Family Law II Notes PDF

**Family Law II** **1. Marriage, Maintenance and related provisions among Hindus.** 1\. Conditions of a valid Hindu Marriage Under the Hindu Marriage Act, 1955, the following conditions must be met for a marriage to be considered valid: 1. **Monogamy (Section 5(i)):** Both parties must be unmar...

**Family Law II** **1. Marriage, Maintenance and related provisions among Hindus.** 1\. Conditions of a valid Hindu Marriage Under the Hindu Marriage Act, 1955, the following conditions must be met for a marriage to be considered valid: 1. **Monogamy (Section 5(i)):** Both parties must be unmarried at the time of marriage. Neither party should have a living spouse. 2. **Mental Capacity (Section 5(ii)):** Both parties must be of sound mind and capable of giving valid consent. They should not be suffering from a mental disorder that renders them unfit for marriage and procreation. 3. **Age Requirement (Section 5(iii)):** The groom must be at least 21 years old, and the bride must be at least 18 years old at the time of marriage. 4. **Prohibited Relationship (Section 5(iv)):** The parties should not be within the degrees of prohibited relationship, which means they should not be close blood relatives unless custom or usage permits such a marriage. 5. **Sapinda Relationship (Section 5(v)):** The parties should not be sapindas of each other unless custom or usage permits such a marriage. Sapinda relationships generally include those within five generations on the father\'s side and three generations on the mother\'s side. 1.1. Ceremonies and registration **Ceremonies (Section 7):** 1. **Ceremonial Requirements:** - A Hindu marriage must be solemnized in accordance with the customary rites and ceremonies of either party. - Common ceremonies include Saptapadi (the taking of seven steps together), which is considered the most important ritual in a Hindu marriage. 2. **Saptapadi:** - During the ceremony, the bride and groom take seven steps together, signifying their mutual commitment to each other. This is essential for the marriage to be recognized as valid under the Act. **Registration (Section 8):** 1. **Optional Registration:** - Registration of a Hindu marriage is not mandatory but is highly recommended for legal evidence of marriage. - Couples can choose to register their marriage under the Hindu Marriage Act, which can provide legal recognition and ease in matters such as property rights and inheritance. 2. **Procedure:** - To register a marriage, the parties must submit a notice of marriage to the Marriage Registrar of the district where the marriage was solemnized or where the parties reside. - The notice should be submitted within 30 days of the marriage. 3. **Documents Required:** - Proof of marriage (such as a marriage certificate or affidavits from witnesses) - Proof of age and identity of the parties - Proof of address 4. **Marriage Certificate:** - Once the marriage is registered, a marriage certificate is issued, which serves as legal proof of marriage. 2\. Void and Voidable Marriage **Void Marriages:** - **Definition:** A marriage that is considered invalid from the outset and has no legal effect. - **Grounds for Void Marriage:** 1. **Bigamy (Section 5(i)):** If either party has a living spouse at the time of the marriage. 2. **Prohibited Relationship (Section 5(iv)):** If the parties are within the degrees of prohibited relationship and no custom permits such a marriage. 3. **Sapinda Relationship (Section 5(v)):** If the parties are sapindas of each other, unless custom permits such a marriage. 4. **Non-Compliance with Ceremonies (Section 7):** If the marriage was not solemnized according to customary rites and ceremonies. - **Legal Consequences:** The marriage is null and void, and parties are free to remarry. The marriage has no legal status, and no rights or obligations arise from it. **Voidable Marriages:** - **Definition:** A marriage that is valid until annulled by a court. The validity of the marriage can be challenged by an aggrieved party. - **Grounds for Voidable Marriage:** 1. **Lack of Consent (Section 12):** If the marriage was conducted without the consent of one of the parties due to coercion, fraud, or misrepresentation. 2. **Impotency (Section 12):** If one party is incapable of consummating the marriage due to physical or mental incapacity, and this condition continues. - **Legal Consequences:** The marriage remains valid until a court declares it null and void. The aggrieved party can seek annulment, which legally terminates the marriage. 3\. Restitution of Conjugal Rights **Definition:** Restitution of conjugal rights is a legal remedy that allows a spouse to seek a court order to compel the other spouse to resume cohabitation and fulfill marital obligations. **Provisions:** - **Section 9 of the Hindu Marriage Act:** - Allows either spouse to file a petition for restitution of conjugal rights if the other spouse has deserted them without reasonable cause. - The petitioner must prove that the spouse has withdrawn from society without reasonable justification. - The court may issue a decree directing the respondent to resume cohabitation and fulfill marital duties. **Key Points:** - **Desertion:** The concept of desertion includes withdrawal from the marital relationship without consent or justification. - **Purpose:** The remedy aims to restore the marital relationship and encourage reconciliation rather than provide compensation or punitive measures. - **Limitations:** It does not address issues of marital violence, cruelty, or irretrievable breakdown of marriage. **Consequences:** - If the court grants the decree, the respondent is legally bound to resume cohabitation. - Non-compliance with the decree may not lead to penal consequences but could influence the outcome of related proceedings, such as divorce or custody disputes. 4\. Judicial Separation **Definition:** Judicial separation is a legal process by which a court formally separates spouses without dissolving the marriage. It allows the spouses to live apart while maintaining the marriage\'s legal status. **Provisions:** - **Section 10 of the Hindu Marriage Act:** - Either spouse can file for judicial separation on specific grounds, such as: 1. **Adultery:** One spouse has committed adultery. 2. **Cruelty:** One spouse has treated the other with cruelty. 3. **Desertion:** One spouse has deserted the other for at least two years without reasonable cause. 4. **Conversion:** One spouse has converted to another religion. 5. **Mental Disorder:** One spouse has been suffering from a mental disorder that renders them unfit for marital life. **Key Points:** - **Legal Status:** The marriage remains legally valid, but the spouses are not required to live together. - **Rights and Duties:** Spouses continue to have legal rights and duties towards each other, including maintenance and financial support. - **Duration:** Judicial separation is often a precursor to divorce, but the parties may choose to reconcile and resume marital relations. **Consequences:** - **Living Apart:** The decree allows the spouses to live apart without affecting the marriage\'s legal status. - **Reconciliation:** If the parties reconcile and resume cohabitation, the decree can be set aside. - **Grounds for Divorce:** A decree of judicial separation can be converted into a ground for divorce if the separation continues for the prescribed period. 5\. Legitimacy of Children of Void and Voidable Marriage **Children of Void Marriages**: A void marriage is deemed invalid from the outset, meaning it has no legal effect. Despite this, children born from a void marriage are considered legitimate. This provision ensures that these children have the same rights to inheritance and maintenance as those born from valid marriages. Section 16 of the Act specifically affirms the legitimacy of such children, protecting their legal and financial interests. **Children of Voidable Marriages**: A voidable marriage, on the other hand, remains valid until a court annuls it. Children born from a voidable marriage are also recognized as legitimate, even if the marriage is later declared void. Section 16(1) of the Act guarantees that these children have equal rights to those born from valid marriages, regardless of the marriage's subsequent annulment. 6\. Divorce and its grounds **Divorce:** - **Definition:** Divorce is the legal dissolution of a marriage by a court order. Under the Hindu Marriage Act, 1955, divorce terminates the marriage and allows both parties to remarry. **Grounds for Divorce:** 1. **Adultery (Section 13(1)(i)):** If one spouse has committed adultery. 2. **Cruelty (Section 13(1)(ia)):** If one spouse has treated the other with cruelty, which can be physical or mental. 3. **Desertion (Section 13(1)(ib)):** If one spouse has deserted the other for at least two years without reasonable cause. 4. **Conversion (Section 13(1)(ii)):** If one spouse has converted to another religion. 5. **Mental Disorder (Section 13(1)(iii)):** If one spouse has been suffering from a mental disorder that makes them unfit for marital life. 6. **Incurable Physical Defect (Section 13(1)(iv)):** If one spouse has an incurable physical defect that prevents sexual intercourse. 7. **Failure to Maintain (Section 13(1)(v)):** If one spouse has failed to provide maintenance despite having the means to do so. 8. **Living Apart (Section 13(1A)):** If the couple has been living separately for a continuous period of not less than one year after a decree of judicial separation. 9. **No Resumption of Cohabitation (Section 13(2)):** If there has been no resumption of cohabitation following a decree of judicial separation. 7\. Alternative relief in divorce proceedings In divorce proceedings under the Hindu Marriage Act, 1955, the court may grant alternative reliefs if a full divorce is not deemed appropriate or if the petitioner is not eligible for divorce based on the primary grounds. The alternative reliefs include: 1. **Judicial Separation (Section 10):** - A decree of judicial separation can be granted if the court finds that the grounds for divorce are not fully met but recognizes that the marriage has broken down. Judicial separation allows the spouses to live apart while keeping the marriage legally intact. 2. **Restitution of Conjugal Rights (Section 9):** - If the court finds that a spouse has withdrawn from cohabitation without reasonable cause, it may grant a decree for restitution of conjugal rights. This decree requires the spouse to resume cohabitation and fulfill marital obligations. 3. **Permanent Alimony and Maintenance (Section 25):** - In addition to granting a divorce or judicial separation, the court may award permanent alimony and maintenance to the spouse who is financially dependent or in need of support. 8\. Divorce by Mutual Consent **Definition:** Divorce by mutual consent is a procedure where both spouses agree to dissolve their marriage amicably, without disputes over the grounds for divorce. **Provisions:** - **Section 13B:** This section allows for divorce by mutual consent if: 1. **Mutual Agreement:** Both spouses agree to the divorce and have been living separately for at least one year. 2. **Irretrievable Breakdown:** They must both believe that their marriage has irretrievably broken down. 3. **Joint Petition:** A joint petition is filed in the court by both spouses requesting a divorce. 4. **Court Approval:** The court may grant the divorce after a waiting period of six months from the date of the petition, provided that the spouses do not withdraw their consent during this period. 9\. Remarriage **Definition:** Remarriage refers to the act of marrying again after a previous marriage has been legally dissolved or declared void. **Provisions:** - **Legality:** Under the Hindu Marriage Act, individuals are free to remarry once their previous marriage has been legally terminated through divorce or annulment, or if the marriage was declared void. - **Conditions for Remarriage:** 1. **Divorce:** If a marriage is dissolved by divorce, either party may remarry after the divorce decree becomes final. 2. **Annulment:** If a marriage is annulled by a court, either party can remarry immediately after the annulment is granted. 3. **Void Marriages:** Individuals can remarry if their previous marriage was declared void from the beginning. **Restrictions:** - **Bigamy:** Remarriage is prohibited if one of the parties still has a living spouse from a prior marriage. Bigamy is illegal and punishable under the Indian Penal Code. - **Legal Status:** For remarriage to be legally valid, it must comply with the conditions set forth in the Hindu Marriage Act, including adherence to age, mental capacity, and other requirements. 10\. Maintenance & Guardianship **Maintenance:** - **Provision:** Maintenance is addressed in Sections 24 and 25. - **Section 24:** Allows a spouse to seek interim maintenance during divorce or judicial separation proceedings. This provision ensures financial support for the spouse who is financially dependent during the legal process. - **Section 25:** Provides for permanent alimony and maintenance after the decree of divorce or judicial separation. The court may award a reasonable amount of maintenance to the spouse who is unable to support themselves. - **Considerations:** The court determines maintenance based on the financial needs of the dependent spouse, the ability of the other spouse to provide support, and the standard of living during the marriage. **Guardianship:** - **Provision:** The Hindu Marriage Act, 1955 does not specifically address guardianship directly but refers to child custody. - **Section 26:** Allows the court to make orders regarding the custody and maintenance of minor children during divorce or separation proceedings. The primary consideration is the welfare of the child. - **Guardians and Wards Act, 1890:** For matters related to guardianship, the Guardians and Wards Act governs the appointment of guardians and their responsibilities. - **Considerations:** The court evaluates factors such as the child's welfare, the fitness of each parent, and their ability to provide a stable environment. **2. Joint Hindu Undivided Family and Coparcenary** 1\. History of Joint Hindu Family The concept of the Joint Hindu Family, also known as the Hindu Undivided Family (HUF), has its roots in ancient Hindu law. It is a unique feature of the Hindu social system, primarily governed by the Mitakshara and Dayabhaga schools of Hindu law. 1. **Ancient Origins:** - The Joint Hindu Family system dates back to the Vedic period, where family units lived together under a common roof, sharing property, resources, and responsibilities. - The idea of joint family property, known as \"coparcenary,\" developed over time, where the property was collectively owned by the male members of the family. 2. **Mitakshara and Dayabhaga Schools:** - The **Mitakshara School**, predominant in most parts of India, views the Joint Hindu Family as a patriarchal unit where the male members are coparceners, holding equal shares in ancestral property by birth. - The **Dayabhaga School**, followed in Bengal and Assam, allows property division after the death of the father, giving more flexibility to individual ownership. 3. **British Colonial Influence:** - During the British rule, the Joint Hindu Family system was recognized and codified, influencing legal practices concerning inheritance, succession, and property rights. - The Hindu Succession Act, 1956, brought significant reforms, including giving daughters equal rights as sons in coparcenary property (further reinforced by amendments in 2005). 4. **Modern Evolution:** - Today, the concept of the Joint Hindu Family is still prevalent, especially in matters of inheritance and property management, though its traditional structure has evolved with changing societal norms and legal reforms. 2\. Relevance and Significance of Joint Hindu Family The Joint Hindu Family (HUF) remains a significant institution in Hindu society, reflecting traditional values of unity, shared responsibility, and collective ownership. Despite societal changes, its relevance continues in several key areas: 1. **Economic Significance:** - **Shared Resources:** The HUF allows for the pooling of family resources, facilitating joint management and investment, particularly in family-owned businesses and property. - **Tax Benefits:** Under Indian tax laws, an HUF is treated as a separate legal entity, providing tax advantages by allowing families to claim deductions and reduce the tax burden. 2. **Social and Cultural Importance:** - **Family Unity:** The concept fosters family unity and support, as members share not just property but also responsibilities, promoting collective well-being. - **Support System:** It acts as a social safety net, ensuring that members, especially the elderly and dependents, are cared for and supported within the family structure. 3. **Legal Relevance:** - **Inheritance and Succession:** The HUF system is crucial in matters of inheritance, where ancestral property is jointly owned by coparceners, ensuring equitable distribution among male members and, post-2005, female members as well. - **Continuity of Tradition:** It preserves the traditional Hindu way of life, where the family is seen as a single unit, maintaining the continuity of customs and rituals. 4. **Changing Dynamics:** - While urbanization and modernization have led to a decline in traditional joint family structures, the HUF still holds relevance in rural areas and among business families, where collective ownership and decision-making are valued. 2.1 Indian perspective of Joint family and Provisions related to Coparcenary The concept of the Joint Family, or Hindu Undivided Family (HUF), holds a central place in Indian society, especially among Hindus. It embodies the traditional Indian value of living together as a unit, where multiple generations share a common household, resources, and responsibilities. The head of the family, usually the eldest male, oversees the family\'s welfare, with all members contributing to the collective well-being. This system promotes unity, economic stability, and a strong support network, particularly in rural areas and among business communities. Despite modernization and the growing trend towards nuclear families, the joint family system remains relevant in many parts of India, particularly in matters related to inheritance, property management, and social support. **Provisions Related to Coparcenary** - **Coparcenary** is a narrower concept within the Joint Hindu Family, referring to a group of family members who have a legal right to ancestral property by birth. 1. **Mitakshara School:** - **Formation:** Coparcenary under the Mitakshara school includes the male members of the family---father, son, grandson, and great-grandson---who have an undivided share in the ancestral property. - **Right by Birth:** Coparceners acquire rights in the property by birth, and this right is transferable through partition. 2. **Dayabhaga School:** - **Formation:** In contrast, the Dayabhaga school, followed mainly in Bengal and Assam, allows property rights to be acquired only upon the death of the father. - **Individual Ownership:** It provides more flexibility for individual ownership and disposal of property. 3. **Hindu Succession (Amendment) Act, 2005:** - **Equal Rights for Daughters:** The amendment to the Hindu Succession Act, 1956, granted daughters the same rights as sons in coparcenary property, recognizing them as coparceners by birth. - **Partition and Ownership:** Daughters can now demand partition of the property and hold an equal share, significantly altering the traditional male-dominated coparcenary system. 3\. Rights & Liability of Karta and Coparceners, **Rights and Liabilities of Karta** **Karta** is the head of a Joint Hindu Family (HUF) and holds a unique position with specific rights and responsibilities: - **Rights:** 1. **Management of Property:** The Karta has the exclusive right to manage and control the family property, including making decisions on its use, sale, or investment. 2. **Representation:** The Karta represents the HUF in all legal, financial, and social matters, acting on behalf of the family in dealings with outsiders. 3. **Income Distribution:** The Karta decides the distribution of income generated from the family property among the members. 4. **Family Expenses:** The Karta can incur expenses for the family\'s maintenance, education, marriage, and religious ceremonies. - **Liabilities:** 5. **Duty of Care:** The Karta must act in the best interest of the family, ensuring that decisions benefit the entire family and not just personal interests. 6. **Accountability:** While the Karta is not obligated to maintain detailed accounts, they must provide an account of the property and assets if challenged by coparceners. 7. **Legal Obligations:** The Karta is liable to fulfill legal obligations, such as paying taxes and settling debts incurred on behalf of the family. **Rights and Liabilities of Coparceners** **Coparceners** are members of the Joint Hindu Family who have an undivided share in the ancestral property. After the 2005 amendment, both sons and daughters are recognized as coparceners. - **Rights:** 1. **Right by Birth:** Coparceners acquire an interest in the ancestral property by birth, and this right is equal among all male and female members. 2. **Right to Partition:** Coparceners can demand partition of the property, which allows them to receive their share and separate from the joint family. 3. **Right to Alienate:** With consent from other coparceners, a coparcener can alienate or transfer their share in the property. 4. **Right to Enjoy Property:** Coparceners have the right to use and enjoy the family property and share in the income it generates. - **Liabilities:** 5. **Shared Responsibility:** Coparceners share the responsibility for debts and obligations incurred by the HUF, particularly those undertaken by the Karta. 6. **No Individual Disposal:** A coparcener cannot dispose of or mortgage the entire property unilaterally; such actions require the consent of other coparceners. 7. **Contribution to Family Expenses:** Coparceners may be expected to contribute to the maintenance and welfare of the family, depending on their financial capacity. **3. Classification of Joint Family property** 1\. Property Acquired The Hindu Joint Family (Hindu Undivided Family or HUF) can be classified based on the nature of the property it possesses. The classification primarily distinguishes between **ancestral property** and **self-acquired property**. **1. Ancestral Property** Ancestral property, also known as coparcenary property, is the property inherited from one\'s forefathers up to four generations. It is collectively owned by the male members (and daughters, after the 2005 amendment to the Hindu Succession Act) of the HUF. - **Characteristics:** 1. **Inherited by Birth:** Each coparcener (son, daughter, grandson, great-grandson) acquires an interest in the ancestral property by birth. 2. **Undivided Share:** The property is held jointly by all coparceners, with no individual having a distinct, separate share until a partition is effected. 3. **Right to Partition:** Any coparcener can demand the partition of ancestral property, leading to the division of shares. 4. **Inalienable without Consent:** The Karta or any coparcener cannot sell, mortgage, or otherwise alienate the ancestral property without the consent of all coparceners. - **Examples:** 1. Property inherited from one\'s father, grandfather, or great-grandfather. 2. Property received as a result of partition in the family. **2. Self-Acquired Property** Self-acquired property refers to the property acquired by a member of the HUF through their own efforts, income, or any means independent of the ancestral property. - **Characteristics:** 1. **Exclusive Ownership:** The individual who acquires the property has exclusive ownership and control over it. 2. **Right to Dispose:** The owner has the full right to dispose of the property by sale, gift, or will, without requiring the consent of other family members. 3. **No Automatic Inclusion in HUF:** Self-acquired property does not automatically become part of the HUF\'s joint property. However, the owner can choose to gift or bequeath it to the HUF. 4. **Inheritance:** Upon the death of the owner, the property will be inherited according to the rules of succession under the Hindu Succession Act, 1956. - **Examples:** 1. Property purchased by an individual through their own earnings. 2. Property received as a gift or through a will that is not ancestral in nature. **3. Conversion of Self-Acquired Property to Joint Family Property** - An individual may choose to convert their self-acquired property into joint family property by making a clear and unequivocal declaration of such intention. Once converted, the property is treated as part of the joint family property and is subject to the same rules as ancestral property. 2\. Endowments **Endowments** in Hindu law refer to the dedication of property for religious, charitable, or public purposes. These endowments often involve the creation of temples, maths, or other religious institutions, with property dedicated to their maintenance and activities. **Math:** - A **Math** is a monastic institution in Hinduism, usually headed by a religious leader or monk known as a **Mahant**. Maths are often associated with specific religious orders and serve as centers for spiritual learning, worship, and charity. **Kinds of Maths:** 1. **Adi-Math:** Established by Adi Shankaracharya, these are centers for the propagation of Vedanta. 2. **Jain Maths:** Associated with the Jain community, focusing on the teachings of Jainism. 3. **Shaiva and Vaishnava Maths:** Centers associated with the Shaiva (followers of Shiva) and Vaishnava (followers of Vishnu) traditions. 4. **Monastic Maths:** Serve as training centers for monks, often not linked to temple worship. **Mahant:** - **Powers:** 1. **Administrative Authority:** The Mahant is the head of the Math and has the authority to manage its properties, conduct religious activities, and oversee its day-to-day functioning. 2. **Decision-Making:** The Mahant has the final say in decisions related to the Math, including the management of its funds and the appointment of disciples or successors. 3. **Legal Representation:** The Mahant represents the Math in legal matters and can enter into contracts or legal proceedings on its behalf. - **Obligations:** 4. **Religious Duties:** The Mahant is responsible for maintaining the religious and spiritual activities of the Math, ensuring that the traditions and practices are upheld. 5. **Property Management:** The Mahant must manage the Math\'s properties and finances prudently, ensuring that they are used for the purposes intended by the founder or donors. 6. **Welfare of Disciples:** The Mahant must look after the welfare of the disciples, ensuring their training, education, and spiritual development. **Shebait:** - **Role:** A Shebait is the manager or custodian of a Hindu temple or deity. The role is similar to that of a trustee, where the Shebait is responsible for managing the temple's property and conducting its religious activities. - **Powers and Obligations:** 1. **Care of Deity:** The Shebait is responsible for the care and worship of the deity, ensuring that daily rituals and festivals are properly conducted. 2. **Management of Assets:** The Shebait manages the temple's assets, including land, funds, and offerings, and must use them for the temple\'s upkeep and religious purposes. 3. **Legal Standing:** The Shebait represents the deity in legal matters, as the deity is considered a juristic person under Hindu law. - **Idol as a Juristic Person:** In Hindu law, an idol or deity installed in a temple is considered a juristic person, capable of holding property and entering into legal relationships through its Shebait. - **Grounds for Removal:** 1. **Damage or Desecration:** If an idol is damaged beyond repair or desecrated in a manner that it is no longer considered fit for worship, it may be removed. 2. **Change of Location:** In rare cases, an idol may be moved if the location of the temple itself is changed due to unavoidable circumstances, such as natural calamities or legal requirements. - **Process of Replacement:** 3. **Consecration of a New Idol:** When an idol is removed, it is typically replaced with a new idol through a process of consecration (Pran Pratishtha) which involves rituals to sanctify the new idol. 4. **Legal and Religious Considerations:** The replacement must adhere to both religious traditions and legal guidelines, ensuring that the new idol is properly installed and worshiped. - **Judicial Oversight:** The courts may intervene in matters of removal or replacement of idols, especially if there are disputes among trustees, devotees, or the community regarding the appropriateness of the action. **Landmark Case:** - **Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925):** The Privy Council ruled that the Shebait has the authority to remove and replace an idol if it is in the best interest of the deity and the temple, highlighting the balance between religious duty and legal responsibility. **4 Partition of Property** 1\. Partition of property **Partition of property** in Hindu law refers to the division of joint family property among coparceners, transforming their joint ownership into individual ownership. This process involves both the division of rights and the physical division of the property itself. 1.1. Meaning, division of right and division of property  **Meaning of Partition:** - Partition, under Hindu law, is the process by which joint family property is divided among the coparceners, ending the joint status and resulting in the property being held in severalty by individual members. According to the **Mitakshara school**, partition means "severance of joint status," whereas in the **Dayabhaga school**, partition involves the actual division of property.  **Division of Right:** - **Mitakshara School:** Under the Mitakshara school, each coparcener (including sons, grandsons, and great-grandsons) acquires an undivided interest in the ancestral property by birth. Partition in this context implies the division of this joint interest into specific shares, which are then allocated to each coparcener. Section 6 of the **Hindu Succession Act, 1956**, as amended in 2005, grants daughters the same rights as sons, meaning daughters are now coparceners by birth and have equal rights to demand partition. - **Dayabhaga School:** In the Dayabhaga school, no coparcener has any right to property by birth. Rights to property are acquired only upon the death of the father. Hence, partition occurs only after the father\'s death, resulting in the division of property among the heirs.  Division **of Property:** - Following the division of rights, the physical division of property occurs. This involves the allocation of specific portions of the property to each coparcener according to their share. In cases where physical division is impractical (e.g., with certain immovable properties), the property may be sold, and the proceeds divided according to each coparcener\'s share. The actual division can be done through a partition deed, which must be registered under Section 17 of the **Registration Act, 1908** to be legally valid. 1.2. Persons entitled to demand partition  Coparceners**:** - **Sons, Daughters, Grandsons, and Great-Grandsons:** Under the Mitakshara school, sons, grandsons, and great-grandsons are entitled to demand partition. After the **Hindu Succession (Amendment) Act, 2005**, daughters also became coparceners by birth and have the right to demand partition. - **Father:** According to the Mitakshara law, the father has the right to demand partition and can allocate shares to his sons while retaining his own. However, under the Dayabhaga law, since the father is the absolute owner of the property, partition cannot occur during his lifetime.  Widow **of a Deceased Coparcener:** - The widow does not have the right to demand partition in her own right, but she can demand her deceased husband's share if a partition takes place after his death. This is provided under Section 10 of the **Hindu Succession Act, 1956**. 1.3. Partition how effected; Suit for partition  Partition **How Effected:** 1. **By Mutual Agreement:** - Partition can be effected through a mutual agreement among all coparceners. This can be either oral or written. For a written partition to be legally enforceable, it should be formalized through a partition deed. The partition deed must be registered as per Section 17 of the **Registration Act, 1908**. 2. **By Partition Deed:** - A partition deed is a formal document that outlines the division of the property among the coparceners. The deed must specify the shares allocated to each coparcener and be signed by all parties involved. The deed must be registered to have legal standing. 3. **By Arbitration:** - If the coparceners cannot reach a mutual agreement, they may opt for arbitration, where a neutral third party (arbitrator) is appointed to facilitate the division of the property. The arbitration agreement and award must comply with the **Arbitration and Conciliation Act, 1996**.  Suit **for Partition:** - When coparceners cannot agree on the partition, any coparcener can file a suit for partition in a civil court. The court will determine the shares of each coparcener and issue a decree for partition. Under **Order 20, Rule 18 of the Civil Procedure Code, 1908 (CPC)**, the court may pass a preliminary decree declaring the shares of the coparceners and, if necessary, appoint a commissioner to carry out the actual division of property. 1.4. Reopening of partition; Re-union - **Reopening of Partition:** - **Grounds for Reopening:** Partition can be reopened on specific grounds such as fraud, misrepresentation, undue influence, or if the partition was inequitable. Additionally, if a coparcener who was excluded from the original partition later proves his right, he can seek reopening of the partition. - **Legal Provisions:** Section 44 of the **Indian Evidence Act, 1872** allows a party to challenge the validity of a partition decree on grounds of fraud or collusion. The court may then reopen the partition to ensure a fair division of property. - **Re-union:** - **Meaning:** Re-union refers to the re-formation of a joint family after partition, where the coparceners decide to live together again as a joint family and pool their separated properties. - **Legal Recognition:** Re-union must be documented through a written agreement that clearly expresses the intention to reunite and revert to the joint family status. The re-united family is treated as an HUF once again. - **Conditions for Re-union:** Only those coparceners who were part of the original partition can participate in re-union. The reunited family can manage the property jointly, as they did before the partition. 1.5. Points of similarity and distinction between the Mitakshara and the Dayabhaga Laws  Similarities**:** 1. **Concept of Joint Family:** Both the Mitakshara and Dayabhaga schools recognize the concept of the Hindu Joint Family, where members share joint ownership of ancestral property. 2. **Right to Partition:** Both systems acknowledge the right of coparceners to demand partition, though the timing and process differ.  Distinctions**:** 1. **Right by Birth:** - **Mitakshara School:** Under the Mitakshara law, a coparcener acquires an interest in the ancestral property by birth, giving him the right to demand partition at any time. - **Dayabhaga School:** In the Dayabhaga law, no such right is acquired by birth. Instead, the coparcener acquires an interest in the property only upon the death of the father, who is the absolute owner during his lifetime. 2. **Nature of Coparcenary:** - **Mitakshara School:** The property is held jointly by all coparceners, and each has an undivided share that can be separated through partition. - **Dayabhaga School:** There is no coparcenary in the Mitakshara sense during the father\'s lifetime. The property remains under the sole control of the father until his death. 3. **Share of Female Members:** - **Mitakshara School:** Historically, female members had limited rights to the property, with daughters receiving equal rights only after the **Hindu Succession (Amendment) Act, 2005**. This amendment granted daughters the same rights as sons, including the right to demand partition. - **Dayabhaga School:** Even before the 2005 amendment, the Dayabhaga school provided that upon the death of the father, his widow and daughters could inherit his property, reflecting a more progressive approach towards female inheritance rights. **5 Hindu Law of Succession and related provisions** 1\. General Introduction and the Application of the Hindu Succession Act, 1956 - **Introduction:** - The Hindu Succession Act, 1956, is a key piece of legislation that governs the succession and inheritance of property among Hindus. It was enacted to codify the law of succession among Hindus and to bring uniformity by consolidating various customs and practices. - The Act applies to Hindus, Buddhists, Jains, and Sikhs, as well as any person who is not a Muslim, Christian, Parsi, or Jew, unless it is proved that the person is not governed by Hindu law. - **Application:** - The Act is applicable across India, except for the state of Jammu and Kashmir (before the abrogation of Article 370). It applies to all persons who are Hindu by religion, including adherents of Buddhism, Jainism, and Sikhism. - The Act covers both intestate succession (where a person dies without making a will) and testamentary succession (where a person dies after making a valid will). 2\. Succession to the Property of a Hindu Male - **General Rules of Succession:** - When a Hindu male dies intestate (without a will), his property is inherited by his legal heirs according to the provisions of the Hindu Succession Act, 1956. - The Act classifies the heirs into different classes: **Class I, Class II, Agnates, and Cognates**. - **Class I Heirs:** - The property of a Hindu male devolves equally upon his Class I heirs. The Class I heirs include: - Mother - Widow - Sons and daughters (including the children of any pre-deceased son or daughter) - Widow of a pre-deceased son - Son and daughter of a pre-deceased son of a pre-deceased son - Widow of a pre-deceased son of a pre-deceased son - **Class II Heirs:** - If there are no Class I heirs, the property devolves upon the Class II heirs, who inherit in the following order: - - - - - **Agnates and Cognates:** - If there are no Class I or Class II heirs, the property devolves upon the deceased\'s agnates (relatives related wholly through males) and, failing that, upon cognates (relatives related but not wholly through males). - **Landmark Case:** - **Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978):** The Supreme Court held that in case of a coparcener\'s death, his interest in the coparcenary property would devolve according to the rules laid down under the Act. This case clarified the share of Class I heirs in coparcenary property. 3\. Succession to Interest in Coparcenary Property - **Coparcenary Property:** - Under the Mitakshara school of Hindu law, coparcenary property is the joint family property held by male members who acquire an interest by birth. - Before the Hindu Succession (Amendment) Act, 2005, only male coparceners had a right to demand partition or inheritance in coparcenary property. - **2005 Amendment:** - The **Hindu Succession (Amendment) Act, 2005** made daughters coparceners by birth, granting them the same rights as sons, including the right to demand partition and inherit their father\'s share in the coparcenary property. - This amendment was a landmark step towards gender equality in Hindu succession law. - **Landmark Case:** - **Prakash v. Phulavati (2016):** The Supreme Court held that the 2005 amendment to the Hindu Succession Act, which granted equal coparcenary rights to daughters, is prospective in nature and applies only if both the father and daughter were alive on the date of the amendment. 4\. Succession to the Property of a Hindu Female - **General Rules of Succession:** - The property of a Hindu female dying intestate is distributed according to the rules laid down in Section 15 of the Hindu Succession Act, 1956. The Act classifies the heirs into different categories based on their relationship to the deceased female. - **Heirs of a Hindu Female:** - The property of a Hindu female devolves in the following order: 1. **First upon her sons and daughters (including the children of any pre-deceased son or daughter) and the husband**. 2. **Secondly upon the heirs of the husband**. 3. **Thirdly upon her mother and father**. 4. **Fourthly upon the heirs of the father**. 5. **Lastly upon the heirs of the mother**. - **Stridhan:** - Stridhan is the property that a woman receives during her lifetime as a gift or inheritance, which she has absolute rights over. The Act recognizes the concept of Stridhan, and such property devolves upon her heirs as per the general rules. - **Landmark Case:** - **Om Prakash v. Radhacharan (2009):** The Supreme Court held that the property inherited by a Hindu female from her parents reverts to the source upon her death if she dies intestate without leaving any children or grandchildren. This principle ensures that the property returns to the heirs of the source from which it was inherited. 5\. General Rules and Disqualifications of Succession - **General Rules of Succession:** - **Simultaneous Death:** Under Section 21 of the Hindu Succession Act, 1956, in cases where two persons have died simultaneously and it is impossible to ascertain who died first, the younger person is presumed to have survived the elder. - **Predeceased Heir:** If an heir predeceases the intestate, the heir\'s share will devolve upon his or her legal representatives as if the heir had survived the intestate. - **Disqualifications:** - **Murder:** Under Section 25 of the Act, a person who commits the murder of the intestate or abets the commission of such murder is disqualified from inheriting the property. - **Remarriage of Widow:** Before the Hindu Widows\' Remarriage Act, 1856, a widow who remarried was disqualified from inheriting her deceased husband\'s property. However, this disqualification has been removed, and remarriage no longer affects inheritance rights. - **Landmark Case:** - **Vidhyadhari v. Sukhrana Bai (2008):** The Supreme Court held that a stepmother is not a legal heir under Hindu law, thereby reaffirming the specific classifications of heirs under the Act and disqualifying step-relations unless specified otherwise. 6\. Judicial Responses - The judiciary has played a critical role in interpreting and applying the provisions of the Hindu Succession Act, ensuring that justice is delivered in accordance with contemporary social norms. - **Equal Rights for Daughters:** - **Vineeta Sharma v. Rakesh Sharma (2020):** The Supreme Court ruled that daughters have coparcenary rights in the joint Hindu family property by birth, even if the father was deceased before the 2005 amendment. This judgment reinforced gender equality and settled the confusion over the applicability of the 2005 amendment. - **Disqualification due to Murder:** - **Gulshan Kumar v. Kanti Lal (1998):** The Supreme Court upheld that a person who murders the intestate cannot inherit the property, emphasizing the application of Section 25 of the Act to prevent unjust enrichment through criminal acts. - **Recognition of De Facto Guardians:** - **G. Ramaswamy v. Bhagirati Ammal (1987):** The Supreme Court recognized the role of de facto guardians in managing the property of minors, balancing the need for legal guardianship with the reality of family dynamics in succession cases. 7\. Escheat - **Meaning of Escheat:** - Escheat refers to the reversion of property to the state when a person dies intestate and without any legal heirs. Under Section 29 of the Hindu Succession Act, 1956, if there are no heirs qualified to inherit the property, it will escheat to the government. - **Legal Provisions:** - The state, as the ultimate heir, takes over the property when no legal heir exists. The government can dispose of the property as it deems fit, often using it for public purposes. - **Landmark Case:** - **Karnataka Board of Wakf v. Government of India (2004):** The Supreme Court held that when property escheats to the state, the government takes it in its sovereign capacity, and the principles of inheritance do not apply. The court emphasized the state's duty to take over such properties and use them for public welfare. **6. Recent Developments & Legislations** 1\. Recent development with regards to property of Hindus and other related provisions. - **Hindu Succession (Amendment) Act, 2005:** - **Background:** The Hindu Succession (Amendment) Act, 2005, marked a significant reform in Hindu inheritance law by granting daughters equal rights in coparcenary property, making them coparceners by birth. - **Provisions:** - **Equal Rights:** Daughters have the same rights and liabilities as sons in the ancestral property. This includes the right to demand partition and inherit their father's share. - **Applicability:** The amendment applies to both living daughters and daughters who were born before the enactment of the law, provided the father was alive on the date of the amendment. - **Landmark Case:** - **Prakash v. Phulavati (2016):** The Supreme Court clarified that the 2005 amendment is prospective. Thus, a daughter has a right to coparcenary property only if the father was alive on the date of the amendment. The case reaffirmed the position that the amendment does not apply retrospectively to cases where the father died before the amendment. - **Hindu Succession (Amendment) Act, 2020:** - **Background:** This Act further extended reforms to ensure more equitable distribution of property and address issues related to property rights among Hindus. - **Provisions:** - **Right to Inherit Agricultural Land:** The Act ensures that daughters have the right to inherit agricultural land, addressing the previous ambiguity regarding the nature of property. - **Equal Share for All Heirs:** It mandates that all legal heirs, including widows, daughters, and other relatives, receive an equal share of the deceased's property. - **Landmark Case:** - **Vineeta Sharma v. Rakesh Sharma (2020):** The Supreme Court held that the 2005 amendment grants daughters coparcenary rights in ancestral property regardless of when the father died, provided the amendment was enacted when the father was still alive. This judgment addressed the retrospective application issue and reinforced gender equality. - **Judicial Responses:** - **Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978):** The Supreme Court underscored the principle that a coparcener's share in joint family property devolves according to the Act's provisions, reinforcing the legal framework of inheritance and succession. 2\. Provisions related of Special Marriage Act  Special **Marriage Act, 1954:** - **Background:** The Special Marriage Act, 1954, provides for civil marriage between individuals of different religions or those who prefer a secular marriage. It aims to offer an alternative to religious marriage laws and is applicable to all Indian citizens.  Provisions **Related to Succession:** - **Section 16 - Succession:** - **Applicability:** The Act specifies that if a person marries under the Special Marriage Act, their property will be governed by the personal laws applicable to them. This means the succession of property will follow the personal laws of the individual, which may differ based on their religion. - **Inheritance Rights:** The inheritance rights of spouses and children from such marriages are determined by the laws applicable to them as per the Special Marriage Act. This provision ensures that personal laws, including those relating to succession, apply to individuals married under this Act. - **Landmark Case:** - **Smt. Rukhmabai v. Laxminarayan (1887):** Although not directly under the Special Marriage Act, this case is relevant as it deals with issues of succession and marital rights under Indian law. It established important precedents regarding the rights of women in marriage and inheritance, which have influenced reforms in various laws, including the Special Marriage Act.  Recent **Amendments:** - **Family Laws Amendment Bills:** Several bills and amendments have been proposed and discussed to bring more uniformity and equality in family laws, including the provisions related to succession under the Special Marriage Act. These proposals aim to address contemporary issues and ensure equitable treatment of spouses in all types of marriages.  Judicial **Responses:** - **K. K. Verma v. Union of India (1971):** The Supreme Court held that marriages under the Special Marriage Act do not change the personal laws of the parties, including succession laws. The ruling reinforced that personal laws continue to govern the property and inheritance rights of individuals, even if married under the Special Marriage Act.