accounts. This implies that Karta has to report all the profits.

Conclusion

In a joint Hindu household, Karta occupies a unique position in terms of knowledge and complexity. The idea behind Karta has been around for many years, and because of certain practical components, it still holds true today. Every joint family ought to have a Karta to strengthen the family’s cohesiveness with regard to its dealings and endeavours. When considering the Karta’s status, it may be claimed that he has more power and fewer obligations. Karta occupies a special position when it comes to deciding his position. The parties are required to abide by the rulings or pronouncements made by the Karta. The Hindu Succession Act of 1956, Section 6, grants females the same rights as sons. The Hindu Succession Act of 1956 prohibits women from becoming Kartas, with the exception of two situations: when a male family member is either not present or is a juvenile. These two situations are also described in the Dharmasutras, an ancient text on Hindu law. The government needs to take action to improve the status of women under other personal laws.

DHARMA

According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can be referred to as the concept of justice. The word ‘Dharma’ generally includes all kinds of rules, religious, moral, legal, physical, metaphysical or scientific, in the same way as the law does, in its widest sense. The word ‘Dharma’ is derived from the root ‘dhri’ (to hold, support or maintain) and it means law or duty, or the essential quality of persons or things. By the term ‘Dharma ‘ is understood the rules which govern the whole mankind

Dharma has been defined as “What is followed by those learned in the Vedas and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affections.” According to Mayne, Hindu Law is the Law of ‘Smiritis‘ as expounded in the Sanskrit Commentaries and Digests. which as modified and supplemented by custom, is administered by the courts.

Dharma is an omnibus concept with multiple shades of meaning. Dharma in ancient Hindu tradition was a system of injunctions and prohibitions in order to ensure the harmonious functioning of various elements in the life. Only Veda, Smriti and Shista-acara are sources of Dharma. Thus legal procedure with its manifold ramifications has been represented by the sages. The system of dharma asserts that all dharma are universally obligatory being absolute, unconditional and infallible.

The concept of Dharma as understood in its collective aspect is the foundation of all Hindu ideas of progress and social order, which have to be construed in the light of higher ends of man. Dharma can be categorized as Rajadharma as highest dharma for ruler and Ashrama and Varna dharma as highest for the ruled.

Sources of Dharma

As referred to in the  “Bhagwat Geeta”,  God creates a life using the principles of Dharma. They are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which means “Moksha” is the eternal Dharma for humans according to Hinduism.

Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing one’s Dharma is the right aim of every individual. And also at that time, the king was known as Dharmaraj because the main motive of the king was to follow the path of Dharma.

Nature of Dharma

Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties more than the rights. The nature of these Dharma changes from person to person. There are many duties of many people in this world like earlier, the king’s duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the doctor has to cure the people, the lawyers have to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains many laws and customs in a large range of subjects which is essential and needed to be followed by each and every person. For example, Manusmriti deals with religion, administration, economics, civil and criminal law, marriage, succession, etc.

Our laws have not been inherited from English legal system rather our texts. Since natural law guided the legal procedure and same is continuing without substantial change. The first five words –We, the people of India are descriptive of the consumers and creators of the values of the paramount law.This shows that our Constitution is based on Dharma which recognizes the people as end and law as means. The Apex Court was of the view in Aruna Roy And Others v. Union Of India And Others AIR 2002 SC 3176 that the essential aspect of our ancient thought concerning law was the clear recognition of the supremacy of dharma and the clear articulation of the status of ‘dharma’ which is somewhat akin to the modern concept of the rule of law, i.e. of all being sustained and regulated by it.