Who is Hindu (sem-2)
Hindu is born not made is incorrect statement.
- Person to whom Hindu Law applies
Father is christian, mother is Hindu
Jain, Budhists, Sikhs, Lingyats(Shudras)
Bramhmos, Arya Samajis, Under special marraige Act 1872
- Person to whom Hindu Law Does not applies
Hindu Father, christian mother
Jain, Budhists, Sikhs, Lingyats(Shudras)
Bramhmos, Arya Samajis, Under special marraige Act 1872
- Main sources of hindu law
2. Smritis: ancient text that provides the philosophical, ethical, and moral basis for Hindu personal law.
3. Customs: followed by a large number of people, not discriminating, and not opposed to public policy
4. Judicial decisions, Equity, justice, and good conscience
5. Legislation: important legislation on Hindu law include: The Child Marriage Restraint Act, The Hindu Marriage Act, The Hindu Adoptions and Maintenance Act, The Hindu Succession Act, The Hindu Minority and Guardianship Act 1956
- Schools of Hindu Law(differ in how property is allocated and inherited)
| Mitakshara | Dayabhag | |
|---|---|---|
| Ownership by | Birth(sons are considered co-owners of ancestral property from birth) | Death(sons only have a right to property after the father's death) |
| Principle of inheritance | Blood | Offering of Prayers, Pindas |
| Schools | Banaras School(Extends in North India, Orrisa), Mithla School(North Bihar), Madaras School(Karnataka) Bombay School, Punjab school | Assam, West Bengal |
2. Dayabhag:
Customs
- Kinds of Custom
2. Class: Customs for caste or community. Or for particular professions: argiculture, trade
3. Family: confined to particular family. Eg: Custom for governing estate in rajasthan.
- Essentials of Customs
Continutity
Peaceful enjoyment
Obligatory force
Reasonable
Confirmity with law
- Importance of Custom as source of law
Customs with sanctions: customs that have been implemented by the state and are upheld by authorization by the different courts.
Conventional customs:
Hindu Marraige
A sacred union between 2 people that is considered a sacrament and a contract
Lifelong partnership, ceremony is performed in front of a sacred fire, and it is believed that the gods' blessings.
Nature: Hindu marraige is sacred not a contract.
- Characteristics of Hindu marriage
Sacred tie
Religious duties
Monogamous(1 Marraige): having only one mate, spouse, or partner at one time.
- Essentials for hindu marriage as per hindu marriage act
Both parties are Hindus
Both parties are able to give valid consent
Both parties are not relatives(Sapinda) of each other
- Any person that extends to 3rd generation
The bride is at least 18 years old and the groom is at least 21 years old
- Child Marraige Restraint (Amendment) Act 1978 has revised the ages to above.
Neither party has a living spouse at the time of the marriage
A marriage between a Hindu man who converted to Christianity and a Christian woman in a Hindu ceremony is not valid
- void Marraige
- Voidable Marraige
8 Types of Marraiges(As per Manusmiriti)
2. Gandharva: marriage where the woman chooses her own husband
3. Paisacha: A man seduces a woman who is asleep, drunk, or mentally disordered, and the woman and her parents agree to marry him out of shame
4. Rakshasa: violent form of marriage where a man forcibly abducts a woman from her home after killing or wounding her kinsmen
5. Asura: Girl's parents gives as much as they can dowry to Groom's family
Terms
| Term | Meaning |
|---|---|
| Blood | Full Blood:
2 persons are full blood relative, if they are descended from a common ancestor by the same wife. 2 real brothers Half Blood: descended from a common ancestor but by different wives. Chacha, Tau k bache Uterine blood: 1 mother but different fathers |
| Degree of prohibited relationship (Hindu Law) |
Making relation is prohibited where 2 people are lineal ascendants of each other Daughter can not marry her father and grandfather. Similarly, a mother can not marry her son or grandson. |
Hindu marriage act(HMA) 1955
Changes done by HMA
Other religions: Legally recognizes Hindu, Jain, Sikh, and Buddhist unions as legitimate Hindu unions
Monogamy: Marks the first time monogamy has been practiced among Hindus
Caste factors: Renders caste factors irrelevant for inter-caste and inter-community marriages
Uniformity of law: Brings uniformity of law for all sections of Hindus
Marriage conditions: Specifies conditions that must be met for a marriage to take place
Restitution of Conjugal rights
- Restitution(returning something) of Conjugal(relating to marriage) rights
(Sec-9 of Hindu Marraige Act):
But SC has ruled it out stating RCR is intended to prevent the breakup of spouses
Partner taking wrong advantage of other
Matrimonial misconduct
Act, or conduct that makes it impossible for the petitioner to live with the respondent
Divorce and judicial separation in HMA
- Reasons in which divorce can be sought Sec(13(1) and 13(2))
1986 Ram Dulari v Hargovinda Singh. Wife had 3 children(2 son, 1 daughter). On DNA test daughter was not of husband Court granted order of divorce.
Cruelty:
What is Cruelity? Verbal abuse to bring shame, physical voilence, excessive sexual intercourse, refusal for intercourse over long period, Neglect, Drunkardness
Case:1993 Indira v SK Gangele. Divorce cannot be sought by saying parties are unhappy with eachother. For cruelty entire background of life is examined.
Desertion
petitioner deserted for continous period of not less than 2 years.
Conversion to another religion
Converted to Islan, Christianity, Judiasm, Zorostraianism
Unsound Mind
Incurable unsound mind or continious mental disorder. Degree should be such that 1 cannot live with other.
Leprosy(chronic infectious disease affects the skin)
Other party suffering from incurable form of leprosy and atleast 3 years existed in marraige
Case: 1974 Laxmi c Dr GG Padma Rao. SC found leprosy was at last stage and decreed divorce
Renunciation of World: Becoming sanyasi
Presumed Death
if party has not heard about other for 7 years or more of being alive.
Bigamy(To wife Only)
After 15/May 1955 husband had married again. 2nd marraige is void & counts for Adultery.
Rape, Sodomy or Beastiality (Sec 375, 377 of IPC)
Option of Puberty(Becoming Sexually mature. 10-14 for girls and 12-16 for boys)
if girl was married before 18 years, she can file divorce after attaining 18
- Petition of Divorce must include
- Court will issue notice to the other party after receiving the petition
- Divorce v Judicial Seperation
| Divorce | Judicial Seperation | |
|---|---|---|
| What | Ends the marriage | legal process that allows a married couple to live apart while remaining legally married |
| Time | Judicial separation can be sought at any time after marriage | Divorce requires a minimum of one year of marriage |
- Dissolving Marraige by mutal consent
Petition should be moved jointly by parties
Couple must have been living separately for at least one year and mutually agree to dissolve the marriage
Hindu Marriage Act (HMA) also provides for a cooling-off period of at least 6 months from the date of filing the divorce petition, couple can reconsider
The court can waive the cooling-off period if it's satisfied that the marriage is beyond repair
2. Both parties not able to live together
3. Both parties mutually agree that their marriage should be dissolved.
Hindu marriage Amendment act 1976
- Changes made to Hindu Marriage Act of 1955:
Allows a wife who married before age 15 to repudiate the marriage between ages 15 and 18
Sections 19 and 21 do not apply to marriages between people of the Hindu, Buddhist, Sikh, or Jaina religions
Prohibits polygamy and requires all marriages to be monogamous
Adoption (Hindu adoption and maintenance act 1956)
Requirements of Adoption
- For Child
child welfare committee has declared them legally free for adoption They are unmarried
They are under 15 years old, unless their culture or traditions allow people who are 15 or older to be adopted
They have not been adopted before
They do not have a child of the same sex still residing in the home
- For Person adopting child
Physically and mentally fit
Not having any life-threatening illnesses
Financially stable
Being an Indian citizen, NRI, or foreign citizen
Any gender or marital status
If married, having been married for at least two years and both spouses consenting to adopt
If already having a child, only being able to adopt a child of the opposite gender
Not having more than 3 children, unless adopting a child with special needs
Legal effect of valid adoption
The child's property before the adoption remains theirs, subject to any obligations
The child cannot take away property from anyone in the adoptive family that they had before the adoption
Case: 1979 Banabai v Wasudeo. Bombay HIgh Court decreed adoption takes effect only after date of adoption
The adoption cannot be canceled by the adoptive parents or anyone else
The child cannot reject the adoption and return to their birth family
The child has the same maintenance rights as a biological child
The child is disqualified from performing Sradha(honors deceased ancestors) and Pinda Karma (Hindu ritual that involves offering a circular, rounded heap of cooked rice and other sacred materials to the departed ancestors) for their natural parents.
Can a valid adoption be cancelled
Adopted son can seek to cancel an adoption deed, but their status as an adopted son cannot be revoked
Doctrine of relation back in adoption
Under the doctrine of relation back, the adopted son would:
Inherit rights in the deceased husband's property as if he were a natural son born before the death
Be able to participate in the partition and inheritance of the property
Be obligated to perform all the duties of a son
Cases: 1918 Pratap Singh c AgarSingh,
Changes brought by hindu adoption and maintenance act 1956
Can adopt a daughter, earlier it was for son
Performance of Datta Homan(Religious ceremony) is no longer necessary
Upper age limit for adopting child fixed to 15 years
Father(without consent of mother) cannot give child in adoption
Maintenance (Hindu Adoption and Maintenance Act 1956)
- Who are entitled of maintenance
A legitimate or illegitimate child, male or female, who is unable to support itself
Both father and mother are entitled to be maintained equally by son and daughter
Maintenance responsibility for elderly and disabled parents who are unable to care for themselves
Can Hindu wife claim maintenance from husband living seperately
if the husband is guilty of desertion, cruelty, bigamy, leprosy, or converts his religion without the wife's consent
Wife cannot claim maintenance from husband
Becomes hoar
She resides seperately without any just cause
Maintenance of widowed daughter in law by father in law
Father-in-law provides maintenance from his coparcenary property, which includes ancestral property or joint acquisitions
Widowed daughter-in-law receives an equal share to each son and daughter.
If there are no sons or daughters, the widowed daughter-in-law receives the deceased son's full share
- Requirements for Support
- Out of her own earnings/property
- Out of Husband's, Her Father, Her mother, Her son, Her daughters estate
- When daughter-in-law losses right of maintaince
Converted to other religion
Father-in-law does not have right of Coparcener(joint family) property
Terms
| Term | Meaning |
|---|---|
| Maintainece pendente(pending the litigation) lite | Temporary financial support given to a spouse or other dependent during a legal proceeding Both the wife and husband are entitled to claim maintenance pendente lite. Case: 1977, Chitra Lekha v Ranjit Rai |
| Expenses of proceedings, or litigation costs |
Costs and expenses incurred in connection with a proceeding Include Fees charged by lawyers and mediators, Bailiff's fees, Legal costs, Court fees, Expenses incurred by witnesses and experts, Accountants' fees The cost of appeal, attachment and similar bonds |
Hindu succession(उत्तराधिकार) act 1956
Main object is to remove inequalities between Men and Women with respecto to rights in propety.
- Features of Act
Classifies property into two parts: Joint family property, also known as Coparcener property, and separate property
Gives unmarried, divorced, or widowed daughters the right to reside in the family home
Allows relatives who convert from Hinduism to still inherit
No distinction between male and female hiers
Male Hindu dies intestate(बिना वसीयतनामा मारा हुआ)
Equally among Class I Hiers(son, daughter, widow, and mother)
Class II heirs(father of the deceased)
If there are no Class I or Class II heirs, the agnates(blood relatives through male line) of the deceased inherit the property
If there are no agnates, the cognates of the deceased inherit the property
Female dies intestate(बिना वसीयतनामा मारा हुआ)
Husband, sons, daughters, children of any deceased son or daughter
To husband's heirs(वारिस)
To the mother and father
To the father's heirs
To the mother's heirs
Debt
Properties liable for payment of personal debt
Undivided coparcenary(multiple people inherit the same property) property
Does son have to pay fathers debt
No need to pay illegal or immoral debt
Need to pay debt linked to ancestral property, and is limited to the assets he received in his share of the joint family property
Case: 1977. Nan Bachan c Sita ram
Sons are not bound by debts contracted foolishly, for luxury, or for criminal pleasure
Son has to father's debt which they got before partition(only to extent which he obtained before partition)
Case: 1977 Bana of Bihar v Keshav Nandan
Debts
| Debt | Meaning |
|---|---|
| Avyavaharika debt | Debts incurred for immoral purposes(eg:gambling, bribing) and are not binding on a son |
| Antecedent debt | Debt that exists before a transfer |
Hindu Minority and Guardianship Act (HAMA) 1956
Minor as someone who is under 18 years old, and a guardian as someone who has the right to care for a minor's person and property
Changes in HAMA
Long list of gurdians have been reduced to father, mother, husband
Gurdian has no power to deal with property of minor
Gurdian appointed by father have no right if mother is alive and same for mother's case
Minor
Types of guardian under HAMA
Testamentary(appointed through will) guardian(Sec 9 of Act): This is a guardian appointed by the minor's father or mother in their will.
De facto guardian(Sec 11): Someone who himself takes care of matters as if he is natural guardian
Guardian appointed by the court(Sec 12): Gurdian for person or property or both.
Statutory(Relating to or of the nature of a formal law) Gurdian:
Adhoc(For the purpose) Gurdian:
Partition
Mitakshara School
- What property is liable for partition
Self-acquired property(hard-earned or inherited through a gift or will), cannot be divided during the lifetime of the owner.
The partition must be equal and fair, and the father must treat all sons equally. If the sons find the partition unfair, they can challenge it in court and ask for a reopening to readjust shares.
Some properties, like staircases, cooked food, utensils, and gardens, are not available for partition because they are indivisible.
- Who are entitled to share in partition
After born sons: Born after parition, or in mother's womb at time of partition.
illegitimate son: Cannot demand in partition, but can maintain his father's estate
Widows: Can claim partition under S.23 of Hindu Succession Act
Alienee(A person who receives property):
Adopted Son: Treated as natural born son & can demand equally
- Types of Partition
Partition by mere declaration
Partition by notice
Conversion to other religion
Partition by Father
Partition by Suits
- Cases
Veeranna (d. 2.2.1906)
: :
Atchamma Seshamma
(1st wife) (2nd wife)
: :
: :
: : : :
: : : :
Chimpirayya Pitchayya Raghavamma :
China Punniayya
:
:
.........................
: :
: :
1st wife 2nd wife
(died issue- Subbamma
less)
:
:
..................
: :
: :
Alivelamma Venkayamma
Principal laid down: Only well communicated seperation from joint family is counted.
Will only be effective from date of death of tester.
Court Verdict: Father has exclusive authority over the disposition of his self-acquired property and that no one has the authority to interfere with him.
1925 (Father)Baldev Das+sons // Took loan 16000/- on ansectral property
1928 Lender Naraini sued family to recover 12500/-. Sons said money was taken by Baldev for personal purpose
1935 Baldev(death), sons were again added to case.
1908 Father(Sitaram). Took loan(1100/-) on ansectral property from Brij Narain. it was to pay 2 prior loans on same property
1913. Raj Narain filed suit to recover, But wife of sitaram told minors are not liable to pay
Bux Pandey(moneylender)
Raja Jobraj Singh(Money taker) died and obligation comes to hier Hanuman prasad pandey
Dayabhag School
partition must be done in accordance with the demarcation of specific shares, or "partition by bounds and metes".
Hindu Coparcenary(Joint Heirship)
This is legal entity made up of a group of male members of a joint family, including 4 generations and the property's last male holder. The family's senior member is the last male possessor of the property
Coparcenary comes into existence when a person inherits property from their father, grandfather, or great grandfather
Person then holds the property as a joint tenant (coparcener) with their sons, grandsons, and great grandsons
Hindu Succession (Amendment) Act of 2005 changed the status of coparceners. Before this amendment, only sons were considered coparceners, excluding daughters from the birthright
Features of coparcenary
Undivided interest
Collective ownership
Survivorship: When a coparcener dies, their undivided share is transferred to the other coparceners
Birthright: A son becomes a coparcener and acquires an undivided interest in the property at birth
Changing shares: shares of coparceners change when new family members are added or older members die
Partition: Every coparcenary has the right of partition
When coparcenary come to end
Gift
Complete Gift
Giver, or donor, no longer has control over the gift once it is given.
For a gift to be legally valid, it must be registered, executed, and delivered to the recipient.
According to the Transfer of Property Act of 1882, a gift is a transfer of ownership of a property without any monetary compensation.
Essentials of Gift
When gift is void
With intension that doonee will perform some service in lieu
if donee dies before acceptance
Stridhan
It includes any gifts a woman receives before, during, or after marriage, such as money, jewelry, land, and utensils
This is not dowry, because it is a voluntary gift and remains the woman's exclusive property, with no rights for her husband or his family
According to the Supreme Court, a woman's stridhan is her absolute property, her husband has no control over it.
However, he can use it in times of need, but he has a moral obligation to restore it or its value to his wife
Will
who can make will
People who are intoxicated or ill and unable to understand the consequences of their actions are also not permitted to create a valid will.
Which property can bequeathed(leave (property) to a person or other beneficiary by a will) by will
Self-acquired properties, future properties, incomes, and interests
Properties in foreign countries, subject to local laws
Pets, paintings, antiques, electronic items, intellectual property, social media accounts, and personal belongings
A will takes effect after the testator's death and can only be revoked during their lifetime
Can bequeathed be made in favour of unborn child
Certain conditions that must be met: Property cannot be directly transferred to the unborn child. Instead, it must be transferred to a living person or a trust
property must first be transmitted to a living person on the date of the testator's death.
bequest in favor of the unborn child is void if the child is not born
When is will void
created by someone who is incompetent due to age, illness, or insanity
created using forgery
created by mistake, such as when the testator thought they were creating a power of attorney instead of a will
revoked by the testator
holographic(three-dimensional) will, which is a handwritten will without witnesses
doesn't destroy previous wills
doesn't have the proper witnesses
Will vs Gift
| Will | Gift | |
|---|---|---|
| Timing of execution | After death | During donor's lifetime |
| Revocability | Can be revoked or amended | Irrevocable |
| Registration | will is not required to be registered in court | For immovable property must be registered |
| Contesting | Wills can be contested in court | Gift cannot |
Terms
| Term | Meaning |
|---|---|
| Obstructed and unobstructed heritages |
Unobstructed heritage/Ancestral property: Property that a person acquires by birth Eg: son, grandson, and great grandson have a birthright to ansectral property. Obstructed heritage: Property person acquires from someone other than their father, grandfather, or great grandfather is property that accrues after the death of the last owner. Eg: Property inherited from a paternal uncle or brother |
| Legitimacy(As per law) of children of void and voidable marriage |
children born from a void or voidable marriage are considered legitimate(lawful) and can inherit a
portion of their deceased parents' property However, the inheritance is limited to what the children would have received if the marriage had been valid |
| Impartible estate |
Property that cannot be divided, or legally partitioned Owner of an impartible estate is the sole owner of all the properties in the estate. Eg: Zamindari, Jagirs, Saranjams. Powers are provided to elder decendent of family. Junior members are given right for maintainence. |
Religious Endowment
For example, funds for temple upkeep, deity maintenance, or the welfare of priests are religious endowments
Essentials for creating valid religious endowment
2. Object must be definite
3. Property must be definite
4. Person giving endowment must be competent
5. Endowment must not oppose the law
Shebaits and Mahants
| Shebaits | Mahants(property of मठ held by him) | |
|---|---|---|
| Who | caretakers of religious property and institutions | heads of religious institutions |
| appointed by | founder or a governing body of the institution | |
| rule for the devolution of Office | rules laid out by the endowment's founder | rules laid out by the endowment's founder |
Temple and Math(मठ)
| Temple | Math | |
|---|---|---|
| building for worshiping deities | Place for residence for Hindu sanyasis, Mahants | |
| Purpose by | primarily for worshiping deities | housing and supporting monks(Mathas often offer spiritual classes) |
Terms
| Term | Meaning |
|---|---|
| Debutter property | Type of religious trust in Hindu society that is dedicated to a deity or charitable purpose Trustees own the property and the deity being the beneficiary. property is called debuttore because it literally belongs to a deity. |
Women's estate. Sec-14(Hindu succession act 1956)
All property in possession of women whether acquired before or after the act(except will,gift,award) is her absolute property.
Types of Woman Estate
2. Women Estate: Over this she has limited ownership
How Women Estate(having limited ownership) is acquired by women?
Partition: Female is entitled to a fair share of the property on partition
Features of Women Estate
Inherited:
Partition:
Disposal: A Hindu female owner has limited power of disposal of her woman's estate. She can only dispose for:
Legal neccesity
Religious purposes
Benefit of estate
Reversioners: On the death of a woman with a woman's estate, the estate devolves upon the heir of the last full owner,
known as reversioners.
Terms
Partition:
Disposal: A Hindu female owner has limited power of disposal of her woman's estate. She can only dispose for:
Legal neccesity
Religious purposes
Benefit of estate
Reversioners: On the death of a woman with a woman's estate, the estate devolves upon the heir of the last full owner, known as reversioners.
| Term | Meaning |
|---|---|
| Rule of Damdupat / Rule of Dvaigunya |
Interest amount charged on a loan cannot exceed the principal amount The rule is mentioned in several Hindu smritis and dharmasastras, including Manu Smriti The rule of Damdupat is not applicable to Muslims or money transactions in Andhra Pradesh. |