Family Law Questions & Answers Feb 2023
Family Law Questions & Answers Feb 2023
Family Law Questions & Answers Feb 2023
1
Q3) What Different types of family based on lineage/ancestry?
On the basis of ancestry, the family is classified into-
Patrilineal family:
➢ The ancestry continues through the father. In this type of family, the
father in the main source of authority.
➢ All rights and privileges are decided on the basis of one's relationship
with the father. The important rights, like the right of inheritance, is
decided in the lineage of the father.
➢ This is the common type of family prevalent today.
Matrilineal family:
➢ This is just the reverse of patrilineal family. The mother is the basis
of the ancestry. A woman is believed to be the ancestor of the family.
➢ In this type of family, the mother is the main source of authority. All
rights and privileges of a member depend on his relationship with the
mother.
➢ The important rights, like the right of inheritance is decided in the
lineage of the mother.
2
Matriarchal family:
➢ This type of family is just opposite of patriarchal family. In this family
power or authority rests on the eldest female member of the family
especially the wife or mother.
➢ She enjoy absolute power or authority over other members of the
family. She owns all the family property. In this family descent is
known through the mother. Headship is transferred from mother to
the eldest daughter. Husband remain subordinate to his wife in a
matriarchal.
Q5) Briefly explain the evolution of the institution of marriage and discuss
the conditions of a valid Hindu marriage under the Hindu marriage Act,
1955. How does non-compliance with those conditions affect the validity
of marriage?
➢ In primitive times, there was neither family nor marriage existed.
There was no regulation in sex life. The sex life was free. Many males
would stay together with many unascertained number of females; or
many females would stay with many unascertained number of males.
➢ The question of paternity of the children born to them would remain
unsolved. The care of the wives and children would be taken by all the
males collectively together. There was only promiscuous/unrestricted
relationship between men and women.
➢ Over the years, human gradually became social being. He realized the
importance of certain needs like procreation, sexual urge, economic
needs, the other needs to have permanent partner in life, to share
life's joys and sorrows, to get love and affection, sense of belonginess
etc. All this has lead to evolution of institution of family and concept
of marriage.
The conditions of a valid Hindu marriage under the Hindu marriage Act,
1955.
3
➢ The Hindu marriage Act 1955 has provided five conditions as pre-
requisites for valid Hindu marriage, under section 5 of Act.
a) Spouse living at time of the marriage: neither of the parties to
marriage should have any spouse living at the time of marriage.
b) At time of marriage, neither party to marriage should be incapable of
giving a valid consent for the marriage.
c) At the time of marriage, though capable of giving a valid consent, is
suffering from any mental disorder of any such type or to such extent,
that is unfit for marriage or procreating children.
d) At the time of marriage, has been subject to recurring attacks of
insanity.
e) Age of the bridegroom and bride must be 21 and 18 years of age,
respectively.
f) The parties must not be within the degrees of the prohibited
relationship. Exception to this is only provided if the custom or usage
governing them, allows such a marriage.
g) The parties must not be sapindas of each other. Exception to this is
provided by the permission of customs or usages governing the par.
4
immature children which constitute a unit apart from the rest of the
community.
5
State Regulations on Polygamy:
➢ Hindu Marriage Act, 1955 abolished polygamy. Hindu marriage act,
1955 is applicable with retrospective and has overriding effect on all
the earlier customs and practices.
➢ As per section 5 of Hindu Marriage Act, the marriage may be
solemnized between any two Hindus, if neither party has a spouse living
at the time of the marriage. (This indicates that the act prohibits
bigamy/polygamy).
➢ Apart from Hindu Marriage Act 1955, Prohibition of Polygamy/Bigamy
are also covered in Special Marriage Act 1872; Bombay Prevention of
Bigamy Act- 1948; Madras prevention of Bigamy Act 1949.
6
which is earned by father with his own money, they're eligible for
share in that property. They also have a right to succeed to their
mother’s property.
➢ The children are eligible for maintenance till the age of 18.
7
Q11) Write a note on Sati?
➢ As per The Commission Of Sati (Prevention) Act 1987, "sati" means
the act of burning or burying alive of (i) any widow along with the body
of her deceased husband or any other relative or with any article,
object or thing associated with the husband or such relative; or (ii) any
woman along with the body of any of her relatives, irrespective of
whether such burning or burying is claimed to be voluntary on the part
of the widow or the woman or otherwise;
➢ As per Section 3 of the act, whoever attempts to commit sati and does
any act towards such commission shall be punishable with imprisonment
for a term which may extend six months or with fine or with both.
➢ Provided that the Special Court trying an offence under this section
shall, before convicting any person, take into consideration the
circumstances leading to the commission of the offence, the act
committed, the state or mind of the person charged of the offence at
the time of the commission of the act and all other relevant factors.
➢ As per Section 4 of the act, if any person commits sati, whoever abets
the commission of sati, either directly or indirectly, shall be punishable
with death or imprisonment for life and shall also be liable to fine.
➢ If any person attempts to commit sati, whoever abets such attempt,
either directly or indirectly, shall be punishable with imprisonment for
life and shall also be liable to fine.
➢ Abatement to Sati shall include; (i) any inducement to a widow or woman
to get her burnt or buried alive along with the body of her deceased
husband (ii) Making her believe that committing Sati will confer some
spiritual benefit. (iii) If a woman wants to commit sati on her own will,
instead of preventing her encouraging her to remain firm on her
decision. (iv) Participating in any ritual involving in commission of sati.
(v) Preventing a woman who is trying to escape or save herself from
being burnt alive as sati. (vi) obstructing, or interfering with, the police
in the discharge of its duties of taking any steps to prevent the
commission of sati.
8
➢ As per Section 5 of the act, whoever does any act for the glorification
of sati shall be punishable with imprisonment for a term which shall not
be less than one year but which may extend to seven years and with
fine which shall not be less than five thousand rupees but which may
extend to thirty thousand rupees.
9
indirectly by one party to a marriage to the other party to the
marriage; or by the parents of either party to a marriage or by any
other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the
marriage of said parties but does not include dower or mahr in the case
of persons to whom the Muslim Personal Law (Shariat) applies.
➢ As per S.304 (B) of IPC, in case of dowry death due to cruelty and
harassment by husband or his family, the punishment shall be from 7
years imprisonment to life imprisonment.
10
Q14) Explain Mitakshara Coparcenary?
➢ A coparcenary is a joint family constituting a common male ancestor
with his lineal descendants in the male line four degrees counting from
an inclusive of such ancestor.
➢ The justification of coparcenary according to the Mitakshara School is
that those who can offer funeral oblations (Pindh-daan) are entitled to
the property.
➢ The concept of Pindh-daan is that the person who offers funeral
oblations share the same blood with the person to whom he is offering
a Pindh
Incidents/Features of Mitakshara Coparcenary
➢ No coparcenary can commence without a common male ancestor.
➢ The female are excluded from coparcenary.
➢ The lineal male descendants of a person up to the third generation
acquire by birth ownership.
➢ Descendants can at any time work out their right by asking for a
partition.
➢ Each coparceners has got ownership extending over the entire property
jointly until partition.
➢ All coparcener has common ownership and right of possession.
➢ The property of coparcener can be alienated only by the consent of
other coparceners.
➢ Doctrine of Survivorship – Under the traditional law, on the death of
a coparcener, his interest in the family property is immediately taken
by those coparceners who survive him and thus he leaves nothing behind
out of his interest in the coparcenary property for his female
dependents. This phenomenon is called doctrine of survivorship.
11
Joint Hindu Family Coparcenary
It is a wider institution as it includes all- It is a narrower institution as it includes
male lineal descendants from a common only three male lineal descendants from
ancestor, it also includes their wives and the last holder of the property.
unmarried daughters.
There is no limitation of generations, it can There is a four-generation rule i.e. males
extend to any number of generations. within four generations from, and
inclusive of the eldest member of the
family.
Every family member can be part of Only males can be coparceners and after
it including females and illegitimate sons. 2005’s amendment daughters were given
the right to be a coparcener.
Even after the death of all coparceners or Coparcenary comes to an end when all the
male members, it does not ipso facto (mean male members or coparceners die.
that Joint Hindu Family has come to an end).
As long as a female member has the right
to add a new male member to the family, it
continues.
In a Joint Hindu Family, the existence of In a Coparcenary, the existence of
property is not essential. property is very essential.
The rights and interests of the joint family Rule of survivorship is followed and not
members are determined by the Law of the law of succession as on the death of
Succession. a coparcener, his interest in the property
devolves on surviving coparceners.
Members have limited rights, viz, of The rights of coparceners are very wide,
maintenance and marriage expenses of the viz, Right to partition, and right to
unmarried daughters. alienate. Each coparcener is the owner of
the entire property but no one can set up
an individual title to any part of the
property.
Every Joint Hindu Family is not a Every coparcenary is a Joint Hindu Family
coparcenary.
12
➢ Hindu joint family property includes: (i) All ancestral property; (ii)
Property acquired with aid and assistance of ancestral property (iii)
Property acquired at the cost of ancestral property (iv) Separate
property of coparcener which is voluntarily thrown into common stock
to such an extent that it cannot be distinguished from joint family
property; (v) Other type of property e.g recovered joint family
property.
Separate property:
➢ The property acquired by a hindu in his/her individual capacity or
through individual efforts without assistance from family funds is called
self acquired property.
➢ He has absolute ownership over it.
➢ Whatever has been acquired without any detriment to joint family
property is self acquired property.
➢ On death of owner, the separate property goes via inheritance
(intestate succession).
13
Q18) Explain the position of karta in joint hindu family? Explain his rights
and liabilities?
Meaning
➢ The joint hindu family is a patriarchal body and the head of the family
is called karta.
➢ Karta means manager of joint family and joint family properties and
occupies pivotal position.
Position of Karta in JHF:
➢ Karta is sui generis (of its own kind), the relationship between him and
members is not like principal or agent or like partners in a partnership
firm.
➢ Karta is senior most male member of the family and acts on behalf of
the family.
➢ There is a fiduciary relationship between the karta and the other family
members.
➢ The position of karta is unique in a joint family and the powers of a
karta are wider than any of the members of the hindu joint family.
He is the person who take care of day to day expenses of the family
looks after the family and protect the joint family properties. nobody can
question what he spent unless charges of misappropriation.
➢ He is the head of the family and acts on behalf of other members.
➢ When any coparcenary charges of improper alienation made by karta,
burden of proof lies on him to prove such malafide act of karta.
➢ He obtains no reward for his services and he discharge many burden
some responsibilities towards the family and its members.
Powers of Karta:
I) Power of management
➢ He is the head of the family, his management powers are absolute.
➢ He may manage the family affairs and family property and business
the way he likes for the benefit of estate.
➢ No one can question his management.
14
II. Right to Income.
➢ Has control over income and expenditure of family. He is authorized to
spend for maintenance, residence, education, marriage and other
religious ceremonies of the coparceners and their family.
➢ So long as family remains joint, no member can ask for any specified
share in the income.
➢ If karta spends more the coparcener can ask partition.
III. Right to representation.
➢ He represent the family in all matters, legal, social and religious. He
can enter into any transaction on behalf of the family, his acts are
binding on the entire joint family.
IV. Power to compromise.
➢ He has power to compromise all disputes relating to family property or
their management.
➢ He can compromise pending suits, family debts, and other transactions.
➢ However if his act is not bonafide can be challenged in a partition.
V. Power to refer a dispute to arbitration.
➢ Karta has power to refer any dispute to arbitration. Arbitrator's award
is binding on all the members.
➢ He must does so with the bonafide intention i.e. without fraud.
VI. Power of acknowledgement and to contract debts.
➢ Karta has power to acknowledge on behalf of the family any debt due
to the family, also has power to pay debt or to make payment of debt.
➢ He has power to contract debts for the family such debts incurred in
the ordinary course of business are binding on entire joint family.
➢ Even Karta when takes loan or execute promissory note for family
purpose, or for family business joint family is liable to pay such loan.
Duties & Liabilities of Karta
Liable to maintain.
➢ Karta is responsible to maintain all the members of joint family.
➢ If he improperly excludes any member from maintenance, he can be
sued for maintenance and also for arrears of maintenance
15
➢ Liability to render accounts: As long as family remains joint, Karta is
not supposed to keep accounts.
➢ when partition takes place at that time he is liable to account for
family property.
➢ In the following cases karta can be called upon to give an account of
past dealing.
a. One member is excluded from enjoyment of property
b. Karta fraudulently convert the family income to his own purpose,
c. Where there is a special agreement between the coparcener.
➢ Liability to realize debts due to the family: Karta should realize all
debts due to the family within reasonable time. But he is not empowered
to give up any debt.
➢ He is empowered to settle accounts with debtors and to make
reasonable reduction.
➢ Liability to spend reasonably: He should spend family funds reasonably
and for the purpose of the family He is not under obligation to
economize, save as a paid agent or trustee would do.
➢ Liability not to alienate coparcenary property: Unless it is for benefit
of family, estate or for necessity; Karta cannot alienate joint family
property without the consent of all the coparceners.
➢ Liable not to start new business: Unless adult coparceners of the family
expressly or impliedly consents Karta cannot start new business.
➢ Liability to compensate: In case of proved misrepresentation or
fraudulent and improper conversion by the karta of family property, he
is liable to compensate other coparcener.
16
It was written in the latter part of This school is interpret by
the eleventh century by Jeemutavahana.
Vijananeshwara.
Mitakshare school is applicable to Dayabhaga school is followed in
whole of India except Assam & Assam & Bengal.
Bengal
In this school joint family consists In this school; sons do not have
of Son, Grand Son,Greatgrand Son, coparcenary rights. Therefore
and A son by birth acquires an property is devolve after the death
interest in the ancestral property. of the father.
Under Mitakshara, property Under Dayabhaga, Property
devolves by survivorship devolves by law of sucession.
Father has restricted power of Father has absolute power of
alienation alienation.
17
➢ Under the modern Hindu law, the rule of survivorship is no longer valid
and the property, in case of death of a person who dies intestate,
shall devolve to the legal heirs as mentioned in the act.
18
will be deemed to be part from the date of agreement not withstanding
that no award has been made by the arbitrator.
➢ Partition By Father: The father may cause the severance of his son's
in his life time without the consent of his son.
➢ By Institution Of A Suit: If an adult member of a family institution a
suit of partition then those must be clear intimation of his intention to
separate. But there is a severance of joint status from the date when
the suit it instituted. The joint family deemed to be partitioned from
the date of filing of the suit and not on the decision of the suit.
➢ Conversion: If a member of a joint family converts to non- hindu religion
then he will be considered separate from joint family from the date of
conversion. He is entitled to get the share from the joint family
property.
➢ By Marriage Under Special Marriage Act, 1954: If a member of a
Hindu joint family solemnized the marriage under special marriage Act
then he would be deemed to effect his severance from joint family
which stood at the date of the marriage.
19
➢ Father: In exercise of this power the concept of son is immaterial.
However, father must act bona fide. If division made by him is unequal
or fraudulent or vitiated by favoritism, partition can be reopened.
➢ Son grandson and great grandson: They have a right to partition. But,
in Bombay school the son has no right to partition without the assent
of father, if father is joint with his own father, brothers and other
collaterals. Under Punjab customary law also sons have no right to
partition against their father.
➢ After born sons of a coparcener: A son in his mother's womb at the
time of partition is treated, in point of law in existence and is entitled
to reopen the partition to receive share equal to that of his brothers.
In the case of a son born as well as begotten after the partition, his
father has taken a share for himself and separated from the other
coparceners, then the after born son is entitled to his father share at
the partition and also his separate propertyand is not entitled to reopen
the partition. The same principle would now apply in case of a daughter
of a coparcener, who is a coparcener in her own rights after the
commencement of the Hindu Succession (Amendment) Act, 2005.
➢ Illegitimate sons: An illegitimate son among three regenerate classes,
having no vested interest in the property, cannot demand a partition
but he is entitled to maintenance out of his father's estate.
➢ Widows: Widow though not a coparcener under Mitakshara law is
entitled to obtain a share when the property is partitioned between
the coparceners. However, she cannot demand for a partition.
➢ Alienee: An alienee of coparcener’s interest, whenever such an
alienation is valid, has also right to partition
➢ Adopted children: an adopted children is treated as a natural born
child and therefore he would be entitled to demand partition anytime
after adoption. Now, under the Hindu Adoption and Maintenance Act,
1956 and adopted child is entitled to a share equal to that of a natural
born child on partition.
20
Q24) Write a short note on Partial Partition?
➢ A partition is an act by which a coparcener severs his relations with a
joint family, loses his status as a coparcener, and becomes an
independent individual from the links of the joint family.
➢ A partition between coparceners may be total/general partition or
partial partition.
➢ In total partition, all the joint properties are divided amongst the
coparceners in accordance to their share
➢ Partial partition can take effect in two ways:
➢ Partial Partition in respect of Property: The members of a joint family
can go ahead to make a division or severance in respect of a part of a
joint property while retaining their joint status as a joint family and
holding the rest of the properties of a joint and undivided family.
➢ Example: if a joint family is having two houses and it decides to divide
only one property amongst the members while keeping the other
property as joint property, it is partial partition with respect of
property.
➢ Partial Partition in respect of Person: When in a joint family where
there are more than two coparcener and anyone of them want to
partition and other coparcener did not want it then that will be called
a partial partition as to the person separating.
21
o The parties reuniting must have been parties to the original
partition.
o A member once separated must have reunite only with his father,
brother or paternal uncle, but not with any other relative.
How Reunion can be effected?
➢ To constitute reunion there must be an intention of the parties to
reunite in estate and interest.
➢ It is implicit in the concept of a reunion that there shall be an
agreement between the parties to reunite in estate with an intention
to revert to their former status.
➢ Person who were parties to a original partition deed may reunite by an
oral agreement.
➢ A minor cannot reunite because he is not competent to contract.
➢ Mere living and carrying on business together is not conclusive evidence
of reunion.
22
- minor: A partition can be reopened by a minor Coparcener, on
attaining majority, if partition made during his Minority was unfair
or prejudiced to his interest.
- Absent Coparcener: can reopen the partition, if he was not present
during partition and no share was allotted to him.
- Unfair advantage: If any coparcener has received any unfair
advantage in division, the partition can be reopened.
Q27) What is doctrine of Pious Debt?
➢ Pious' means religious and sacred.
➢ Pious Obligation/debt is a kind of religious or devotional obligation on
the part of the son, son’s son, or great-grandson to pay back his
father’s, grandfather’s, or great grandfather’s debts. The obligation
is followed in traditional hindu law.
➢ The male descendants are liable to pay only for their ancestor’s legal
debts i.e. vyavaharika debts.
➢ Hindu law states that ‘He who having received a sum lent, does not
repay it to the owner will be born hereafter in his creditors house as
a slave, a servant or a woman or a quadruped’.
➢ The 'Putra' i.e., the son, grandson, and great-grandson by paying off
such debts, reliefs his parted ancestor from the debt and enables him
to reach the heaven and thus enables him to attain Moksha.
➢ This duty or obligation of a son to repay the debts of the deceased
ancestor is based on a special doctrine, known as "The Doctrine of
Pious Obligation"
➢ However; this obligation applies only to non-avyavaharika debts.
➢ It will be the duty of the son to prove it is avyavaharik debt and the
burden of proof lies on him.
23
➢ The word avyavaharika does not cover merely those debts which are
illegal or immoral, but also all debts which the Court regards as
inequitable or unjust to make the son liable.
➢ According to Hindu texts, the sons are not compellable to pay debts
incurred for: (i) losses at play, (ii) alcoholic drinks, (iii) promises without
consideration, (iv) promises made out of lust or under the influence of
wrath; (v) suretyship or (vi) fines or bribes.
24
Q30) Write a note on Sanskritisation?
➢ The concept ‘Sanskritization’ was first introduced by Prof. M.N.
Srinivas the famous Indian sociologist.
➢ He explained the concept of sanskritization in his book “Religion and
society among the coorgs of South India” to describe the cultural
mobility in the traditional caste structure of Indian society.
➢ Defining Sanskritization Srinivas writes, “Sanskritization is a process
by which a lower caste or tribe or any other group changes its customs,
rituals, ideology and way of life in the direction of a higher or more
often twice-born caste.”
Characteristics of Sanskritization:
➢ Sanskritization is a process of imitation in Indian society.
➢ The social status of an individual is fixed on the basis of caste
hierarchy. There are many lower castes who suffer from economic,
religious or social disabilities. So in order to improve the status, the
lower castes people imitate the life style of the upper caste people.
➢ Sanskritization is a process of cultural change towards twice-born
castes. It is a process in which the lower castes adopt the cultural
patterns of the higher castes, to raise their status in the caste
hierarchical order.
➢ In some societies the lower caste people followed not only the customs
of the Brahmins but also the customs of the locally dominant castes
like Kshatriyas and Vaisyas to raise their status.
➢ Sanskritization process is not only confined to the Hindu caste people,
it is also found among the tribal society.
➢ The concept of Sanskritization has also given rise to De-sanskritization.
➢ There are some instances in modern times, some of the higher castes
are imitating the behaviour pattern of lower caste, and for example
Brahmins have started taking meat and liquor. This process is called
De-sanskritization.
25
Q31) Write short note on Westernisation?
➢ Prof. M.N. Srinivas the famous Indian sociologist explained the concept
of westernization in his book “Religion and society among the coorgs of
South India” to describe the cultural mobility in the traditional caste
structure of Indian society
➢ He traces it from the period of British Raj.
➢ Though British colonial rule brought with it exploitation and suppression
of the masses of people both at the rural and urban levels. At the
same time, it also brought certain radical changes in Indian society and
culture.
➢ The British rule initiated a period of new technology, institutions,
knowledge, beliefs and values.
➢ The modern state actually got its beginning from this period. The land
was surveyed, revenue was settled, a new bureaucracy emerged, and
army, police and law courts were established.
➢ The British rule also developed communications, railways, post and
telegraph and also started schools and colleges.
➢ Another force released by the British rule was the working of Christian
missionary.
➢ The Christian missionaries worked in the different parts of the country,
particularly in those which were backward and inhabited by tribals and
untouchables. This brought the weaker sections closer to
westernisation.
➢ The impact of five year plans has brought the village people in the
wider network of communication and modernisation.
➢ The democratic institutions such as Panchayati Raj and massive spread
of education have brought the villagers to come closer to
westernisation.
26
➢ Modernisation is the process of social change whereby less developed
societies acquire the characteristics common to the more developed
societies.
➢ The main features/characteristics of Modern Society are:
a. A disposition to accept new ideas.
b. Readiness to express opinions.
c. A time sense that makes men more interested in the present and
the future rather than in a past.
d. A faith in science and technology.
e. A greater concern for planning, organization and efficiency.
Q34) Define Full Blood & Half Blood as per hindu Marriage Act 1955?
➢ Full blood" and "half blood: As per Section 2(c) of Hindu Marriage Act;
"two persons are said to be related to each other by full blood when
they are descended from a common ancestor by the same wife and by
half blood when they are descended from a common ancestor but by
different wives.
27
a) as far as the third generation (inclusive) in the line of ascent through
the mother,
b) and the fifth (inclusive) in the line of ascent through the father,
c) the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation”.
➢ two persons are said to be sapindas of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if
they have a common lineal ascendant who is within the limits of sapinda
relationship with reference to each of them.
28
h) The parties must not be sapindas of each other. Exception to this is
provided by the permission of customs or usages governing the par
29
Q39) Short note on Adultery as ground of marriage?
➢ As per Section 13 of Hindu Marriage Act 1955, adultery by any partner
can be a valid ground for seeking divorce.
➢ Adultery means voluntary sexual intercourse with any person other than
spouse;
➢ There must be some penetration atleast, though complete sexual
intercourse is not necessary;
➢ The act of intercourse must be voluntary, a wife who is raped is not
considered to comit adultery;
➢ A single act of sexual intercourse isenough to support charge of
adultery
➢ Adultery must have been committed before the filing of presentation.
30
they have not been able to live together and they have mutually agreed
that the marriage should be dissolved.
➢ The petition for divorce can be withdrawn by any of the party within
first 6 months of the petition, of with the consent of withdrawal by
both the parties after 6 months till 18 months from the date of
petition.
➢ If the petition is not withdrawn by both the parties within 18 months,
the Court shall, on being satisfied, after hearing the parties and making
such inquiry, as it thinks fit, that a marriage has been solemnized and
that the averments in the petition are true, pass a decree declaring
the marriage to be dissolved with effect from the date of decree.
31
✓ If either of the parties are under-aged, bridegroom under 21
years of age and bride under 18 years of age.
➢ A wife has the right to claim maintenance in the voidable marriage.
32
➢ No adoption shall be valid unless (a) The person adopting has the
capacity, and also the right, to take in adoption; (b) The person giving
in adoption has the capacity to do so; (c) The person adopted is capable
of being taken in adoption.
➢ Hindu Adoption and Maintainence Act does not recognise an adoption
by a Hindu of any person other than a Hindu.
➢ To prove valid adoption, it would be necessary to bring on records that
there had been an actual giving and taking ceremony
➢ Law does not bar a lunatic person from being adopted.
➢ 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 provided that if he
has a wife/wives living and marriage is in existence, he shall not adopt
except with the consent of his wife unless the wife has completely and
finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind.
➢ Any female Hindu,(a) who is of sound mind; (b) who is not a minor, and
(c) who is not married, or if married whose marriage has been dissolved
or whose husband is dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind has the capacity to take
a son or daughter in adoption.
➢ If the adoption is of a son, the adoptive father or mother by whom
the adoption is made must not have a Hindu son, son's son or son's
son's son (whether by legitimate blood relationship or by adoption) living
at the time of adoption
➢ if the adoption is of a daughter, the adoptive father or mother by
whom the adoption is made must not have a Hindu daughter or son's
daughter (whether by legitimate blood relationship or by adoption) living
at the time of adoption
➢ if the adoption is by a male and the person to be adopted is a female,
the adoptive father is at least twenty-one years older than the person
to be adopted
33
➢ if the adoption is by a female and the person to be adopted is a male,
the adoptive mother is at least twenty-one years older than the person
to be adopted
➢ the same child may not be adopted simultaneously by two or more
persons
➢ The child to be adopted must be actually given and taken in adoption
by the parents or guardian concerned or under their authority with
intent to transfer the child from the family of its birth to the family
of its adoption.
34
As per Sec 18 of Hindu Adoption and Maintainence Act 1956, a hindu
wife is entitled for maintainence by her husband during her life time.She
is eligible for maintenance even when Living Separately, because of:
a) Desertion / Abandoning / Willfully neglecting
b) Cruelty (reasonable apprehension of harm / injury)
c) If he is suffering from a virulent form of leprosy
d) If he has any other wife living;
e) Keeping a concubine in the same house or habitually residing with a
concubine elsewhere
f) Ceased to be a Hindu by conversion to another religion
g) Any other cause justifying living separately.
35
➢ The act lays down four types of guardian (i) Natural guardian (ii)
Testamentary guardian; (iii) De-facto guardian; (iv) Guardian appointed
by the court.
36
than 5 years or not more than 1 year after the minor attains the
majority.
➢ Right to contract:- The guardian may contract for the minor, but
cannot enter into a contract which makes the minor personally liable.
37
Q52) Write a note on Agnate and Cognate?
➢ Agnate means a person related to wholly through males either by blood
or by adoption. The agnatic relation may be a male or a female.
➢ Cognate means a person related not wholly through males. Where a
person is related to the deceased through one or more females, he or
she is called a cognate.
➢ Thus son’s daughter’s son or daughter, sister’s son or daughter,
mother’s brother’s son, etc. are cognates, whereas one’s father’s
brother, or father’s brother’s son or father’s son’s son or father’s son’s
daughter are agnates.
38
Q54) What is the punishment for Dowry?
➢ Section 3 of the Dowry Prohibition Act, 1961 describes the punishment
for giving and taking dowry, that is a minimum five years term and a
fine of either Rs 15,000 or the value of dowry (whichever is more).
➢ Likewise, demanding dowry from either party of marriage under section
4 of the Act is punishable with a term of a minimum six months to
maximum five years and a fine for up to Rs15000.
*****
39
Brief
Particulars Remarks
family a group of persons whose relations to
one another are based on
consanguinity (ie blood relationship)
family based on lineage/ancestry Patrilineal family; Matrilineal family
Patrilineal family ancestry continues through the father
Matrilineal family mother is the basis of the ancestry
Family on the basis of Authority Patriarchal Family; Matriarchal family
nuclear family consist of a husband, wife and their
children
Saptapadi taking seven steps around the holy fire
under the mandap at the time of
marriage
polygamy a customary practice in which a person
marries multiple times when the first
marriage is subsisting
Types of Polygamy Sororal polygamy; Non sororal
polygamy
Sororal polygamy man marries the sister of his wife
when the first marriage is subsisting,
it is sororal polygamy
Non sororal polygamy Marrying two or more women who are
not sisters at the same time when the
first marriage is subsisting
Concubine a state of living together as a wife
without being actually married.
Sati the act of burning or burying alive of
any widow along with the body of her
deceased husband
glorification of sati punishable with imprisonment for a
term which shall not be less than one
year but which may extend to seven
years and with fine which shall not be
less than five thousand rupees but
40
which may extend to thirty thousand
rupees
Dowry means and includes payment in cash,
kind or both to husband or his family
in order to avoid any hardship to bride
in her in laws house
Joint Hindu Family i) "Common Male Ancestor" and his
wife 2. His lineal male descendants up
to any generation together with their
wife or widow; (iii) Unmarried
daughters; (iv) Children of male
descendants.
Mitakshara Coparcenary joint family constituting a common
male ancestor with his lineal
descendants in the male line four
degrees counting from an inclusive of
such ancestor
Ancestral property Property inherited from ancestor
Karta manager of joint family and joint
family properties and occupies pivotal
position
Rule of survivorship the person (coparcener) who survives
others, will get the property of the
deceased member
Partition intentional severance of coparcenary
property by members of a joint family
Partial partition Partial Partition in respect of
Property; Partial Partition in respect
of Person
Reunion process by which two or more
members of Hindu family, after having
become separate, reunite in such a
way as to constitute joint family
41
doctrine of Pious Debt kind of religious or devotional
obligation on the part of the son, son’s
son, or great-grandson to pay back his
father’s, grandfather’s, or great
grandfather’s debts
avyavharik debt illegal or immoral debts
Sanskritization introduced by Prof. M.N. Srinivas
Sanskritization a process by which a lower caste or
tribe or any other group changes its
customs, rituals, ideology and way of
life in the direction of a higher or
more often twice-born caste
Modernisation the process of social change whereby
less developed societies acquire the
characteristics common to the more
developed societies
Urbanisation moving to cities, changing from
agriculture to other pursuits common
to cities and corresponding changes
of behavior patterns
Full blood descended from a common ancestor by
the same wife
Half Blood descended from a common ancestor
but by different wives.
Uterine Blood descended from a common ancestress
but by different husbands
Sapinda Relationship a) as far as the third generation
(inclusive) in the line of ascent
through the mother,
b) and the fifth (inclusive) in the line
of ascent through the father
grounds of divorce of hindu marriage Section 13 of Hindu Marriage Act
1955
conditions of valid hindu marriage Section 5 of Hindu Marriage Act 1955
42
Adultery voluntary sexual intercourse with any
person other than spouse;
Cruelty wilful and unjustifiable conduct of
such character as to cause danger to
life, limb or health, bodily or mental,
or as to give rise to a reasonable
apprehension of such a danger
Divorce by mutual consent Section 13 of Hindu Marriage Act
Adoption process through which the adopted
child is permanently separated from
his biological parents and becomes the
lawful child of the adoptive parents
wife is entitled for maintainence by Sec 18 of Hindu Adoption and
her husband Maintainence Act 1956
doctrine of Relation Back if any widow adopts any child after
the death of her husband, then such
child shall be deemed to be the
adopted child of the deceased husband
Guardian person who takes care of body and
property of a minor below the age of
18 years
natural Guardian Father/Mother/Husband
Testamentary Guardian guardian who is appointed by way of
will
De-facto guardian neither legal guardian nor
testamentary nor appointed by the
court
Agnate person related to wholly through males
either by blood or by adoption
Cognate a person related not wholly through
males
Family court Section 3 of the Family Court Act
1984
Uniform Civil Code’ Article 44
43
44