Hindu Law

Contents

Division 2
Marriage & Divorce

Chapter 1
The Hindu Marriage Act, 1955

[Act 25 of 1955]

1. Short title and extent.

1. Preamble.

2. Amending and Codifying Act.

3. Rules of interpretation.

(i) Ascertainment of intention of law-makers.

(ii) Literal or strict construction.

(iii) Heydon rule.

(iv) No creation of artificial ambiguity.

(v) Modification of language when permissible?

(vi) Literal approach to accord with purposive approach.

(vii) Contextual meaning.

(viii) Casus omissus.

(ix) Heading of section.

(x) Word ‘include’.

4. ‘Domicile’.

(i) Connotation.

(ii) Several kinds of domicile.

(a) Domicile of origin.

(b) Domicile of choice.

(c) Domicile by operation of law.

2. Application of Act.

1. Persons governed by Act.

(i) Hindu by religion.

(a) Hindu.

(b) Hindu religion.

(ii) Jains.

(iii) Sikhs.

(iv) Other person.

2. Christians outside purview of Act.

3. Scheduled Tribe—Gond not governed by Act.

3. Definitions.

1. Definition clause.

(i) General observations.

(ii) "Unless the context otherwise requires"—Definition clause with qualification.

(iii) Scope of definition clause.

2. "Custom and usage".

3. District Court.

(i) Jurisdiction limited.

(ii) Jurisdiction when not affected?

(iii) Additional District Judge.

(iv) Appeal.

4. ‘Full blood’, ‘half blood’ and ‘uterine blood’.

5. ‘Prescribed’.

6. Sapinda relationship.

7. ‘Degrees of prohibited relationship’.

4. Overriding effect of Act.

1. Previous Hindu law, custom or usage to cease to have effect.

(i) Act valid.

(ii) Not retrospective.

(iii) Act exhaustive.

2. Other inconsistent law ineffective.

3. Savings.

4. Civil Court’s jurisdiction.

HINDU MARRIAGES

5. Conditions for a Hindu marriage.

1. Amendments.

(i) 1976

(ii) 1978

(iii) 1999

2. Constitutional validity.

3. Conditions for marriage.

4. Solemnization of Hindu marriage.

5. Monogamy.

(i) Bigamy prohibited.

(ii) Bigamy punishable notwithstanding conversion.

(iii) ‘Spouse’.

(iv) Second marriage void.

(v) Court not competent to give permission for second marriage.

(vi) No maintenance allowance to second wife.

(vii) No succession by wife marrying second time.

6. Mental capacity [clause (ii)].

(i) Unsoundness of mind.

(ii) Mental disorder.

(iii) Recurrent attacks of insanity or epilepsy.

7. Age of parties : Consent.

8. Degrees of prohibited relationship [clause (iv)].

9. Sapinda relationship [clause (v)].

10. Consent of guardian of minor bride [omitted cl. (vi)].

6. Guardianship in marriage (omitted).

1. Legislative history.

2. Cases on omitted s. 6.

7. Ceremonies for a Hindu marriage.

1. Eight old forms of Hindu marriage.

(i) Differences.

(ii) All forms obsolete except three.

(iii) Brahma-vivaha.

(iv) Gãndharva-vivãha.

(v) Asura-vivaha.

2. Ceremonies for Hindu marriage.

(i) Choice of parties.

(ii) Customary rites and ceremonies.

(iii) Customary ceremonies of neo-Buddhists.

(iv) Marriage not wholly sacramental.

3. Saptapadi.

(i) Not essential for validity of every marriage.

(ii) Saptapadi essential in Brahmanical form of marriage.

4. Kanyadanam.

5. Anand Karaj.

6. Presumption and proof of marriage.

7. Factum valet.

8. Offence of bigamy.

9. Madras Amendment.

8. Registration of Hindu marriages.

1. Rules by State Government.

2. Registration compulsory.

3. Non-registration not to affect validity of marriage.

4. Suit for cancellation of registration maintainable.

5. Evidentiary value of registration certificate for marriage.

restitution of conjugal rights and judicial separation

9. Restitution of conjugal rights.

1. Amendments.

2. Constitutionality.

3. Duty of Hindu wife—Bound to live with her husband.

4. Duty of husband.

5. Choice of matrimonial home.

6. Existence of valid marriage pre-requisite for applicability of provision.

7. Petition for restitution of conjugal rights.

(i) Petition only by husband or wife being Hindu.

(ii) Jurisdiction of court.

(iii) Conditions.

(iv) Effect of delay in presenting petition.

(v) Petition when not maintainable?

(vi) Bona fide desire to resume matrimonial cohabitation to be shown by petitioner.

8. Burden of proof.

(i) Petitioner to prove essential ingredients.

(ii) Temporary separation not withdrawal from society.

(iii) Petitioner to prove withdrawal of respondent from society without reasonable excuse.

(iv) Burden of proving reasonable excuse on person withdrawing from society.

(v) Pleadings in petition to show truthfulness of statements.

(vi) Specific allegation in petition necessary.

9. Reasonable excuse.

(i) Cruelty.

(a) Imputation of unchastity or adultery to wife.

(b) Instances of cruelty.

(ii) Impotency.

(a) ‘Impotency’ what is?

(b) Impotency to be continuous from date of marriage till date of proceedings.

(c) Medical examination of husband.

(d) Husband where denied decree for impotency.

(iii) Desertion.

(a) ‘Desertion’ what is?

(b) Desertion where entitles decree or otherwise.

(iv) Other instances of reasonable excuse or otherwise.

(v) Other available defence.

10. Withdrawal from society or otherwise and with or without reasonable excuse.

11. Duty of Court on petition for restitution of conjugal rights.

(i) Satisfaction of Court.

(ii) Discretion of Court how to be exercised?

(iii) Mutual obligations of spouses to be ascertained.

(iv) Circumstances mentioned in s. 23 to be taken into consideration.

(v) Reconciliation.

12. In pleading

13. Evidence

(i) Mere allegation not evidence.

(ii) Appreciation of evidence.

(iii) Opportunity to wife.

14. Other allied matters.

(i) Stay of petition.

(ii) Interim injunction/injunction.

(iii) Expenses of litigation to wife.

(iv) Interim maintenance to wife.

(v) Maintenance to wife under s. 125, Cr. P.C., after decree.

(vi) Transfer of case.

15. Decree for restitution of conjugal rights.

(i) Husband where entitled to decree.

(ii) Husband where not entitled to decree.

(iii) Wife where entitled to decree or otherwise.

(iv) Essence of decree.

(v) Execution/satisfaction of decree.

(vi) Ex parte decree.

(vii) Decree on compromise.

 

16. No conversion of petition for restitution of conjugal rights into petition for divorce.

17. Petition for divorce by wife and that for restitution of conjugal rights by husband.

18. Res judicata.

19. Judgment in rem.

20. Appeal abates on death.

10. Judicial separation.

1. Amendments.

2. Presumption of marriage.

3. Grounds for judicial separation.

(i) Grounds for husband or wife.

(ii) Additional grounds for wife.

4. Desertion.

(i) What is?

(ii) Essential ingredients : Animus deserendi.

(iii) Desertion when commences?

(iv) Constructive desertion.

(v) Desertion how to be proved?—Inference of desertion.

(vi) Burden of proof on petitioner.

(vii) Desertion how to be decided?

5. Cruelty.

(i) What is?

(ii) Legal cruelty.

(iii) Mental cruelty.

(iv) Intention or motive whether necessary?

(v) Cruelty by wife when?

(vi) Question of cruelty how to be determined?

(vii) Condonation of cruelty : Resumption of normal sexual life.

(viii) Cruelty after amendment of 1976.

(ix) Cruelty if or not.

6. Incurably of unsound mind.

7. Extra marital relation.

8. Standard of proof.

9. Amendment of petition and stay of proceedings.

10. Decree for judicial separation.

(i) Decree when grantable?

(ii) Decree where grantable or otherwise.

(iii) Effect of decree.

(iv) No dissolution of marriage but suspension of marital obligations only.

(v) Compromise decree.

(vi) Validity of decree.

(vii) Decree not retrospective.

(viii) Decree in rem.

(ix) Res judicata.

(x) Maintenance under Cr. P.C.

11. Rescission of decree.

nullity of marriage and divorce

11. Void marriages.

1. Amendment.

2. Constitutionality.

3. Marriage void ipso jure.

(i) No necessity of declaration.

(ii) Pre-requisite condition for declaration of nullity.

(iii) Distinction between void and voidable marriages.

(iv) Second marriage void.

(v) Second marriage by Hindu male after conversion to Islam is void.

(vi) Status of second wife only that of kept mistress.

(vii) Second wife not entitled to maintenance.

4. Petition for declaration of nullity of marriage.

(i) Only parties to marriage competent to apply.

(ii) Surviving spouse not competent to file petition.

(iii) Co-wife cannot apply.

(iv) Third party’s right.

(v) Petition to restrain husband from taking second wife not maintainable.

(vi) Second petition.

(vii) Delay in filing petition.

(viii) Burden of proof of death of former husband on wife.

(ix) Effect of s. 23.

5. Marriage with sister’s daughter.

6. Declaration of nullity of marriage where available or otherwise.

7. Legitimacy of child not determinable.

8. Jurisdiction of testamentary court.

9. Marriage between Hindu and Christian.

12. Voidable marriages.

1. Annulment of voidable marriages.

2. Impotence resulting in non-consummation of marriage [sub-section (1)(a)].

(i) Amendment.

(ii) ‘Consummation’ what means?

(iii) ‘Impotence’ in general.

(iv) Impotency vs. Sterility.

(v) Impotence qua spouse.

(vi) Impotency of husband.

(vii) Impotency of wife.

(viii) Proof of impotency.

(a) Presumption of impotency of husband or wife.

(b) Report of Medical Officer not evidence.

(ix) Burden of proof on petitioner.

(x) Medical examination.

(xi) Evidence of wife on impotency of husband how to be tested?

(xii) Wife to prove what?

(xiii) Delay in filing petition by wife.

(xiv) Amendment of pleadings/written statement.

(xv) Doctrine of ‘insincerity’ and ‘approbation’.

(xvi) Ex parte decree and remarriage.

3. Marriage with person of unsound mind or one suffering from mental disorder [Section 12(1)(b) read with s. 5(ii)].

(i) Mental disorder.

(ii) Insanity.

(iii) Epilepsy.

(iv) Burden of proof on petitioner and standard of proof.

(v) Delay in filing petition.

4. Consent obtained by force or fraud [Section 12(1)(c), read with s. 12(2)(a)].

(i) Amendments.

(ii) Limitation.

(iii) ‘Consent’ for marriage.

(iv) ‘Fraud’ what means?

(a) ‘Fraud’ before 1976 amendment.

(b) ‘Fraud’ after 1976 amendment : Material fact.

(v) Consent by force.

(vi) Allegations to be specific and not vague.

(vii) Condonation.

5. Wife pregnant at time of marriage by person other than husband [Section 12(1)(d) read with s. 12(2)(b)].

(i) Conditions precedent.

(ii) Petition beyond period of one year not maintainable.

(iii) Onus on petitioner to prove all conditions subject to exceptions.

(iv) Blood testing.

(v) Admission of parties.

(vi) Cohabitation.

(vii) Past unchastity no ground.

(viii) Declaratory suit not maintainable.

6. Delay in filing petition.

7. No rejection of petition.

8. Ex parte decree.

9. Remarriage before filing of appeal : Appeal not infructuous.

13. Divorce.

1. Amendments.

(i) 1964.

(ii) U.P. Amendment.

(iii) 1976.

2. Grounds for dissolution of marriage.

(i) Grounds available to either spouse.

(ii) Additional grounds for wife.

(iii) No grounds for marriage.

3. Standard of proof beyond reasonable doubt in divorce proceedings.

4. Reconciliation necessary.

5. Voluntary sexual intercourse with non-spouse/Adultery [sub-section (1)(i)].

(i) Effect of 1976 amendment.

(ii) ‘Adultery" in ancient Hindu laws.

(iii) ‘Adultery’ what means?

(iv) Single act of adultery sufficient.

(v) "Living in adultery".

(vi) Proof : Direct evidence not necessary : Circumstantial evidence sufficient.

(vii) Presumption/inference of adultery.

(viii) Positive proof necessary.

(ix) Mere possibility not enough.

(x) Standard of proof beyond reasonable doubt.

(xi) Adultery by wife or otherwise.

(xii) Adultery by husband or otherwise.

(xiii) Condonation.

(xiv) Delay in filing petition to desentitle to relief.

(xv) Adulterer whether to be made party?

6. Cruelty.

(i) Cruelty what is?—"Treated with cruelty".

(ii) Extent of ‘cruelty’ after 1976 amendment.

(iii) Cruelty both physical and mental.

(iv) ‘Mental cruelty’ what is?

(v) Factors and tests.

(vi) Cruelty how proved?

(vii) Mere wear and tear in married life not cruelty.

(viii) Intention not necessary.

(ix) Cruelty by wife to husband.

(x) Mental cruelty by wife.

(xi) Aversion to sexual intercourse for short period not but complete refusal by wife is cruelty.

(xii) Extent of impact of allegation of adultery against wife and husband.

(xiii) No cruelty by wife.

(xiv) Abortion by wife when cruelty and when not?

(xv) Cruelty by husband.

(xvi) No cruelty by husband.

(xvii) Allegations and counter-allegations not sufficient for decree of divorce.

(xviii) Specific averments in petition necessary.

(xix) Medical examination.

(xx) Petitioner to prove : Admission not relevant.

(xxi) Best evidence necessary.

(xxii) Standard of proof beyond reasonable doubt.

(xxiii) Amendment of petition.

(xiv) Res judicata.

(xv) Condonation.

7. Desertion.

(i) ‘Desertion’ what means?

(ii) Permanent repudiation of cohabitation.

(iii) Two elements in ‘desertion’.

(iv) ‘Desertion’ not withdrawal from place but from state of things.

(v) Mere living separately even for long time not desertion.

(vi) ‘Desertion’ when commences?

(vii) Matter of inference.

(viii) Constructive desertion.

(ix) ‘Desertion’ as per Explanation.

(a) Reasonable cause.

(b) Wilful neglect.

(x) ‘Desertion’ to be continuous for not less than two years.

(xi) ‘Desertion’ terminates after decree for judicial separation.

(xii) No desertion by consent.

(xiii) Desertion by wife.

(xiv) No desertion by wife.

(xv) Desertion by husband.

(xvi) Unexplained delay.

(xvii) Burden of proof on petitioner : Proof beyond reasonable doubt.

(xviii) Condonation.

(xix) Res judicata.

(xx) Evidence.

(xxi) Effect of offer to resume matrimonial obligation during proceedings.

(xxii) Conversion of decree of divorce into that of judicial separation.

(xxiii) No direction for medical examination against wish.

8. Conversion to another religion [Section 13(1)(ii)].

9. Incurable unsoundness of mind or mental disorder [Section 13(1)(iii)].

(i) ‘Incurably of unsound mind’.

(ii) ‘Mental disorder’.

(iii) Assessment of ‘mental disorder’.

(iv) Schizophrenia.

(v) Proof : Oral evidence not sufficient.

(vi) Guardian to be appointed.

(vii) Direction for enquiry.

(viii) Mental disorder existing.

(ix) No mental disorder.

10. Respondent suffering from virulent and incurable form of leprosy [Section 13(1)(iv)].

11. Venereal disease in communicable form [Section 13(1)(v)].

12. Renunciation of world.

13. Civil death.

14. No resumption of cohabitation on decree for judicial separation [Section 13(1A)(i)].

(i) Consent decree.

(ii) Section 23(1)(a) attracted : Defaulting spouse not entitled.

(iii) Non-resumption of cohabitation.

15. No resumption of cohabitation on decree for restitution of conjugal rights [Section 13(1A)(ii)].

(i) Effect of non-resumption of cohabitation : Applicability of s. 23(1)(a).

(ii) Decree for restitution how complied with?

(iii) Period of one year how to be computed?

(iv) Entitlement of husband to decree.

(v) Consent decree for restitution of conjugal rights.

16. Additional grounds of divorce for wife.

(i) Husband guilty of rape, sodomy or bestiality.

(ii) Non-resumption of cohabitation after decree or order of maintenance to wife.

(iii) Repudiation of marriage.

(a) Repudiation how to be exercised?

(b) Wife where entitled to decree of divorce or otherwise.

17. Petition for divorce.

(i) Specific pleadings and not mention of section necessary.

(ii) Second petition maintainable.

(iii) No adverse inference.

(iv) Effect of delay.

18. ‘Irretrievably broken down marriage’.

19. Reconciliation.

20. Compromise decree.

21. No decree of divorce in case of Christian marriage.

22. Ex parte decree.

(i) Wife after death of husband competent to maintain application.

(ii) Appeal by wife, death of husband and substitution.

23. Appeal.

(i) No abatement.

(ii) No challenge on ground of setting aside ex parte decree.

13-A. Alternate relief in divorce proceedings.

1. Introduction of provision

2. Analysis of provision

3. Object and purpose of provision

4. Amendment of petition for divorce not necessary

5. Decree of judicial separation when just cause and not on ground raised

6. Decree at appellate stage grantable

7. Decree for judicial separation where available

13-B. Divorce by mutual consent.

1. Introduction of provision

2. Ingredients/requirements of provision

(i) ‘Living separately’.

(ii) ‘Mutual consent’.

3. Petition

(i) Petition by both parties together.

(ii) Petition to be filed in District Court/Family Court.

(iii) Conversion of petition

(iv) Petition and not oral agreement during arguments necessary

(v) Petition in appeal

(vi) Petition during pendency of proceedings whether permissible?

(vii) No period of limitation.

4. Motion of both parties

(i) Two stages in divorce proceedings

(ii) Purpose of period of six months to 18 months

(iii) Withdrawal of petition/consent unilaterally permissible.

(iv) Consent to continue till end of proceedings : Criticism by Supreme Court in Ashok v. Rupa unwarranted.

(v) Period of ‘six months’ whether mandatory or directory?

(vi) Effect of not making motion within 18 months.

(vii) Father has no locus standi

5. Hearing of petition

(i) "Hearing parties".

(ii) Enquiry by court

(iii) Court’s satisfaction and not matter of discretion

(iv) Dismissal of petition for non-appearance of wife illegal.

6. Reconciliation

7. Decree of divorce on mutual consent

(i) Challenge to decree.

(ii) Appeal.

(iii) Wife entitled to maintenance

8. Decree for divorce in terms of compromise against s. 13-B.

9. Custody of child

14. No petition for divorce to be presented within one year of marriage

1. Amendment

2. Bar on petition for divorce within one year of marriage

3. Relaxation of period of one year on exceptional hardship or exceptional depravity

(i) "Exceptional hardship" or "exceptional depravity".

(ii) Leave how and when to be granted?

(iii) Considerations for disposal of application for leave

(iv) Duty of court when leave obtained by misrepresentation or concealment.

15. Divorced persons when may marry again

1. Amendment

2. Bar on remarriage before disposal of appeal against decree

(i) No right to remarry till decision on appeal filed within time

(ii) Appeal not infructuous

(iii) Application for setting aside ex parte decree of divorce not infructuous

3. Bar on remarriage before disposal of appeal against decree of nullity of marriage

4. Deleted proviso

16. Legitimacy of children of void and voidable marriages

1. Amendment

2. Applicability of provision—Proof of marriage but not before commencement of Act necessary

3. Children of void marriage legitimate despite absence of decree of nullity [sub-section (1)]

4. Children of voidable marriage legitimate on decree of nullity [sub-section (2)]

5. No proof of marriage : No presumption of legitimacy of child

6. Child/children not to have any rights in or to property of any person other than parents [sub-section (3)]

(i) Extent of property of parents.

(ii) Correct view on extent of property of parents

(iii) Children entitled to succession certificate

(iv) Right to inheritance

(iv) No protection to wife.

7. Child entitled to maintenance

17. Punishment of bigamy

1. Provision not ultra vires Constitution

2. Applicability of provision

(i) Applicable to Hindus only and not to Muslims.

(ii) Applicable only after bigamy committed.

3. Punishment for bigamy

(i) Conditions

(ii) Voidness of second marriage : First condition.

(iii) Second marriage to be valid : Second condition

(a) Solemnization of marriage : Essential ceremonies to be performed

(b) Two ceremonies essential

(c) Essential ceremonies to be proved : Admission not sufficient

(iv) Proof of second marriage : Nature of proof : Strict proof.

(v) Presumption.

(vi) Burden of proof on complainant.

(vii) Effect of non-examination of witnesses

(viii) First marriage also must be valid

(ix) Presumption of death not to validate bigamous marriage.

4. Sentencing bigamy

(i) No offence if second marriage not valid

(ii) Venue of trial

(iii) Proceedings when liable to be quashed?

(iv) No leniency in sentencing.

5. No injunction

6. Maintainability of second complaint

18. Punishment for contravention of certain other conditions for a Hindu marriage

1. Amendments

2. Analysis of provision

3. Section 19 not applicable for determination of court

4. Marriage in contravention of s. 5(iii) punishable yet valid

JURISDICTION AND PROCEDURE

19. Court to which petition shall be presented

1. Amendment

2. Analysis of provision

3. Applicability of provision

4. Petition vs. plaint

5. Jurisdiction of court

(i) Dependent on place of solemnization of marriage or place of residence at choice of petitioner.

(ii) Residing or last resided together

(iii) ‘Together’ in ‘last resided together’ what connotes?

(iv) Residence permanent or temporary but actual.

(v) Jurisdiction to decide marital relationship

6. Jurisdiction in case of divorce petition after decree for judicial separation

7. Objection to jurisdiction

(i) Objection when permissible at appellate stage?

(ii) Objection not decidable as preliminary issue

8. ‘District Court’

20. Contents and verification of petitions

1. Amendment

2. Contents of petitions

3. Verification of statements in petition and reference as evidence

21. Application of Act 5 of 1908

1. Regulation of procedure by CPC and High Court Rules

2. Amendment of pleadings

3. Inherent powers of court : Power to stay proceedings

4. Power to issue temporary injunction

5. No power to compel for medical examination

6. Provisions of Act on matters of procedure

7. Damages

8. Affidavit

9. Res judicata

10. Decree and its enforcement

21-A. Power to transfer petitions in certain cases

1. Introduction of provision

2. Scope and applicability of provision

(i) Petitions under ss. 10 and 13 only transferable.

(ii) Transfer of other petitions governed by s. 24, CPC

(iii) Transfer of single petition covered by s. 24.

(iv) Petition later in point of time to be transferred.

3. Jurisdiction of Supreme Court unfettered

4. Application to transfer petition lies to High Court

21-B. Special provision relating to trial and disposal of petitions under the Act

1. Introduction of provision

2. Object and scope of provision : No stay of proceedings

3. Provisions of CPC not to be strictly followed

21-C. Documentary evidence

1. Introduction of provision

2. Documentary evidence admissible notwithstanding its not being duly stamped or non-registration

22. Proceedings to be in camera and may not be printed or published

1. Amendment

2. Hearing in camera

3. Restriction in publication

23. Decree in proceedings

1. Amendments

2. Scope of provision—Duties of court

(i) General scope

(ii) Provision mandatory.

(iii) Jurisdictional requirement.

(iv) Duty of Court : Proceeding whether defended or not.

(v) Satisfaction of court vis-a-vis standard of proof

3. Evidence

(i) Interested witness

(ii) Corroboration

(iii) Admission of parties.

(iv) Subsequent events

4. Ex parte decree or consent decree when permissible?

5. General rule : No advantage of his/her own wrong or disability [Clause (a) of s. 23(1)]

(i) Conduct of petitioner to be considered.

(ii) "Wrong" what connotes?

(iii) Exceptions.

(iv) Petitioner where not allowed to take advantage of his/her own wrong

(v) ‘Wrong’ versus ‘non-compliance with decree’ for restitution of conjugal rights

6. Extra-marital sexual intercourse of respondent but petitioner not accessory to or conniving at or condoning [Clause (b) of s. 23(1), earlier part].

(i) Extra-marital sexual intercourse/Adultery

(ii) Connivance

(iii) Condonation

(iv) Condonation with implied condition.

(v) Condonation where existing or otherwise

(vi) Court to consider condonation even if not pleaded

(vii) Evidence of condonation : Best evidence

(viii) Revival of matrimonial offence

7. Cruelty and condonation [Clause (b) of s. 23(1), later part]

(i) ‘Condonation’ what means?—Cohabitation not whole test

(ii) Court to consider condonation even if not pleaded

(iii) Evidence of condonation necessary

(iv) Condonation where existing

(v) Condonation where absent.

(vi) Revival.

8. Condonation of grounds other than adultery and cruelty

9. Divorce by mutual consent but consent not to be by force, etc. [Clause (bb) of s. 23(1)]

10. Collusion [Clause (c) of s. 23(1)]

11. Delay [Clause (d) of s. 23(1)]

(i) Duty of court

(ii) Test

(iii) Petitioner to explain delay

(iv) Delay itself not fatal if reasonable explanation given

(v) Delay not to override other considerations

(vi) Motive and conduct to be seen.

(vii) Delay not approbation

(viii) Delay in cases of adultery, cruelty and desertion

(ix) Plea of delay to be raised at first instance.

(x) Relief where available

(xi) Relief where not available.

12. Legal ground for refusal of relief [Clause (e) of s. 23(1)].

13. Reconciliation [Sub-section (2) of s. 23].

(i) Duty of court

(ii) Court to require presence of parties

(iii) Duty of court and not discretion

(iv) Reconciliation to be attempted right from beginning till end of proceedings

(v) Effect of failure of court at reconciliation

(vi) Appellate court also to make attempt at reconciliation

(vii) Petition where not to be dismissed.

14. Reconciliation through mediator [Sub-section (3) of s. 23]

15. Furnishing copy of decree free of cost [Sub-section (4) of s. 23]

23-A. Relief for respondent in divorce and other proceedings

1. Introduction of provision

2. Counter-claim by respondent

3. ‘Relief’ includes relief for permanent alimony

4. Counter-claim in appeal

5. Conversion of written statement into counter-claim

6. Award by referee without jurisdiction

24. Maintenance pendente lite and expenses of proceedings

1. Amendment

2. Provision not violative of Article 14 of Constitution

3. Object, purpose and scope of provision

(i) Object and purpose

(ii) Beneficial provision

(iii) ‘Petitioner’ and ‘respondent’ who are?

(iv) ‘Any proceeding’ under Act what means and includes?

(v) ‘Pendente lite’ what means : During proceeding’ what comprehends?

(a) Permissibility of order after end of proceeding.

(b) Withdrawal of main petition and grant of interim maintenance.

(vi) ‘Wife and husband’ what implies? : Denial of marriage no bar.

4. Grant of maintenance pendente lite and litigation expenses

(i) ‘Maintenance’ what means?

(ii) ‘Support’ what connotes?

(iii) Expenses of proceeding or litigation expenses

(iv) Objection to jurisdiction of court or denial of marital status not to oust jurisdiction

(v) Provision not controlled by s. 23.

(vi) Discretion of court

(vii) Enquiry

(viii) Proceedings summary and to be decided before decision of main petition.

(a) Decision on application before efforts for reconciliation

(b) Decision before filing written statement as its filing necessary

(ix) Proceeding may be disposed of on affidavits.

(x) Court cannot go into legality or validity of marriage.

(xi) Interim maintenance claimable even in face proceedings under s. 18 of Hindu Adoptions and Maintenance Act

(xii) Proceedings not to go by default.

(xiii) Irrelevant considerations

(xiv) No interim maintenance under s. 151, CPC.

5. Evidence

(i) Not necessary to record evidence : Decision on pleadings supported by affidavit

(ii) Cross-examination of deponent of affidavit

(iii) Statement of parties and not cross-examination

(iv) Pleading.

6. Entitlement to interim maintenance and litigation expenses

(i) Applicant to prove insufficiency of independent income

(ii) ‘Income’ what means?

(iii) "Independent income" what connotes?

(iv) Determination of sufficiency of income

(v) Wife and dependent children entitled

(vi) Wife where entitled or otherwise

(vii) Husband when not entitled?

(viii) Burden of proof.

7. Quantum of maintenance pendente lite.

(i) Considerations.

(ii) First step : Determination of income of petitioner and respondent

(a) Finding on income necessary

(b) Evidence of income essential.

(c) Interrogatories

(d) Capacity to earn no consideration

(iii) Second step : Determination of sufficiency of independent income of claimant

(iv) Third step : Determination of reasonable quantum : Factors

(a) No fixed formula and no ceiling.

(b) Factors for consideration

(v) Conduct of wife.

(vi) Disposable income of husband liable to be taken into account.

(vii) Fixation of quantum where proper or excessive.

(viii) Enhancement

(ix) Travelling expenses of attendant.

8. Order for maintenance pendente lite

(i) Maintenance to be granted from which date?—Date of application or date of order.

(ii) No avoidance to pay during pendency of proceeding.

(iii) No order for interim maintenance when permanent alimony in arrears

(iv) Conditional order not valid

(v) Power to vary order

(vi) No lump sum award

(vii) Delivery expenses.

(viii) No interference lightly.

(ix) Order without jurisdiction

(x) Non-payment of maintenance : Civil Contempt.

(xi) Order to lapse.

9. Maintenance under s. 24 and under s. 125, Cr. P.C.

10. Execution/non-compliance with order

11. Appeal/Revision

25. Permanent alimony and maintenance

1. Amendments

2. Scope of provision

(i) Purpose

(ii) Liberal interpretation

(iii) Section 25 vis-a-vis HAM

(iv) General provisions of law not affected

(v) ‘Respondent’ what signifies?

(vii) ‘Wife’ what connotes?

3. Grant of permanent alimony and maintenance

(i) Discretion of court

(ii) Jurisdiction when arises? "At the time of passing any decree or at any time subsequent thereto".

(iii) Existence of "any decree" condition precedent for exercise of jurisdiction.

(iv) Oral application sufficient.

(v) Second application not maintainable

(vi) Application to be made to trial Court—His constructive res judicata

(vii) Appellate court competent to grant alimony

(viii) Primary considerations/Factors/Conduct of parties.

(a) Capacity of opposite party to earn no consideration.

(b) Salary of husband

(c) Mental disorder of wife

4. Conduct of wife and her entitlement to alimony

(i) Adultery

(ii) Cruelty

(iii) Erring spouse entitled.

(iv) Desertion

5. Entitlement of child/daughter

6. Wife where not entitled to maintenance

7. Quantum and order of maintenance

(i) Notice necessary to opposite party

(ii) Consent decree for alimony permissible.

(iii) Quantum how to be determined?

(iv) Gross/lump sum

(v) Date from which maintenance to be allowed.

(vi) Maintenance where proper or otherwise.

(vii) Charge on immovable property

(viii) Execution

(ix) Appeal

8. Variation in order of maintenance on subsequent change in circumstances

9. Variation, modification or rescission of order

10. Section 25 vs. s. 125, Cr. P.C.

26. Custody of children

1. Amendment

2. Scope of provision

(i) Court has jurisdiction even after decree

(ii) Fresh application when not maintainable?

(iii) Types of orders contemplated by provision

3. Custody of children

(i) Welfare of child to be of paramount importance

(ii) Education of children.

(iii) Provisions of s. 6 of HMG Act proper guide in case of child below 5 years

(iv) Custody of illegitimate children also permissible.

(v) Wishes of children, "wherever possible" to be ascertained.

(vi) Illustrations on custody

(vii) Custody with mother when not to be changed?

(viii) Custody with natural guardian when not to be changed?

(ix) Interim order, its modification and execution

4. Interim maintenance to children

5. Appeal

27. Disposal of property

1. Principles of provision

2. Jurisdiction of court for disposal of property

(i) Property presented "at or about the time of marriage".

(ii) ‘Property’ to include not only that given to wife but also to both parties

(iii) Term ‘belong’—Connection with property and not title reflected

(iv) Jurisdiction to deal with exclusive/individual property

(v) ‘Stridhan’.

(vi) Alternate remedy to wife.

(vii) Criminal remedy in respect of ‘stridhan’ misappropriated of husband.

3. Provision/direction by court in decree

(i) Evidence necessary

(ii) Order to be made in decree itself.

(iii) Application after decree not maintainable.

(iv) Finding in decree necessary

(v) Execution of decree by detention

4. Appeal

28. Appeal from decrees and orders

1. Amendment

2. Appeal

(i) Right of appeal substantive

(ii) Appeal not of same kind as in CPC.

(iii) Provision not overridden by s. 15.

(iv) Certified copy of decree to be filed.

(v) Cross-objection.

(vi) No automatic stay on filing of appeal

3. Maintainability of appeal

(i) Pre-amendment position

(ii) Post-amendment position

(iii) No appeal against order under s. 24.

(iv) Appeal against other decrees

(v) No appeal for alternative relief

(vi) Writ

4. Forum of appeal

5. Period of limitation

(i) Appeal to be preferred within 30 days

(ii) Condonation of delay

(iii) Exclusion of time on obtaining certified copy of decree or order

6. Hearing of and order on appeal

(i) Additional evidence.

(ii) New ground not permissible

(iii) Interference.

7. No abatement of appeal

8. Appeal not infructuous on remarriage after decree of divorce or nullity of marriage

28A. Enforcement of decree and orders

1. Introduction of provision

2. Enforcement of order of High Court by court of first instance

3. Enforcement by striking off defence

4. Civil contempt : Time-bar not attracted

29. Savings

1. Marriage solemnized before commencement of Act when not invalid?

2. Saving divorce by custom or under special enactment

3. Saving of pending proceedings

4. Special Marriage Act not affected

30. Repeals

1. Enactments repealed

2. Reason for repeal

division 2

Adoption

chapter 2

adoption

A. adoption under ancient Hindu law

1. General observations: Object of adoption

2. Origin of adoption

3. Rules of adoption

4. Forms of adoption

B. adoption under the hindu adoptions and
maintenance act, 1956

1. Statement of Objects and Reasons

2. Preamble

-- Interpretation of codifying statute.

chapter I

preliminary

1. Short title and extent

1. Commencement of Act

2. Extent

2. Application of Act

1. Persons governed by Act

2. Illegitimate child

3. Definitions

1. ‘Custom’ and ‘usage’

2. Minor

4. Overriding effect of Act

1. Any text, custom, etc. of Hindu law to cease to have effect

2. Customary adoption in Punjab not valid

3. Operation of texts, rules, etc. not totally obliterated

4. Goda Datta form of adoption not valid

5. ‘Ante-adoption agreement’ according to custom not affected

chapter iI

adoption

5. Adoptions to be regulated by this Chapter

1. Adoption to confirm to provisions of Act

2. Adoption ‘by or to Hindu’

3. Effect of void adoption

6. Requisites of a valid adoption

1. Four requirements of valid adoption : Provision mandatory

2. ‘Person’ in s. 6(iii).

3. Ceremonies

4. Inter-country adoption

5. Adoption and caste

7. Capacity of a male Hindu to take in adoption

1. Male major Hindu of sound mind competent to adopt

(i) Soundness of mind essential

(ii) Minor not competent to adopt.

2. Consent of wife for adoption

3. Burden of proof of consent for adoption

4. Old law

5. Distinction between old and new law

8. Capacity of a female Hindu to take in adoption

1. Female Hindu when competent to make adoption?

2. Married Hindu female when competent ?

3. Widow competent to adopt even if there be child to her co-widow.

4. Son adopted by widow to be member of family of deceased husband

5. Adoption by widow not to affect Mitakshara Joint Hindu family

6. Adoption by female Hindu under old law

(i) Adoption by wife

(ii) Adoption by widow : Authority to adopt.

(iii) Adoption by a dancing girl.

7. Distinction between old and new law

9. Persons capable of giving in adoption

1. Amendments : Objects and Reasons for Amendment

2. Persons competent to give in adoption

3. Father competent with consent of mother

4. Mother when competent to give in adoption

5. ‘Father’ and ‘mother’ : Not step-father or step-mother

6. Adoptive father and adoptive mother not competent

7. Remarriage

8. Right of guardian to give in adoption with previous permission of Court

(i) ‘Guardian’ who is ?

(ii) Court.

(iii) Duty of Court before granting permission.

(iv) Foreign guardian and sanction for inter-country adoption.

10. Persons who may be adopted

1. Persons who may be adopted

2. Adoptee must be Hindu

3. No double adoption

4. Marriage bar

5. Age bar

11. Other conditions for a valid adoption

1. Adoption of son only when no son living

2. No adoption of daughter if daughter already there

3. Age restrictions on adoption

4. No simultaneous adoption

5. Actual giving and taking : Ceremony

(i) Child

(ii) Ceremony of ‘giving and taking’

(iii) Intention to transfer child necessary.

(iv) No particular ceremony necessary for Sikkimese Budhists.

(v) Delegation of authority

(vi) Datta homam not essential

(vii) Deed of adoption not necessary

6. Evidence of adoption

(i) Burden to prove on person pleading/relying on adoption

(ii) Adoption how to be proved

(iii) Admission

(iv) Subsequent conduct of parties

(v) Factum valet.

7. Adoption deed

(i) Evidentiary value

(ii) Form of deed

(iii) Registration

(iv) Model Forms

12. Effect of adoptions

1. General observations

2. Adoptee becomes member of family of adoptive parents

3. Severance of all ties in family of birth and replacement by ties in adoptive family

4. Effect of adoption by widow same

5. Marriage prohibition

6. No divesting of property already vested in adopted child

7. No divesting of estate vested in any person before adoption

(i) ‘Any person’ not to include adoptive father or mother.

(ii) Position of widow adopting child—No divesting of property vested in her.

(iii) Alienation

8. Doctrine of relation back nullified

9. No reopening of partition

13. Right of adoptive parents to dispose of their properties

1. Position under old law

2. Power of adoptive parents to dispose of their properties subject to contrary agreement

14. Determination of adoptive mother in certain cases

1. Adoptive mother on adoption by Hindu having one wife living

2. Adoptive mother or husband having more than one wife and adopting child

3. Adoption by widower or bachelor

4. Adoption by widow or unmarried woman

15. Valid adoption not to be cancelled

1. Valid adoption—Cancellation under old law not permissible

2. Provision bars cancellation of valid adoption

16. Presumption as to registered documents relating to adoption

1. Presumption on registered document of adoption

(i) Conditions for raising presumption.

(ii) Presumption not available retrospectively

(iii) Signature by person giving and person taking in adoption essential

2. Presumption rebuttable

(i) Burden of proof on person dislodging presumption.

(ii) Burden of proof in case of fraud

3. Adoption proveable independently

17. Prohibition of certain payments

1. No payment for adoption : Ante-adoption agreement

2. Punishment for contravention

Section 18 to 30 have been dealt in Division IV of this Book at page 778

division 3

Family Property and Partition

chapter 3

hindu undivided family

1. What is a HUF?

2. Constitution of HUF

(i) HUF consists of defined persons.

(ii) Creature of law.

(iii) Hindu coparcenary much narrower body and distinct from HUF.

(iv) Incidents of coparcenership.

(iv) HUF may consist of only one male member.

3. Sole coparcener or member cannot be HUF.

4. Only female members.

5. Presumption of existence of HUF.

6. HUF within HUF.

7. Schools of Hindu law.

(i) Two schools.

(ii) Sub-divisions of Mitakshara.

(a) Benaras school

(b) Mithila school

(c) Bombay school

(d) Dravida school

(iii) Distinction between Mitakshara and Dayabhaga HUFs.

(a) Foundation of coparcenary.

(b) Inheritance.

(c) Incidents of joint family.

(d) Right to partition.

(e) Share in property.

(f) Alienation of property.

8. Possession of property not necessary for existence of HUF.

chapter 4

Karta or manager of HUF

1. Only coparcener can become karta.

(i) Minor as karta.

(ii) Junior member as karta.

(iii) Female cannot become karta.

2. Powers and duties of karta.

(i) Legal position of karta.

(ii) Power over income.

(iii) Representative of family in all transactions.

(iv) Not accountable for past dealings.

(v) Power of alienation for legal necessity.

3. Decrees against karta binding on family.

4. Power of manager to contract debts for family purposes.

(i) Extent of liability of other members.

(ii) Burden of proof of necessity for loan.

5. Power to make gifts of HUF property.

(i) Gifts of movable property.

(ii) Gifts of immovable property.

(iii) Gifts to strangers.

(iv) Gifts to or provision for unmarried daughters.

(v) Gifts to wife and daughter-in-law of immovable ancestral property not valid.

chapter 5

family property

1. General remarks.

2. Scope of joint Hindu family property.

3. Ancestral property.

(i) Properties which are ancestral.

(a) Accretions.

(b) Residue.

(c) Savings.

(d) Inherited property.

(ii) Properties not ancestral.

(a) Property inherited from maternal grandfather.

(b) Property acquired under Will.

(c) Others.

(iii) Liability of ancestral property in execution.

(iv) Coparcenary property.

4. Joint family property : Allied concepts.

(i) Main incidents of property.

(ii) Nature of interest of coparcener.

(iii) Presumption of property being joint family property when arises?

(iv) Burden of proof of property being family property.

(v) Insurance policies : Family property.

(vi) Property held by single coparcener : Family property.

(vii) Property granted to head of family when family property?

(viii) Inherited property when family property and when not?

(ix) Property acquired from mixed income.

(x) Property in name of junior member when family property?

5. Property not joint family property.

(i) Stridhan.

(ii) Property of members of family being brokers.

(iii) Income from hereditary profession.

(iv) Property obtained as gift.

(v) Property of stranger.

(vi) Earnings and savings.

(vii) Property in hands of widow and her female children.

(viii) Property in name of female member.

6. Property self-acquired by karta/member when family or individual property.

(i) General principles.

(ii) Concept of nucleus.

(iii) Proof of existence of nucleus.

(iv) Presumption.

(v) Property acquired by alienation of ancestral property—Joint family property.

(vi) Property acquired by joint effort/labour : Family property.

7. Nature of property obtained on partition.

8. Blending of self-acquired or separate property or property thrown into common stock of family.

(i) Modes of self-acquisitions.

(a) Obstructed Heritage

(b) Gift

(c) Government grant

(d) Property lost to family

(e) Income of separate property

(f) Share on partition

(g) Property held by surviving coparcener

(h) Separate earnings

(i) Gains of learning

(ii) Blending of property.

(iii) Clear intention necessary.

(iv) Blending unilateral act and only coparcener competent.

(v) Female member not competent to blend her separate property.

(vi) No formalities necessary.

(vii) Dayabhaga position.

(viii) Proof.

(ix) Presumption against blending.

(x) Blending not transfer.

(xi) Direct tax laws render doctrine of blending ineffective.

9. Individual property or family property.

(i) General principles.

(ii) Illustrations of family property.

(iii) Illustrations of individual property.

10. Family business.

(i) No presumption.

(ii) Burden to prove sufficient nucleus.

(iii) Ancestral business.

(iv) New business.

chapter 6

A. family settlement and partition

1. Object of family settlement.

2. Concept.

3. ‘Family’ what means?

4. Requirements/essentials of family statement.

5. Enforceable when?

6. No transfer.

B. Partition

1. What is?

(i) Severance in joint status without actual division.

(ii) Definite and unequivocal intention of separation sufficient.

(iii) Defining shares enough.

(iv) Sanction of court necessary for declaration on behalf of minor.

(v) Presence of minor no impediment.

(vi) Agreement or assent not necessary.

(vii) Communication of intention to separate necessary.

(viii) Mere separation in mess not sufficient.

(ix) Separate enjoyment of property for sake of convenience not partition.

(x) Effect of partition : No presumption of jointness of other members.

(xi) Not permissible to nullify effect of communication of intention to separate.

2. Right to effect partition.

(i) Partition foreign to single coparcener family.

(ii) Right of father without consent of sons to effect total or partial partition.

(iii) Father competent to effect partial partition without consent of minor sons.

3. Right to claim partition or entitlement to share.

(i) Wife cannot claim partition.

(ii) Person of unsound mind.

(iii) Widow of deceased coparcener.

(iv) Not open to member to convert family property into personal property.

4. Property not liable to partition.

(i) Self-acquired or separate property.

(ii) Property inherited from divided father.

(iii) Property purchased in individual names.

5. Mode of partition.

(i) By agreement.

(ii) By arbitration.

(iii) Partition of immovable properties.

(iv) Partition of family business.

(v) Partition of share in partnership.

(vi) Partition of shares.

(vii) Partition of pilgrim books.

6. Other relevant concepts on partition.

(i) Oral partition.

(ii) Provision for owelty or equality of partition.

(iii) Partial partition.

(iv) Reopening of partition.

(v) No transfer.

(vi) Contribution towards family debt.

(vii) Partition not negatived by members living together.

(viii) No partition if no change of ownership.

(ix) Unequal division with consent.

(x) No release.

(xi) Partition document not compulsorily registrable.

(xii) Date of severance in status/partition.

(xiii) Interpretation of partition deed.

(xiv) Document whether of partition or of maintenance?

7. Partition under Income-tax Act.

(i) Physical division.

(ii) Court decree not sufficient without physical division

(iii) Partial partition not recognised under income-tax law.

8. Suit for partition.

(i) Object and scope.

(ii) Pleadings.

(iii) Right to institute suit.

(a) Minor.

(b) Son.

(c) Alienee.

(iv) Properties to be brought for partition.

(v) Second suit.

(vi) Liability of karta to account.

(vii) Right to share.

(a) Defendant co-sharer.

(b) Son in womb and son conceived and born after institution of suit.

(c) No Jyesthansa to eldest son.

9. Burden of proof.

10. Proof of partition.

11. Minor’s right to dispute partition.

chapter 7

Reunion

1. Concept of ‘reunion’.

2. Conditions for ‘reunion’.

3. Competence to reunite : Only parties to original partition.

4. Intention to constitute ‘reunion’ necessary.

5. No presumption of ‘reunion’.

6. To bring back entire partitioned property not necessary.

7. Reunion how to be effected?

8. Proof of reunion.

9. Minors and reunion.

10. Effect of reunion.

division 4

Maintenance

chapter 8

maintenance under old hindu law

1. Introduction

2. ‘Maintenance’ what means/includes : Residence

3. Persons entitled to maintenance

4. Wife

(i) Personal objection of husband independently of possession of property by him

(ii) Liability of coparceneary property

(iii) Husband can be compelled

(iv) Right to pursue husband’s property in alienee’s hands

(v) Right to separate maintenance.

(vi) Unchastey wife : Burden of proof.

(vii) Right to separate interim maintenance.

(viii) Decree for separate maintenance and resumption of cohabitation.

(ix) Past maintenance : Arrears.

(x) Wife entitled to charge on property

5. Concubine

6. Widow

(i) Widow not bound to reside with relatives of husband

(ii) Ways in which right to maintenance can be satisfied

(iii) Widow not to be deprived of property in her possession by purchaser without securing maintenance to her.

(iv) Alienation and right of residence in family house

(v) Partition

(vi) Effect of Hindu Women’s Right to Property Act, 1937.

(vii) Unchastity

(viii) Re-marriage.

(ix) Living apart.

(x) Fixation, variation and reduction of rate of maintenance

(xi) Arrears of maintenance amd quantum.

(xii) Charge.

7. Mother

(i) Step-son.

(ii) Step-mother

(iii) Charge.

8. Widowed daughter

9. Widowed daughter-in-law.

10. Son/minor son

11. Illegitimate son

12. Daughter/Illegitimate daughter

13. Grand children

14. Aged parents

15. Adequacy of maintenance

chapter 9

maintenance under hindu adoptions and maintenance act

1. General observations

2. ‘Maintenance’.

chapter III

18. Maintenance of wife

1. Right of wife to be maintained by her husband.

(i) ‘Wife’.

(ii) Jurisdiction of Criminal Court not excluded

(iii) Onus on husband to disprove claim of wife.

(iv) Section 18 and s. 25 of Hindu Marriage Act.

(v) Section 18 vs. s. 125, Cr.P.C.

(vi) Remedy by way of civil suit.

(vii) Jurisdiction of court.

(viii) Additional evidence in appeal.

(ix) Finding of criminal court not to operate as res judicata.

(x) No stay of proceedings.

(xi) Quantum of maintenance.

(xii) Charge on property likely to be transferred when to be created?

2. Interim maintenance

(i) Mere denial of marital relationship by husband of no consequence.

(ii) Power of Family Court.

(iii) Date from which interim maintenance grantable.

(iv) Striking out defence of husband on deliberate flouting of order of interim maintenance.

3. Right of wife to separate residence and maintenance.

4. Desertion by husband and right of wife to separate residence and maintenance

(i) ‘Desertion’ what is : Proof of animus not necessary.

(ii) ‘Wilful neglect’.

(iii) Abandonment.

(iv) Denial of marriage by husband.

(v) Jurisdiction of Court.

5. Cruelty of husband entiling wife to separate residence and maintenance.

(i) Conditions.

(ii) ‘Cruelty/legal cruelty’ what constitutes.

(iii) Proof.

6. Husband having any other wife living.

(i) ‘Any other wife living" what connotes?

(ii) ‘Living’ not to mean ‘living with husband’.

(iii) Other wife wherhe to be legally wedded wife?

7. Husband living with concubine.

(i) Requisite factors.

(ii) ’Habitually residing with concubine ’.

8. Other justifiable cause for wife’s separate living.

9. Defence available to wife to resist petition of husband for restitution of conjugal rights.

10. Execution of decree and effect of resumption of cohabitation.

11. Wife when not entitled to separate residence and maintenance.

19. Maintenance of widowed daughter-in-law

1. Legal obligation of father-in-law.

2. Widowed daughter-in-law when entitled to maintenance?

3. Maintenance from estate of father or mother when arises?

4. ‘Coparcenary property’ what constitutes?

5. Right of maintenance how enforceable?

6. Section 19 (1) vs. s. 19(2) : Mitakshara and Dayabhaga.

7. Section 19 vs. s. 22.

8. Interim maintenance.

20. Maintenance of children and aged parents

1. Obligation of Hindu to maintain children, etc.

2. Section 125, Cr.P.C. not repealed.

3. Maintenance of male children during minority.

(i) Liability of living parents only.

(ii) Illegitimate children.

(iii) Right of illegitimate minor son of Mohammedan from Hindu concubine to maintenance from father.

(iv) Adopted son.

4. Unmarried daughter.

(i) Actual earning and not capacity to earn to disentitle to maintenance.

(ii) No age-limit for entitlement to maintenance.

(iii) Separate maintenance.

(iv) Liability of each of parents several and not joint.

(v) Marriage expenses.

5. Maintenance of aged or infirm parents.

6. Interim maintenance.

21. Dependants defined

1. Dependants of deceased.

2. Who are dependants.

3. Son, etc., when dependants?

4. Unmarried daughter, etc., when dependants?

5. Widowed daughter when dependant?

6. Widow of son, etc., when dependants?

7. Maintenance to woman whose marriage void.

8. Sister.

9. Right of maintenance based on contract in consideration of past cohabitation.

22. Maintenance of dependants

1. Liability of heirs to maintain dependants of deceased.

(i) ‘Heirs’ what connotes?

(ii) Extent of liability.

(iii) Joint liability.

2. Dependant when entitled to maintenance from heir?

3. Right of widow against estate of deceased and not against joint family assets.

4. Step-mother.

5. No liability, for contribution.

23. Amount of maintenance

1. Quantum of maintenance : Discretion of Court.

2. Factors for consideration.

(i) General observations.

(ii) Section 23 vs. s. 125, Cr.P.C.

(iii) Subsequent events.

(iv) No mathematical certainty.

3. Considerations in determining amount of maintenance to wife, children or aged parents.

(i) Position and status of parties.

(ii) Reasonable wants of claimant.

(iii) Separate living and justification therefor.

(iv) Property, income or own earning of claimant.

(v) Number of persons entitled to maintenance.

4. Considerations in determining amount of maintenance to dependants.

5. Computation of quantum of maintenance.

6. Arrears of maintenance.

7. Marriage expenses of unmarried daughters.

24. Claimant to maintenance should be a Hindu

1. Non-Hindu not entitled to claim maintenance.

2. Conversion to another religion—Right to maintenance when forfeited?.

25. Amount of maintenance may be altered on change of circumstances

1. Alteration in amount of maintenance : Section 25 vis-a-vis old law.

2. ‘Decree’ and ‘altered’ what connote?

3. Alteration/enhancement in maintenance permissible notwithstanding agreement to contrary.

4. Section 23 not relevant.

5. Suit for enhancement of maintenance necessary.

6. Maintainability of suit in Family Court.

7. Enhancement of maintenance by family settlement permissible.

8. Enhancement : Considerations, ground and date.

26. Debts to have priority

27. Maintenance when to be a charge

1. Priority of debts of deceased.

2. Provision applicable to dependants only.

3. Section 39, T.P. Act vs. s. 27.

4. Relief to create charge to be asked for.

5. Jurisdiction of Court.

6. Decree for charge and not for possession.

28. Effect of transfer of property on right to maintenance

1. Right of dependant to maintenance on transfer of property.

2. Section 28 and s. 39, T.P. Act : Right of wife not being dependant.

3. Right of widow.

4. Liability on gift.

5. Transferees from father-in-law not otherwise heirs not liable.

chapter IV

29. Repeals

30. Savings

-- Pre-Act adoption not affected

division 5

Minority and Guardianship

chapter 10

Minority and guardianship under old Hindu law

1. Preliminary observations.

2. Age of majority.

3. Classes of guardians.

4. Natural guardians : Father and mother.

(i) Step-mother.

(ii) Effect of remarriage of mother.

(iii) Brother.

(iv) Guardian of adopted son.

(v) Illegitimate son.

(vi) Paternal relations.

(vii) Guardian of minor widowed daughter-in-law.

(viii) Marriage of minor daughter.

5. Father’s power as natural guardian.

6. Guardianship of property where family joint.

7. Guardianship of separate property of minor.

8. Powers of natural guardian

(i) Power of alienation.

(ii) De facto and de jure guardian.

(iii) Guardian cannot bind minor by personal covenant.

(iv) Liability of minor.

9. Powers of minor acting as karta.

10. Appointment of guardian

(i) Power of father to appoint testamentary guardian

(ii) Power of mother to appoint guardian.

(iii) Appointment of guardian by Court.

(a) No power to appoint guardian of minor’s interest in coparcenary property.

(b) Appointment of guardian of minor’s person permissible.

(c) High Court can appoint guardian of minor’s undivided interest in joint family property.

chapter 11

the hindu minority and guardianship act, 1956

1. Statement of Objects and Reasons.

2. Preamble.

1. Short title and extent

1. Commencement.

2. Extension of Act.

2. Act to be supplemental to Act 8 of 1890

1. Act supplemental to Guardians and Wards Act.

2. Provision of both Acts complementary.

3. ‘Save as hereinafter expressly provided’.

3. Application of Act

1. Application of Act.

2. Child of Hindu father and Christian mother when Hindu?

3. Jains.

4. Exemption to members of Scheduled Tribe.

4. Definitions

1. Minor : Definition vis-a-vis Indian Majority Act.

2. Guardian.

3. Natural guardian.

5. Overriding effect of Act

1. Text, rule, custom, usage, etc. to cease to have effect.

2. Law inconsistent with provisions of Act to cease to have effect.

6. Natural guardians of a Hindu minor

1. No substantial alteration in old law.

2. Natural guardian v. De facto guardian.

3. Minor’s undivided interest in joint family property outside provision.

4. Who are natural guardians?

(1) Of boy or unmarried girl.

(2) Of illigitimate boy or illegitimate unmarried girl.

(3) Of married girl.

5. Custody of minor—Section 6 subject to s. 13—Welfare of minor—Paramount consideration.

6. Father’s custody.

7. Custody of minor with mother.

(i) Custody of minor below 5 years of age.

(ii) Principles on custody of minor above 5 years of age : Father’s absence.

(iii) Direction to return to the custody.

(iv) Custody of minor female children over 5 years of age.

(v) Willingness of minor.

(vi) Re-marriage of mother no disqualification.

(vii) Non-Hindu mother and custody of child below five years.

(viii) Re-marriage of father.

(ix) Mentally retarded boy of 14 years.

(x) Minor boy of six years whose father and mother both remarrying after mutual divorce.

8. Custody of minor illegitimate girl.

9. Married girl.

10. Conversion of parties.

11. Writ of habeas corpus.

7. Natural guardianship of adopted son

1. Guardianship of adopted son.

2. Adoption of boy by Hindu foreign national void.

3. No guardianship of adopted daughter.

8. Powers of natural guardian

1. Powers of natural guardian of minor.

(i) Benefit of minor.

(ii) Personal covenant not to bind minor.

2. Alienation of immoveble property.

(i) "Immovable property" what is?—Minor’s separate property and not undivided interest in property.

(ii) ‘Joint family property’ what constitutes?

(iii) No joint family property without male member.

(iv) Alienation of minor’s definite immovable property only with permission of court.

(v) Permission of court necessary for executing deed of conveyance.

(vi) Application for permission of court by intending purchaser not maintainable.

(vii) Alienation by mother when void/Voidable?.

(viii) Effect of attestation of sale deed by father.

(ix) Court’s permission not necessary for acquisition of property.

(x) Contract of sale without court’s permission void.

(xi) No specific performance of contract for sale without permission of court.

3. Disposal of minor’s immovable property by natural guardian in contravention of law voidable.

(i) Minor how to avoid? No need to file suit.

(ii) Transferee of minor entitled to challenge alienation.

(iii) Civil suit to avoid alienation when necessary?

4. Suit for avoidance of offending alienation

(i) Suit by guardian appointed by court.

(ii) Limitation 3 years from attaining majority.

(iii) Plaintiff minor to prove what?

5. Power of court to grant permission.

6. Procedure.

7. Appeal.

8. Court.

9. Testamentary guardians and their powers

1. Testamentary guardian under old Hindu law.

2. Appointment of testamentary guardian by father of minor legitimate children.

3. Appointment of testamentary guardian by father when to cease to have effected?

4. Appointment of testamentary guardian by Hindu widow or Hindu mother

5. Appointment by mother of testamentary guardian of minor illegitimate children.

6. Right and power of testamentary guardian.

7. Right of testamentary guardian of minor girl when to cease?

10. Incapacity of minor to act as guardian of property

-- Minor incompetent to act as guardian of property.

11. De facto guardian not to deal with minor's property

1. General observations on de facto guardian.

2. De facto guardian who is?

3. Distinction between de facto guardian and de jure guardian.

4. Distinction between natural guardian and de facto guardian.

5. Natural guardian never de facto guardian.

6. Bar on alienation of minor’s property by de facto guardian.

(i) Undivided interest of minor covered.

(ii) Alieanation by mother when father alive void.

(iii) Mother when natural guardian in presence of father?

(iv) Alienee from de facto guardian : Rank trespasser.

(v) Alienation by de facto guardian not ratifiable by minor on attaining majority.

7. No prohibition of suit by minor.

8. Notice of demand and suit by mother on behalf of minor.

9. Mitakshara Joint Hindu Family and Manager’s power to dispose of Minor’s undivided interest.

12. Guardian not to be appointed for minor's undivided interest in joint family property

1. General observations.

2. No appointment of guardian for minor’s undivided property in joint family property.

3. Adult member to include male and female both in s. 12.

4. Prohibition when not to operate?

5. Jurisdiction of High Court not affected.

13. Welfare of minor to be paramount consideration

1. General remarks.

2. Hindu Minority and Guardianship Act and Guardians and Wards Act.

3. Welfare of minor to be paramount consideration.

(i) No legal rights of parties.

(ii) No absolute right of natural guardian.

(iii) Sentimental considerations not to prevail.

(iv) Welfare of minor child how to be assertained?

(v) Court to base its decision on cogent evidence.

4. Custody with father.

5. Custody with mother.

division 6

Succession

chapter 12

Succession under mitakshara law

1. General remarks.

2. Devolution of property according to the Mitakshara Law.

3. Propinquity governing factor.

4. Act XVIII of 1937.

5. Gotraja Sapindas and Bhinna-gotra Sapindas.

-- Gotraja sapindas and Bhinna-gotra sapindas

6. Three classes of heirs.

(i) Gotraja sapindas.

(ii) Samanodakas.

(iii) Bandhus.

(a) Atma Bandhus.

(b) Pitri Bandhus.

(c) Matri Bandhus.

7. Order of succession among sapindas.

(i) Adopted son.

(ii) Brother-Full Blood/Half Blood.

(iii) Daughters.

(iv) Female heirs.

(v) Sister’s son including step-sister’s son.

(vi) Son.

(vii) Sister.

(viii) Illegitimate children.

(ix) Widow

(a) Entitlement.

(b) Unchastity.

(c) Re-marriage.

(d) Co-widow.

chapter 13

Succession Under Dayabhaga Law

1. Introduction.

2. Spiritual benefit : Governing principle.

3. Foundation of doctrine of spiritual benefit.

4. Classes of heirs.

(i) Sapindas.

(ii) Female sapindas.

(iii) Sakulyas.

(iv) Samanodakas.

5. Principles of precedence in succession.

6. Reunion after partition.

7. Distinction between Mitakshara and Dayabhaga law.

chapter 14

Exclusion from inheritance and partition

1. Introductory remarks.

(i) Effect of disqualification.

(ii) Disqualification personal.

2. Blindness.

3. Dumbness, deafness and lameness.

4. Incurable or disgusting disease.

-- Leprosy.

5. Lunacy or idiocy.

6. Murder.

7. Unchastity.

8. Degradation of woman.

chapter 15

The Hindu Succession Act, 1956

1. Statement of Objects and Reasons.

2. Preamble.

3. Codifying Act.

4. Constitutionality

1. Short title and extent

1. Commencement.

2. Extent.

2. Application of Act

1. Persons governed by Act.

2. Children.

3. Convert or reconvert.

4. "Hindu".

5. Act not to apply to members of Scheduled Tribes.

3. Definitions and interpretation

1. Agnate and cognate [Clauses (a) and (c) of s. 3 (1)].

2. "Aliyasantana Law" [Clause (b) of s. 3 (1)].

3. Custom and usage [Clause (d) of s. 3 (1)].

4. ‘Heir’ [Clause (f) of s. 3 (1)].

5. ‘Intestate’ [Clause (g) of s. 3 (1)].

6. "Full Blood" ‘‘Half Blood". [Clause (e) of s. 3 (1)].

7. "Related" [Clause (j) of s. 3 (1)].

8. Words importing masculine gender not to include females.

4. Overriding effect of Act

1. General observations.

2. Overriding of effect how?

3. Any text, rule, custom or usage to cease to have effect.

4. Abrogation of custom.

5. Any other law, if inconsistent, abrogated.

6. Saving of laws an agricultural holdings.

7. Provisions where not attracted.

(i) Agricultural lands.

(ii) Partition and right of female member to share.

(iii) Alienation by coparcener.

8. Reversioners’ right prior to Act not affected.

9. Pious obligation of son to discharge father’s debt not abrogated.

10. Maintenance and marriage expenses of daughters.

11. Unchastity of woman no longer disqualification.

12. HUF not affected.

13. Illegitimate son.

5. Act not to apply to certain properties

1. Property succession whereof regulated by Indian Succession Act outside this Act.

2. Estate descending to single heir to Ruler of erstwhile Indian State.

3. V.T.K. Estate.

4. Other impartiable estates subject to Act.

5. Right to share offerings not excluded.

6. Devolution of interest in coparcenary property

1. General observations, Existing customary law codified.

2. Devolution of interest in Mistakshara coparcenary property by survivorship.

(i) Existence of coparcenary essential.

(ii) Essence of coparcenary.

(iii) Female cannot be coparcener.

(iv) Distinction between coparcenary and HUF.

(v) Coparcenary property.

(vi) Incidents of coparcenary property.

(vii) Conditions precedent for applicability of provision.

(viii) Power of sole surviving coparcener over disposal of property.

(ix) Gift by coparcener of his undivided interest.

(x) Provision when not attracted?

(xi) Separate property obtained on partition outside provision.

3. Devolution of interest by testamentary or intestate succession.

(i) Proviso to s. 6 : Departure from theory of survivorship.

(ii) "Such female relative" what denotes?.

(iii) Females entitled even though not members of coparcenary.

(iv) "Claims through" what means?

(v) Proviso when not attracted?

4. Determination of interest of deceased coparcener : Notional partition [Explanation 1].

-- Ascertainment of share of heirs in interest of deceased in property.

5. Separated member not entitled.

6. No disruption of family/coparcenary.

7. Other incidents of notional partition.

(i) Partition suit by widow and daughter.

(ii) Kartas’ power.

8. Claim of son in property obtained by father how to be effectuated?.

9. Wife of person murdering his father whether entitled to succeed to property left behind by victim (father-in-law)?

10. Property bequeathed by Will whether subject to provision?

11. Extent of power of female to make testamentary disposition.

12. Debts of deceased coparcener.

7. Devolution of interest in the property of a tarwad, tavazhi,kutumba, kavaru or illom.

1. Devolution of interest of tarwad, tavazhi, or illom .

(i) Property to devolve by testamentary or intestate succession.

(ii) Ascertainment of share of deceased for devolution.

2. Devolution of interest in Kutumba or Kavaru

3. Devolution of sthanam property

8. General rules of succession in the case of males

1. Scope and applicability of provision : Male Hindu dying intestate.

(i) Custom on succession not to apply.

(ii) Section 8 to be construed in context of s. 6..

(iii) ‘Dying intestate’.

2. ‘Property’.

3. Devolution on Class I relatives.

4. Children and other Class I heirs.

(i) Children born of void marriage covered.

(ii) Illegitimate children not heirs.

(iii) Daughter.

(iv) Son of pre-deceased daughter of testator.

(v) Son’s son not heir.

(vi) Adopted son but not step-son.

(vii) Mother : Effect of remarriage.

(viii) Widow.

5. Nature of property devolving on Class I heirs : Individual property.

6. More than one heir to succeed as tenants-in-common and not as joint tenants.

7. Devolution on heirs of Class II.

(i) Brother.

(ii) Brother’s sons.

(iii) Brother’s widow v. Uncle's son.

(iv) Father’s widows heir of step-son.

8. Devolution on ‘agnates’

9. Devolution on cognates

10. Suit for declaration

11. Limitation for suit for setting aside sale by minor children attaining majority.

12. Ascertainment of shares for partition : Illustrative cases .

(i) Putrobai v. Lalchand.

(ii) Anand Dev Puri v. Guriqbal Singh.

13. Succession certificate.

9. Order of succession among heirs in the Schedule

1. Class I heirs to take simultaneously and to execlution of all other heirs.

2. Class II heirs to succeed in preferential order

3. Reimbursement of obsequial expenses.

4. Succession certificate.

10. Distribution of property among heirs in Class I of the Schedule

1. Widow of intestate.

2. Son(s), daughter(s) and mother.

3. Heirs in branch of each predeceased son or daughter.

11. Distribution of property among heirs in Class II of the Schedule

1. Property of intestate how to be distributed among heirs in Class II.

(i) Division between heirs of anyone Entry equally.

(ii) Proposition illustrated.

12. Order of succession among agnates and cognates

13. Computation of degrees

1. Determination of order of succession among agnates and cognates.

2. Computation of degree

14. Property of a female Hindu to be her absolute property

1. General observations

2. Property of female Hindu to be her absolute property

3. Property ‘‘possessed’’ by female Hindu.

(i) Property to be ascertained one.

(ii) ‘Possession’ in sense of ‘ownership’.

(iii) Lawful possession or possession as of right.

(iv) Possession through mediums.

(v) Right to "possession’’.

(vi) Joint interest and joint possession.

4. ‘Female Hindu’ : Niece not covered.

5. Acquisition of property

6. ‘Property’ acquired by specified modes.

(i) Inheritance.

(ii) Partition.

(iii) Gift .

(iv) Acquisition of property in lieu of maintenance or arrears of maintenance.

(v) Residence

(vi) Acquisition of property "in any other manner whatsoever".

7. Transformation of limited ownership into full ownership.

(i) Conditions precedent.

(ii) Limited ownership reviving on re-conveyance of property by aliense.

(iii) Incidents of full ownership.

8. Other consequences of full ownership

(i) Female Hindu continues to be member of joint family.

(ii) Karta has no right to dispose of property of Hindu female.

(iii) Full ownership not affected by adoption.

(iv) Alienation of property.

(v) Remarriage.

(vi) Alienee not to be benefited.

(vii) No reversion.

9. Restricted estate acquired under gift, etc. not to transform on into full ownership

(i) Section 14(2) applicable only where new right created for first time.

(ii) Object of provision.

(iii) ‘Acquisition’ what connotes.

(iv) ‘Restricted estate’.

(v) Conditions for applicability.

10. Modes of acquisition of ‘‘restricted estate’’

(i) Gift .

(ii) Will.

(iii) Other instrument.

(iv) Decree.

11. Validity of alienation of ‘restricted estate’

12. Section 14 (1) vs. s. 14(2).

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

1. Devolution of property of female Hindu dying intestate.

(i) Female Hindu limited owner not covered.

(ii) Limited estate and reversion.

2. Devolution of non-inherited property of female Hindu dying intestate.

(i) Sons and daughters.

(ii) Pre-deceased son or daughter.

(iii) Husband.

(iv) Heirs of husband.

(v) Mother and father.

(vi) Heirs of father.

(vii) Heirs of mother.

3. Devolution of property inherited by issueless female intestate.

(i) Source of inheritance of property to determine devolution.

(ii) Devolution of property inherited from parents.

(a) ‘Inherited’ what means?

(b) Heirs of father.

(iii) Devolution of property inherited from husband or father-in-law.

(a) In absence of ‘son or daughter’.

(b) Heirs of husband.

4. Streedhan.

16. Order of succession and manner of distribution among heirs of a female Hindu

1. Order of Succession, etc., of heirs specified in s. 15 (1).

2. Children of pre-deceased son or daughter.

3. Property of father, mother or husband.

17. Special provisions respecting persons governed by marumakkattayam and aliyasantana laws

1. Scope and applicability of provision.

2. Succession to property of male intestate.

3. Succession to property of female intestate.

4. Section 17 and Kerala Act ablishing joint Hindu family system in State.

18. Full blood preferred to half blood

1. Scope of provision : Preference on basis of blood relationship.

2. Condition for applicability : Nature of relationship to be same in every other respect.

3. Necessity to ascertain blood relationship when arises.

19. Mode of succession of two or more heirs

1. Taking property per capita and not per stirpes.

(i) Succession where per capita or per stirpes.

(ii) Distribution per capita or per stirpes how?

2. Tenants-in-common.

(i) No heir entitled to act for other.

(ii) Limitation for suit by minor attaining majority.

20. Right of child in womb

1. Right of child in womb to inherit male intestate.

2. Illegitimate child not precluded.

3. Child in womb and alienation.

21. Presumption in cases of simultaneous deaths

1. Presumption as to who died first in cases of simultaneous deaths.

2. Applicability of provision.

3. Section 21 proviso to s. 105 (2) of Indian Succession Act.

22. Preferential right to acquire property in certain cases

1. Preferential right of co-heir or right of pre-emption.

(i) Preferential right to acquire when arises?

(ii) Object of conferring preferential right.

(iii) Proposed transfer and completed transfer.

(iv) Right available only to Class I heirs.

(v) Notice by transferor-heir necessary.

(vi) Agricultural land not covered.

2. Determination of consideration.

3. Preference inter se heirs.

4. Preferential right how to be enforced?

5. Limitation.

6. Transfer voidable.

23. Special provision respecting dwelling-houses

1. Object of provision.

2. Dwelling-house inherited by Class I heirs and right of female heir to claim partition.

(i) Estate of female intestate covered.

(ii) Female heirs of Class I.

(iii) Pre-condition for applicability of provision.

(iv) Language leading to absurdity.

(v) ‘Dwelling-house’ not to include ‘tenanted house’.

(vi) Right to claim partition when arises?

(vii) Restriction on partition to operate even if there be single male member.

3. Prohibition on partition when not attracted?

(i) Dwelling-house not wholly occupied.

(ii) Claim of partition by male member.

(iii) Male heirs consenting.

(iv) Property obtained on basis of bequest/testament.

(v) Alienation by male member.

4. Right of residence of female heir/daughter.

(i) ‘Daughter’ to include all daughters specified in Class I.

(ii) Married daughter when not entitled to right of residence.

5. Suit for specific performance.

24. Certain widows re-marrying may not inherit as widows

1. Widows disqualified from inheritance on remarriage.

2. Disqualification when attracted?

3. Widow of intestate not disqualified.

4. Mother entitled to inherit property of her son despite her remarriage.

5. Unchastity of wife not disqualification.

25. Murderer disqualified

1. Murderer how and when disqualified from inheritance?

2. Conviction not necessary for disqualification.

3. Culpable homicide or unlawful manslaughter included.

4. Principle of provision not applicable to succession under other enectments.

5. No disqualification on acquittal.

6. Claim through murderer not sustainable in case of coparcenary property.

26. Convert's descendants disqualified

1. Disqualification of convert’s descendents from inheriting property of relatives.

2. Exception.

27. Succession when heir disqualified

1. Succession how to take place when heir disqualified?

2. Exception.

28. Disease, defect, etc. not to disqualify

1. Disease, defect, etc., not disqualification for succession.

2. Unchastity not disqualification.

29. Failure of heirs

1. Failure of all heirs : Escheat.

2. Right of State not higher.

30. Testamentary succession

31.

the schedule

chapter 16

wills

1. General observations : Will unknown under ancient Hindu law.

2. Will.

(i) What is?

(ii) Capacity to make Will : Sound disposing mind.

(iii) Widow competent to execute Will.

(iv) Competence of married woman to make Will.

(v) Requirements of proper execution of Will.

(vi) Presumption of testator being of sound mind.

(vii) Characteristics of Will.

(viii) No transfer by Will.

(ix) Will why preferred to intestacy?

(x) Joint Will and mutual Will.

(xi) Holograph Will.

3. Section 30.

(i) Legislative history of statutory provisions on "Will".

(ii) Power of Hindu to dispose of property by Will.

(iii) Undivided interest in coparcenary property disposable by Will.

(iv) Hindu coparcener competent to dispose of by Will only his undivided interest and not interest of others.

(v) Power of female to make testamentary disposition.

(vi) Gift whether prohibited by s. 30?

(vii) Sole surviving coparcener.

(viii) Will not invalid where some Class I heirs ignored.

4. Construction of Wills.

(i) General principles : Instrument of Will to be read as whole.

(ii) Harmonious construction to gather intention of testator.

(iii) Same words to be given same meaning.

(iv) Precedent of no value.

(v) Conflict/Inconsistency.

(vi) No construction by comparision.

(vii) Avoidance of intestacy.

(viii) ‘Heirs’.

(ix) Court may supply specific words missing from Will.

(x) Trust or power.

(xi) Document whether Will ? .

5. Property bequeathable and extent of bequest.

(i) Ancestral property.

(ii) Property not in possession.

(iii) Absolute bequest .

(iv) Bequest for vested interest/contigent interest.

(v) Nature of property bequeathed.

6. Proof of Wills.

(i) Burden of proof on propounder .

(ii) Propounder to prove what ? .

(iii) Onus how discharged?

7. Attestation.

(i) Attesting witness should sign himself.

(ii) Chance witness.

(iii) No requirement that attesting witnesses should identify each other.

(iv) Propounder to prove the attesting witnesses saw testator signing Will.

(v) Examination of at least one witness necessary to prove attestation .

(vi) Attesting witness not alive.

(vii) Examination of attesting witness not necessary if execution not disputed.

(viii) Scribe not attesting witness.

8. Suspicious circumstances.

(i) ‘Suspicion’ what implies ?.

(ii) ‘Suspicious circumstances ’What are ?.

(iii) Suspicious features to be valid.

(iv) Propounder to remove suspicious circumstances.

(v) Mere registration not to dispel suspicion..

(vi) Circumstances not suspicious.

9. Will obtained by fraud, etc. void.

(i) Fraud.

(ii) Undue influence.

(iii) Coercion .

(iv) Importunity.

10. Evidence

(i) Satisfactory and trustworthy evidence necessary.

(ii) Quality and not quantity of evidence material.

(iii) Credibility of witness how to be judged ?.

(iv) Secondary Evidence.

(v) Signature of testator how to be proved ?.

(vi) External evidence to ascertain testator’s intentions.

(vii) No presumption of due execution.

(viii) Registered Will.

(ix) Admission not sufficient.

11. Revocation of Will.

(i) Statutory provision.

(ii) Modes of revocation.

(iii) Proof of revocation.

(iv) Burden of proof.

(v) Presumption of revocation.

(vi) Subsequent Will when to operate as revocation of earlier one ?

12. Genuineness /Validity of Will

(i) Bequest to unborn person.

(ii) Duty of Court.

(iii) Will where genuine/valid or otherwise.

13. Executor

(i) Who is ? .

(ii) Removal.

(iii) Executors and trustees.

14. Life estate of Hindu female under Will.

15. Probate

(i) Statutory Provision .

(ii) ‘Probate’ what is ?.

(iii) Probate of Will and not of property.

(iv) Will to be proved only in probate suit.

(v) Function and power of probate court : Not to go into question of title to property.

(vi) No limitation for application .

(vii) No probate if Will not proved.

(viii) Revocation for just cause.

(ix) Judgment in rem.

16. Letters of administration.

(i) Jurisdiction of Court.

(ii) Procedure for grant.

(iii) Unexplained inordinate delay .

(iv) Letters when not grantable .

(v) No right under Will unless letters of administration obtained.

division 7

Miscellaneous Concepts

Chapter 17

Alienations

1. Introduction.

2. Pre-requisite for alienation

(i) Benefit of estate.

(ii) Benefit of family.

(iii) Legal necessity.

(iv) Doctrine of legal necessity applicable to temporary leases.

(v) ‘Benefit of estate’ vs. Legal necessity’.

(vi) Proof of legal necessity.

3. Power to alienate joint family property

(i) Father.

(a) Alienation of self-acquired property.

(b) Antecedent debts .

(c) Mortgage for starting new business not permissible.

(d) Gift to daughter or sister for maintenance

(e) Grounds on which sons can impeach alienation

(ii) Manager/karta

(a) Reasonable limitation

(b) Karta to decide on act of prudence

(c) No injunction against karta

(d) Karta’s power not affected by s. 8 of HMG Act

(e) Alienation for starting new business

(f) Gift by karta to stranger

(g) Manager other than father when can bind interest of minor coparceners ?

(h) Brother manager

(iii) Co-sharer.

(iv) Coparcener.

(v) Sole surviving coparcener when other member in womb, etc.?

(vi) Guardian of minor.

(vii) Junior member.

(viii) Alienation by minor through mother as guardian.

(ix) Widow.

(x) Adult under disability.

4. Duty of alienee

(i) To enquire into purpose of alienation.

(ii) Duty to see to application of proceeds.

(iii) Duty in case of son in mother’s womb.

5. Burden of proof on alienee

(i) Recital in deed.

(ii) Antecedent debt.

(iii) Legal necessity.

(iv) Alienation by guardian of minor’s property.

(v) Alienation by widow.

6. Binding nature of alienation

(i) Binding on minor when for benefit.

(ii) Not binding on minor.

(iii) Binding on son when and when not ?.

7. Right to challenge alienation

(i) Non-alienating coparcener or son.

(ii) After-born coparcener.

(iii) Son in womb.

8. Right of alienee

(i) Right in respect of undivided share.

(ii) No adverse possession of coparcerners.

(iii) Interest of alienee.

(iv) Right of alienee’s alienee.

(v) Specific performance of contract.

9. Setting aside of alienation

(i) Extent to which alienation to be set aside.

(ii) Suit of instigation at father.

(iii) Period of limitation.

(iv) Suit by minor through next friend.

(v) Suit for partition.

(vi) Equities on setting aside sale.

10. Validity or otherwise of alienation

(i) Valid.

(ii) Void or invalid.

(iii) Alienation without necessity whether void or voidable?

chapter 18

liability for family debts

1. ‘Debt’ what is ?

2. Liability to pay debts

3. Three-fold liability

4. Pious obligations of sons but not for ‘avyavaharika’ debt or debt for immoral or illegal purposes.

(i) ‘ Avyavaharika’ debt what is ?.

(ii) Debt to be ‘avyavaharika’ at inception and not subsequently.

(iii) Past history may be looked into..

(iv) Proof.

(v) Some instances of ‘avyavaharika’ debts.

(vi) Debts not ‘avyavaharika.

(vii) Son not personally liable for liability of father arising from his criminal act.

5. Debts for which sons liable on doctrine of pious obligation.

(i) Debt to be existing one.

(ii) Liability not affected whether father dead or alive.

(iii) Extent of liability.

(iv) Minor’s liability.

(v) Antecedent debts.

(a) Sons’ jointness immeterial

(b) Mortgage debts

(c) Pressure not pre-requisite

(d) Proof

(e) Family composition by father and son(s) alone not necessary

(vi) Pre-partition but not post-partition debts.

(vii) Mortgage debt.

(viii) Commercial debts.

(ix) Decretal debt.

(x) Surety debt.

(xi) Income-tax arrears.

6. Moral obligation of son to pay father’s debt.

7. Son’s legal obligation.

(i) Creditor’s suit in father’s life-time.

(ii) Decree against manager.

(iii) Decree against father alone

(iv) Consent decree against father.

(v) Challenge by sons of debt by suit.

8. Rule of Damdupat

(i) Principal for purpose of rule .

(ii) Rule not to offect provisions of T.P .Act.

(iii) Interest accrued not affected by rule.

(iv) Persons to whom rule applies.

(v) Transactions covered by rule.

(vi) Capitalisation of interest.

(vii) Not in force as principle of law.

9. Loan for legal necessity to bind entire family.

10. Subsequently born sons not entitled to challenge.

11. Debt by junior member for legal necessity binding on entire family.

12. Insolvency of father.

chapter 19

stridhana

1. ‘Stridhana’ what means ?

2. Definition.

3. Stridhana according to different schools of Mitakshara

(i) Bombay School.

(ii) Benaras School.

(iii) Mithila School.

(iv) Madras School.

4. Kinds.

(i) Saudayika.

(ii) Properties to constitute stridhana.

(iii) Properties not to constitute stridhana.

(a) Property inherited by woman

(b) Share obtained by widow on partition

(c) Other properties

(iv) Characteristics of different kinds of ‘Stridhana’.

(a) Adhyagnika

(b) Aihyavanika

(c) Pritidatta

(d) Bhartridatta

(e) Padavandanika

(f) Anwadheyaka

(g) Adhivedanika

(h) Shukla

(i) Banhudatta

(j) Vritti

(k) Yautaka

(l) Ayautaka

(m) Saudayika Stridhana

(n) Non-Saudayika

(o) Paribhasika (Technical)

(p) Non-technical

5. Concept of ‘stridhana’ not modified codified laws or by Dowry Prohibition Act.

6. No abolition of concept of ‘stridhana’ by s. 27 of Hindu Marriage Act

7. Nature of ‘stridhana’ property.

(i) Three categories

(ii) Wife absolute owner of ‘stridhana’ during coverture and it is not joint family property

8. Distinction between dowry and stridhana

9. Criminal liability for criminal breach of trust in respect of ‘stridhana’.

10. Succession to ‘stridhana’ prior to Hindu Succession Act.

(i) Succession to Shulka.

(ii) Succession to other than Shulka.

(a) Non-technical stridhana

(b) Dying without any issue

11. Succession to Stridhana after Hindu Succession Act.

12. Suit for recovery of ‘stridhana’ .

chapter 20

religioUs and charitable endowments

1. Introductory observations.

2. Charity, religious and charitable purposes.

3. Endowment.

(i) Essentials.—Writing not but divestiture of property necessary

(ii) Religious endowment.

(iii) Private or public religious endowment.

(iv) Validity of endowment.

4. Trust.

(i) What is ?.

(ii) Private trust how created.

(iii) Creation of charitable/religious trust or public trust.

(a) Divestiture of ownership—Condition precedent.

(b) Formal deed not required.

(c) Creation through words

(d) Creation through book entries.

(e) Formalities.

(iv) Distinction between private trust and public trust.

(v) Temple whether private or public ?.

(vi) Rule against perpetuity not applicable to public trusts.

(vii) Cy-pres doctrine.

5. Dedication.

(i) No formal deed necessary.

(ii) Ceremonies not necessary.

(iii) Dedication offending against Hindu law.

(iv) Absolute or partial dedication.

(v) No gift.

(vi) Hindu law on secular gifts not applicable to dedication to idol.

6. Idol and temple.

(i) Ceremonies for consecration of idols.

(ii) Dedication of temple to idol before its institution necessary.

(iii) Juristic person but not beneficial owner of endowment.

(iv) Offerings to temple.

(v) Beneficiaries of endowments.

(vi) Gifts or bequest to idol to be established.

(vii) Right to receive offerings heritable and alienable.

7. Math and Mahant.

(i) What ‘math’ is : Essential requisites ?.

(ii) Tests to determine whether institution is math ?.

(iii) Math is juristic entity—Power of acquiring property and suing and capable of being sued.

(iv) Mahant.

(v) Property in possession of Mahant whether personal?.

(vi) Right of Mahant to institute suit.

(vii) Succession to Mahantship.

8. Shebait.

(i) Not trustee—Shebaitship both office and property.

(ii) Shebaiti right can be acquired by adverse possession.

(iii) Distinction between shebait and pujari.

(iv) Dharmakarta and shebait.

(v) De facto shebait.

(vi) Shebait not to assert hostile title.

(vii) Dharmakarta and pujari.

(viii) Shebaiti right not transferable.

(ix) Gift of shebaitship.

(x) Shebait can appropriate part of income to himself.

(xi) Devolution of succession to shebaitship.

9. Trustee.

(i) Powers.

(ii) Trustee of Math and trustee of temple.

(iii) Liability of trustee of public religious trust.

(iv) Hereditary trustee.

(v) Devolution of trusteeship.

(vi) Suit for removal of trustee.

10. Alienation.

(i) Covenant against alienation void.

(ii) Alienation for necessity/legal necessity permissible.

(iii) No alienation of abode of deity.

(iv) Validity of alienation by trustee.

(v) Permanent lease.

(vi) Alienation when not binding on deity?.

11. Suit in name of deity.

(i) Competence to file.

(ii) De facto manager.

(iii) Worshipper.

(iv) Stranger/next friend.

(v) Alienee to prove legal necessity.

12. Exemption from income-tax to public charitable or religious trusts

(i) General remarks.

(ii) Scheme of exemption.

(iii) General condition for availing exemption.

(a) Registration of trust

(b) Audit report where necessary

(c) Publication of accounts in newspaper when necessary?

(iv) Special conditions : Application or accumulation of income

(a) Application of income—Actual spending not necessary.

(b) Accumulation of income not to exceed 25% thereof

(c) 100% accumulation of income how exempt

appendices

I. the anand marriage act, 1909

II. THE ARYA MARRIAGE VALIDATION ACT, 1937

III. THE HINDU GAINS OF LEARNING ACT, 1930

IV. THE KERALA JOINT HINDU FAMILY SYSTEM (ABOLITION) ACT, 1975

V. The special marriage Act, 1954

VI. THE ALLAHABAD HIGH COURT RULES

VII. THE ANDHRA PRADESH HIGH COURT RULES

VIII. THE CALCUTTA HIGH COURT RULES

IX. THE DELHI HIGH COURT RULES

X. THE GAUHATI HIGH COURT RULES

XI. THE HIMACHAL PRADESH HIGH COURT RULES

XII. THE KARNATAKA HIGH COURT RULES

XIII. THE KERALA HIGH COURT RULES

XIV. THE MADHYA PRADESH HIGH COURT RULES

XV. the orissa high court rules

XVI. the patna High court rules

XVII. the punjab high Court rules

XVIII. THE RAJASTHAN HIGH COURT RULES

XIX. THE ANDHRA PRADESH HINDU MARRIAGE REGISTRATION RULES, 1965

XX. THE HINDU MARRIAGE (ASSAM) RULES, 1961

XXI. THE REGISTRATION OF HINDU MARRIAGE (KARNATAKA) RULES, 1966

XXII. the kerala hindu marriage registration rules, 1957

Appendix

XXIII. THE MADRAS HINDU MARRIAGE (REGISTRATION) RULES, 1967

XXIV. THE REGISTRATION OF HINDU MARRIAGE (RAJASTHAN) RULES, 1956

XXV. THE UTTAR PRADESH HINDU MARRIAGE (REGISTRATION) RULES, 1973

XXVI. THE SPECIAL MARRIAGE (assam high court) RULES, 1956

XXVII. BOMBAY HIGH COURT SPECIAL MARRIAGE RULES, 1954

XXVIII. THE SPECIAL MARRIAGE (CALCUTTA HIGH COURT) RULES, 1955

XXIX. the special marriage (delhi high court)

XXX. THE SPECIAL MARRIAGE (PUNJAB HIGH COURT) RULES, 1956

XXXI. PUNJAB SPECIAL MARRIAGE RULES, 1955

XXXII. RAJASTHAN HIGH COURT (SPECIAL MARRIAGE) RULES, 1955

XXXIII. the births, deaths and marriage registration act, 1886

XXXIV. the converts’ marriage dissolution

XXXV. the guardians and wards act, 1890

XXXVI. the [* * *] majority act, 1875

Index