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MODERN HINDU LAW [Amended by Hindu Marriage (Amendment) Act, 1999 and Family Court Act, 1984]
By Prof. U.P.D. KESARI MA., LL.M., D.Phil Ex Dean Faculty of Law, University of Allahabad, Ex. Professor of Law L.B.S. National Academy of Administration, Mussorie (Govt. of India)
Co-Author ADITYA KESARI LL.M.
THIRD EDITION 2001
CENTRAL LAW PUBLICATIONS Law Publishers & Booksellers 107, DARBHANGA COLONY, ALLAHABAD - 211 002 CONTENTS Parti
CHAPTER 1 NATURE OF LAW Page Early concept of Law ... 1 Rule of Law ... 4 Equality before Law ... 5
CHAPTER 2 APPLICATION OF HINDU LAW Persons to whom Hindu Law applies ... 7 Persons who have changed religion ... 9 Persons to whom Hindu Law does not apply ... 9 Extent of the application of Hindu Law ... 9 Application of law on Migration ... 11 Hindu Law now, not a law of all Hindus or of Hindus alone ... 11
CHAPTER 3 SOURCES AND SCHOOLS OF HINDU LAW Shmtis ... 12 Smritis ... 13 Arthashashtras ... 13 Commentaries and Digests ... 16 Conflict of laws in the texts ... 17 Treatises on Adoption ... 18 Judicial Decisions ... 18 Legislation ... 19 Equity, Justice and good conscience ... 20 Customs and usages ... 21 What is Custom ... 22 Kinds of Custom ... 22 Essentials of custom ... 23
CHAPTER 4 SCHOOLS OF HINDU LAW Mitakshara ... 25 Dayabhag ... 27 Differences between the Mitakshara and Dayabhag school ... 27 Migration and the school ... 28
(vii) viii MODERN HINDU LAW
Part II
CHAPTER 5 MARRIAGE Page Nature of Hindu Marriage ... 29 Eight forms of marriage (Before 1955) ... 31 Approved forms , ... 32 Unapproved Forms ... 32 Divorce and Remarriage ... 36 Marriage under the Hindu Marriage Act, 1955 ... 36 Nature of Marriage under the Act ... 37 Changes made by Hindu Marriage Act, 1955 ... 39 Changes brought about by the Marriage Laws (Amendment) Act, 1976 ... 39 Conditions for a valid Hindu marriage under the Act. ... 41 Guardianship in marriage • ... 51 Marriage Ceremonies ... 51 Proof of Marriage ... 53 Restitution of conjugal rights ... 53 Subsistence of marriage—A pre-requisite ... 54 Withdrawal from society ... 54 Previous cohabitation not necessary ... 55 Agreement of separation ... 55 Reasonable and just cause ... 55 Mode of execution of decree for restitution of conjugal rights ... 61 Relevance of the remedy ... 61 Judicial Separation ... 62 Relevance of Judicial Separation ... 64 Characteristics of Judicial separation and its distinction from divorce ... 64 Grounds : Extra-martial voluntary sexual intercourse ... 65 Cruelty ... 66 Desertion ... 73 Conversion ... 78 Unsoundness of mind ... 78 Leprosy ... 78 Venereal disease ... 79 Renunciation of the world ... 79 Presumption of death ... 79 Effect of judicial separation ... 80 Nullity of Marriage ... 81 Void Marriages ... 81 Voidable Marriage ... 82 Distinction between void and voidable marriages ... 94 Divorce ... 95 Old Hindu law ... 95 CONTENTS ix
Page Modern law—Hindu Marriage Act, 1955 . ... 96 Grounds of Divorce ... 98 Adultry ... 98 Cruelty ... 102 Desertion ... 108 Conversion ... 112 Unsoundness of mind ... 112 Leprosy ... 113 Venereal disease ... 114 Renunciation of the world ... 114 Presumped death ... 114 Non-resumption of cohabitation after the decree of judicial separation ... 115 Failure to comply with the decree of restitution of conjugal rights ... 116 Additional grounds of divorce in favour of wife ... 117 Divorce by mutual consent ... 119 Necessary Ingredients ... 119 Petition for Divorce ... 122 Divorced person when may marry again ... 123 Punishment for Bigamy ... 124 Punishment for contravention of certain other conditions for a Hindu Marriage ... 125 Legitimacy of children ... 125 Contents and verification of petition ... 128 Power to transfer petitions ... 128 Special provisions relating to trial ... 129 Proceedings to be in camera ... 129 Decree in Proceedings ... 129 Interim maintenance and expenses ... 134 Quantum of maintenance ... 135 Permanent alimony and Maintenance ... 136 Custody of Children ... 139 Disposal of property ... 140 Enforcement of and appeal from decrees and order ... 141 Savings ... 141 CHAPTER 6 MAINTENANCE Nature and extent of the right of maintenance —Twofold liability ... 142 Modern law ... 143 Persons entitled to be maintained ... 143 Wife ... 144 When wife is not entitled to separate residence and maintenance ... 147 Widowed daughter-in-law ... 148 MODERN HINDU LAW
Page Maintenance of aged infirm parents and the children ... 149 Maintenance of legitimate and illegitimate son ... 150 Legitimate and illegitimate daughter ... 151 Aged and Infirm parents ... 151 Dependents ... 151 Maintenance of dependants ... 153 Other persons entitled to maintenance under prior law ... 153 Amount of maintenance ... 154 Effect of a charge over the joint family property ... 157 CHAPTER 7 SONSHIP AND ADOPTION Kinds of sons ... 159 Adoption ... 160 Present law ... 163 Changes made by the Act ... 163 Essentials of valid adoptions ... 164 Who may adopt—Pre law ... 164 Present law ... 165 Who can adopt ... 166 The capacity of a male Hindu to adopt ... 166 Consent of wife ... 166 Capacity of females to adopt ... 167 Who can give the child in adoptions ... 169 Consideration before the court ... 172 Who could be adopted ... 172 Age of adopted boy ... 174 Who may be adopted (Present law) ... 174 Adoption of an orphan ... 175 The ceremonies for adoption and other essentials ... 175 Effect of adoption ... 177 Doctrine of Relation back ... 178 Effect of adoption—Present law ... 179 Right of adoptive parents to dispose of their property ... 184 Determination of adoptive parents ... 185 Annulling an adoption ... 185 Prohibition of certain payments ... 187 Doctrine of factum valet ... 187 CHAPTER 8 MINORITY AND GUARDIANSHIP Introduction ... 188 Changes made by the Act ... 188 Minority under Hindu law ... 189 Guardian—Meaning of ... 190 Natural Guardian ... 191 Disabilities to act as a guardian ... 194 CONTENTS xl
Page Effect of remarriage by widow ... 195 Natural guardian of an adopted son ... 195 Powers of a natural guardian ... 195 Limitation of powers of natural guardian ... 201 Testamentary guardian ... 203 Widowed mother ... 205 Powers of testamentary guardian ... 206 Removal of a testamentary guardian ... 206 De facto guardian ... 207 Ad hoc guardians ... 209 Overriding effect of the Act ... 209 Overriding the pre-existing rules of Hindu law ... 209 CHAPTER 9 INHERITANCE AND SUCCESSION (GENERAL PRINCIPLES) Modes of devolution of property ... 212 Nature of property vis-a-vis obstructed and unobstructed heritage ... 214 Devolution under the Mitakshara system ... 214 Inheritance under the Dayabhag system ... 215 Distinction between Mitakshara and Dayabhag law of inheritance ... 216 Exclusion from inheritance ... 217 Succession ... 219 Object ... 219 Main features of the Act ... 219 Certain definitions under the Act ... 221 Intestate Succession ... 223 Devolution of interest in coparcenary property. ... 224 Coparcenary property ... 226 Rule of survivorship ... 226 Devolution of interest in the property of Tarwad, Tavazhi, Kutumba, Kavaru or Mom ... 232 Succession to property of a male ... 234 List of heirs specified in class I of the Schedule ... 235 List of heirs in class II of the Schedule ... 240 Computation of degrees ... 244 Hindu woman's right to property ... 247 Rules of Succession to the property of female ... 259 Order of succession and distribution ... 262 General rules of Succession. ... 267 Disqualification for heirs ... 272 Testamentary Succession. ... 275 Property capable of its being disposed of by will ... 276 xil MODERN HINDU LAW
PART 3 UNCODIFIED LAW
CHAPTER 10 JOINT FAMILY AND COPARCENARY Page Joint family—Origin, its nature and Constitution ... 277 Members of joint family ... 278 Hindu Coparcenary ... 279 When coparcenary comes to an end ... 282 Coparcenary and Joint family—Distinction ... 282 Characteristic features of coparcenary ... 283 Classification of property ... 286 Joint family property or Coparcenary property. ... 286 Separate or self-acquired Property ... 291 Salary and remunerations ... 293 Mitakshara classification of property ... 294 Obstructed heritage ... 294 Unobstructed heritage ... 295 Distinction between joint Hindu family firm and partnership. ... 296 Rights of Coparceners ... 297 Effect of Section 6 of the Hindu Succession Act, 1956 ... 300 Manager or Karta of joint Hindu family ... 301 Powers of Karta ... 302 Duties and liabilities of Manager (Karta) ... 305 No power to make a will. ... 310 Setting aside alienation ... 310 Rights of Purchaser of Undivided Coparcenary Interest ... 312 Dayabhag law ... 313 Points of similarity between Dayabhag and Mitakshara coparcenary. ... 314 Points of distinction between the two systems ... 315.
CHAPTER 11 DEBTS A—Mitakshara Law Nature of liability ... 316 Religious obligation ... 317 Meaning of Avyavaharik debt ... 322 Suretyship debts ... 325 Liability for the debt contracted before partition ... 326 Father's power of sale to satisfy antecedent debts ... 328 Dayabhag law of debt ... 331 Distinction between the Mitakshara and Dayabhag law of debts... 332 Rules of Damdupat ... 332 CONTENTS Xlil
CHAPTER 12 PARTITION (Mitakshara Law) Page Meaning of partition ... 334 Division of Right and Division of Property ... 336 Persons entitled to demand partition ... 338 Partition how effected ... 343 Suit for partition ... 348 Death of a minor during the pendency of the suit—Effect ... 349 Special powers of father to effect partition ... 350 Re-opening of partition ... 352 Re-union ... 353 B. Dayabhag law ... 354 Points of similarity and distinction between the Mitakshara and the Dayabhag laws ... 355 CHAPTER 13 STRIDHAN Meaning of Stridhan ... 356 Stridhan according to the smritikars ... 357 According to Yagyavalkya ... 357 Stridhan according to commentators ... 358 Salient features of Stridhan ... 360 Sources of Stridhan ... 360 Kinds of Stridhan and incidents thereof ... 361 Rights of women over stridhan ... 361 Married status ... 361 Stridhan, its succession under Hindu Succession Act, 1956 ... 362 CHAPTER 14 WOMEN'S ESTATE Meaning of woman's estate and its nature ... 364 Incidents of women's estate ... 364 Effects of alienation made without legal necessity and without the consent of reversioners ... 366 Reversioners ... 367 Nature of the reversioner's interest ... 367 Compromise and family arrangement by the widow ... 368 Surrender ... 368 CHAPTER 15 GIFT Definition of Gift under Mitakshara law ... 370 Void gift ... 371 Persons competent to receive gifts — 371 Gift in favour of unborn person ... 372 Restrictions upon right to make a gift ... 372 Present law of gift ... 373 xiv MODERN HINDU LAW
CHAPTER 16 WILLS Page Which property can be bequeathed ... 374 Other Rules relating to will ... 375 Bequest to an unborn person ... 377 When will is void ... 377 Rule for construing the will ... 377
CHAPTER 17 IMPARTIBLE ESTATES Origin of impartible estates ... 379 Incidents of Impartible estates ... 380 Rules of Succession ... 382 Debts ... 382
CHAPTER 18 REUGIOUS AND CHARITABLE ENDOWDMENTS What are endowments ? ... 383 Kind of endowments ... 383 Subject of endowment and its proof ... 386 Mode of Creation of an endowment ... 386 Proof and essentials of endowments ... 387 Math—Devasthana—Dharmashala ... 390 Kinds of Math ... 390 Powers and obligations of Mahant and Shebait ... 394 Removal and replacement of Idol — 395 Whether a female can held the office of Mahantship or Shebait ••• 398 Distinction between a Shebait and Trustee ... 399 Doctrine of Cypres ... 399
APPENDICES 1. The Hindu Succession Act, 1956 ... 400 2. The Hindu Minority and Guardianship Act, 1956 ... 413 3. The Hindu Adoptions and Maintenance Act, 1956 ... 418 4. The Hindu Marriage Act, 1955 ... 427