Category Archives: Family Law – I



Valid Adoption under Hindu Adoptions and Maintenance Act, 1956

Category : Family Law – I

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid adoption. The person adopting has the capacity and also the right to take in adoption. The person giving in adoption has the capacity to do so, the person adopted is capable of being taken in adoption and the adoption made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956. No adoption shall be valid unless:- 1. The person adopting has the capacity and also the right to take in adoption. 2. The person giving in adoption has the capacity to do so. 3. The person adopted is capable of being taken in adoption: and 4. The adoption made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956.

According Section 5 of the Act, an adoption made in contravention of the provisions of Chapter II of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s Shakuntla, 2002 the Supreme Court opined that Section 16 of the Hindu Adoptions and Maintenance Act, 1956 envisages a statutory presumption that in the event of there being a registered pertaining adoption, adoption would be presumed to have been made according to law.

1. Capacity of a male Hindu to take in adoption According Section 7 of Hindu Adoption and Maintenance Act, 1956 any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following three conditions:- • the wife has completely and finally renounced the world, or • the wife has ceased to be Hindu, or • the wife has been declared by a Court of competent jurisdiction to be unsound mind. If a man has more than one wife living at the time of adoption, the consent of all the wives must be obtained. The Act has given two qualification for a male Hindu to capable to taka a child in adoption i.e. the person must be of sound mind and he must not a minor. The man is required to take consent of the wives or wife, before adoption. Without the consent of wife or wives the adoption will be void.
2. Capacity of a female Hindu to take in adoption Now a female has also the capacity to adopt any child. Section 8 of the Act provides that any female Hindu who is of sound mind, who is not minor and who is not married or if married, whose married has been dissolved or whose husband is dead has the capacity to take a son or daughter in adoption. A woman who is of sound mind and is not a minor can take child in adoption. The woman has no right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the right to take in adoption any child.

3. Person capable of giving in adoption

Section 9 of the Act down the capacity of person, who may give the child in adoption to another. No persons except the father or mother or the guardian of the child shall have the capacity to give in adoption. • Capacity of the father to give in adoption :- If the father is alive, he shall alone have the right to give in adoption but such right shall not be exercise save with the consent of the mother. • Capacity of the mother to give in adoption :- The mother may give the child in adoption if the father is dead or had completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court jurisdiction to be unsound mind.
Capacity of the guardian to give in adoption :- Where both the father and mother are dead and to be unsound mind and finally renounced by the world declare by the court then the guardian of a child may give the child in adoption with the following conditions laid down by the courts:-  That the adoption will be for welfare of the child. o That the applicant for permission has not received any payment in consideration of the adoption. o That no person has given any payment to the applicant for consideration of the adoption of child. The father has preferential right to give the child in adoption. If he is unsound mind or suffering from chronic disease has the right to give a child in adoption. The guardian may give the child in adoption with the prior permission of the court.

4. Who can be adopted:Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfil the conditions are capable for adoption:- a) He should be Hindu. b) He or She not already be adopted any child adopted. c) He or She has not been married unless there is a custom applicable which permits being can adopt. d) He or She has not completed the age of fifteen years which is to be considered being taken for adoption. 5. Formalities of Adoption:- (i) The child to be adopted must be actually given and taken in adoption by the parents/guardian. (ii) Only after the transfer of a boy from one family to another with a ceremony will be valid. Refer a case of Lakshman Singh Kothari v/s Smt. Rup Kuwar, 1961 the court held that under the Hindu Law there can not be a valid adoption unless the adoptive boy is transferred from one family to another by doing the ceremony of given and taken.


Discuss the essentials of a valid Hindu Marriage under the Hindu Marriage Act, 1955.

Category : Family Law – I

Marriage in Hindu culture is considered to be a sacred ritual. The relation of husband & wife is considered to made far several life times. Once a person enters into marriage it cannot then be easily dissolved. Both have to spend their lives with each other. It is reason that wife is called the second half. There are several synonyms in Hindu Dharamshashtras far husband-wife, husband is also known as ‘Bhartar’, Swami because he maintains his wife and wife is his responsibility. He is also called the ’Parmeshwar’ because the greatest duty of wife is the service of her husband. Similarly wife is called ‘Jaya’ because child is born through her. Wife is also called ‘Lakshmi’ she is the best friend of husband. Every person is required to marry not only for child birth but also for the performance of religious and spiritual duties and to release the father from his dept.

ESSENTIAL CONDITIONS OF VALID HINDU MARRIAGE
Section 5 of Hindu marriage act 1955 mentions essential conditions of marriage, which are as under :-
i) Either of the parties at the time of marriage shall not have a living husband or wife. ii) Either of the parties at the time marriage shall not be unsound mind effected or retarded of mental development.
iii) Male shall be of 21 years and female of 18 years of age at the time of marriage.
iv) Unless both the parties are governed by their custom or usage the marriage shall not occur between parties under degrees of prohibited relationship.
v) Unless both the parties are governed by their custom or usage the marriage shall occur between parties related to each other by sapinda. Section 7 of the Act also mentions another condition for valid marriage. According to it, marriage shall be solemnised according to customary tradition and rituals. Where saptpadi is necessary it required to be performed compulsoryily. Case : Sujeet Kaur v/s Garja Singh 1994, it was proved. But in the case of Nilabba Somnath Tarapur v/s Divisional Controller KSRTC Bijapur -2002, it was held that where saptpadi is not necessary according to tradition and rituals there a marriage solemnised without Saptpadi shall also be valid. Section 8 of the act is provides for the registration of marriage but it is not necessary although Kangawai v/s Saroj -2002, It was recommended to make the registration of Marriage necessary. Now there are some slight changes have been made in the Hindu Marriage Act, 1955 and certain conditions has been imposed far a valid marriage which gives it a farm of agreement :
1. The parties of marriage shall be major i.e. male should be above 21 years of age and female should be above l8 years of age.
2. Both parties should be of sound mind.
3. Provision of dissolution of marriage.
4. Saptpadi not necessary.
However there are certain provision of Hindu Marriage Act, 1955 which makes it sacred in its nature :-
1. Marriage of minor shall not be considered to be void or voidable.
2. Unsoundness shall not be the ground of void marriage, rather shall be for voidable marriage.
3. The law & procedure of dissolution of marriage is not simple.
4. Where Saptpadi is necessary it has to be performed.
5. Caste based customs and usage in marriage are recognised.
6. Marriage not allowed among sapinda prohibited relations.

As to the question of marriage when there is already living husband or wife. It was held in the case of Rampyari v/s Dharamdas 1984: “that if any one performs second marriage when there is already living husband or wife, then such marriage shall be void.”

EFFECT OF VOILATION OF CONDITIONS If the conditions of valid marriage are violated then it shall have the following effects :- 1. i) When at the time of marriage there is living husband or wife of any party. ii. When parties of marriage fall within Sapinda reation. iii. When parties of marriage fall within degrees of prohibited relationship. 2. If at the time of marriage if any one is un-sound mind effected or retarded of mental growth then such marriage shall be voidable.

3. If essential condition of age as to marriage has been violated then it shall be punishable under section 18 of the Act, but such marriage shall neither be void nor voidable. ARYA SAMAJ MARRIGE Such marriages have been recognised under Arya Samaj Marriage Validification Act 1937. SECOND MARRIAGE IN CASE OF LOST PARTY Several times a question arrises that if any party to marriage has been lost then whether second party can enter into second marriage? Section 13(1)(vii) of Hindu Marriage Act 1955 has to be analyzed in this respect. It provides that it nothing has been heared about the living or non living of any party to the marriage during the period of seven years or more, then a decree of dissolution of marriage could be passed on this ground. Thus a second marriage could be performed after obtaining the decree of dissolution of marriage on above ground. In fact a person unknown far a period of seven years or more is considered to have civil death. Thus at present circumstances the nature of marriage is neither completely ‘sacred’ nor completely ‘agreement’. It is a mixture of both. It consist of both.


“Clear proof of usage will outweigh the written text of Law.” Comment and state whether custom is still a source of modern Hindu Law?

Category : Family Law – I

OR
What are the various sources of Hindu Law? To what extent custom still continuous to be important source of Hindu Law? Illustrate your answer

The Hindu Law is credited to be the most ancient law system which is approximately 6000 years old. The sources of Hindu Law can be kept under two headings:-
1. Ancient or original sources.
2. Modern Sources.

1. ANCIENT SOURCES :- According to Manu there are four sources of Hindu Law as per following details, in addition to these four there was also that what is agreeable to one’s conscience:- 1. Shruti 2. Smriti 3.Digest and Commentaries 4.Custom and Usages.

2 MODERN SOURCES: – Following are the modern sources of Hindu Law :- 1. Equity, justice and good conscience. 2. Precedents 3. Legislation.

1. SHRUTI :- The name “shruti” is derived from the word “sru” which means to hear and it signifies what is heard. Shruties are considered as the primary and paramount source of Hindu Law. The shruti consist of the four Vedas and Upanishads dealing with the religious rites that contain the meaning of attaining true knowledge and moksh as salvation. Dr. P.V.Kanne in his book, “History of Dharamshashtra” said that,” If we want to see religion(Law) in a proper way, then we should analysis Shruti and Smritis.”

2. SMRITIS :-Means ,”What was remembered” thus smritis were Smritis is known as golden era, because it is era when well organised dependant on the remembrance of saints and the era of creation of and serial wise development of Hindu Law started. It is the second Important source of Hindu Law. It is of two types first is prose style and the other is of poetry style.
Smritis are divided into two :
i) Dharam Surtra :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.
ii) Dharam Shashtra :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts and is extremely clear, brief and organised. Narad Smriti being the last smiriti is such first legal code which mentions subjects related to Judicial process, courts and Judiciary.

3. Digest and Commentaries :- These are the third important source of Hindu Law. The commentaries through professing and purporting the rest on the smrities explains modified and enlarged tradition recorded there to bring them into harmony and accordingly to prevent practices of the day. Case : Atmarao v/s Bajirao -1935: It was held that Digest writers and commenter’s has given the statements of Smritis which can fulfil the present requirements & ahead from smrities. The period of the commentaries and digest is between 700 AD -1700Ad. The last commentary was Vajanty written by Nand Pandit.

4. CUSTOMS AND USAGES :- These are considered an important source of Hindu Law. Narad Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla says that, “ Among the three sources of Hindu Law Custom and Usage are the one.” According to Holland, “ Custom is a step of generally followed conducts As a way is created over gress by repeated walking similarly custom is created in accordance to the conduct of everyday life.” Case: Collector of Madurai v/s Mottaramlingam -1868: Privy Council held that in Hindu Law the clear proof of customs shall be more relevant then the basic epics of law.” Case: Harparsad v/s Shiv Daya -1816: It was said that, “ the custom is family or particular class or area owing o a long tradition.” Although codified law has given place to custom, but it is limited. Codified Hindu Law recognises custom only when it has been expressly given a place. Custom under Hindu Marriage Act 1955 can be applied over two topics : i) Any Marriage may be solicited by the customary tradition of the parties. ii) Divorce can be obtained be prevailing custom or usage and a married male of female above the age of 15 years can be adopted as customary rules. The Judicial Committee explained that, “ Custom is a rule which in a particular family or in particular district has from long usage, obtained the force of law. Hindu sages have recognised good custom binding on the Hindu. Manu says, “ In memorial is transcendent Law.” Custom is divided in three parts:- i) Local custom ii) Class custom iii) Family custom.

5. EQUITY, JUSTICE AND GOOD CONSCIENCE:– In India the origin of equity is traced the Hindu period when jurists explained the old law and gave new rules of interpretation and equitable solutions in cases of conflict between the rules of various law. In case of a conflict between the rules of smrities that should be followed which is based on reasons, justice and principles of equity. In view of the above observations and its practical application it will not be incorrect to mention equity justice and good conscience as the next source of Hindu Law. Actually Britishers not only established a judicial system in India but also facilitated though the High Court charters that wherever their is lack of lawful rules, their the decision should be on the principles of equity, justice and good conscience.

Case : Gurmukh Singh v/s Kamla Bai -1951: It was held that, “ Where their is lack of rules of Hindu Law over any subject, there court should pronounce their decision on the basis of principle of equity, justice and good conscience.

6. PRECEDENT :- It is an important source of law. It means he Judicial decision over any disputed matter which shall be guideline for the disposition of future similar disputed matters. Generally the decision of Supreme Court, High Court, Privy Council have the effect of precedent over the subordinate court. The importance of Precedent as a source of Hindu Law can be understood from the example that if we have to look into the importance of custom and Usages in Hindu Law, then we shall have to analyse the case : Collector of Madurai v/s Mottaramlingam, it is pertinent to mention here that there are certain rules for the application of precedent like :- i) The decision of Supreme Court is binding over all the subordinate courts. ii) The decision of Supreme Court is binding to its subordinate courts. iii) The decision of Privy Council is binding over all High Courts provided that it has not be over ruled by the Supreme Court. Case: Pandurang Kalu Patil v/s State of Maharashtra-2002. 7. LEGISLATION :- The last important source of Hindu Law is the legislation. Their source has originated after the establishment of English State in India, when English rulers started enacting several laws. Laws were enacted in accordance to the state, time and circumstances, there were amended too. Today most of the subjects of Hindu Law has been codified. Some of the important Acts in this respect are :- 1. Hindu Widow Remarriage Act 1856. 2. Prevention of Child Widow Act. 1929. 3. Hindu Women’s right to Property Act. 1930. 4. Hindu Women’s right to Seperate Residence and Maintenance Act 1946. 5. Hindu Succession Act 1956 6. Hindu Marriage Act. 1955 7. Hindu Adoption & Maintenance Act. 1956 8. Hindu Minority and Guardianship Act 1956.


What is the Hindu Undivided Family (HUF)?

Category : Family Law – I

Hindu Undivided Family (HUF) concept is based on traditions and customs.  An HUF consists of all persons who are lineally descended from a common ancestor, including their wives and daughters. Sons-in-law and daughters-in-law are not part of the HUF, even though they are members of the ‘joint family’. This is the difference between an HUF and a ‘joint family’.

The concept of HUF comes under the Hindu Succession Act and it applies to all Hindu families. The concept even applies to Buddhists, Jains, and Sikhs, and to any person in India who is not Christian, Muslim,Parsi or Jew by religion. The members of Scheduled Tribes are exempted from the law.

 

“Hindu undivided family” is purely a creature of law and cannot be created by an act of parties (except in case of adoption and reunion). A “Hindu undivided family” is a fluctuating body, its size increases with birth of a male member in the family and decreases on death of a member of the family. Females go and come into Hindu undivided family” on marriage. In case of a sole male Hindu, strictly speaking, a Hindu undivided family” comes to existence automatically upon his marriage. It has been held in Gowli Buddanna v/s. CIT that to constitute a joint Hindu family, it is not necessary that there has to be more than one coparcener in the family; a husband and wife can validly constitute a “Hindu undivided family”.

 

Hindu Undivided Family (HUF) is a legal entity that enters into legal contracts, and fulfils its legal obligations through a single person, known as a “Karta” (literally translated as “the doer”). In the eyes of the law a HUF is like a collective or cooperative organization comprised of immediate family members that can enter into and fulfill legal obligations as a single entity through its Karta.

You don’t need to be living in the same house to be identified as a HUF.

Hindu joint family is a joint family that identifies itself as Hindu.

Joint family is a social arrangement where many generations of a family live under one roof.

A joint family may or may not be recognized as a HUF.