the-hindu-family-law.pdf

Ppt on the Hindu family law
Family Law
Saveetha Institute of Medical and Technical Sciences
49 pag.
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MODULE 1
L.PRAGADI
132002097

INTRO TO HINDU LAW
Who is a Hindu?
• Practices Hindu religion
• Any child, born out of a wedlock or not, is a Hindu if both the
parents are a Hindu.
• Converts
• Reconverts
• Common orgin/ of shoots of Hinduism
• Buddists
• Sikhs
• Jains

YAGNAPURUSDASJI Vs MULDAS
(Who is a hindu)
• HELD:
SC accepted the formulae from Thilak about who is a hindu
A person if he accepts
• The facts in the Vedas
• Worship of different gods

SASTRI Vs MULDAS (Who is a hindu)
• HELD:
SC approved that various subsets of the Hindu religion is also
Hindu
ARYA SAMAJ
BHUDISSM
JAINS
SIKHS
HINDU LAW IS APPLICABLE.

ORGIN OF HINDUISM
• DIVINE THEORY
Orgin from a divine source
Nobody knows where it originated
People believe that coined by the god
• WESTERN OR EUROPEAN THEORY
Immemorial customs and usage
Before Brahmanism

CHARACTERISTIC OF HINDU LAW
•Based on DHARMA
•Moral value made into laws
•Very old religion
•Hinduism from the god itself
•Law of smritis
•Not lex loci – territorial laws
•Particular religion
•Personal law

SOURCES OF HINDU LAW
• ANCIENT
SMRITIS
SRUTIS
CUSTOMS
COMMENTRIES/ DIGESTRIES
• MODERN
Precedents- Doctrine of stare decisis- Article 141
Legislations/ statutes
Codifications of hindu law
Justice, equity, and good conscience from England.

SHRUTI
• To hear
• Believed as the words of gods heard by the sages from the almighty
• Important sources of Hindu law
• Vedas- Samhitas, the Upanishads, the Brahmanas and the Aranyakas
RIG
YAJUR
SAMA
ATHARVA
• More authoritative in hindu law

VARNAS
•BASED ON THE TYPE OF WORK
•Brahmana
•Vaishnava
•Kshatriya
•Shutras

ASHRAMS
•Bhramachariya
•Gharastha
•Vanaprastha
•Sanyasa
Vedic period- 1500 – c. 500 BCE

SMRITS
• To remember
• Virtue of memory of the sages
• Written texts
• 2 types
DHARMASASTRAS – prose and maxims
DHARMASUTRAS – slogas
• Notable writers
Manu
Vishwa

RULES IN SMRITI
• ACHAR
Conduct and morality
• DYAVAHAR
Substantive law that the king should follow
• PRAYASCHITTA
Penal provisions for the wrong and with the punishment
• MANUSMRITI
Manu is the author hypothetically
Early and important code of conduct in INDIA, JAVA, AND BALI

DIGEST AND COMMENTRIES
•7th century
•After smritis so many contradictions
•To resolve digests and commentaries were used
•Explains and resolves contradictions
•Evolved during the development of the 2 schools
mitakshara and dayabaga

CUSTOMS
S
• A custom must be in existence from time immemorial
• A custom must be practiced without interruption;
continuity is an essential feature of the custom.
• custom must have been enjoyed peacefully by the
concerned people.
• Custom must be certain. NO VAGUENESS
• The customs must be in consistency with other custom.
• Custom should not be against the statute law, or the
moral.
• Reasonable one
BURDEN OF PROOF LIES ON THE PERSON, WHO

TYPES OF CUSTOMS
• LOCAL CUSTOM
Custom that is limited only to a particular area, geographical area
• FAMILY CUSTOM
Easily abandoned
Restricted to a particular family
• GUIDE CUSTOMS
By the traders
• CASTE AND COMMUNITY CUSTOMS
In a particular caste

CODIFICATIONS OF HINDU LAW
• Hindu law: Hindu Marriage Act
(1955),
•Hindu Succession Act (1956),
• Hindu Minority and Guardianship Act
(1956), and
•Hindu Adoptions and Maintenance
Act (1956).

MITHAKSHARA
• (Measured words)
• Orthodox version
• Commentary on smriti and YAJNAVALKHYA SMRITI
• Written by VIGNESHWARA
• Followed by the whole India except Bengal
• NO CONTRADICTORY OPINIONS OF BOTH THE SCHOOLS
• SUB SCHOOLS
BANARAS
MITHILA
DRAVIDA
MAHARASTHRA

DRAVIDA SCHOOL- Whole southern
part of India
• PAVASARA MADHAVIYA
By Madhavachariya
Commentary on the Pavasara smriti
Based on the governing of Vijayanagara Empire
SMRITI CHANDRIKA
By Devanna Bhaktta
Subject of inheritance
During the Vijayanagara empire
Nibandha or digest of law

• SARASWATI VILASA
Work of the ruler Prata Prudhradeva
Gajapati dynasty
Orissa
• VYAVAHARA NIRMAYA
By Varadharaja
17th
century

MAHARASHTHRA SCHOOL –
wherever Gujarati and Marati is
spoken
• VYAVAHARA MAYUKHA
Mayukha means ray
Bagawanta Bhaskara
Secular law
Encylopedia for civil and religious law
• NIRNAYA SINDHU
Kamalakara
Composed in 1612

BENERAS SCHOOL – NORTHERN
PART OF ORISSA
• VIRAMITRODAYA
Mithramisra
1610-1640
Patronage of the king Virsimha deva
• NIRNAYA SINDHU
Both the western india

MITHILA – NORTH SIDE OF BIHAR
• VIVADHA CHINTAMANI
Nibandha work
By Vachaspathi Mishra
Patronage of King Bhairavavendra of Mithila
17th century
• VIVADHA RATNAKARA
Nimandha work
Chandreshwara
14th century
• MADANA PARIJATA
Patronage under the king of madanapala

DAYABAGHA SCHOOL
• Followed only in ASSAM AND BENGAL
• Reformed verion of Mitakshara
• Written by Jimuthavahana
• No sub schools

DIFFEENCE BETWEEN MITHAKSHARA
AND DAYABAGA
• JOINT FAMILY
MITHASHARA
1. SON, GRANDSON, GREATGRANDSON
BY BIRTH CAN OBTAIN THE RIGHT
IN ANCESTRAL PROPERTIES

EFFECTS OF CONVERSION
• Certificates will change
• Which law should be applied confusion will be there
• Right of inheritance
Application of law
Succession differs
• Marital rights
• Right to guardianship
• Right to maintenance
• A ground for divorce

MODULE 2
HINDU MARRIAGE ACT, 1955

CONDITIONS FOR A VALID MARRIAGE –
SECTION 5
• Neither party should have a spouse living
• Bigamy not permitted
• No prohibited relationship
• Sapinda relationship
• valid consent
• mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children
• Bride- 18 completed , Bridegroom 21 completed
• If divorcee, there should be a valid decree of dissolution and final order,
with limitation period got over.
unless the custom or usage governing each of them permits of a marriage
between the two

PROHIBITED RELATIONSHIPS
• Daughter and father, grandfather
• Sister and blood siblings and cousins
• Father in law and widowed daughter in law
• Uncle and niece
• SAPINDA – SAME BODY

RESTITUTION OF CONJUGUAL
RIGHTS- Section 9
• If any spouse is neglected and doesn’t have the sexual relationship
with the other spouse.
• Without reasonable excuse
• they can file this petition- DISTRICT COURT
• Used to initiate divorce
• Followed in England
Privy council adopted this in India for the case Moonshee Bazloor Vs
Shamsoonrisa Begum, 1866

CONSTITUTIONAL VALIDITY OF
CONJUGUAL RIGHTS- Article 21, 14
• SAREETHA Vs VENKATA SUBBAIAH
A.P highcourt held that restitution is ultra vires to the constitution.
Right to choose their life and personal liberty.
Right to privacy
Right to freddom
Article 14, not fair as women is more vulnerable
Section 9 was struck down by Justice Chowdry

Smt.Harvindhar Kaur Vs Harmander
Singh
• Delhi highcourt
• When no proper reason is given in the court, it is a ground for divorce.
• Section 13(1)(a), if a women doesn’t go back to the matrimonial
society after the restitution, it becomes a ground for the divorce.
• So cannot be struck down
• Overruled the AP highcourt judgement

Sarjrani Vs Sudharashan Kumar
• FACTS:
Wife filed for the maintenance
Has 2 daughters
Maintenance of Rs.185 was given
Restitution of conjugal rights was also granted
After 1 year of the decree, the husband filed a divorce under section
13(1)(a)

Sarojrani Vs Sudharashan Kumar
• Questions
1. Can he file for the divorce?
2. Section 23 says that the party cannot take the advantage of his
wrong.
DHARMENDRA Vs USHARANI,
Court held that not living together after the restitution of conjugual
rights isn’t a grave mistake.
SECTION 23 CAN BE STRUCK DOWN.

BURDEN OF PROOF- RESTITUTION
OF CONJUGUAL RIGHTS
• RIBARANI Vs ASHAD
Burden of proof falls on the person, who wants the spouse, the
wedlock and the marital society.
The petitioner
AFTER THE AMMENDMENT, 1976
Burden of proof falls on the withdrawn person
To explain the cause for their separation

AGREEMENT BEFORE THE MARRIAGE –
HINDU
• No agreement before the marriage about the wedlock, or for being is separate is
accepted
• Vairu pothuraju Vs Radha
Facts:
Wife and husband entered into an agreement
That he will live with the wife’s parental home
But after 1 year, the husband goes to the village, and asks for the restitution of
conjugal rights.
HELD:
The decree for the restitution is granted and that agreement before the marriage was
unenforceable.

DEFENCE OR EXCEPTION FOR THE
RESTITUTION OF CONJUGUAL
RIGHTS
• LACHMAN UUTAMCHAND KRIPALINI Vs MEENA
Facts:
Husband deserted the wife
Wife asks for maintenance, under Section 80 of HINDU ADOPTION AND
MAINTENANCE ACT, 1956
Husband asks for conjugal rights
Desertion can be used as the defense against those rights
Doing against the will of the husband cannot be a ground for this petition.

JUDICIAL SEPERATION – SECTION 10
• Not the end of a marriage
• Judiciary gives time and space to the parties so that they can resolve
the disputes
• Time for analysis
• NO CO-HABITATION
• NO RESTITUTION OF CONJUGAL RIGHTS
• FILED ONLY IN THE DISTRICT COURT.

CONDITIONS FOR JUDICIAL
SEPERATION
•Only those couples, whose marriage have
been properly solemnized
•Respondent should be in the jurisdiction of
the petitioner’s jurisdiction.
•Co habitation should be there before the
petition.

GROUNDS FOR JUDICIAL
SEPEARATION
• 13(1)(a)- ADULTERY
• 13(1)(ia)- CRUELTY
• 13(1)(ib)- DESERTION
• 13(1)(ii)- CONVERSION
• 13(1)(iii)- Unsound mind
• 13(1)(iv)- Leprosy
• 13(1)(v)- venereal disease
• 13(1)(vi)- Renounced the world
• 13(1)(vii)- Civil or presumed death

DIVORCE – SECTION 13
• A way of petition, decree of dissolution is given to end the marriage and the
wedlock.
• SECTION 13(A)
 Alternate relief in divorce proceeding
 Judicial separation
 Restitution of conjugal rights
• Section 13(B)
Divorce by mutual consent
 1 year of marriage
 6-18 months, time is given to withdraw the petition
 18 months, divorce is granted

Divorce on the ground of
irretrievable breakdown of marriage
 Section 13(c)(i)
 Divorce on the ground of irretrievable breakdown of marriage
 No hope for cohabitation
 Breakdown which cannot be resolved
 3 years before the petition the couple should have lived together –
SECTION 13(C)(ii)
 If the court isn’t satisfied, then no decree is given, other proofs and
evidences should be submitted. SECTION 13(C)(iii)
 SECTION (C)(iv) There should be a continuous breakdown of marriage

SECTION 13(D)- RIGHT TO OPPOSE
THE DIVORCE PETITION ON RIGHT
OG HARDSHIP
•WIFE CAN OPPOSE DIVOCE
•IF SHE FACES ANY HARDSHIP BECAUSE
OF IRRETRIVABLE BREAKDOWN OF
MARRIAGE MENTIONED IN SECTION
13(C).
•GRAVE FINANCIAL HARDSHIP

SECTION 13(E) – Restriction of
decree for divorce affecting the
children
• Mainteanace for children born outta the wedlock
• Minor
• Unmarried
• Widowed daughter
• Mentally unstable

GROUNDS FOR DIVORCE
• 13(1)(a)- ADULTERY
• 13(1)(ia)- CRUELTY- mental and physical pain
• 13(1)(ib)- DESERTION – 7 years
• 13(1)(ii)- CONVERSION
• 13(1)(iii)- Unsound mind
• 13(1)(iv)- Leprosy – omitted by amendment 2019
• 13(1)(v)- venereal disease
• 13(1)(vi)- Renounced the world
• 13(1)(vii)- Civil or presumed death- 7 years

ADDITIONAL GROUNDS FOR
DIVORCE
• Bigamy sec 13(2)(i)
Husband married when already a marriage has existed
Both wives can file divorce and judicial separation at the same time
• 13(2)(ii) guilty of rape, bestiality, and sodomy
• Reputation of marriage
Wife married before the age of 15 if customs permit.

VOID MARRIAGE- SECTION 11-
decree of nullity
• VOID AB INITIO
• NO RIGHT TO MAINTEANACE
• Conditions of marriage is not fulfilled
• Sections 5(i), 5(iv), and 5(v)
• No spouse living
• Sapinda relationship
• Prohibited relationship
• Property and children are legitimate and only children can claim for the
property

VOIDABLE MARRIAGE – SECTION 12
• A valid marriage until it is set aside by a decree of nullity
• Not void ab initio
• Right to maintenance
CONDITIONS:
Consent by fraud
Petitioner made pregnant by other man and vice versa
Idiocy, lunacy, impotency at the time of marriage

Pious obligation cases
• Anthony swamy Vs M.R Chinnasawamy gounder
Doctrine of pious obligation is not only religious, but it is the root of
legal heir law.
• BRIJ VS MANGAL PRASAD
Even father is alive, pious obligation is accepted
In old days- only debt
Modern law – even interest

DOCTRINE OF PIOUS OBLIGATION
• Pious means GODLYM AND RELIGIOUS
• Any loan or debt, who couldn’t repay and the father died
• Then in hindu religion, there is a belief that the father will born as a
slave
• WHO SHOULD HAVE THE DUTY TO PAY
Son
Grandson
Great grandson

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