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Hindu Law notes and study material, Cheat Sheet of Family Law

Osmania UniversityFamily Law

Hindu Law notes and study material

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Hindu Law Notes and Study Material
When studying for exams or delving deeper into the subject of Hindu Law, having
comprehensive and well-organized notes and study materials can make a significant
difference. Hindu law, with its ancient roots and rich historical context, covers a broad array of
topics including marriage, divorce, inheritance, and more. Understanding these facets is
crucial for students and legal practitioners alike.
Hindu Law in India is a complex and dynamic field, rooted in the ancient texts like the Vedas
and the Smritis, and further shaped by historical developments and judicial interpretations.
Whether it’s the foundational aspects such as the roles and responsibilities within a family, the
nuances of property rights and succession, or the procedural details of legal practices and
court decisions, mastering these topics requires reliable and detailed study aids.
In this blog post, we aim to provide you with essential notes and study materials that cover key
areas of Hindu Law. These resources are designed to help you grasp the fundamental concepts,
navigate through the legal texts, and prepare effectively for your exams. From the sources of
Hindu Law to the various schools of thought within Hindu jurisprudence, we offer a structured
overview that caters to both beginners and advanced learners.
Join us as we explore the intricate world of Hindu Law, offering insights and clarity to support
your academic and professional journey.
Introduction to Family Law:
• Family law deals with matters such as marriage, divorce, inheritance, succession,
adoption, minority, and guardianship.
• It is essential for regulating the relationships and responsibilities within families.
Types of law: public (state and society), private (individual rights), personal (religious and
cultural).
Family Law in India is Governed by various personal laws:
1. Hindu Law: Regulates Hindus, Jains, Buddhists, and Sikhs.
2. Muslim Law: Applicable to Muslims.
3. Christian Law: Applicable to Christians.
4. Parsi Law: Governs the Parsi community.
5. Special Marriage Act: For inter-faith and inter-caste marriages.
• Family, according to Vedas, is considered the fundamental unit of society, emphasizing
the importance of family relationships.
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Download Hindu Law notes and study material and more Cheat Sheet Family Law in PDF only on Docsity!

Hindu Law Notes and Study Material

When studying for exams or delving deeper into the subject of Hindu Law, having comprehensive and well-organized notes and study materials can make a significant difference. Hindu law, with its ancient roots and rich historical context, covers a broad array of topics including marriage, divorce, inheritance, and more. Understanding these facets is crucial for students and legal practitioners alike. Hindu Law in India is a complex and dynamic field, rooted in the ancient texts like the Vedas and the Smritis, and further shaped by historical developments and judicial interpretations. Whether it’s the foundational aspects such as the roles and responsibilities within a family, the nuances of property rights and succession, or the procedural details of legal practices and court decisions, mastering these topics requires reliable and detailed study aids. In this blog post, we aim to provide you with essential notes and study materials that cover key areas of Hindu Law. These resources are designed to help you grasp the fundamental concepts, navigate through the legal texts, and prepare effectively for your exams. From the sources of Hindu Law to the various schools of thought within Hindu jurisprudence, we offer a structured overview that caters to both beginners and advanced learners. Join us as we explore the intricate world of Hindu Law, offering insights and clarity to support your academic and professional journey. Introduction to Family Law:

  • Family law deals with matters such as marriage, divorce, inheritance, succession, adoption, minority, and guardianship.
  • It is essential for regulating the relationships and responsibilities within families. Types of law: public (state and society), private (individual rights), personal (religious and cultural). Family Law in India is Governed by various personal laws:
    1. Hindu Law: Regulates Hindus, Jains, Buddhists, and Sikhs.
    2. Muslim Law: Applicable to Muslims.
    3. Christian Law: Applicable to Christians.
    4. Parsi Law: Governs the Parsi community.
    5. Special Marriage Act: For inter-faith and inter-caste marriages.
  • Family, according to Vedas, is considered the fundamental unit of society, emphasizing the importance of family relationships.

Sources of Hindu Law:

  1. Shrutis (Shruti means ‘to hear’):
    • Considered the primary source of Hindu Law.
    • Derived from the Vedas and Upanishads, revealed to sages and transmitted orally.
    • Comprises the four Vedas: Rigveda, Yajurveda, Samaveda, Atharveda.
  2. Smritis (which is remembered):
    • Second source of Hindu Law, attributed to authors unlike Shrutis.
    • Includes Dharma Sutras (prose) and Dharmashastras (poetry).
    • Well-known Smritis include Manu Smriti, Yajnavalkya Smriti, Narada Smriti.
  3. Commentaries and Digests:
    • Written after Shrutis and Smritis, covering a span of over a thousand years.
    • Commentaries explain and reconcile contradictions in Smritis.
    • Notable commentaries include Dayabhaga and Mitakshara.
  4. Custom:
    • Traditions have been practiced in society since ancient times.
    • Custom is considered next to Shrutis and Smritis and prevails over written law.
    • Custom must be ancient, reasonable, certain, uniform, and observed continuously.
  5. Judicial Decisions:
    • Authoritative and binding, evolved during the British regime.
    • Courts applied Smriti law, interpreted and added their understanding.
    • Doctrine of precedent established, making judicial precedents equivalent to law.
  6. Legislations:
    • Important modern source, reformed and supplemented old Hindu Law.
    • Early legislations were reformative and filled gaps in existing law.
    • Modern legislations include Hindu Marriage Act, Hindu Succession Act, etc.
  7. Rules of Equity, Justice, and Good Conscience:
    • Important source, applied in case of conflicts between sources or rules.
    • Concepts of Dharma include Nyaya (Justice) and Yukti (Equity).
    • Used when no existing law covers a situation, ensuring fairness and reasonableness.

The Hindu Marriage Act, 1955 (HMA) Overriding Effect and Extra-territorial Application:

  • The HMA, enacted on May 18, 1955, overrides all previous rules of marriage under Hindu Law.
  • Section 4 of the Act nullifies any text, rule, interpretation, custom, or usage of Hindu Law that conflicts with the Act.
  • It has an extra-territorial application, meaning it applies to Hindus domiciled in India even if they reside outside India.
  • Section 1(2) extends the Act to the entire country and includes Hindus domiciled in territories where the Act applies, even if they are outside those territories. Jammu and Kashmir Reorganization Act, 2019 – Impact on The Hindu Marriage Act:
  • The Act, effective from October 31, 2019, reorganized Jammu and Kashmir into Union Territories of Ladakh and Jammu and Kashmir.
  • Section 95(1) of the Act makes Central laws in Table-1 of the Fifth Schedule applicable to the Union Territories.
  • The Fifth Schedule, Table 1, S.No. 35 specifically mentions The Hindu Marriage Act, removing the exclusion of Jammu and Kashmir from its application. Definition of a Hindu under the Hindu Marriage Act, 1955:
  • Any person who is Hindu by religion in any form, including various sects like Virashaiva, Lingayat, or followers of specific movements like Brahma, Prarthana, or Arya Samaj.
  • Persons professing Hindu, Buddhist, Jain, or Sikh religions.
  • Any child, legitimate or illegitimate, born to Hindu, Buddhist, Jain, or Sikh parents.
  • Converts to Hindu, Buddhist, Jain, or Sikh religions.
  • Persons not adhering to Christianity, Islam, Parsi, or Judaism are presumed to be governed by Hindu law unless proved otherwise, even if they live outside Indian territories. Court Cases Establishing Hindu Status:
  • Chandrashekhar v. Kulandaivelu (AIR 1963 SC 185): A person is considered Hindu, Buddhist, Jain, or Sikh if they practice, profess, or follow these religions, even if they don’t strictly adhere to all tenets.
  • Perumal v. Ponnuswami (1971): Upheld Hindu status for a child of a Hindu father and a Christian mother who practiced Hinduism post-separation. The court

emphasized that intention and conduct, rather than formal ceremonies, determine conversion to Hinduism. Determining a Child’s Religion in Mixed-Religion Families:

  • In Indian patriarchal setups, the father’s religion is typically assigned to the child.
  • However, this custom is not a legal requirement, and a child’s religion is determined by upbringing, especially if raised as a member of the Hindu mother’s tribe or community, even if the father is non-Hindu. The Hindu Marriage Act: Concept of Hindu Marriage:
  • Hindu marriage is a religious sacrament aimed at harmonizing two individuals for dharma, procreation, and sexual pleasure, recognized by livable continuity.
  • It is a permanent union and one of the 16 sacraments in Hinduism, focusing on physical, social, and spiritual needs. Types of Hindu Marriage:
  • Approved forms: Brahma (based on knowledge), Daiva (given in lieu of Dakshina), Arsha (gift of a cow or bull), Prajapatya (without economic complications).
  • Unapproved forms: Gandharva (mutual consent), Asura (bride given for wealth), Rakshasa (marriage by capture), Paischacha (forceful and without any consideration). Conditions for a Hindu Marriage (Section 5 of the Act):
  • Neither party should have a living spouse at the time of marriage (bigamy is not allowed).
  • Parties should have the mental capacity to give consent.
  • Bridegroom should be 21 years old, and the bride should be 18 years old.
  • Parties should not be within prohibited degrees of relationship or sapindas unless custom permits.
  • Marriage must be solemnized according to customary rites and ceremonies, including the Saptapadi.

Legal Interpretations and Court Cases:

  • In P. Venkataramana v. State (1977), a marriage was considered voidable, not void, leading to legal consequences under IPC Section 494 (bigamy).
  • Legitimacy of children from void and voidable marriages is protected under Section 16, ensuring their rights even if the marriage is annulled. Child Marriage and Legal Implications:
  • Child marriages, even if voidable, are punishable under Section 18 of the Hindu Marriage Act and the Prohibition of Child Marriage Act, 2006.
  • Children from void and voidable marriages have legitimate status as per Section 16 but do not gain rights to the property of individuals other than their parents. Restitution of Conjugal Rights (Section 9):
  • Marriage grants the right to the society of each other, including marital intercourse and companionship.
  • Section 9 allows for the restitution of conjugal rights, which is a positive relief recognizing the marital relationship.
  • Essential elements for seeking relief under Section 9 include withdrawal from society without reasonable excuse, truth of statements in the petition, and no legal impediment. Decree for Restitution and Enforcement:
  • If one spouse withdraws from the society of the other without reasonable excuse, the aggrieved party can petition the District Court for restitution of conjugal rights.
  • The burden of proving a reasonable excuse lies on the withdrawing party.
  • A decree for restitution can be enforced through property attachment if willful disobedience occurs.
  • Non-compliance with the decree for one year can become grounds for divorce under Section 13(1A)(ii) of the Hindu Marriage Act. Constitutional Validity and Court Opinions:
  • T- Sareetha v. Venkata Subbaiah (1983): Andhra Pradesh High Court criticized Section 9 as violative of fundamental rights and termed it ‘uncivilized’ and ‘an engine of oppression.’
  • HarvinderKaur v. Harmander Singh (1984): Delhi High Court upheld the validity of Section 9, viewing it as a measure for reconciliation before divorce.
  • Saroj Rani v. Sudershan Kumar (1984): Supreme Court agreed with the Delhi High Court, emphasizing that Section 9 provides an opportunity for amicable settlement and is inherent in the institution of marriage. Judicial separation under the Hindu Marriage Act Nature of Judicial Separation:
  • Judicial separation is a remedy lesser than divorce where spouses are absolved from living together and performing marital duties, but the marriage remains intact.
  • It is a temporary suspension of marital ties aimed at allowing spouses to reconsider their relationship in a less emotional environment. Purpose and Incidents of Judicial Separation:
  • It does not dissolve the marriage but relieves parties from cohabitation obligations.
  • After one year of judicial separation, divorce may be granted.
  • Grounds for judicial separation are the same as those for divorce under Section 13(1) of the Hindu Marriage Act. Legal Provisions (Section 10 – Judicial Separation):
  • Either party to the marriage can file a petition for judicial separation based on grounds specified in Section 13(1) of the Act.
  • The court may rescind the decree of judicial separation upon application by either party if it deems it just and reasonable to do so. Alternate Relief in Divorce Proceedings (Section 13A):
  • In divorce proceedings, the court may grant judicial separation instead of divorce based on certain grounds specified in Section 13(1).
  • This provision allows for judicial separation even when the case is initially filed for divorce. Grounds for Judicial Separation (Section 13 – Divorce Grounds):
  • Adultery, cruelty, desertion, unsound mind, communicable diseases, and additional grounds for wife based on bigamy, sexual offenses, maintenance decrees, and underage marriage repudiation. Considerations for Granting Judicial Separation:
  • Courts may grant judicial separation instead of divorce to preserve the legal tie and allow for potential reconciliation, considering the impact of divorce on parties, children, families, and society.

Adoption under Hindu Law Definition of Adoption:

  • Adoption is the transplantation of a person from one family to another, giving new kinship ties.
  • Modern adoption can be for humanitarian reasons or for natural desires like affection, caretaking, or inheritance. Hindu Adoptions and Maintenance Act, 1956:
  • Clarified adoption laws, allowing adoption of both boys and girls.
  • The Act is prospective and does not govern pre-Act adoptions. Important Provisions under HAMA, 1956:
  1. Section 5: Regulates adoptions after the Act’s commencement and declares void adoptions made in contravention.
  2. Section 6: Outlines the requisites for a valid adoption, including the capacity and compliance conditions.
  3. Section 7: Defines the capacity of a male Hindu to adopt, subject to certain conditions and consent.
  4. Section 8: Defines the capacity of a female Hindu to adopt, with conditions and consent requirements.
  5. Section 9: Specifies who can give a child in adoption, including parents or guardians, with conditions and permissions.
  6. Section 10: Lists conditions for a person to be eligible for adoption, such as being unmarried and under a certain age.
  7. Section 11: Sets additional conditions for a valid adoption, including restrictions based on existing children in the family.
  8. Section 12: Explains the legal effects of adoption, including rights, obligations, and property matters.
  9. Section 13: Affirms the right of adoptive parents to dispose of their properties despite adoption.
  10. Section 14: Determines the adoptive mother in various adoption scenarios based on marriage and seniority.
  11. Section 15: Prohibits the cancellation of a valid adoption once made.
  12. Section 16: Presumes compliance with adoption provisions for registered documents unless disproved.
  13. Section 17: Prohibits certain payments or rewards in consideration of adoption and prescribes penalties for contravention.

Case Laws:

  1. Basavarajappa v. Gurubasamma, (2005) 12 SCC 290: Adopted child has same rights as a natural-born child in the adoptive family.
  2. Sawan Ram v. Kalawati, AIR 1967 SC 1961: Adopted child belongs to the adoptive family for succession purposes. Maintenance under Hindu Law
  3. Types of Maintenance and Legal Provisions:
  • Temporary Maintenance: Section 24 of the Hindu Marriage Act, 1955 (HMA) and Section 125(1) of CrPC.
  • Permanent Maintenance: Section 25 of HMA.
  • Definition of Maintenance: Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 (HAM Act).
  1. Maintenance of Wife:
  • Entitlement and Conditions: Section 18 of HAM Act.
  • Case Law: Neelam Malhotra v. Rajinder Malhotra (1994) – Explains the scope of maintenance even during legal proceedings.
  1. Maintenance of Other Relatives:
  • Widowed Daughter-in-law: Section 19 of HAM Act.
  • Children and Aged Parents: Section 20 of HAM Act.
  • Dependents’ Definition: Section 21 of HAM Act.
  1. Obligations and Liability:
  • Heirs’ Liability for Dependents: Section 22 of HAM Act.
  • Case Law: Raj Kishore Mishra v. Smt. Meena Mishra – Clarifies the obligations of a father-in-law towards a widowed daughter-in-law.
  1. Legal Implications and Considerations:
  • Conditions for Maintenance Eligibility: Unchastity, Conversion, etc.
  • Modification or Rescission of Maintenance Orders: Section 25 of HMA.
  • Legal Prohibitions and Penalties: Section 17 of HAM Act. Guardianship under Hindu Law The Hindu Minority and Guardianship Act, 1956 outlines guardianship duties for minors, considering natural, testamentary, and court-appointed guardians. This law works alongside the secular Guardianship and Wards Act, 1890, harmonizing legal protection for children under diverse circumstances.
  1. Definitions:

Joint Hindu Family

  1. Definition and Composition:
    • A joint Hindu family includes common male ancestors, their wives, lineal male descendants, widows, unmarried daughters, and daughters of male descendants up to the 7th generation.
    • Chotelal v. Jhandelal (1972) established that a joint Hindu family lacks a separate legal entity and cannot be created by individual actions or agreements.
  2. Creation and Presumption:
    • A joint Hindu family is presumed unless proven otherwise (Adiveppa v. Bhimappa, 2017).
    • It requires at least two Hindu members for its existence.
  3. Coparcenary:
    • Originally spiritual, coparcenary includes males with ancestral property rights till the 4th generation (Guru Narain Das v. GurTahal Das, 1952).
    • Mitakshara coparcenary is based on birthright and ends by partition or the death of the last coparcener.
  4. Changes Post-2005 Amendment:
    • Daughters of coparceners become coparceners by birth with equal rights and liabilities (Hindu Succession Act, 2005).
    • Survivorship doctrine abolished; succession follows intestacy or testamentary rules.
  5. Karta:
    • The senior-most male manages joint family affairs as the Karta (Kiran Devi v. Bihar State Sunni Wakf Board, 2021).
    • Females can now be Karta’s post-2005 amendment in the absence of male coparceners.
  6. Case Laws:
    • Chotelal v. Jhandelal (1972): Established the legal status of joint Hindu families.
    • Adiveppa v. Bhimappa (2017): Presumed joint family existence unless proven otherwise.
    • Guru Narain Das v. GurTahal Das (1952): Defined coparcenary and ancestral property rights.
    • Hindu Succession Act, 2005: Introduced changes in coparcenary rights for daughters.
    • Kiran Devi v. Bihar State Sunni Wakf Board (2021): Clarified the role of a Karta in joint family affairs.

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

  1. Changes after the 2005 Amendment:
    • Daughters gained equal rights in Hindu Mitakshara Coparcenary Property.
    • They became coparceners by birth, with rights similar to sons.
    • Daughters can demand partition, dispose of their share, and inherit equally.
  2. Confusion over Applicability:
    • In Prakash v. Phulavati (2016) , it was ruled that daughters of living coparceners as of 09/09/2005 have rights, but those whose fathers passed away before that date might not.
    • Danamma v. Amar (2018) clarified that if a male coparcener initiated a partition suit before 09/09/2005, daughters are entitled to a share even if their fathers passed away earlier.
  3. Recent Interpretation:
    • Vineeta Sharma v. Rakesh Sharma (2020) upheld daughters’ equal rights in parental property, regardless of when they were born or their fathers’ death date.
  4. Major Amendments:
    • Amendment Act 2005 included daughters in coparcenary property rights.
    • Section 3, disentitling female heirs from seeking partition in certain cases, was omitted. Intestate succession Intestate succession in Hindu law involves property distribution without a will. It follows a hierarchy of heirs outlined in the Hindu Succession Act, granting equal rights to daughters as well. Proper documentation and legal procedures are crucial for fair and smooth asset distribution among heirs.
  5. Intestate Succession of Hindu Male (Sec 8-13)
    • Section 8 outlines the general rules for the succession of property in the case of a male Hindu dying intestate. It specifies the order in which heirs inherit the property, starting with Class I heirs and proceeding to agnates and cognates if there are no Class I or Class II heirs.
    • Case Law: Pratap Narayan Singh Deo v. Srinivas Sabata , 1976 – This case is significant as it deals with the application and interpretation of the rules of succession among male heirs under the Hindu Succession Act, particularly regarding the rights of agnates and cognates.

Hindu Succession Act, particularly concerning the inheritance rights of widows and other female relatives. Some general provisions relating to succession:

  1. Preference for Full Blood (Sec 18)
    • Full-blooded heirs preferred over half-blooded heirs in equal relationships.
  2. Mode of Succession for Multiple Heirs (Sec 19)
    • Heirs inherit equally per capita and as tenants-in-common.
  3. Rights of Child in Womb (Sec 20)
    • Child in the womb at death inherits as if born before death.
  4. Presumption in Simultaneous Deaths (Sec 21)
    • Presumption that the younger person survived in cases of simultaneous deaths.
  5. Disqualification for Murderers (Sec 25)
    • Murderers or accomplices disqualified from inheriting.
  6. Descendants of Converts (Sec 26)
    • Descendants born after conversion are disqualified unless Hindu at succession.
  7. Effect of Disqualification (Sec 27)
    • Disqualified heirs treated as if deceased for succession.
  8. No Disqualification for Health (Sec 28)
    • No disqualification based on health, deformity, or other grounds.
  9. Escheat in Case of No Heirs (Sec 29)
    • Property goes to the government if no qualified heirs are present.