Hindu Law Notes for Judiciary [ Hindu Law Bare Act] Download PDF

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Updated On : February 20, 2024

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Overview: Hindu law is a diverse and complex area of jurisprudence that continues to evolve with changing societal norms and legal reforms. It plays a crucial role in regulating the personal and family lives of Hindus in India and other countries where Hinduism is practiced.

The Hindu law an essential part of many state Judicial exams. Knowing the important sections, concepts, and everything around it is a must. For example, if you are preparing for UK Judiciary or any other state exam, you should properly study Hindu Law and all the acts covered under it

In this article, we will cover:

  • Important topics for Judiciary
  • Preparation Tips of Hindu Law
  • Download Notes for your preparation

Concept of Hindu Law:

The Hindu concept of law is deeply rooted in dharma, which permeates Hindu philosophical thought and social structure. Law is seen as a branch of dharma, and according to Manu, dharma is followed by those learned in Vedas and approved by virtuous individuals who are free from hatred and excessive affection. Medhatithi, an early commentator on Manu, defines "dharma" as 'duty,' encompassing religious, moral, social, and legal responsibilities. In essence, Hinduism is often described as a system based on duties.

Hindu law derives from Smritis, expounded in Sanskrit commentaries and digests. These Smriti texts do not make a clear distinction between legal, moral, and religious rules; they intertwine them. While the Privy Council differentiated between mandatory (legal) and directory (moral) rules in the case of Shri Balsu, the High Courts in India have attempted to establish criteria for these distinctions. Hindu law encompasses a vast body of rules, and even during the period of Muslim rule in India, Smriti law continued to be recognized.

The Hindu concept of law differs from the Austinian view of law. Analytical jurists might consider many Hindu law rules as mere positive morality. However, it is widely accepted that a rule of law need not originate from a specific authority or be imposed by one. Hindu law rules are considered legal because they are followed voluntarily by the people for whom they are intended.

In modern times, Hindu law, as applied by Indian courts, is specific to Hindus. It has undergone significant modifications and amendments. The original Hindu law no longer applies to all matters and has been adapted to changing societal demands. Various legislative enactments, such as the Hindu Marriage Act of 1955, the Hindu Adoption and Maintenance Act of 1956, the Hindu Succession Act of 1956, and the Hindu Minority and Guardianship Act of 1956, have altered aspects of Hindu law, prevailing over the original principles in certain areas.

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The classification of persons as Hindus can be summarized as follows:

Hindu by Religion:

  1. Followers of Hindu Religion: Anyone who follows the Hindu religion, either through practice or profession, is considered a Hindu. This definition includes those who accept the Vedas as the highest authority, believe in the world rhythm, cycles of creation and dissolution, and embrace concepts such as reincarnation and pre-existence.

  2. Converts and Reconverts to Hinduism: Hindu law recognizes individuals who convert to Hinduism, Jainism, Buddhism, or Sikhism as Hindus. Conversion does not require a formal ceremony, but there should be a genuine intention to adopt the Hindu faith, supported by conduct expressing that intention. Reconversion to any of these religions also classifies a person as Hindu.

Hindu by Birth:

  1. Both Parents are Hindu: Children born to Hindu parents, whether legitimate or illegitimate, are considered Hindus. Their personal belief or practice of the religion is irrelevant.

  2. One Parent is Hindu: If one parent is Hindu, and the child is brought up as a member of a Hindu family, the child is regarded as Hindu. The child's religion is not necessarily determined by the father's religion. For instance, if a child is born to a Hindu mother and a Muslim father but is raised as a Hindu, the child is considered Hindu.

Persons who are not Muslims, Christians, Parsis, or Jews: According to codified Hindu law, individuals who do not adhere to the religions of Islam, Christianity, Parsi, or Judaism are governed by Hindu law unless it is proven that Hindu law does not apply to them. This category includes atheists or individuals who believe in multiple faiths or a combination of faiths.

In summary, modern Hindu law encompasses a body of personal laws applicable to both Hindus and certain non-Hindu communities. All individuals to whom Hindu law applies, regardless of their religious beliefs or affiliations, are collectively referred to as "Hindus" within the context of the application of Hindu law.

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Sources of Hindu Law

The Hindu legal system boasts an incredibly ancient lineage, spanning approximately 6000 years, and has evolved through various stages. Initially, these sources served the pastoral needs of a community, but they have since adapted to cater to the requirements of modern welfare societies. These sources can be conveniently categorized as follows:

1) Ancient Sources:

) Sruti: The term "Sruti" is derived from the word 'Sru,' meaning 'to hear.' Manu defines Sruti as the Veda, which represents divine utterances heard from the deity (God). The Vedas are considered the paramount and primary source of Hindu Law, containing divine wisdom and guidance. They encompass the words found in the four Vedas, six Vedangas, and eighteen Upanishads, primarily focusing on religious teachings, true knowledge, and salvation. The four Vedas are Rigveda (praising natural forces), Yajurveda (rituals), Samaveda (prayers), and Atharvaveda (magic, spells, and incarnation). The six Vedangas cover orthography, rituals, grammar, prosody, astronomy, and lexicon.

b) Smrities: Smrities consist of utterances and precepts of the Almighty, remembered and passed down by sages (Rishis) through generations. They are further divided into Primary and Secondary Smrities found in Dharma Sutra (Prose) and Dharmashastras (Poetry). Prominent Dharma Sutra writers include Gautama, Baudhyana, Apastamba, Harita, Vasistha, and Vishnu. Dharmashastra authors include Manu, Yajnyavalkya, Brihaspati, and Narada. While Smrities address morality and religion, they have a more secular character compared to Sruties.

c) Commentaries and Digests: Following the Smrities, the next stage in the development of Hindu Law involved composing numerous commentaries (tika) and digests (Nibandha) based on the Smrities. Commentaries interpret the law as laid down in the Smrities. The writing of a specific Smriti is termed a commentary, while writing on various Smrities is referred to as Digests. Notable commentaries include "Daya Bhaga" by Jimutavahana and "Mitakshara" by Vijnaneshwara. These commentaries have come to be regarded as more authoritative than the original texts.

d) Custom: As humans began to live in groups, they naturally developed patterns of behavior to ensure harmonious group living. Over time, these patterns, known as customs, emerged.

There are three types of customs:

i) Local Custom: These customs pertain to specific localities, states, or districts and are binding on the inhabitants of those areas.

ii) Class Custom: Class customs are specific to a caste, sect, or profession within the community, such as agriculture, trade, or mechanical arts.

iii) Family Custom: These customs are unique to particular families.

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Essential characteristics of customs include being certain, reasonable, moral, and not in opposition to public policy or any legislative enactments. Some examples of customs that the courts have refused to recognize include those permitting a wife to abandon her husband and remarry without his consent, customs allowing husbands to dissolve marriages without the wife's consent by paying a sum of money, and customs permitting a man to marry his daughter's daughter (in South India).

2) Modern Sources:

a) Judicial Decisions: Judicial precedents play a significant role in modern Hindu Law. Courts' decisions and interpretations of Hindu Law principles contribute to the evolving legal landscape.

b) Legislation: Statutory enactments have brought significant changes to Hindu Law. Acts such as the Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act, and others have modified and updated various aspects of Hindu Law.

c) Equity, Justice, and Good Conscience: These principles guide the application and interpretation of Hindu Law in modern times, ensuring fairness and justice in individual cases.

Sources of Hindu Law in Brief:

Hindu Law draws its principles from various sources, comprising:

  1. Vedas: These ancient sacred texts, compiled by Vedavyasa, encompass Rigveda, Yajurveda, Samaveda, and Atharvanaveda. Each Veda contains Samhitas (collections of mantras) and Brahmanas (theological explanations).

  2. Smritis: Smritis, which means 'Remembered' texts, are a repository of distilled wisdom handed down through generations. They encompass Dharma Sutras, dealing with governance, societal, and legal matters, and were used as references by sages like Manu, Yajnavalkya, and others. Manu Smriti, in particular, holds a position of great authority.

  3. Custom: Customary practices, known as Sadachara, reflect the ethical behavior of virtuous individuals. These customs, not documented as written law, developed through the consensus of society. Courts recognize them as law when they meet certain criteria, such as having a long history and aligning with justice, equity, and good conscience.

  4. Equity and Good Conscience: This source is relative and context-dependent, primarily applied by the courts as needed to ensure fairness and justice.

  5. Judicial Precedents: Although a relatively recent source, judicial decisions have significantly contributed to Hindu Law, with courts citing and following past rulings.

  6. Legislation: Legislative acts have brought about significant changes to Hindu Law. Acts such as the Caste Disabilities Removal Act of 1850, the Hindu Widow's Remarriage Act, the Child Marriage Restraint Act of 1929, and recent statutes like the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, the Hindu Minority and Guardianship Act, and the Hindu Succession Act have modernized and reformed various aspects of Hindu law to suit contemporary needs and circumstances.

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Following India's independence, several significant enactments were passed to reform and modernize Hindu family law:

  1. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1949: This Act empowered Hindu wives to live separately from their husbands and seek maintenance under specific circumstances.

  2. The Special Marriage Act, 1954: This legislation validated marriages between individuals belonging to different religions, promoting interfaith unions.

  3. The Hindu Marriage Act, 1955: A comprehensive overhaul of marriage laws for Hindus, Jains, Sikhs, and Buddhists, this Act modernized and standardized the rules governing their marriages.

  4. The Hindu Minority and Guardianship Act, 1956: This Act supplemented existing laws related to the rights and responsibilities of guardians for Hindu minors.

  5. The Hindu Succession Act, 1956: This landmark legislation introduced substantial changes to succession laws. It granted Hindu females equal inheritance rights and absolute ownership of property acquired through lawful means.

  6. The Hindu Adoption and Maintenance Act, 1956: This Act brought significant changes to adoption and maintenance laws among Hindus, granting Hindu females the right to adopt children.

  7. Marriage Laws (Amendment) Act, 1976: Introduced to amend the 1955 Act, this legislation introduced provisions for divorce by mutual consent, established common grounds for judicial separation and divorce, and eased the process of obtaining a divorce.

  8. The Child Marriage Restraint (Amendment) Act of 1978 sets the minimum eligible ages for marriage at 21 years for males and 18 years for females.

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Schools of Hindu Law

The Schools of Hindu Law began to take shape during the period of commentaries and Digests. Commentators interpreted the ancient texts through their own perspectives, with some gaining acceptance in certain regions while being rejected in others. Originally, Hindu Law applied to the entire Indian subcontinent, but over time, it split into two main schools and several sub-schools:

  1. Mitakshara
  2. Daya Bhaga

The Mitakshara School, which means 'a concise work,' is a comprehensive commentary on Yajnavalkya's code. It was authored by Vijnaneshwar in the 11th century and is considered the supreme authority on Hindu Law in most parts of India, except Assam and Bengal.

In some matters, the Mitakshara School also holds sway in Assam and Bengal when the Daya Bhaga remains silent. The Mitakshara not only serves as a commentary on the Yajnavalkya Smriti but also encompasses various leading Smritis, addressing all aspects of Hindu Law. It is important to note that the Mitakshara School is considered orthodox.

The Mitakshara School further divides into five sub-schools that are prevalent in different regions of India. While these sub-schools share fundamental principles and recognize the supreme authority of the Mitakshara, they differ in certain details, especially regarding adoption and inheritance. These five sub-schools are:

  1. The Benaras School: This school is predominant in Orissa, except for Mithila and the Punjab regions. Key commentaries and authorities within this school include Viramitrodaya, Nirnayasindhu, Dattaka Mimansa, Vivada Tandava, Subodhini, and Balam-Bhatti.

  2. Mithila School: The Mithila School is prevalent in Tirhoot and North Bihar, with traditional boundaries extending to the Nepal Border in the North, the Ganges in the South, the river Koshi in the East, and the river Gandak in the West. Primary authorities of this school include Vivada Ratnakar, Vivada Chintamani, Smriti Sara, and Madana Paruata.

  3. Bombay or Maharashtra School: This school is prominent in the State of Bombay, including Gujarat and Karana, as well as areas where Marathi is the local language. Key commentaries include Vyavhara Mayukha, Viramitrodaya, Nirnaya Sindhu, and Vivada Tandava.

  4. Dravida or Madras School: Predominant in Southern India, especially in Chennai State, this school is guided by authorities like Smriti Chandrika, Parasara Madhaviya, Saraswati Vilasa, and Vauayanti.

  5. Punjab School: The Punjab School is mainly shaped by customs and prevails in East Punjab. Its primary authorities include Viramitrodaya and Punjab customs.

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The Dayabhaga School, primarily followed in Bengal, is unique in that it is not a commentary on any specific code. Instead, it serves as a comprehensive digest of various codes and was authored by Jimutavahana in the 12th century. The Dayabhaga School focuses primarily on partition and inheritance matters and is often regarded as the reformist school of Hindu Law. It stands as a dissenting viewpoint from the traditional Benaras School, advocating enlightened doctrines and theories. Unlike the Mitakshara School, the Dayabhaga School does not have sub-schools. Prominent authorities within this school include Dayabhaga, Dayatatva, Daya-sangraha, Viramitrodaya, and Dattaka Chandrika.

Differences between the Mitakshara and the Dayabhaga Schools:

  1. Joint Family System: The Mitakshara and Dayabhaga schools differ significantly in their treatment of the joint family system. In the Mitakshara system, the right to family property is acquired by birth, and the family is regarded as a single unit.

  2. Individual rights are not explicitly recognized, and females have limited or no succession rights to family property. In contrast, the Dayabhaga system emphasizes inheritance or will as the means to acquire property. In cases where there is no closer heir, the share of a deceased coparcener passes to his widow.

Individuals to Whom Uncodified Hindu Law Applies:

a) Hindu Law applies to those who are Hindus by birth, as well as those who have converted to Hinduism in any of its forms or variations, including:

b) This also includes individuals like Brahmans and Arya Samajists, among others.

c) Illegitimate children born to Hindu parents are subject to Hindu Law.

d) Illegitimate children born to a Christian father and a Hindu mother, who are raised as Hindus, fall under the purview of Hindu Law.

e) Hindu Law extends to Buddhists, Jains, Sikhs, and Nambudry Brahmans, with the exception that custom may modify certain aspects of the law. Additionally, Lingayats, who are considered Shudras, are subject to Hindu Law.

f) Sons of Hindu dancing girls belonging to the Naik caste who have converted to Mohammedanism but are brought up as Hindus within their Hindu grandparents' family.

g) A person who was born a Hindu but renounced Hinduism and later reverted to it after performing religious rites of expiation and repentance, or even without a formal ritual of re-conversion, as long as they are recognized as a Hindu by the community.

h) Hindu Law also applies to Brahmos, Arya Samajists, Santhals of Chhota Nagpur, and Santhals of Manbhum, with the caveat that custom may introduce variations.

i) A Hindu who has made a declaration that they are not Hindu for the purposes of the Special Marriage Act of 1872.

j) Lastly, an individual born a Hindu who has not renounced the Hindu religion remains a Hindu, even if they deviate from orthodox practices regarding diet and ceremonial observances.

Joint Hindu Family: A joint and undivided Hindu family is the customary state of affairs in Hindu society. Such a family encompasses all individuals descended from a common ancestor, including their wives and unmarried daughters. When a daughter marries, she transitions from her father's family to her husband's family.

Typically, an undivided Hindu family is united not only in terms of property but also in matters of sustenance and worship. Nevertheless, the presence of joint property is not an absolute requirement for a family to be considered joint. It is possible to have a joint Hindu family even without any shared property. However, if a joint family possesses joint property and its members decide to divide it, the family ceases to be considered joint.

Hindu Coparcenaries: A Hindu coparcenary is a more restricted group within a joint family and includes only those individuals who, by virtue of birth, hold an interest in the shared or coparcenary property. These individuals consist of sons, grandsons, and great-grandsons in unbroken male lineage, relative to the property's current holder. Essentially, it covers three generations of males directly descended from the property's current holder.

Before the Hindu Succession (Amendment) Act, 2005, the Mitakshara Coparcenary included only male members, and females were not recognized as members. However, the Hindu Succession (Amendment) Act, 2005, modified Section 6 of the Hindu Succession Act, allowing daughters of Mitakshara coparceners to become coparceners in their own right, with equal rights and responsibilities as sons.

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Joint Hindu Family Property or Coparcenary:

  1. Ancestral Property: Ancestral property is inherited from one's father, grandfather, or great-grandfather. It can be inherited by sons, grandsons, great-grandsons, and daughters. Property inherited from ancestors beyond these three generations is not considered ancestral property.

  2. Property Jointly Acquired by the Members of the Joint Family: When property is acquired through the collective efforts of joint family members, either in a business or a profession, with the assistance of joint family resources, it becomes joint family or coparcenary property. Additionally, property obtained through joint labor, even without the aid of joint family funds, is presumed to be joint family property unless there is clear evidence of a contrary intention.

  3. Property Acquired with the Aid of Joint-Family Funds: Property acquired with the support of joint-family resources is also considered joint. This includes income generated from the joint family property, such as rent, property purchased with that income, proceeds from selling or mortgaging such property, and property bought with those proceeds.

  4. Property Thrown into the Common Stock: If a member of a joint Hindu family willingly adds their self-acquired property to the joint resources, indicating an intention to relinquish individual claims, it becomes joint Hindu property.

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Separate or Self-Acquired Property:

Property that is not considered joint is termed separate or self-acquired property. In this case, a Hindu, even if part of a joint family, is the exclusive owner of such property and maintains full possession and control. This includes:

  1. Property acquired through individual efforts, not joint labor with other family members.
  2. Property inherited from anyone other than one's father, grandfather, or great-grandfather.
  3. Property received as a share during partition, provided the individual has no offspring.
  4. Property obtained through a gift of ancestral movable property from the father out of affection.
  5. Property received through a government grant.
  6. Marriage gifts.

The Hindu Gains of Learning Act, 1930: Prior to this Act, any income earned by a member of a joint family through a profession or occupation that required special training funded by the joint family property was considered part of the joint family's assets.

Rights of Coparceners:

  1. Shared Interests and Joint Possession: Coparceners in a joint Hindu family enjoy common interests and possess property jointly.
  2. Share of Income: Coparceners have a right to a share of the family income.
  3. Joint Possession and Enjoyment: Coparceners jointly possess and enjoy family property.
  4. Right to Restrain Improper Acts: They have the right to prevent improper actions related to family property.
  5. Right of Maintenance and Other Necessary Expenses: Coparceners are entitled to maintenance and essential expenses from the joint family funds.
  6. Right to Enforce Partition: They can demand the division of family property.
  7. Right to Account: Coparceners have the right to request an account of family income and expenses.
  8. Right to Alienation: Coparceners can agree to the sale or transfer of family property.

Manager (Karta):

In a joint family, the property is usually managed by the father or another senior male member, referred to as the Karta under Hindu Law. However, a senior member can relinquish this role, and a junior male member may be appointed as the Karta with the consent of other family members. It is important to note that a minor family member cannot become a Karta. If no major member is available, the court may appoint a guardian for the entire joint family property.

The Karta is not treated as a partner, principal, or agent of the family but functions more like a trustee. The Karta's powers include:

  1. Control over income and expenditures.
  2. Management of joint-family business.
  3. Authority to contract debts.
  4. Capacity to acknowledge debts.
  5. Ability to initiate a new business.
  6. Discretion to refer disputes to arbitration.
  7. Power to negotiate settlements.

The Karta also has various duties, such as:

  1. Obligation to provide an account of financial matters.
  2. Responsibility to recover debts owed to the family.
  3. Requirement to spend funds reasonably.
  4. Prohibition from initiating a new business without the consent of the coparceners.
  5. Restriction on alienating coparcenary property without legal necessity or for the benefit of the estate.

Alienation of Coparcenary Property: According to Hindu Law, only specific individuals possess the authority to alienate coparcenary property:

  1. The manager or Karta can make such alienations.
  2. Alienation can occur with the consent of all coparceners.
  3. The father acting as the Karta can engage in alienation.
  4. In cases where there is a sole surviving coparcener, that individual can also alienate the property.

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The Hindu Marriage Act, 1955

Nature of Hindu Marriage

Sacrament or Contract: Marriage holds a supreme position in the social fabric of Hindu society, being one of the oldest institutions. According to Raghunandan, "The act of a groom accepting a bride as his wife, accompanied by a gift from her parents, constitutes marriage. Marriage unites a man and a woman in matrimony. Among Hindus, marriage is seen not just as a physical luxury but as a religious necessity." The primary purpose of Hindu marriage is often seen as the procreation of male offspring. Hindus believe that each individual has three debts to fulfill - Pitri Rin (debt to ancestors), Dev Rin (debt to gods), and Rishi Rin (debt to sages).

The discharge of Rishi Rin involves acquiring education, while Dev Rin is fulfilled through prayer and charitable acts. However, to fulfill Pitri Rin, a Hindu must have a son who can perform the rituals and offer sacred offerings to the deceased ancestors, ensuring their salvation. Furthermore, marriage is vital among Hindus because all religious ceremonies and rites are meant to be conducted in the company of one's spouse; otherwise, they are believed to bear no spiritual fruit.

From the era of the Rig Veda, Hindu marriage has been regarded as a sacramental union. It is seen as the merging of flesh with flesh and bone with bone, an indissoluble bond. A wife is expected to revere her husband as a god as long as he lives, and similarly, she is considered to be half of her husband's being (Ardhangini), sharing equally in the consequences of his actions, whether good or bad. In Hindu belief, a man remains incomplete until he marries, and a wife is seen as the source of Dharma (righteousness), Artha (prosperity), Kama (pleasures), and even Moksha (spiritual liberation).

According to Manu, a daughter is given in marriage only once, and she remains the wife of the person to whom she is wedded for her entire life. However, according to Narada and Parasara, there are only five circumstances under which a wife could abandon her husband and remarry:

  1. If the husband is missing.
  2. In the event of the husband's demise.
  3. If the husband renounces worldly life and becomes a sanyasi (ascetic).
  4. If the husband becomes impotent.
  5. If the husband is ostracized from his caste.

These conditions, however, were generally applicable only to unapproved forms of marriage. Marriage is regarded as an unbreakable bond, a sacramental union that endures even after the enactment of the Hindu Marriage Act.

  1. In the case of Purshottamdas v. Purshottamdas, the court observed that the marriage of Hindu children is a contract entered into by their parents.
  2. In the case of Bhagwati Saran Singh v. Parmeshwari Nandar Singh, the court expressed the view that a Hindu marriage is not only a sacrament but also a contract.
  3. According to the case of Muthusami v. Masilaman, a Hindu marriage is, without a doubt, a contract involving consideration, with corresponding rights and duties, notwithstanding its sacramental and institutional aspects.
  4. In the case of Anjona Dasi v. Ghose, it was stated that suits related to marriage deal with matters that, in the eyes of the law, must be treated as a civil contract, and significant civil rights emanate from this contract.

Taking into account the above-mentioned cases and others, it can be reasonably concluded that under ancient, uncodified Hindu Law, a Hindu marriage was not only considered a sacrament but also a contract. With the introduction of provisions for divorce by mutual consent in the present Hindu Marriage Act, it further reinforces the notion that marriage is a contract that can be dissolved through mutual agreement.

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Changes Introduced by the Act:

  1. The Act has affirmed the validity of marriages among Hindus, Jains, Sikhs, and Buddhists.
  2. Monogamy has been mandated, and penalties for bigamy have been established.
  3. Minimum marriageable ages have been set, with 21 for males and 18 for females.
  4. While the Act does not prescribe a specific form of marriage, it does outline certain conditions.
  5. The Act also introduced the registration of Hindu marriages.
  6. Provisions for the restitution of conjugal rights have been included in the Act.
  7. The inclusion of provisions for judicial separation.
  8. The inclusion of provisions for divorce, along with the introduction of the concept of divorce by mutual consent.
  9. The recognition of re-marriage.
  10. Acknowledgment of the legitimacy of a child born from either a void or voidable marriage.
  11. The establishment of provisions for child custody during legal proceedings and even after the issuance of a decree.

Conditions for a Valid Marriage under the Act: The Hindu Marriage Act lays down five conditions for a marriage to be considered valid under Section 5. In the absence of these conditions, a marriage will not be recognized as valid. According to Section 5, a marriage can be solemnized between two Hindus only if the following conditions are met:

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

ii) At the time of the marriage, neither party:

a) Is incapable of giving valid consent due to unsoundness of mind.

b) Is capable of giving valid consent but has been suffering from a mental disorder that makes them unfit for marriage and procreation of children.

c) Has been subject to recurrent episodes of insanity or epilepsy.

iii) The bridegroom must have attained the age of 21 years, and the bride must be at least 18 years old at the time of the marriage.

iv) The parties should not be within the prohibited degrees of relationship unless their customs or usages allow for such a marriage.

v) The parties should not be sapindas of each other, unless their customs or usages permit such a marriage.

Violation of the conditions mentioned in clauses (i), (iv), and (v) renders the marriage null and void, while a violation of the condition in clause (ii) makes the marriage voidable. The Act does not address situations where clause (iii) is violated. However, it has been established that a breach of the condition in clause (iii) does not render the marriage either void or voidable.

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Lunacy:

Clause (ii) of Section 5 was modified by the Marriage Laws Amendment Act, 1976. According to this clause, one of the conditions for a Hindu marriage is that neither party should be suffering from unsoundness of mind, mental disorder, insanity, or epilepsy at the time of marriage. Section 12(1)(b) allows the marriage to be declared voidable upon the request of the aggrieved party.

The Madhya Pradesh High Court, in the case of Smt. Alka Sharma v. Avinash Chandra, has ruled that the word 'and' between the expressions "unfit for marriage" and "procreation of children" in Section 5(2)(b) should be interpreted as 'and' or 'or.' This means that the court can annul the marriage if either of the conditions or both conditions specified exist due to a mental disorder, making the living together of the parties highly unhappy. Additionally, it was determined in this case that the term "procreation" encompasses not only the ability to give birth to children but also the capacity to care for and raise them.

Age of the Parties:

Clause (iii) was amended by the Child Marriage Restraint (Amendment) Act, 1978, setting the minimum age for the bridegroom and bride at 21 years and 18 years, respectively, for the solemnization of a Hindu Marriage. However, a marriage in violation of these age limits is neither void nor voidable, although it is subject to punishment under Section 18. In the case of Lila Gupta v. Lakshminarayan (1978 S. C. 1351 at 1358), the Supreme Court observed that the Child Marriage Restraint Act aimed to advance the reformist movement against child marriages. While it made marriages in contravention of its provisions punishable, it did not render such marriages void.

Prohibition as to prohibited Degrees of Relationship and Sapindas: Clause (iv) stipulates that the parties to a Hindu Marriage should not be within the degrees of prohibited relationship unless the customs or usages governing them permit such a marriage. In contrast, clause (v) emphasizes that the parties should not be sapindas of each other. The definitions of "degrees of prohibited relationship" and "sapinda relationship" are outlined in sub-clauses (f) and (g) of Section 3 of the Act. To validate a marriage using custom, the custom must meet the criteria defined in Section 3(a) of the Act. Demonstrating a single instance of marriage in contravention of these clauses is insufficient to prove the existence of a custom.

Ceremonies for a Hindu Marriage: The Hindu Marriage Act, 1955, preserves the requirement for ceremonial rituals in a lawful marriage. It grants statutory recognition to Hindu marriage as a sacrament under Hindu law. Section 7 of the Act outlines the ceremonies for a Hindu marriage as follows:

  1. A Hindu marriage may be conducted in accordance with the customary rites and ceremonies of either party.
  2. If these rites and ceremonies include the saptapadi (the bride and groom jointly taking seven steps before the sacred fire), the marriage becomes complete and binding upon the completion of the seventh step.

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Registration of Hindu Marriage:

Section 8 of the Act empowers the State government to establish rules for the registration of Hindu marriages. This provision aims to facilitate the proof of Hindu marriages, given the diverse customary forms of marriage within different Hindu communities.

Such rules must include provisions allowing the parties to a marriage to have the details of their marriage recorded in the marriage register in a manner and subject to conditions prescribed by the rules. It should be noted, as established in Kishan Paul v. Ashok Kumar Pal (1982 HLR 478), that the registration of a marriage under this section does not automatically validate the marriage if it is otherwise invalid. A suit for a declaration that the marriage is invalid remains maintainable.

Judicial Separation: Section 10 of the Hindu Marriage Act, 1955, addresses the provision for judicial separation. It stipulates:

  1. Either party to a marriage, whether solemnized before or after the commencement of this Act, may file a petition seeking a decree for judicial separation based on any of the grounds specified in subsection (1) of Section 13. In the case of a wife, the grounds specified in subsection (2) of Section 13, which are also valid for divorce petitions, can be cited.

  2. Once a decree for judicial separation has been granted, it is no longer mandatory for the petitioner to cohabit with the respondent. However, the court, upon the application of either party and upon being satisfied with the truth of the statements in the petition, may rescind the decree if it deems it just and reasonable to do so.

Grounds for Judicial Separation:

The grounds for seeking judicial separation under this section align with those available for divorce as provided under Section 13(1) of the Act. These grounds are applicable to both the husband and wife and serve as common grounds for both parties. These common grounds include the following:

When the other party, after the solemnization of the marriage, engages in voluntary sexual intercourse with anyone other than their spouse.

or

When the other party treats the petitioner with cruelty.

or

Whn the other party has deserted the petitioner for an uninterrupted period of not less than two years immediately preceding the presentation of the petition.

or

When the other party has renounced Hinduism by converting to another religion.

or

When the other party is afflicted with incurable unsoundness of mind or continuously or intermittently suffers from a mental disorder of such a nature and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

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Divorce:

The traditional concept of Hindu marriage was considered indissoluble and permanent; however, this notion has been significantly impacted by the introduction of divorce provisions. The old Hindu law held that marriage could not be severed under any circumstances. Manu did not approve of marriage dissolution under any condition. The inclusion of divorce in Hindu law has brought about a profound change in the perception of Hindu marriage.

Divorce effectively terminates the marriage, allowing both parties to revert to their unmarried status and remarry if they wish. Section 13 of the Act outlines the circumstances under which divorce is permissible. Section 14 specifies that no divorce petition can be filed within one year of marriage, unless it causes exceptional hardship to the petitioner or involves exceptional depravity on the part of the respondent. Section 15 of the Act imposes limitations on the right of divorced individuals to remarry.

The Marriage Laws (Amendment) Act, 1976, made the grounds for divorce and judicial separation uniform. An aggrieved party can opt for either divorce or judicial separation.

Additionally, the Amendment introduced a new form of divorce—divorce by mutual consent—under Section 13(B). Section 13(B) is notable for substantially diminishing the sacramental character of Hindu marriage. Moreover, there are specific grounds available exclusively to a wife for seeking divorce or judicial separation under Section 13(2).

Grounds for Divorce (Under Section 13(1)): A lawful marriage can be dissolved through a divorce petition filed by either party based on the following grounds:

a) Adultery: Prior to the Marriage Laws (Amendment) Act, 1976, "living in adultery" was a ground for divorce. Now, adultery itself has been made grounds for both divorce and judicial separation. Adultery is established by demonstrating that the respondent willingly engaged in sexual intercourse with someone other than their spouse. Continuous adultery is not required for divorce; proving that the respondent voluntarily had sexual intercourse with someone other than their spouse is sufficient.

b) Cruelty: Under clause (i)(a) of Section 13(1), "cruelty" serves as a ground for divorce. This provision was added by the Marriage Laws (Amendment) Act, 1976. Cruelty leading to divorce includes the mistreatment of the petitioner by the other party after marriage. The term "cruelty" is not explicitly defined in the Act. In general, cruelty includes actions that endanger life, limb, physical or mental health, or create a reasonable fear of such consequences. Mental cruelty is also considered grounds for divorce, encompassing actions that inflict significant mental pain and suffering, making it impossible for the spouses to continue living together.

Both physical and mental cruelty are covered under this provision. The threshold for what constitutes physical cruelty may vary depending on the circumstances and the sensitivity of the affected party. Mental cruelty is defined as actions that cause such mental anguish that living together becomes impossible.

In a recent case, S. Hanumath Rao v. V.S. Ramani (AIR. 1999, S.C. 1319), the Court defined mental cruelty as actions that cause significant mental pain, agony, or suffering to the extent that it severs the bond between the husband and wife, making it impossible for them to live together. Mere removal of the mangalsutra (a sacred necklace symbolizing marriage) by the wife does not constitute mental cruelty under Section 13(1)(i)(a).

Instances of actions that amount to mental cruelty include:

  1. False accusations of adultery or unchastity: For example, in Samptami v. Jagdish (1970 Cal. 272), the husband continuously labeled his wife as a prostitute or a woman of the street.
  2. Persistent refusal to engage in marital intercourse is considered cruelty.
  3. Prosecution of a spouse by the other on false criminal charges is considered cruelty.
  4. Repeated allegations of immorality against the husband, causing physical harm to the husband, and filing complaints against the husband are all considered acts of cruelty.
  5. Making false, defamatory, malicious, baseless, and unproven allegations against a spouse to superior officers or authorities amounts to cruelty.
  6. Making false charges of adultery during the cross-examination of the wife does not amount to cruelty.
  7. Mere allegations of impotence against the wife are not considered cruelty.
  8. On the first wedding night, the wife telling the husband that he has an ugly face and that individuals with ugly faces also have ugly minds does not constitute cruelty under matrimonial law.
  9. Outbursts of temper without malice, non-payment of interim maintenance, or desertion alone do not amount to cruelty.

Desertion:

This clause was introduced by the Marriage Laws Amendment Act, 1976, providing "desertion" as one of the grounds for divorce. Desertion is defined as the intentional, permanent forsaking, and abandonment of one spouse by the other without consent and without reasonable cause. Desertion can take the form of actual abandonment, constructive abandonment, or abandonment due to willful neglect.

Conversion:

Section 13(1)(ii) of the law stipulates that if one spouse converts to another religion, ceasing to be a Hindu, the other spouse may seek divorce under this provision. It's important to note that the mere conversion of one spouse to a non-Hindu faith does not automatically dissolve the marriage. The petitioner must file a divorce petition to obtain a decree of divorce. If the petitioner chooses to continue living with their spouse who has converted to another religion, they are not prohibited from doing so.

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Unsound mind:

lause (iii) of Section 13(1) allows a petitioner to obtain a divorce or judicial separation if the respondent has been continuously or intermittently suffering from a mental disorder of such a nature and extent that the petitioner cannot reasonably be expected to live with them. The Act provides an explanation for "mental disorder," encompassing mental illness, arrested or incomplete mental development, psychopathic disorders, or any other mental disorder or disability, including schizophrenia. The Supreme Court, in the case of Ram Narayan Gupta v. Smt. Rameshwari (AIR 1988 S.C. 2260), emphasized the need to assess the degree of mental disorder in the context of these grounds for dissolution of marriage. In the case of Smt. Alka v. Abhinesh (AIR 1991 M.P. 205), the wife was found to be suffering from schizophrenia, justifying the husband's request for a divorce.

Leprosy:

The Marriage Laws (Amendment) Act, 1976, introduced leprosy as a ground for both judicial separation and divorce. The law does not specify a duration of leprosy. Under clause (iv), the petitioner must demonstrate that the respondent has been afflicted with virulent and incurable leprosy, meeting two conditions: (i) it must be virulent, and (ii) it must be incurable.

Venereal Disease:

Venereal diseases are those transmitted through sexual intercourse. Section 13(1)(v) requires that the disease must be in a communicable form to be considered a ground for divorce.

  1. Renunciation of the World: Section 13(1)(vi) provides grounds for divorce if the other spouse has renounced the world by entering a religious order.
  2. Spouse not Heard for Seven Years: Under Section 13(1)(vii), a spouse can obtain a divorce if they have not been heard of as being alive for a period of seven years or more by those who would naturally have heard of their existence if they were still alive. This clause is based on the evidentiary rule contained in Section 107 of the Indian Evidence Act.

Divorce by Mutual Consent (Section 13 B):

  1. Both parties must have lived separately for a period of one year or more.
  2. Both parties must have been unable to reconcile and live together.
  3. Both parties must mutually agree to dissolve their marriage.

When a Divorce Petition Can Be Filed (Section 14):

To file a divorce petition, at least one year should have elapsed from the date of marriage. However, a petition may be filed within this period if the court permits it based on:

  1. Exceptional hardship suffered by the petitioner.
  2. Exceptional depravity exhibited by the other party.

When Divorced Persons Can Remarry (Section 15):

After the issuance of a divorce decree, the parties can remarry under the following conditions:

  1. When a marriage has been dissolved, and there is no appeal against the court's decree.
  2. If there is a right of appeal, but the time for filing an appeal has expired.
  3. An appeal has been filed, but it has been dismissed.

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Legitimacy of Children from Void and Voidable Marriages (Section 16):

In accordance with the general law, a legitimate child is born within a lawful marriage. However, when a marriage is deemed void under Section 11 or a decree is granted for a voidable marriage under Section 12, this section ensures that the child born from such unions is considered legitimate. This includes rights of inheritance and succession, preventing the child from suffering undue hardship due to circumstances beyond their control.

Punishment for Bigamy (Section 17):

If either party to a marriage has a living spouse at the time of the subsequent marriage, the provisions of Section 494 and 495 of the Indian Penal Code (IPC) shall apply.

Punishment for Violating Certain Other Conditions (Section 18):

a) In the case of clause (iii) of Section 5, violators may face simple imprisonment of up to 15 days, a fine of up to Rs. 1,000, or both.

b) In the case of clause (iv) or (v) of Section 5, those who violate these conditions may be subject to simple imprisonment for up to one month, a fine of up to Rs. 1,000, or both.

Permanent Alimony and Maintenance (Section 25):

  1. Any Court with jurisdiction under this Act may, either at the time of passing a decree or at any later point, upon application by either the wife or the husband, order the respondent to provide maintenance and support for the applicant. The maintenance can be a lump sum or a monthly/periodical sum for a period not exceeding the applicant's lifetime. This decision will be based on factors such as the respondent's income and assets, the applicant's income and assets, the parties' behavior, and other relevant circumstances. In case of necessity, the payment may be secured through a charge on the respondent's immovable property.
  2. If the Court determines that there has been a change in the circumstances of either party after issuing an order under sub-section (1), it may, at the request of either party, modify, vary, or annul the existing order as deemed just.
  3. If the Court finds that the party in whose favor an order was made under this section has remarried or, if that party is the wife, has not maintained her chastity or, if that party is the husband, has engaged in sexual relations with another woman outside of marriage, the Court may, upon the request of the other party, modify, vary, or annul the order as deemed just.

Custody of Children (Section 26):

In any proceeding under this Act, the Court may issue interim orders and provide provisions in the decree concerning the custody, maintenance, and education of minor children. The Court should consider the wishes of the children whenever possible. The Court has the authority to alter the decree upon a petition for this purpose, and it can also revoke, suspend, or modify any previously issued orders and provisions.

Disposal of Property (Section 27):

In any proceeding under this Act, the Court may include provisions in the decree as it deems just and appropriate regarding any property given at the time of marriage that may jointly belong to both the husband and the wife.

Appeals from Decrees and Orders (Section 28):

  1. All decrees made by the Court in any proceeding under this Act are appealable as if they were decrees of the Court issued in the exercise of its original civil jurisdiction, subject to the provisions of sub-section (3). Such appeals should be directed to the appropriate appellate court based on the Court's original civil jurisdiction.
  2. Orders issued by the Court under Section 25 or Section 26 are appealable provided they are not interim orders. These appeals should also be directed to the appropriate appellate court based on the Court's original civil jurisdiction.
  3. There is no right to appeal solely on the subject of costs.
  4. Appeals under this section should be filed within thirty days from the date of the decree or order.

Enforcement of Decrees and Orders (Section 28):

All decrees and orders issued by the Court in any proceeding under this Act shall be enforced in the same manner as decrees and orders of the Court issued in the exercise of its original civil jurisdiction are enforced.

Savings and Repeals Savings (Section 29):

  1. A marriage between Hindus solemnized before the commencement of this Act, which is otherwise valid, shall not be deemed invalid solely due to the parties belonging to the same gotra or parivar or having different religions, castes, or sub-divisions of the same caste.
  2. This Act does not affect any rights recognized by custom or conferred by any special enactment to seek the dissolution of a Hindu marriage, regardless of whether it was solemnized before or after the commencement of this Act.
  3. This Act does not affect any ongoing proceedings under existing laws to declare a marriage null and void or to annul or dissolve a marriage or seek judicial separation, and such proceedings may continue and be determined as if this Act had not been enacted.

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Void Marriage:

Section 11 of the Hindu Marriage Act states that any marriage solemnized after the enactment of this Act, in violation of the conditions specified in clauses (i), (iv), and (v) of Section 5, shall be considered null and void.

Therefore, there are three scenarios where a marriage is considered null and void:

  1. If either party has a living spouse at the time of the marriage.
  2. If the parties are within the prohibited degrees of relationship unless customs or usage allow such a marriage.
  3. If the parties are sapindas unless customs or usage permit such a union.

A void marriage is deemed nonexistent from the very beginning. Since both parties lack the capacity to marry, performing ceremonies cannot establish a marital relationship between them. They have no legal status as husband and wife. The parties are not obligated to seek a court declaration of nullity under this section. In such cases, either party can consider the marriage null and void without court intervention. It is not the court's decree that renders the marriage void, as held in Nirmal Bose v. Mamta Gulati (1997 All. 401).

In the case of a second marriage, as seen in Harmohan v. Kamal Kumar (1979 Ori. 51), the first wife, who is not a party to the second marriage, can file a civil suit in the appropriate civil court for a declaration of her rights as a third party. Such a suit is governed by Section 9 of the Code of Civil Procedure, along with Section 34 of the Specific Relief Act. She cannot file a petition in the District Judge's court to declare the second marriage null and void under this section. However, it was determined in Amanlal v. Vai Bai (1959 M.P. 400) that the first wife can seek judicial separation by filing a petition under the Act before the District Court.

Voidable Marriage:

Section 12 of the Hindu Marriage Act, 1955 addresses voidable marriages. Voidable marriages arise in the following situations:

a) If the marriage remains unconsummated due to the respondent's impotence.

b) If the marriage violates the condition in clause (ii) of Section 5, meaning that at the time of marriage, either party is incapable of giving valid consent due to unsoundness of mind or, although capable of giving consent, has been suffering from mental disorder to an extent that renders them unfit for marriage and procreation of children or has experienced recurrent bouts of insanity or epilepsy.

c) If the consent of the petitioner or, where the consent of the petitioner's guardian in marriage was required, such consent was obtained by force or fraud concerning the nature of the ceremony or material facts or circumstances about the respondent.

d) If, at the time of marriage, the respondent was pregnant by someone other than the petitioner.

A voidable marriage is valid and binding until it is annulled by a decree. Only one of the parties to the marriage can seek annulment through a court decree.

Distinction between Void and Voidable Marriages:

a) A void marriage is void from the outset and does not change the parties' legal status. They do not become husband and wife, and no mutual rights and obligations arise.

b) In contrast, a voidable marriage remains valid and binding until a decree annuls it.

c) A court only issues a decree declaring a void marriage as void, whereas a voidable marriage is annulled by a court decree.

d) Parties to a void marriage may enter into another marriage without obtaining a decree annulling their previous marriage, and neither party would be guilty of bigamy.

Section 6 of the Act, Post the Hindu Succession (Amendment) Act, 2005:

The Hindu Succession (Amendment) Act of 2005, which became effective on September 9, 2005, replaced the original Section 6 of the Hindu Succession Act and introduced significant changes to the concept of Mitakshara coparcenary. The amended Section 6 of the Act now reads as follows:

Devolution of Interest in Coparcenary Property:

a) As of the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall: i) Automatically become a coparcener in her own right, just like a son; ii) Possess the same rights in the coparcenary property as she would have had if she were a son; iii) Be subject to the same liabilities concerning the coparcenary property as a son would be. Additionally, any reference to a Hindu Mitakshara coparcener shall be considered to include a reference to a daughter of a coparcener.

Please note that this subsection shall not affect or invalidate any prior dispositions or alienations, including partitions or testamentary dispositions of property, that occurred before December 20, 2004.

b) Any property to which a female Hindu becomes entitled under subsection (1) shall be held by her with the incidents of coparcenary ownership. It shall be considered property capable of being disposed of by her through testamentary disposition, irrespective of the provisions of this Act or any other prevailing law.

c) When a Hindu passes away after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law shall devolve through testamentary or intestate succession, as applicable under this Act, rather than by survivorship. The coparcenary property shall be treated as if a partition had occurred, with the following rules: i) The daughter shall be allotted the same share as a son. ii) The share of a pre-deceased son or daughter shall be allotted to the surviving child of that pre-deceased son or daughter. iii) The share of a pre-deceased child of a pre-deceased son or daughter shall be allotted to the child of that pre-deceased child of the pre-deceased son or daughter, as appropriate.

For the purpose of this subsection, a Hindu Mitakshara coparcener's interest shall be considered as the share in the property that would have been allotted to him if a partition had taken place immediately before his death, regardless of his entitlement to claim partition.

d) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to pursue a son, grandson, or great-grandson for debt recovery solely based on their pious obligation under Hindu Law to repay their father's, grandfather's, or great-grandfather's debt. However, this provision does not affect: i) The creditor's right to pursue the son, grandson, or great-grandson. ii) Any alienation made in respect of or as satisfaction of such a debt. These rights or alienations shall remain enforceable under the rule of pious obligation as if the Hindu Succession (Amendment) Act, 2005, had not been enacted.

Explanation: For the purpose of clause (a), the terms 'son,' 'grandson,' or 'great-grandson' shall refer to those who were born or adopted before the commencement of the Hindu Succession (Amendment) Act, 2005.

e) The provisions of this section shall not apply to a partition that was completed before December 20, 2004.

Explanation: For the purpose of this section, 'partition' means any partition executed through a registered deed or decreed by a court.

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Heirs in Class I and Class II

Class I:

  1. Son
  2. Daughter
  3. Widow
  4. Mother
  5. Son of a predeceased son
  6. Daughter of a predeceased son
  7. Son of a predeceased daughter
  8. Daughter of a predeceased daughter
  9. Widow of a predeceased son
  10. Son of a predeceased son of a predeceased son
  11. Daughter of a predeceased son of a predeceased son
  12. Widow of a predeceased son of a predeceased son
  13. Son of a predeceased daughter of a predeceased daughter
  14. Daughter of a predeceased daughter of a predeceased daughter
  15. Daughter of a predeceased son of a predeceased daughter. 
  16. Daughter of a predeceased daughter of a predeceased son.

Class II heirs are as follows:

  1. Father
  2. Son's daughter's son; Son's daughter's daughter; Brother; Sister.
  3. Daughter's son's son; Daughter's son's daughter; Daughter's daughter's son; Daughter's daughter's daughter.
  4. Brother's son; Sister's son; Brother's daughter; Sister's daughter.
  5. Father's father; Father's mother.
  6. Father's widow; Brother's widow.
  7. Father's father; Mother's mother.
  8. Mother's father; Mother's mother.

Computation of Degrees (Section 13) is explained as follows:

  1. To determine the order of succession among agnates or cognates, the calculation of degrees of relationship is based on the distance between the intestate and the heir in terms of degrees of ascent or degrees of descent, or a combination of both, as appropriate.
  2. Degrees of ascent and descent are counted while including the intestate as a reference point.
  3. Each generation is considered as one degree, whether it involves ascending or descending relationships.

Based on the principles outlined in Section 12, agnates and cognates can be categorized as follows:

Agnates:

a) Descendant Agnates: These individuals have no degrees of ascent in their relationship with the intestate. Examples include the son's son's son's son and the son's son's son's daughter.

b) Ascendant Agnates: They are connected to the intestate only through degrees of ascent, without any descent. Examples include the father's father's father and the father's father's mother.

c) Collateral Agnates: These agnates are related to the intestate through both degrees of ascent and descent. Examples include the father's brother's brother's son and the father's brother's daughter.

The rules of succession for female Hindus, as per Section 15, are explained as follows:

  1. In the event of the intestate death of a female Hindu, the devolution of her property shall follow the guidelines specified in Section 16, which includes the following order: a) First, it shall go to her sons, daughters (including the offspring of any deceased son or daughter), and her husband. b) Second, it shall pass to the heirs of the husband. c) Third, it shall devolve upon the mother and father. d) Fourth, it shall be inherited by the heirs of the father. e) Lastly, it shall be received by the heirs of the mother.

  2. Despite the provisions in sub-section (1), the following exceptions apply: a) Any property acquired by a female Hindu from her father or mother will not pass to the other heirs mentioned in sub-section (1), in the order specified there, if there are no sons or daughters of the deceased (including the children of any predeceased son or daughter). Instead, it shall devolve upon the heirs of the father. b) Any property received by a female Hindu from her husband or father-in-law will not go to the other heirs listed in sub-section (1), in the specified order, if there are no sons or daughters of the deceased (including the children of any predeceased son or daughter). Rather, it shall be inherited by the heirs of the husband.

The order of succession and the manner of distribution among heirs of a female Hindu, as per Section 16, are outlined as follows:

Rule 1: Among the heirs mentioned in sub-section (1) of Section 15, those belonging to the same category shall be given precedence over those in subsequent categories, and individuals within the same category shall inherit simultaneously.

Rule 2: In cases where a son or daughter of the intestate had passed away before the intestate's death, leaving their own children alive at the time of the intestate's demise, the grandchildren of such son or daughter shall share among themselves the portion that their parent would have received if they were alive at the time of the intestate's death.

Rule 3: The distribution of the intestate's property among the heirs mentioned in clauses (b), (d), and (e) of sub-section (1) and in sub-section (2) of Section 15 shall follow the same order and rules as if the property had originally belonged to the father, mother, or husband, as applicable, and if such a person had died intestate concerning that property immediately after the intestate's death.

Full-Blood Preferred to Half-Blood (Section 18): When it comes to heirs related to an intestate, those who are related by full-blood shall be given preference over heirs related by half-blood, provided that the nature of their relationship is the same in all other aspects. This section mirrors a key principle of Hindu law, wherein relatives of the whole blood are prioritized over those of the half-blood. This rule applies universally to all heirs, regardless of gender.

The principle outlined in this section becomes applicable only when the nature of the relationship is identical in all relevant aspects and adheres to the rules of preference established in the Act for determining the order of succession.

Mode of Succession of Two or More Heirs (Section 19): In situations where two or more heirs inherit the property of an intestate simultaneously, they will share the property equally per capita. They will hold the property as tenants-in-common and per stripes unless there is a specific provision in the Act stating otherwise.

Right of Child in Womb (Section 20): If a child was in the womb at the time of the intestate's death and is subsequently born alive, they shall possess the same inheritance rights from the intestate as if they had been born before the intestate's demise. In such cases, the inheritance is deemed to be vested from the moment of the intestate's death.

Presumption in Cases of Simultaneous Deaths (Section 21): In situations where two individuals have died under circumstances that make it uncertain which of them, if any, survived the other, it will be presumed, unless proven otherwise, that the younger individual survived the elder. This presumption is applicable to all matters concerning the succession to property.

Partition by Institution of Suit

a) Suit by Adults: When a member of a joint family initiates a partition suit, it serves as a clear indication of their intent to separate, resulting in the termination of their joint status from the date of filing. Although the act of filing a suit strongly suggests an intention to separate, it is not the definitive proof.

In cases where a partition suit is brought forward by members of a joint family, the court holds the authority not only to physically divide the properties but also to legally effect a separation of status without an immediate division of the assets.

b) Minor's Suit for Partition: Minors have the option to file a partition suit through a legal guardian. If the court determines that a division is in the best interests of the minor and issues a preliminary decree for partition, the minor's status as separate from the joint family is recognized from the date of filing the suit, rather than from the date of the preliminary decree.

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Partition by Arbitration:

An agreement between the members of a joint family, whereby they appoint arbitrators for dividing the joint family properties among them, amounts to a severance of the joint status of the family from the date thereof.

The Hindu Adoptions and Maintenance Act, 1956

"Manu stated: 'He whom his father and mother give to another as his son, provided that the donee has no issue, if the boy be of the same class, and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water….'"

In the uncodified Hindu Law, there were twelve kinds of sons recognized, with five of them being adopted sons. Historically, the adoption of a daughter was not permitted. However, the Hindu Adoptions and Maintenance Act of 1956 now allows for the adoption of both sons and daughters.

The objectives of adoption serve two main purposes. The first is religious, aiming to secure spiritual benefits for the adopter and their ancestors by having a son who can offer funeral offerings and libations of water. The second objective is secular, seeking to ensure an heir to carry on the adopter's name.

Requirements for a Valid Adoption (Sub-Sections 5 to 11):

Section 5 of the Act stipulates that all adoptions made after the Act came into effect must adhere to the Act's provisions. Any adoption made in violation of these provisions is deemed null and void. Such an invalid adoption neither confers rights on the adoptive family in favor of anyone that they couldn't have obtained otherwise nor does it extinguish the rights of individuals in their biological family.

There are four essential prerequisites for a valid adoption outlined in Section 6:

  1. The person wishing to adopt must have the capacity and the legal right to do so.
  2. The person giving the child up for adoption must also have the legal capacity to do so.
  3. The child being adopted must be eligible for adoption.
  4. The adoption must adhere to the other conditions specified in the Act.

These requirements are cumulative, meaning all of them must be met for the adoption to be valid. Each of these conditions is discussed in further detail below.

The Person Adopting Should Have the Capacity and Right to Take in Adoption (Sub-Sections 7 and 8): Section 7 and 8 introduce significant changes to the Hindu law of adoption, outlining who can lawfully adopt a son or daughter.

According to Section 7, any mentally sound adult male Hindu who is not a minor can adopt a son or daughter. If he has a living wife, he cannot adopt without her consent, except in three specific scenarios:

  1. If the wife has permanently renounced worldly life.
  2. If the wife is no longer a Hindu.
  3. If the wife has been declared legally insane by a competent court.

If the person seeking to adopt has multiple living wives at the time of adoption (polygamy was allowed under Hindu Law before 1955), the consent of all wives is required, unless one of them falls into the three categories mentioned above. Notably, the wife's consent need not be explicit; it can also be inferred from the circumstances. For example, if the wife actively participates in the adoption rituals, her consent can be implied.

Under Section 8, certain females also have the capacity to adopt a son or daughter. These females must meet the following criteria:

  1. Be mentally sound.
  2. Not be a minor.
  3. Not be married, unless there is a custom or practice permitting the adoption of married individuals.
  4. Be unmarried, or if married, meet one of the following conditions: a) Spouse is deceased. b) Spouse has permanently renounced worldly life. c) Spouse is no longer a Hindu. d) Spouse has been declared legally insane by a competent court.

This section introduces a significant change by allowing females, including widows, to adopt, provided they satisfy the specified conditions. Typically, a married woman cannot adopt a child unless her husband is deceased, of unsound mind, etc.

The Person Giving in Adoption Should Have the Capacity to do so (Section 9): Section 9 outlines who can legally give a son or daughter in adoption. Only fathers, mothers, and guardians have this right. Importantly, the terms "father" and "mother" do not include adoptive parents.

If the father is alive, he has the exclusive right to give a child in adoption but requires the consent of the mother, except in specific scenarios:

  1. The mother has permanently renounced worldly life.
  2. The mother is no longer a Hindu.
  3. The mother has been declared legally insane by a competent court.

The mother is granted the right to give a child in adoption if her husband meets one of the following conditions:

a) He is deceased. b) He has permanently renounced worldly life. c) He is no longer a Hindu. d) He has been declared legally insane by a competent court.

Guardians can also give a child in adoption, provided they obtain prior court permission, in cases where: a) Both parents are deceased, have permanently renounced worldly life, abandoned the child, or have been declared legally insane by a competent court. b) The child's parentage is unknown.

Notably, a child can be given in adoption to any person, including the guardian. A "guardian" in this context refers to a person responsible for the child's welfare, including those appointed by the child's parents' will or declared by a court.

This section reaffirms the legal principles that existed before 1956, with the addition that guardians can give a child in adoption with court permission in specific circumstances.

The Person Who is Adopted Should be Capable of Being Taken in Adoption (Section 10):

Section 10 states that certain conditions must be met for a person to be eligible for adoption. These conditions include:

a) Being a Hindu. b) Not having been previously adopted. c) Not being married, except when custom or usage permits the adoption of married individuals. d) Not having reached the age of fifteen, unless custom or usage permits the adoption of individuals over fifteen years old.

This section introduces the possibility of adopting both sons and daughters, removing the previous limitation that only males could be adopted. It also clarifies that caste restrictions no longer apply, and the key requirement is that both parties are Hindus. Additionally, it addresses the age and marital status of the individual to be adopted.

The Adoption Should be Made in Compliance With Other Conditions Mentioned in the Act (Section 11):

Section 11 sets forth six mandatory conditions for a valid adoption. Failure to meet any of these conditions renders the adoption invalid.

The first condition stipulates that the adoptive parent(s) should not have a Hindu son, son's son, or son's son's son (by blood or adoption) at the time of the adoption if adopting a son. This condition does not apply to adoptive parents with only one son who has renounced Hinduism through conversion to another religion.

The second condition states that adoptive parents cannot have a Hindu daughter or son's daughter (by blood or adoption) at the time of adopting a daughter.

The third and fourth conditions apply when a Hindu male is adopting a female or a Hindu female is adopting a male, respectively. In these cases, the adoptive parent must be at least twenty-one years older than the child to be adopted.

The fifth condition reaffirms the rule that the same child cannot be adopted by two or more people simultaneously.

The sixth condition requires that the child must be genuinely given and taken in adoption by the parents or guardian, with the intent to transfer the child from their birth family (or the family or place where they were raised, in the case of an abandoned child or one of unknown parentage) to the adoptive family.

Right of Adoptive Parents to Dispose of Their Properties (Section 13):

Section 13 reaffirms a well-established principle of Hindu Law, which states that adoption does not, unless otherwise agreed upon, restrict the adoptive father or mother from disposing of their property through inter vivos transfer or by will.

It's important to note that this principle is subject to any agreement to the contrary. In other words, if there exists an agreement in which the adoptive parent commits not to dispose of their property, provided there is valid consideration for such an agreement, it will be legally binding on the adoptive parent.

Determination of the Adoptive Mother in Certain Cases (Section 14):

In most cases where a married male Hindu adopts a child, his wife is considered the adoptive mother. Section 14 simplifies the rules for determining the adoptive mother in specific scenarios:

a) If a married male Hindu adopts a child, his wife is automatically regarded as the adoptive mother. b) In situations where the Hindu male has more than one wife, and the adoption takes place with the consent of all the wives, the senior-most wife in terms of marriage is considered the adoptive mother, while the others are considered step-mothers. c) If a widower or bachelor adopts a child and subsequently marries a woman, that woman is regarded as the step-mother of the adopted child.

Section 14 also clarifies that if a widow or an unmarried woman adopts a child, any man she subsequently marries will be considered the step-father of the adopted child.

Valid Adoption not to be Cancelled (Section 15):

Section 15 establishes an important principle that a valid adoption, once carried out, cannot be annulled or revoked by the adoptive parents or any other party. Furthermore, the adopted child cannot renounce their adopted status and return to their biological family. This rule remained consistent with the law prior to 1956.

Presumption as to Registered Document Relating to Adoption (Section 16):

In adoption cases, it is common to have a written document signed by both the person adopting and the person giving the child up for adoption. Section 16 states that if such a document, which records an adoption, is signed by both parties and registered as required by law, the court will presume that the adoption was conducted in accordance with the provisions of the Act, unless evidence to the contrary is presented. However, it is essential to note that this presumption is not absolute, and the mere registration of an adoption document does not conclusively prove the legality of the adoption.

Prohibition of Certain Payments (Section 17):

Section 17 addresses the issue of preventing the trade or exchange of children and takes a stern stance against it. This section expressly forbids any person from giving or receiving any payment or reward in return for adopting another person. Engaging in such transactions is deemed illegal and can lead to penalties, including imprisonment for up to six months, a fine, or both.

Savings (Section 30):

Section 30 of the Act incorporates a "Savings clause," which states that the provisions of the Act do not affect adoptions made prior to the Act's commencement. The validity and consequences of such adoptions will be determined as if this Act had not been enacted.

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Hindu Law Notes for Judiciary [ Hindu Law Bare Act] Download PDF

Author : Yogricha

February 20, 2024

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Overview: Hindu law is a diverse and complex area of jurisprudence that continues to evolve with changing societal norms and legal reforms. It plays a crucial role in regulating the personal and family lives of Hindus in India and other countries where Hinduism is practiced.

The Hindu law an essential part of many state Judicial exams. Knowing the important sections, concepts, and everything around it is a must. For example, if you are preparing for UK Judiciary or any other state exam, you should properly study Hindu Law and all the acts covered under it

In this article, we will cover:

  • Important topics for Judiciary
  • Preparation Tips of Hindu Law
  • Download Notes for your preparation

Concept of Hindu Law:

The Hindu concept of law is deeply rooted in dharma, which permeates Hindu philosophical thought and social structure. Law is seen as a branch of dharma, and according to Manu, dharma is followed by those learned in Vedas and approved by virtuous individuals who are free from hatred and excessive affection. Medhatithi, an early commentator on Manu, defines "dharma" as 'duty,' encompassing religious, moral, social, and legal responsibilities. In essence, Hinduism is often described as a system based on duties.

Hindu law derives from Smritis, expounded in Sanskrit commentaries and digests. These Smriti texts do not make a clear distinction between legal, moral, and religious rules; they intertwine them. While the Privy Council differentiated between mandatory (legal) and directory (moral) rules in the case of Shri Balsu, the High Courts in India have attempted to establish criteria for these distinctions. Hindu law encompasses a vast body of rules, and even during the period of Muslim rule in India, Smriti law continued to be recognized.

The Hindu concept of law differs from the Austinian view of law. Analytical jurists might consider many Hindu law rules as mere positive morality. However, it is widely accepted that a rule of law need not originate from a specific authority or be imposed by one. Hindu law rules are considered legal because they are followed voluntarily by the people for whom they are intended.

In modern times, Hindu law, as applied by Indian courts, is specific to Hindus. It has undergone significant modifications and amendments. The original Hindu law no longer applies to all matters and has been adapted to changing societal demands. Various legislative enactments, such as the Hindu Marriage Act of 1955, the Hindu Adoption and Maintenance Act of 1956, the Hindu Succession Act of 1956, and the Hindu Minority and Guardianship Act of 1956, have altered aspects of Hindu law, prevailing over the original principles in certain areas.

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The classification of persons as Hindus can be summarized as follows:

Hindu by Religion:

  1. Followers of Hindu Religion: Anyone who follows the Hindu religion, either through practice or profession, is considered a Hindu. This definition includes those who accept the Vedas as the highest authority, believe in the world rhythm, cycles of creation and dissolution, and embrace concepts such as reincarnation and pre-existence.

  2. Converts and Reconverts to Hinduism: Hindu law recognizes individuals who convert to Hinduism, Jainism, Buddhism, or Sikhism as Hindus. Conversion does not require a formal ceremony, but there should be a genuine intention to adopt the Hindu faith, supported by conduct expressing that intention. Reconversion to any of these religions also classifies a person as Hindu.

Hindu by Birth:

  1. Both Parents are Hindu: Children born to Hindu parents, whether legitimate or illegitimate, are considered Hindus. Their personal belief or practice of the religion is irrelevant.

  2. One Parent is Hindu: If one parent is Hindu, and the child is brought up as a member of a Hindu family, the child is regarded as Hindu. The child's religion is not necessarily determined by the father's religion. For instance, if a child is born to a Hindu mother and a Muslim father but is raised as a Hindu, the child is considered Hindu.

Persons who are not Muslims, Christians, Parsis, or Jews: According to codified Hindu law, individuals who do not adhere to the religions of Islam, Christianity, Parsi, or Judaism are governed by Hindu law unless it is proven that Hindu law does not apply to them. This category includes atheists or individuals who believe in multiple faiths or a combination of faiths.

In summary, modern Hindu law encompasses a body of personal laws applicable to both Hindus and certain non-Hindu communities. All individuals to whom Hindu law applies, regardless of their religious beliefs or affiliations, are collectively referred to as "Hindus" within the context of the application of Hindu law.

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Sources of Hindu Law

The Hindu legal system boasts an incredibly ancient lineage, spanning approximately 6000 years, and has evolved through various stages. Initially, these sources served the pastoral needs of a community, but they have since adapted to cater to the requirements of modern welfare societies. These sources can be conveniently categorized as follows:

1) Ancient Sources:

) Sruti: The term "Sruti" is derived from the word 'Sru,' meaning 'to hear.' Manu defines Sruti as the Veda, which represents divine utterances heard from the deity (God). The Vedas are considered the paramount and primary source of Hindu Law, containing divine wisdom and guidance. They encompass the words found in the four Vedas, six Vedangas, and eighteen Upanishads, primarily focusing on religious teachings, true knowledge, and salvation. The four Vedas are Rigveda (praising natural forces), Yajurveda (rituals), Samaveda (prayers), and Atharvaveda (magic, spells, and incarnation). The six Vedangas cover orthography, rituals, grammar, prosody, astronomy, and lexicon.

b) Smrities: Smrities consist of utterances and precepts of the Almighty, remembered and passed down by sages (Rishis) through generations. They are further divided into Primary and Secondary Smrities found in Dharma Sutra (Prose) and Dharmashastras (Poetry). Prominent Dharma Sutra writers include Gautama, Baudhyana, Apastamba, Harita, Vasistha, and Vishnu. Dharmashastra authors include Manu, Yajnyavalkya, Brihaspati, and Narada. While Smrities address morality and religion, they have a more secular character compared to Sruties.

c) Commentaries and Digests: Following the Smrities, the next stage in the development of Hindu Law involved composing numerous commentaries (tika) and digests (Nibandha) based on the Smrities. Commentaries interpret the law as laid down in the Smrities. The writing of a specific Smriti is termed a commentary, while writing on various Smrities is referred to as Digests. Notable commentaries include "Daya Bhaga" by Jimutavahana and "Mitakshara" by Vijnaneshwara. These commentaries have come to be regarded as more authoritative than the original texts.

d) Custom: As humans began to live in groups, they naturally developed patterns of behavior to ensure harmonious group living. Over time, these patterns, known as customs, emerged.

There are three types of customs:

i) Local Custom: These customs pertain to specific localities, states, or districts and are binding on the inhabitants of those areas.

ii) Class Custom: Class customs are specific to a caste, sect, or profession within the community, such as agriculture, trade, or mechanical arts.

iii) Family Custom: These customs are unique to particular families.

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Essential characteristics of customs include being certain, reasonable, moral, and not in opposition to public policy or any legislative enactments. Some examples of customs that the courts have refused to recognize include those permitting a wife to abandon her husband and remarry without his consent, customs allowing husbands to dissolve marriages without the wife's consent by paying a sum of money, and customs permitting a man to marry his daughter's daughter (in South India).

2) Modern Sources:

a) Judicial Decisions: Judicial precedents play a significant role in modern Hindu Law. Courts' decisions and interpretations of Hindu Law principles contribute to the evolving legal landscape.

b) Legislation: Statutory enactments have brought significant changes to Hindu Law. Acts such as the Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act, and others have modified and updated various aspects of Hindu Law.

c) Equity, Justice, and Good Conscience: These principles guide the application and interpretation of Hindu Law in modern times, ensuring fairness and justice in individual cases.

Sources of Hindu Law in Brief:

Hindu Law draws its principles from various sources, comprising:

  1. Vedas: These ancient sacred texts, compiled by Vedavyasa, encompass Rigveda, Yajurveda, Samaveda, and Atharvanaveda. Each Veda contains Samhitas (collections of mantras) and Brahmanas (theological explanations).

  2. Smritis: Smritis, which means 'Remembered' texts, are a repository of distilled wisdom handed down through generations. They encompass Dharma Sutras, dealing with governance, societal, and legal matters, and were used as references by sages like Manu, Yajnavalkya, and others. Manu Smriti, in particular, holds a position of great authority.

  3. Custom: Customary practices, known as Sadachara, reflect the ethical behavior of virtuous individuals. These customs, not documented as written law, developed through the consensus of society. Courts recognize them as law when they meet certain criteria, such as having a long history and aligning with justice, equity, and good conscience.

  4. Equity and Good Conscience: This source is relative and context-dependent, primarily applied by the courts as needed to ensure fairness and justice.

  5. Judicial Precedents: Although a relatively recent source, judicial decisions have significantly contributed to Hindu Law, with courts citing and following past rulings.

  6. Legislation: Legislative acts have brought about significant changes to Hindu Law. Acts such as the Caste Disabilities Removal Act of 1850, the Hindu Widow's Remarriage Act, the Child Marriage Restraint Act of 1929, and recent statutes like the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, the Hindu Minority and Guardianship Act, and the Hindu Succession Act have modernized and reformed various aspects of Hindu law to suit contemporary needs and circumstances.

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Following India's independence, several significant enactments were passed to reform and modernize Hindu family law:

  1. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1949: This Act empowered Hindu wives to live separately from their husbands and seek maintenance under specific circumstances.

  2. The Special Marriage Act, 1954: This legislation validated marriages between individuals belonging to different religions, promoting interfaith unions.

  3. The Hindu Marriage Act, 1955: A comprehensive overhaul of marriage laws for Hindus, Jains, Sikhs, and Buddhists, this Act modernized and standardized the rules governing their marriages.

  4. The Hindu Minority and Guardianship Act, 1956: This Act supplemented existing laws related to the rights and responsibilities of guardians for Hindu minors.

  5. The Hindu Succession Act, 1956: This landmark legislation introduced substantial changes to succession laws. It granted Hindu females equal inheritance rights and absolute ownership of property acquired through lawful means.

  6. The Hindu Adoption and Maintenance Act, 1956: This Act brought significant changes to adoption and maintenance laws among Hindus, granting Hindu females the right to adopt children.

  7. Marriage Laws (Amendment) Act, 1976: Introduced to amend the 1955 Act, this legislation introduced provisions for divorce by mutual consent, established common grounds for judicial separation and divorce, and eased the process of obtaining a divorce.

  8. The Child Marriage Restraint (Amendment) Act of 1978 sets the minimum eligible ages for marriage at 21 years for males and 18 years for females.

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Schools of Hindu Law

The Schools of Hindu Law began to take shape during the period of commentaries and Digests. Commentators interpreted the ancient texts through their own perspectives, with some gaining acceptance in certain regions while being rejected in others. Originally, Hindu Law applied to the entire Indian subcontinent, but over time, it split into two main schools and several sub-schools:

  1. Mitakshara
  2. Daya Bhaga

The Mitakshara School, which means 'a concise work,' is a comprehensive commentary on Yajnavalkya's code. It was authored by Vijnaneshwar in the 11th century and is considered the supreme authority on Hindu Law in most parts of India, except Assam and Bengal.

In some matters, the Mitakshara School also holds sway in Assam and Bengal when the Daya Bhaga remains silent. The Mitakshara not only serves as a commentary on the Yajnavalkya Smriti but also encompasses various leading Smritis, addressing all aspects of Hindu Law. It is important to note that the Mitakshara School is considered orthodox.

The Mitakshara School further divides into five sub-schools that are prevalent in different regions of India. While these sub-schools share fundamental principles and recognize the supreme authority of the Mitakshara, they differ in certain details, especially regarding adoption and inheritance. These five sub-schools are:

  1. The Benaras School: This school is predominant in Orissa, except for Mithila and the Punjab regions. Key commentaries and authorities within this school include Viramitrodaya, Nirnayasindhu, Dattaka Mimansa, Vivada Tandava, Subodhini, and Balam-Bhatti.

  2. Mithila School: The Mithila School is prevalent in Tirhoot and North Bihar, with traditional boundaries extending to the Nepal Border in the North, the Ganges in the South, the river Koshi in the East, and the river Gandak in the West. Primary authorities of this school include Vivada Ratnakar, Vivada Chintamani, Smriti Sara, and Madana Paruata.

  3. Bombay or Maharashtra School: This school is prominent in the State of Bombay, including Gujarat and Karana, as well as areas where Marathi is the local language. Key commentaries include Vyavhara Mayukha, Viramitrodaya, Nirnaya Sindhu, and Vivada Tandava.

  4. Dravida or Madras School: Predominant in Southern India, especially in Chennai State, this school is guided by authorities like Smriti Chandrika, Parasara Madhaviya, Saraswati Vilasa, and Vauayanti.

  5. Punjab School: The Punjab School is mainly shaped by customs and prevails in East Punjab. Its primary authorities include Viramitrodaya and Punjab customs.

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The Dayabhaga School, primarily followed in Bengal, is unique in that it is not a commentary on any specific code. Instead, it serves as a comprehensive digest of various codes and was authored by Jimutavahana in the 12th century. The Dayabhaga School focuses primarily on partition and inheritance matters and is often regarded as the reformist school of Hindu Law. It stands as a dissenting viewpoint from the traditional Benaras School, advocating enlightened doctrines and theories. Unlike the Mitakshara School, the Dayabhaga School does not have sub-schools. Prominent authorities within this school include Dayabhaga, Dayatatva, Daya-sangraha, Viramitrodaya, and Dattaka Chandrika.

Differences between the Mitakshara and the Dayabhaga Schools:

  1. Joint Family System: The Mitakshara and Dayabhaga schools differ significantly in their treatment of the joint family system. In the Mitakshara system, the right to family property is acquired by birth, and the family is regarded as a single unit.

  2. Individual rights are not explicitly recognized, and females have limited or no succession rights to family property. In contrast, the Dayabhaga system emphasizes inheritance or will as the means to acquire property. In cases where there is no closer heir, the share of a deceased coparcener passes to his widow.

Individuals to Whom Uncodified Hindu Law Applies:

a) Hindu Law applies to those who are Hindus by birth, as well as those who have converted to Hinduism in any of its forms or variations, including:

b) This also includes individuals like Brahmans and Arya Samajists, among others.

c) Illegitimate children born to Hindu parents are subject to Hindu Law.

d) Illegitimate children born to a Christian father and a Hindu mother, who are raised as Hindus, fall under the purview of Hindu Law.

e) Hindu Law extends to Buddhists, Jains, Sikhs, and Nambudry Brahmans, with the exception that custom may modify certain aspects of the law. Additionally, Lingayats, who are considered Shudras, are subject to Hindu Law.

f) Sons of Hindu dancing girls belonging to the Naik caste who have converted to Mohammedanism but are brought up as Hindus within their Hindu grandparents' family.

g) A person who was born a Hindu but renounced Hinduism and later reverted to it after performing religious rites of expiation and repentance, or even without a formal ritual of re-conversion, as long as they are recognized as a Hindu by the community.

h) Hindu Law also applies to Brahmos, Arya Samajists, Santhals of Chhota Nagpur, and Santhals of Manbhum, with the caveat that custom may introduce variations.

i) A Hindu who has made a declaration that they are not Hindu for the purposes of the Special Marriage Act of 1872.

j) Lastly, an individual born a Hindu who has not renounced the Hindu religion remains a Hindu, even if they deviate from orthodox practices regarding diet and ceremonial observances.

Joint Hindu Family: A joint and undivided Hindu family is the customary state of affairs in Hindu society. Such a family encompasses all individuals descended from a common ancestor, including their wives and unmarried daughters. When a daughter marries, she transitions from her father's family to her husband's family.

Typically, an undivided Hindu family is united not only in terms of property but also in matters of sustenance and worship. Nevertheless, the presence of joint property is not an absolute requirement for a family to be considered joint. It is possible to have a joint Hindu family even without any shared property. However, if a joint family possesses joint property and its members decide to divide it, the family ceases to be considered joint.

Hindu Coparcenaries: A Hindu coparcenary is a more restricted group within a joint family and includes only those individuals who, by virtue of birth, hold an interest in the shared or coparcenary property. These individuals consist of sons, grandsons, and great-grandsons in unbroken male lineage, relative to the property's current holder. Essentially, it covers three generations of males directly descended from the property's current holder.

Before the Hindu Succession (Amendment) Act, 2005, the Mitakshara Coparcenary included only male members, and females were not recognized as members. However, the Hindu Succession (Amendment) Act, 2005, modified Section 6 of the Hindu Succession Act, allowing daughters of Mitakshara coparceners to become coparceners in their own right, with equal rights and responsibilities as sons.

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Joint Hindu Family Property or Coparcenary:

  1. Ancestral Property: Ancestral property is inherited from one's father, grandfather, or great-grandfather. It can be inherited by sons, grandsons, great-grandsons, and daughters. Property inherited from ancestors beyond these three generations is not considered ancestral property.

  2. Property Jointly Acquired by the Members of the Joint Family: When property is acquired through the collective efforts of joint family members, either in a business or a profession, with the assistance of joint family resources, it becomes joint family or coparcenary property. Additionally, property obtained through joint labor, even without the aid of joint family funds, is presumed to be joint family property unless there is clear evidence of a contrary intention.

  3. Property Acquired with the Aid of Joint-Family Funds: Property acquired with the support of joint-family resources is also considered joint. This includes income generated from the joint family property, such as rent, property purchased with that income, proceeds from selling or mortgaging such property, and property bought with those proceeds.

  4. Property Thrown into the Common Stock: If a member of a joint Hindu family willingly adds their self-acquired property to the joint resources, indicating an intention to relinquish individual claims, it becomes joint Hindu property.

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Separate or Self-Acquired Property:

Property that is not considered joint is termed separate or self-acquired property. In this case, a Hindu, even if part of a joint family, is the exclusive owner of such property and maintains full possession and control. This includes:

  1. Property acquired through individual efforts, not joint labor with other family members.
  2. Property inherited from anyone other than one's father, grandfather, or great-grandfather.
  3. Property received as a share during partition, provided the individual has no offspring.
  4. Property obtained through a gift of ancestral movable property from the father out of affection.
  5. Property received through a government grant.
  6. Marriage gifts.

The Hindu Gains of Learning Act, 1930: Prior to this Act, any income earned by a member of a joint family through a profession or occupation that required special training funded by the joint family property was considered part of the joint family's assets.

Rights of Coparceners:

  1. Shared Interests and Joint Possession: Coparceners in a joint Hindu family enjoy common interests and possess property jointly.
  2. Share of Income: Coparceners have a right to a share of the family income.
  3. Joint Possession and Enjoyment: Coparceners jointly possess and enjoy family property.
  4. Right to Restrain Improper Acts: They have the right to prevent improper actions related to family property.
  5. Right of Maintenance and Other Necessary Expenses: Coparceners are entitled to maintenance and essential expenses from the joint family funds.
  6. Right to Enforce Partition: They can demand the division of family property.
  7. Right to Account: Coparceners have the right to request an account of family income and expenses.
  8. Right to Alienation: Coparceners can agree to the sale or transfer of family property.

Manager (Karta):

In a joint family, the property is usually managed by the father or another senior male member, referred to as the Karta under Hindu Law. However, a senior member can relinquish this role, and a junior male member may be appointed as the Karta with the consent of other family members. It is important to note that a minor family member cannot become a Karta. If no major member is available, the court may appoint a guardian for the entire joint family property.

The Karta is not treated as a partner, principal, or agent of the family but functions more like a trustee. The Karta's powers include:

  1. Control over income and expenditures.
  2. Management of joint-family business.
  3. Authority to contract debts.
  4. Capacity to acknowledge debts.
  5. Ability to initiate a new business.
  6. Discretion to refer disputes to arbitration.
  7. Power to negotiate settlements.

The Karta also has various duties, such as:

  1. Obligation to provide an account of financial matters.
  2. Responsibility to recover debts owed to the family.
  3. Requirement to spend funds reasonably.
  4. Prohibition from initiating a new business without the consent of the coparceners.
  5. Restriction on alienating coparcenary property without legal necessity or for the benefit of the estate.

Alienation of Coparcenary Property: According to Hindu Law, only specific individuals possess the authority to alienate coparcenary property:

  1. The manager or Karta can make such alienations.
  2. Alienation can occur with the consent of all coparceners.
  3. The father acting as the Karta can engage in alienation.
  4. In cases where there is a sole surviving coparcener, that individual can also alienate the property.

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The Hindu Marriage Act, 1955

Nature of Hindu Marriage

Sacrament or Contract: Marriage holds a supreme position in the social fabric of Hindu society, being one of the oldest institutions. According to Raghunandan, "The act of a groom accepting a bride as his wife, accompanied by a gift from her parents, constitutes marriage. Marriage unites a man and a woman in matrimony. Among Hindus, marriage is seen not just as a physical luxury but as a religious necessity." The primary purpose of Hindu marriage is often seen as the procreation of male offspring. Hindus believe that each individual has three debts to fulfill - Pitri Rin (debt to ancestors), Dev Rin (debt to gods), and Rishi Rin (debt to sages).

The discharge of Rishi Rin involves acquiring education, while Dev Rin is fulfilled through prayer and charitable acts. However, to fulfill Pitri Rin, a Hindu must have a son who can perform the rituals and offer sacred offerings to the deceased ancestors, ensuring their salvation. Furthermore, marriage is vital among Hindus because all religious ceremonies and rites are meant to be conducted in the company of one's spouse; otherwise, they are believed to bear no spiritual fruit.

From the era of the Rig Veda, Hindu marriage has been regarded as a sacramental union. It is seen as the merging of flesh with flesh and bone with bone, an indissoluble bond. A wife is expected to revere her husband as a god as long as he lives, and similarly, she is considered to be half of her husband's being (Ardhangini), sharing equally in the consequences of his actions, whether good or bad. In Hindu belief, a man remains incomplete until he marries, and a wife is seen as the source of Dharma (righteousness), Artha (prosperity), Kama (pleasures), and even Moksha (spiritual liberation).

According to Manu, a daughter is given in marriage only once, and she remains the wife of the person to whom she is wedded for her entire life. However, according to Narada and Parasara, there are only five circumstances under which a wife could abandon her husband and remarry:

  1. If the husband is missing.
  2. In the event of the husband's demise.
  3. If the husband renounces worldly life and becomes a sanyasi (ascetic).
  4. If the husband becomes impotent.
  5. If the husband is ostracized from his caste.

These conditions, however, were generally applicable only to unapproved forms of marriage. Marriage is regarded as an unbreakable bond, a sacramental union that endures even after the enactment of the Hindu Marriage Act.

  1. In the case of Purshottamdas v. Purshottamdas, the court observed that the marriage of Hindu children is a contract entered into by their parents.
  2. In the case of Bhagwati Saran Singh v. Parmeshwari Nandar Singh, the court expressed the view that a Hindu marriage is not only a sacrament but also a contract.
  3. According to the case of Muthusami v. Masilaman, a Hindu marriage is, without a doubt, a contract involving consideration, with corresponding rights and duties, notwithstanding its sacramental and institutional aspects.
  4. In the case of Anjona Dasi v. Ghose, it was stated that suits related to marriage deal with matters that, in the eyes of the law, must be treated as a civil contract, and significant civil rights emanate from this contract.

Taking into account the above-mentioned cases and others, it can be reasonably concluded that under ancient, uncodified Hindu Law, a Hindu marriage was not only considered a sacrament but also a contract. With the introduction of provisions for divorce by mutual consent in the present Hindu Marriage Act, it further reinforces the notion that marriage is a contract that can be dissolved through mutual agreement.

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Changes Introduced by the Act:

  1. The Act has affirmed the validity of marriages among Hindus, Jains, Sikhs, and Buddhists.
  2. Monogamy has been mandated, and penalties for bigamy have been established.
  3. Minimum marriageable ages have been set, with 21 for males and 18 for females.
  4. While the Act does not prescribe a specific form of marriage, it does outline certain conditions.
  5. The Act also introduced the registration of Hindu marriages.
  6. Provisions for the restitution of conjugal rights have been included in the Act.
  7. The inclusion of provisions for judicial separation.
  8. The inclusion of provisions for divorce, along with the introduction of the concept of divorce by mutual consent.
  9. The recognition of re-marriage.
  10. Acknowledgment of the legitimacy of a child born from either a void or voidable marriage.
  11. The establishment of provisions for child custody during legal proceedings and even after the issuance of a decree.

Conditions for a Valid Marriage under the Act: The Hindu Marriage Act lays down five conditions for a marriage to be considered valid under Section 5. In the absence of these conditions, a marriage will not be recognized as valid. According to Section 5, a marriage can be solemnized between two Hindus only if the following conditions are met:

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

ii) At the time of the marriage, neither party:

a) Is incapable of giving valid consent due to unsoundness of mind.

b) Is capable of giving valid consent but has been suffering from a mental disorder that makes them unfit for marriage and procreation of children.

c) Has been subject to recurrent episodes of insanity or epilepsy.

iii) The bridegroom must have attained the age of 21 years, and the bride must be at least 18 years old at the time of the marriage.

iv) The parties should not be within the prohibited degrees of relationship unless their customs or usages allow for such a marriage.

v) The parties should not be sapindas of each other, unless their customs or usages permit such a marriage.

Violation of the conditions mentioned in clauses (i), (iv), and (v) renders the marriage null and void, while a violation of the condition in clause (ii) makes the marriage voidable. The Act does not address situations where clause (iii) is violated. However, it has been established that a breach of the condition in clause (iii) does not render the marriage either void or voidable.

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Lunacy:

Clause (ii) of Section 5 was modified by the Marriage Laws Amendment Act, 1976. According to this clause, one of the conditions for a Hindu marriage is that neither party should be suffering from unsoundness of mind, mental disorder, insanity, or epilepsy at the time of marriage. Section 12(1)(b) allows the marriage to be declared voidable upon the request of the aggrieved party.

The Madhya Pradesh High Court, in the case of Smt. Alka Sharma v. Avinash Chandra, has ruled that the word 'and' between the expressions "unfit for marriage" and "procreation of children" in Section 5(2)(b) should be interpreted as 'and' or 'or.' This means that the court can annul the marriage if either of the conditions or both conditions specified exist due to a mental disorder, making the living together of the parties highly unhappy. Additionally, it was determined in this case that the term "procreation" encompasses not only the ability to give birth to children but also the capacity to care for and raise them.

Age of the Parties:

Clause (iii) was amended by the Child Marriage Restraint (Amendment) Act, 1978, setting the minimum age for the bridegroom and bride at 21 years and 18 years, respectively, for the solemnization of a Hindu Marriage. However, a marriage in violation of these age limits is neither void nor voidable, although it is subject to punishment under Section 18. In the case of Lila Gupta v. Lakshminarayan (1978 S. C. 1351 at 1358), the Supreme Court observed that the Child Marriage Restraint Act aimed to advance the reformist movement against child marriages. While it made marriages in contravention of its provisions punishable, it did not render such marriages void.

Prohibition as to prohibited Degrees of Relationship and Sapindas: Clause (iv) stipulates that the parties to a Hindu Marriage should not be within the degrees of prohibited relationship unless the customs or usages governing them permit such a marriage. In contrast, clause (v) emphasizes that the parties should not be sapindas of each other. The definitions of "degrees of prohibited relationship" and "sapinda relationship" are outlined in sub-clauses (f) and (g) of Section 3 of the Act. To validate a marriage using custom, the custom must meet the criteria defined in Section 3(a) of the Act. Demonstrating a single instance of marriage in contravention of these clauses is insufficient to prove the existence of a custom.

Ceremonies for a Hindu Marriage: The Hindu Marriage Act, 1955, preserves the requirement for ceremonial rituals in a lawful marriage. It grants statutory recognition to Hindu marriage as a sacrament under Hindu law. Section 7 of the Act outlines the ceremonies for a Hindu marriage as follows:

  1. A Hindu marriage may be conducted in accordance with the customary rites and ceremonies of either party.
  2. If these rites and ceremonies include the saptapadi (the bride and groom jointly taking seven steps before the sacred fire), the marriage becomes complete and binding upon the completion of the seventh step.

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Registration of Hindu Marriage:

Section 8 of the Act empowers the State government to establish rules for the registration of Hindu marriages. This provision aims to facilitate the proof of Hindu marriages, given the diverse customary forms of marriage within different Hindu communities.

Such rules must include provisions allowing the parties to a marriage to have the details of their marriage recorded in the marriage register in a manner and subject to conditions prescribed by the rules. It should be noted, as established in Kishan Paul v. Ashok Kumar Pal (1982 HLR 478), that the registration of a marriage under this section does not automatically validate the marriage if it is otherwise invalid. A suit for a declaration that the marriage is invalid remains maintainable.

Judicial Separation: Section 10 of the Hindu Marriage Act, 1955, addresses the provision for judicial separation. It stipulates:

  1. Either party to a marriage, whether solemnized before or after the commencement of this Act, may file a petition seeking a decree for judicial separation based on any of the grounds specified in subsection (1) of Section 13. In the case of a wife, the grounds specified in subsection (2) of Section 13, which are also valid for divorce petitions, can be cited.

  2. Once a decree for judicial separation has been granted, it is no longer mandatory for the petitioner to cohabit with the respondent. However, the court, upon the application of either party and upon being satisfied with the truth of the statements in the petition, may rescind the decree if it deems it just and reasonable to do so.

Grounds for Judicial Separation:

The grounds for seeking judicial separation under this section align with those available for divorce as provided under Section 13(1) of the Act. These grounds are applicable to both the husband and wife and serve as common grounds for both parties. These common grounds include the following:

When the other party, after the solemnization of the marriage, engages in voluntary sexual intercourse with anyone other than their spouse.

or

When the other party treats the petitioner with cruelty.

or

Whn the other party has deserted the petitioner for an uninterrupted period of not less than two years immediately preceding the presentation of the petition.

or

When the other party has renounced Hinduism by converting to another religion.

or

When the other party is afflicted with incurable unsoundness of mind or continuously or intermittently suffers from a mental disorder of such a nature and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

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Divorce:

The traditional concept of Hindu marriage was considered indissoluble and permanent; however, this notion has been significantly impacted by the introduction of divorce provisions. The old Hindu law held that marriage could not be severed under any circumstances. Manu did not approve of marriage dissolution under any condition. The inclusion of divorce in Hindu law has brought about a profound change in the perception of Hindu marriage.

Divorce effectively terminates the marriage, allowing both parties to revert to their unmarried status and remarry if they wish. Section 13 of the Act outlines the circumstances under which divorce is permissible. Section 14 specifies that no divorce petition can be filed within one year of marriage, unless it causes exceptional hardship to the petitioner or involves exceptional depravity on the part of the respondent. Section 15 of the Act imposes limitations on the right of divorced individuals to remarry.

The Marriage Laws (Amendment) Act, 1976, made the grounds for divorce and judicial separation uniform. An aggrieved party can opt for either divorce or judicial separation.

Additionally, the Amendment introduced a new form of divorce—divorce by mutual consent—under Section 13(B). Section 13(B) is notable for substantially diminishing the sacramental character of Hindu marriage. Moreover, there are specific grounds available exclusively to a wife for seeking divorce or judicial separation under Section 13(2).

Grounds for Divorce (Under Section 13(1)): A lawful marriage can be dissolved through a divorce petition filed by either party based on the following grounds:

a) Adultery: Prior to the Marriage Laws (Amendment) Act, 1976, "living in adultery" was a ground for divorce. Now, adultery itself has been made grounds for both divorce and judicial separation. Adultery is established by demonstrating that the respondent willingly engaged in sexual intercourse with someone other than their spouse. Continuous adultery is not required for divorce; proving that the respondent voluntarily had sexual intercourse with someone other than their spouse is sufficient.

b) Cruelty: Under clause (i)(a) of Section 13(1), "cruelty" serves as a ground for divorce. This provision was added by the Marriage Laws (Amendment) Act, 1976. Cruelty leading to divorce includes the mistreatment of the petitioner by the other party after marriage. The term "cruelty" is not explicitly defined in the Act. In general, cruelty includes actions that endanger life, limb, physical or mental health, or create a reasonable fear of such consequences. Mental cruelty is also considered grounds for divorce, encompassing actions that inflict significant mental pain and suffering, making it impossible for the spouses to continue living together.

Both physical and mental cruelty are covered under this provision. The threshold for what constitutes physical cruelty may vary depending on the circumstances and the sensitivity of the affected party. Mental cruelty is defined as actions that cause such mental anguish that living together becomes impossible.

In a recent case, S. Hanumath Rao v. V.S. Ramani (AIR. 1999, S.C. 1319), the Court defined mental cruelty as actions that cause significant mental pain, agony, or suffering to the extent that it severs the bond between the husband and wife, making it impossible for them to live together. Mere removal of the mangalsutra (a sacred necklace symbolizing marriage) by the wife does not constitute mental cruelty under Section 13(1)(i)(a).

Instances of actions that amount to mental cruelty include:

  1. False accusations of adultery or unchastity: For example, in Samptami v. Jagdish (1970 Cal. 272), the husband continuously labeled his wife as a prostitute or a woman of the street.
  2. Persistent refusal to engage in marital intercourse is considered cruelty.
  3. Prosecution of a spouse by the other on false criminal charges is considered cruelty.
  4. Repeated allegations of immorality against the husband, causing physical harm to the husband, and filing complaints against the husband are all considered acts of cruelty.
  5. Making false, defamatory, malicious, baseless, and unproven allegations against a spouse to superior officers or authorities amounts to cruelty.
  6. Making false charges of adultery during the cross-examination of the wife does not amount to cruelty.
  7. Mere allegations of impotence against the wife are not considered cruelty.
  8. On the first wedding night, the wife telling the husband that he has an ugly face and that individuals with ugly faces also have ugly minds does not constitute cruelty under matrimonial law.
  9. Outbursts of temper without malice, non-payment of interim maintenance, or desertion alone do not amount to cruelty.

Desertion:

This clause was introduced by the Marriage Laws Amendment Act, 1976, providing "desertion" as one of the grounds for divorce. Desertion is defined as the intentional, permanent forsaking, and abandonment of one spouse by the other without consent and without reasonable cause. Desertion can take the form of actual abandonment, constructive abandonment, or abandonment due to willful neglect.

Conversion:

Section 13(1)(ii) of the law stipulates that if one spouse converts to another religion, ceasing to be a Hindu, the other spouse may seek divorce under this provision. It's important to note that the mere conversion of one spouse to a non-Hindu faith does not automatically dissolve the marriage. The petitioner must file a divorce petition to obtain a decree of divorce. If the petitioner chooses to continue living with their spouse who has converted to another religion, they are not prohibited from doing so.

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Unsound mind:

lause (iii) of Section 13(1) allows a petitioner to obtain a divorce or judicial separation if the respondent has been continuously or intermittently suffering from a mental disorder of such a nature and extent that the petitioner cannot reasonably be expected to live with them. The Act provides an explanation for "mental disorder," encompassing mental illness, arrested or incomplete mental development, psychopathic disorders, or any other mental disorder or disability, including schizophrenia. The Supreme Court, in the case of Ram Narayan Gupta v. Smt. Rameshwari (AIR 1988 S.C. 2260), emphasized the need to assess the degree of mental disorder in the context of these grounds for dissolution of marriage. In the case of Smt. Alka v. Abhinesh (AIR 1991 M.P. 205), the wife was found to be suffering from schizophrenia, justifying the husband's request for a divorce.

Leprosy:

The Marriage Laws (Amendment) Act, 1976, introduced leprosy as a ground for both judicial separation and divorce. The law does not specify a duration of leprosy. Under clause (iv), the petitioner must demonstrate that the respondent has been afflicted with virulent and incurable leprosy, meeting two conditions: (i) it must be virulent, and (ii) it must be incurable.

Venereal Disease:

Venereal diseases are those transmitted through sexual intercourse. Section 13(1)(v) requires that the disease must be in a communicable form to be considered a ground for divorce.

  1. Renunciation of the World: Section 13(1)(vi) provides grounds for divorce if the other spouse has renounced the world by entering a religious order.
  2. Spouse not Heard for Seven Years: Under Section 13(1)(vii), a spouse can obtain a divorce if they have not been heard of as being alive for a period of seven years or more by those who would naturally have heard of their existence if they were still alive. This clause is based on the evidentiary rule contained in Section 107 of the Indian Evidence Act.

Divorce by Mutual Consent (Section 13 B):

  1. Both parties must have lived separately for a period of one year or more.
  2. Both parties must have been unable to reconcile and live together.
  3. Both parties must mutually agree to dissolve their marriage.

When a Divorce Petition Can Be Filed (Section 14):

To file a divorce petition, at least one year should have elapsed from the date of marriage. However, a petition may be filed within this period if the court permits it based on:

  1. Exceptional hardship suffered by the petitioner.
  2. Exceptional depravity exhibited by the other party.

When Divorced Persons Can Remarry (Section 15):

After the issuance of a divorce decree, the parties can remarry under the following conditions:

  1. When a marriage has been dissolved, and there is no appeal against the court's decree.
  2. If there is a right of appeal, but the time for filing an appeal has expired.
  3. An appeal has been filed, but it has been dismissed.

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Legitimacy of Children from Void and Voidable Marriages (Section 16):

In accordance with the general law, a legitimate child is born within a lawful marriage. However, when a marriage is deemed void under Section 11 or a decree is granted for a voidable marriage under Section 12, this section ensures that the child born from such unions is considered legitimate. This includes rights of inheritance and succession, preventing the child from suffering undue hardship due to circumstances beyond their control.

Punishment for Bigamy (Section 17):

If either party to a marriage has a living spouse at the time of the subsequent marriage, the provisions of Section 494 and 495 of the Indian Penal Code (IPC) shall apply.

Punishment for Violating Certain Other Conditions (Section 18):

a) In the case of clause (iii) of Section 5, violators may face simple imprisonment of up to 15 days, a fine of up to Rs. 1,000, or both.

b) In the case of clause (iv) or (v) of Section 5, those who violate these conditions may be subject to simple imprisonment for up to one month, a fine of up to Rs. 1,000, or both.

Permanent Alimony and Maintenance (Section 25):

  1. Any Court with jurisdiction under this Act may, either at the time of passing a decree or at any later point, upon application by either the wife or the husband, order the respondent to provide maintenance and support for the applicant. The maintenance can be a lump sum or a monthly/periodical sum for a period not exceeding the applicant's lifetime. This decision will be based on factors such as the respondent's income and assets, the applicant's income and assets, the parties' behavior, and other relevant circumstances. In case of necessity, the payment may be secured through a charge on the respondent's immovable property.
  2. If the Court determines that there has been a change in the circumstances of either party after issuing an order under sub-section (1), it may, at the request of either party, modify, vary, or annul the existing order as deemed just.
  3. If the Court finds that the party in whose favor an order was made under this section has remarried or, if that party is the wife, has not maintained her chastity or, if that party is the husband, has engaged in sexual relations with another woman outside of marriage, the Court may, upon the request of the other party, modify, vary, or annul the order as deemed just.

Custody of Children (Section 26):

In any proceeding under this Act, the Court may issue interim orders and provide provisions in the decree concerning the custody, maintenance, and education of minor children. The Court should consider the wishes of the children whenever possible. The Court has the authority to alter the decree upon a petition for this purpose, and it can also revoke, suspend, or modify any previously issued orders and provisions.

Disposal of Property (Section 27):

In any proceeding under this Act, the Court may include provisions in the decree as it deems just and appropriate regarding any property given at the time of marriage that may jointly belong to both the husband and the wife.

Appeals from Decrees and Orders (Section 28):

  1. All decrees made by the Court in any proceeding under this Act are appealable as if they were decrees of the Court issued in the exercise of its original civil jurisdiction, subject to the provisions of sub-section (3). Such appeals should be directed to the appropriate appellate court based on the Court's original civil jurisdiction.
  2. Orders issued by the Court under Section 25 or Section 26 are appealable provided they are not interim orders. These appeals should also be directed to the appropriate appellate court based on the Court's original civil jurisdiction.
  3. There is no right to appeal solely on the subject of costs.
  4. Appeals under this section should be filed within thirty days from the date of the decree or order.

Enforcement of Decrees and Orders (Section 28):

All decrees and orders issued by the Court in any proceeding under this Act shall be enforced in the same manner as decrees and orders of the Court issued in the exercise of its original civil jurisdiction are enforced.

Savings and Repeals Savings (Section 29):

  1. A marriage between Hindus solemnized before the commencement of this Act, which is otherwise valid, shall not be deemed invalid solely due to the parties belonging to the same gotra or parivar or having different religions, castes, or sub-divisions of the same caste.
  2. This Act does not affect any rights recognized by custom or conferred by any special enactment to seek the dissolution of a Hindu marriage, regardless of whether it was solemnized before or after the commencement of this Act.
  3. This Act does not affect any ongoing proceedings under existing laws to declare a marriage null and void or to annul or dissolve a marriage or seek judicial separation, and such proceedings may continue and be determined as if this Act had not been enacted.

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Void Marriage:

Section 11 of the Hindu Marriage Act states that any marriage solemnized after the enactment of this Act, in violation of the conditions specified in clauses (i), (iv), and (v) of Section 5, shall be considered null and void.

Therefore, there are three scenarios where a marriage is considered null and void:

  1. If either party has a living spouse at the time of the marriage.
  2. If the parties are within the prohibited degrees of relationship unless customs or usage allow such a marriage.
  3. If the parties are sapindas unless customs or usage permit such a union.

A void marriage is deemed nonexistent from the very beginning. Since both parties lack the capacity to marry, performing ceremonies cannot establish a marital relationship between them. They have no legal status as husband and wife. The parties are not obligated to seek a court declaration of nullity under this section. In such cases, either party can consider the marriage null and void without court intervention. It is not the court's decree that renders the marriage void, as held in Nirmal Bose v. Mamta Gulati (1997 All. 401).

In the case of a second marriage, as seen in Harmohan v. Kamal Kumar (1979 Ori. 51), the first wife, who is not a party to the second marriage, can file a civil suit in the appropriate civil court for a declaration of her rights as a third party. Such a suit is governed by Section 9 of the Code of Civil Procedure, along with Section 34 of the Specific Relief Act. She cannot file a petition in the District Judge's court to declare the second marriage null and void under this section. However, it was determined in Amanlal v. Vai Bai (1959 M.P. 400) that the first wife can seek judicial separation by filing a petition under the Act before the District Court.

Voidable Marriage:

Section 12 of the Hindu Marriage Act, 1955 addresses voidable marriages. Voidable marriages arise in the following situations:

a) If the marriage remains unconsummated due to the respondent's impotence.

b) If the marriage violates the condition in clause (ii) of Section 5, meaning that at the time of marriage, either party is incapable of giving valid consent due to unsoundness of mind or, although capable of giving consent, has been suffering from mental disorder to an extent that renders them unfit for marriage and procreation of children or has experienced recurrent bouts of insanity or epilepsy.

c) If the consent of the petitioner or, where the consent of the petitioner's guardian in marriage was required, such consent was obtained by force or fraud concerning the nature of the ceremony or material facts or circumstances about the respondent.

d) If, at the time of marriage, the respondent was pregnant by someone other than the petitioner.

A voidable marriage is valid and binding until it is annulled by a decree. Only one of the parties to the marriage can seek annulment through a court decree.

Distinction between Void and Voidable Marriages:

a) A void marriage is void from the outset and does not change the parties' legal status. They do not become husband and wife, and no mutual rights and obligations arise.

b) In contrast, a voidable marriage remains valid and binding until a decree annuls it.

c) A court only issues a decree declaring a void marriage as void, whereas a voidable marriage is annulled by a court decree.

d) Parties to a void marriage may enter into another marriage without obtaining a decree annulling their previous marriage, and neither party would be guilty of bigamy.

Section 6 of the Act, Post the Hindu Succession (Amendment) Act, 2005:

The Hindu Succession (Amendment) Act of 2005, which became effective on September 9, 2005, replaced the original Section 6 of the Hindu Succession Act and introduced significant changes to the concept of Mitakshara coparcenary. The amended Section 6 of the Act now reads as follows:

Devolution of Interest in Coparcenary Property:

a) As of the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall: i) Automatically become a coparcener in her own right, just like a son; ii) Possess the same rights in the coparcenary property as she would have had if she were a son; iii) Be subject to the same liabilities concerning the coparcenary property as a son would be. Additionally, any reference to a Hindu Mitakshara coparcener shall be considered to include a reference to a daughter of a coparcener.

Please note that this subsection shall not affect or invalidate any prior dispositions or alienations, including partitions or testamentary dispositions of property, that occurred before December 20, 2004.

b) Any property to which a female Hindu becomes entitled under subsection (1) shall be held by her with the incidents of coparcenary ownership. It shall be considered property capable of being disposed of by her through testamentary disposition, irrespective of the provisions of this Act or any other prevailing law.

c) When a Hindu passes away after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law shall devolve through testamentary or intestate succession, as applicable under this Act, rather than by survivorship. The coparcenary property shall be treated as if a partition had occurred, with the following rules: i) The daughter shall be allotted the same share as a son. ii) The share of a pre-deceased son or daughter shall be allotted to the surviving child of that pre-deceased son or daughter. iii) The share of a pre-deceased child of a pre-deceased son or daughter shall be allotted to the child of that pre-deceased child of the pre-deceased son or daughter, as appropriate.

For the purpose of this subsection, a Hindu Mitakshara coparcener's interest shall be considered as the share in the property that would have been allotted to him if a partition had taken place immediately before his death, regardless of his entitlement to claim partition.

d) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to pursue a son, grandson, or great-grandson for debt recovery solely based on their pious obligation under Hindu Law to repay their father's, grandfather's, or great-grandfather's debt. However, this provision does not affect: i) The creditor's right to pursue the son, grandson, or great-grandson. ii) Any alienation made in respect of or as satisfaction of such a debt. These rights or alienations shall remain enforceable under the rule of pious obligation as if the Hindu Succession (Amendment) Act, 2005, had not been enacted.

Explanation: For the purpose of clause (a), the terms 'son,' 'grandson,' or 'great-grandson' shall refer to those who were born or adopted before the commencement of the Hindu Succession (Amendment) Act, 2005.

e) The provisions of this section shall not apply to a partition that was completed before December 20, 2004.

Explanation: For the purpose of this section, 'partition' means any partition executed through a registered deed or decreed by a court.

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Heirs in Class I and Class II

Class I:

  1. Son
  2. Daughter
  3. Widow
  4. Mother
  5. Son of a predeceased son
  6. Daughter of a predeceased son
  7. Son of a predeceased daughter
  8. Daughter of a predeceased daughter
  9. Widow of a predeceased son
  10. Son of a predeceased son of a predeceased son
  11. Daughter of a predeceased son of a predeceased son
  12. Widow of a predeceased son of a predeceased son
  13. Son of a predeceased daughter of a predeceased daughter
  14. Daughter of a predeceased daughter of a predeceased daughter
  15. Daughter of a predeceased son of a predeceased daughter. 
  16. Daughter of a predeceased daughter of a predeceased son.

Class II heirs are as follows:

  1. Father
  2. Son's daughter's son; Son's daughter's daughter; Brother; Sister.
  3. Daughter's son's son; Daughter's son's daughter; Daughter's daughter's son; Daughter's daughter's daughter.
  4. Brother's son; Sister's son; Brother's daughter; Sister's daughter.
  5. Father's father; Father's mother.
  6. Father's widow; Brother's widow.
  7. Father's father; Mother's mother.
  8. Mother's father; Mother's mother.

Computation of Degrees (Section 13) is explained as follows:

  1. To determine the order of succession among agnates or cognates, the calculation of degrees of relationship is based on the distance between the intestate and the heir in terms of degrees of ascent or degrees of descent, or a combination of both, as appropriate.
  2. Degrees of ascent and descent are counted while including the intestate as a reference point.
  3. Each generation is considered as one degree, whether it involves ascending or descending relationships.

Based on the principles outlined in Section 12, agnates and cognates can be categorized as follows:

Agnates:

a) Descendant Agnates: These individuals have no degrees of ascent in their relationship with the intestate. Examples include the son's son's son's son and the son's son's son's daughter.

b) Ascendant Agnates: They are connected to the intestate only through degrees of ascent, without any descent. Examples include the father's father's father and the father's father's mother.

c) Collateral Agnates: These agnates are related to the intestate through both degrees of ascent and descent. Examples include the father's brother's brother's son and the father's brother's daughter.

The rules of succession for female Hindus, as per Section 15, are explained as follows:

  1. In the event of the intestate death of a female Hindu, the devolution of her property shall follow the guidelines specified in Section 16, which includes the following order: a) First, it shall go to her sons, daughters (including the offspring of any deceased son or daughter), and her husband. b) Second, it shall pass to the heirs of the husband. c) Third, it shall devolve upon the mother and father. d) Fourth, it shall be inherited by the heirs of the father. e) Lastly, it shall be received by the heirs of the mother.

  2. Despite the provisions in sub-section (1), the following exceptions apply: a) Any property acquired by a female Hindu from her father or mother will not pass to the other heirs mentioned in sub-section (1), in the order specified there, if there are no sons or daughters of the deceased (including the children of any predeceased son or daughter). Instead, it shall devolve upon the heirs of the father. b) Any property received by a female Hindu from her husband or father-in-law will not go to the other heirs listed in sub-section (1), in the specified order, if there are no sons or daughters of the deceased (including the children of any predeceased son or daughter). Rather, it shall be inherited by the heirs of the husband.

The order of succession and the manner of distribution among heirs of a female Hindu, as per Section 16, are outlined as follows:

Rule 1: Among the heirs mentioned in sub-section (1) of Section 15, those belonging to the same category shall be given precedence over those in subsequent categories, and individuals within the same category shall inherit simultaneously.

Rule 2: In cases where a son or daughter of the intestate had passed away before the intestate's death, leaving their own children alive at the time of the intestate's demise, the grandchildren of such son or daughter shall share among themselves the portion that their parent would have received if they were alive at the time of the intestate's death.

Rule 3: The distribution of the intestate's property among the heirs mentioned in clauses (b), (d), and (e) of sub-section (1) and in sub-section (2) of Section 15 shall follow the same order and rules as if the property had originally belonged to the father, mother, or husband, as applicable, and if such a person had died intestate concerning that property immediately after the intestate's death.

Full-Blood Preferred to Half-Blood (Section 18): When it comes to heirs related to an intestate, those who are related by full-blood shall be given preference over heirs related by half-blood, provided that the nature of their relationship is the same in all other aspects. This section mirrors a key principle of Hindu law, wherein relatives of the whole blood are prioritized over those of the half-blood. This rule applies universally to all heirs, regardless of gender.

The principle outlined in this section becomes applicable only when the nature of the relationship is identical in all relevant aspects and adheres to the rules of preference established in the Act for determining the order of succession.

Mode of Succession of Two or More Heirs (Section 19): In situations where two or more heirs inherit the property of an intestate simultaneously, they will share the property equally per capita. They will hold the property as tenants-in-common and per stripes unless there is a specific provision in the Act stating otherwise.

Right of Child in Womb (Section 20): If a child was in the womb at the time of the intestate's death and is subsequently born alive, they shall possess the same inheritance rights from the intestate as if they had been born before the intestate's demise. In such cases, the inheritance is deemed to be vested from the moment of the intestate's death.

Presumption in Cases of Simultaneous Deaths (Section 21): In situations where two individuals have died under circumstances that make it uncertain which of them, if any, survived the other, it will be presumed, unless proven otherwise, that the younger individual survived the elder. This presumption is applicable to all matters concerning the succession to property.

Partition by Institution of Suit

a) Suit by Adults: When a member of a joint family initiates a partition suit, it serves as a clear indication of their intent to separate, resulting in the termination of their joint status from the date of filing. Although the act of filing a suit strongly suggests an intention to separate, it is not the definitive proof.

In cases where a partition suit is brought forward by members of a joint family, the court holds the authority not only to physically divide the properties but also to legally effect a separation of status without an immediate division of the assets.

b) Minor's Suit for Partition: Minors have the option to file a partition suit through a legal guardian. If the court determines that a division is in the best interests of the minor and issues a preliminary decree for partition, the minor's status as separate from the joint family is recognized from the date of filing the suit, rather than from the date of the preliminary decree.

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Partition by Arbitration:

An agreement between the members of a joint family, whereby they appoint arbitrators for dividing the joint family properties among them, amounts to a severance of the joint status of the family from the date thereof.

The Hindu Adoptions and Maintenance Act, 1956

"Manu stated: 'He whom his father and mother give to another as his son, provided that the donee has no issue, if the boy be of the same class, and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water….'"

In the uncodified Hindu Law, there were twelve kinds of sons recognized, with five of them being adopted sons. Historically, the adoption of a daughter was not permitted. However, the Hindu Adoptions and Maintenance Act of 1956 now allows for the adoption of both sons and daughters.

The objectives of adoption serve two main purposes. The first is religious, aiming to secure spiritual benefits for the adopter and their ancestors by having a son who can offer funeral offerings and libations of water. The second objective is secular, seeking to ensure an heir to carry on the adopter's name.

Requirements for a Valid Adoption (Sub-Sections 5 to 11):

Section 5 of the Act stipulates that all adoptions made after the Act came into effect must adhere to the Act's provisions. Any adoption made in violation of these provisions is deemed null and void. Such an invalid adoption neither confers rights on the adoptive family in favor of anyone that they couldn't have obtained otherwise nor does it extinguish the rights of individuals in their biological family.

There are four essential prerequisites for a valid adoption outlined in Section 6:

  1. The person wishing to adopt must have the capacity and the legal right to do so.
  2. The person giving the child up for adoption must also have the legal capacity to do so.
  3. The child being adopted must be eligible for adoption.
  4. The adoption must adhere to the other conditions specified in the Act.

These requirements are cumulative, meaning all of them must be met for the adoption to be valid. Each of these conditions is discussed in further detail below.

The Person Adopting Should Have the Capacity and Right to Take in Adoption (Sub-Sections 7 and 8): Section 7 and 8 introduce significant changes to the Hindu law of adoption, outlining who can lawfully adopt a son or daughter.

According to Section 7, any mentally sound adult male Hindu who is not a minor can adopt a son or daughter. If he has a living wife, he cannot adopt without her consent, except in three specific scenarios:

  1. If the wife has permanently renounced worldly life.
  2. If the wife is no longer a Hindu.
  3. If the wife has been declared legally insane by a competent court.

If the person seeking to adopt has multiple living wives at the time of adoption (polygamy was allowed under Hindu Law before 1955), the consent of all wives is required, unless one of them falls into the three categories mentioned above. Notably, the wife's consent need not be explicit; it can also be inferred from the circumstances. For example, if the wife actively participates in the adoption rituals, her consent can be implied.

Under Section 8, certain females also have the capacity to adopt a son or daughter. These females must meet the following criteria:

  1. Be mentally sound.
  2. Not be a minor.
  3. Not be married, unless there is a custom or practice permitting the adoption of married individuals.
  4. Be unmarried, or if married, meet one of the following conditions: a) Spouse is deceased. b) Spouse has permanently renounced worldly life. c) Spouse is no longer a Hindu. d) Spouse has been declared legally insane by a competent court.

This section introduces a significant change by allowing females, including widows, to adopt, provided they satisfy the specified conditions. Typically, a married woman cannot adopt a child unless her husband is deceased, of unsound mind, etc.

The Person Giving in Adoption Should Have the Capacity to do so (Section 9): Section 9 outlines who can legally give a son or daughter in adoption. Only fathers, mothers, and guardians have this right. Importantly, the terms "father" and "mother" do not include adoptive parents.

If the father is alive, he has the exclusive right to give a child in adoption but requires the consent of the mother, except in specific scenarios:

  1. The mother has permanently renounced worldly life.
  2. The mother is no longer a Hindu.
  3. The mother has been declared legally insane by a competent court.

The mother is granted the right to give a child in adoption if her husband meets one of the following conditions:

a) He is deceased. b) He has permanently renounced worldly life. c) He is no longer a Hindu. d) He has been declared legally insane by a competent court.

Guardians can also give a child in adoption, provided they obtain prior court permission, in cases where: a) Both parents are deceased, have permanently renounced worldly life, abandoned the child, or have been declared legally insane by a competent court. b) The child's parentage is unknown.

Notably, a child can be given in adoption to any person, including the guardian. A "guardian" in this context refers to a person responsible for the child's welfare, including those appointed by the child's parents' will or declared by a court.

This section reaffirms the legal principles that existed before 1956, with the addition that guardians can give a child in adoption with court permission in specific circumstances.

The Person Who is Adopted Should be Capable of Being Taken in Adoption (Section 10):

Section 10 states that certain conditions must be met for a person to be eligible for adoption. These conditions include:

a) Being a Hindu. b) Not having been previously adopted. c) Not being married, except when custom or usage permits the adoption of married individuals. d) Not having reached the age of fifteen, unless custom or usage permits the adoption of individuals over fifteen years old.

This section introduces the possibility of adopting both sons and daughters, removing the previous limitation that only males could be adopted. It also clarifies that caste restrictions no longer apply, and the key requirement is that both parties are Hindus. Additionally, it addresses the age and marital status of the individual to be adopted.

The Adoption Should be Made in Compliance With Other Conditions Mentioned in the Act (Section 11):

Section 11 sets forth six mandatory conditions for a valid adoption. Failure to meet any of these conditions renders the adoption invalid.

The first condition stipulates that the adoptive parent(s) should not have a Hindu son, son's son, or son's son's son (by blood or adoption) at the time of the adoption if adopting a son. This condition does not apply to adoptive parents with only one son who has renounced Hinduism through conversion to another religion.

The second condition states that adoptive parents cannot have a Hindu daughter or son's daughter (by blood or adoption) at the time of adopting a daughter.

The third and fourth conditions apply when a Hindu male is adopting a female or a Hindu female is adopting a male, respectively. In these cases, the adoptive parent must be at least twenty-one years older than the child to be adopted.

The fifth condition reaffirms the rule that the same child cannot be adopted by two or more people simultaneously.

The sixth condition requires that the child must be genuinely given and taken in adoption by the parents or guardian, with the intent to transfer the child from their birth family (or the family or place where they were raised, in the case of an abandoned child or one of unknown parentage) to the adoptive family.

Right of Adoptive Parents to Dispose of Their Properties (Section 13):

Section 13 reaffirms a well-established principle of Hindu Law, which states that adoption does not, unless otherwise agreed upon, restrict the adoptive father or mother from disposing of their property through inter vivos transfer or by will.

It's important to note that this principle is subject to any agreement to the contrary. In other words, if there exists an agreement in which the adoptive parent commits not to dispose of their property, provided there is valid consideration for such an agreement, it will be legally binding on the adoptive parent.

Determination of the Adoptive Mother in Certain Cases (Section 14):

In most cases where a married male Hindu adopts a child, his wife is considered the adoptive mother. Section 14 simplifies the rules for determining the adoptive mother in specific scenarios:

a) If a married male Hindu adopts a child, his wife is automatically regarded as the adoptive mother. b) In situations where the Hindu male has more than one wife, and the adoption takes place with the consent of all the wives, the senior-most wife in terms of marriage is considered the adoptive mother, while the others are considered step-mothers. c) If a widower or bachelor adopts a child and subsequently marries a woman, that woman is regarded as the step-mother of the adopted child.

Section 14 also clarifies that if a widow or an unmarried woman adopts a child, any man she subsequently marries will be considered the step-father of the adopted child.

Valid Adoption not to be Cancelled (Section 15):

Section 15 establishes an important principle that a valid adoption, once carried out, cannot be annulled or revoked by the adoptive parents or any other party. Furthermore, the adopted child cannot renounce their adopted status and return to their biological family. This rule remained consistent with the law prior to 1956.

Presumption as to Registered Document Relating to Adoption (Section 16):

In adoption cases, it is common to have a written document signed by both the person adopting and the person giving the child up for adoption. Section 16 states that if such a document, which records an adoption, is signed by both parties and registered as required by law, the court will presume that the adoption was conducted in accordance with the provisions of the Act, unless evidence to the contrary is presented. However, it is essential to note that this presumption is not absolute, and the mere registration of an adoption document does not conclusively prove the legality of the adoption.

Prohibition of Certain Payments (Section 17):

Section 17 addresses the issue of preventing the trade or exchange of children and takes a stern stance against it. This section expressly forbids any person from giving or receiving any payment or reward in return for adopting another person. Engaging in such transactions is deemed illegal and can lead to penalties, including imprisonment for up to six months, a fine, or both.

Savings (Section 30):

Section 30 of the Act incorporates a "Savings clause," which states that the provisions of the Act do not affect adoptions made prior to the Act's commencement. The validity and consequences of such adoptions will be determined as if this Act had not been enacted.

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