Mumbai University
3 Years LLB- Semester III (January 2023),
Family Law
Questions & Answers complied by RK
Q1) What is family?
➢ A family is a group of persons whose relations to one another are based
on consanguinity (ie blood relationship), and who are, therefore, kin to
one another"-Davis.
➢ A family is a group of two or more persons related by birth, marriage,
or adoption who live together; all such related persons are considered
as members of one family.
Q2) What are the characteristics of family?
➢ Following are the characteristics of family
a) Universality: It almost exists in all societies,
b) Marriage: By marriage a legal physical relationship is established
between a man and a woman
c) Permanent fixed habitation: All members of the family more or less
stay together having their fixed home
d) Financial and economic provisions: All the members of the family meet
their economic needs through the family property which may be in the
possession of the head of the family or any senior member of
the
family.
e) Family name: Every family has its own name which is usually referred
as a 'surname and is used by all the members of that family
f) Fiduciary Relationship: Since all the members of the family are related
to each other by blood, there is an emotional bond, mutual love and
affection amongst them.
g) Sense of responsibility and security: All the members of the family
share the responsibility for each other and provide security to each
other.
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Q3) What Different types of family based on lineage/ancestry?
On the basis of ancestry, the family is classified intoPatrilineal 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.
Q4) What Different types of family based on authority structure?
Family on the basis of Authority:
Patriarchal Family:
➢ The family in which all the power remains in the hands of patriarch or
father or eldest male member is known as patriarchal family.
➢ He exercises absolute power or authority over the other members of
family. He owns family. After his death authority is transferred to
the eldest son of family. In this,
family descent is known through
father line. In this type of family wife after marriage come to reside
in her husband’s house.
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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.
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➢ The Hindu marriage Act 1955 has provided five conditions as prerequisites 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.
➢ According to Section 7 of the Act, a Hindu marriage is lawful under
the 1955 Act if it is performed in conformity with the traditional rites
and ceremonies of either party. The shastric rituals and ceremonies
includes vivah homam, kanyadan, panigrahan and finally saptapadi (i.e
when the seventh step is taken), the marriage is considered to be
complete.
➢
If the conditions of Section 5 or the ceremonies/rituals as mentioned
under Section 7 are not performed, then the marriage shall not be
considered as valid.
Q6) Short note on nuclear family?
Ans) A Nuclear family is one which consist of a husband, wife and their
children. Thus it is a small group composed of husband and his wife and
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immature children which constitute a unit apart from the rest of the
community.
Q7) Short note on Saptapadi?
Ans) Saptapadi, which generally means taking seven steps around the holy
fire under the mandap at the time of marriage, is a fundamental and
common ceremony performed among various Hindu communities. Section
7(2) of the Hindu Marriage Act, 1955, gives out the general provision for
Saptapadi, wherein it states that where rites and ceremonies include
‘saptapadi’ as a ceremony, then the marriage will be considered complete
and valid upon the completion of the seventh round around the holy fire.
Q8) Write a note on polygamy?
➢ Polygamy is a customary practice in which a person marries multiple
times when the first marriage is subsisting. It was prevalent in most
of the ancient civilizations.
➢ If marriage is done second time, it is bigamy. Polygamy happens only
when marriage is done multiple times.
➢ Until 1955, polygamy had recognition in Hindu personal law. However
the Hindu Marriage Act 1955, prohibited polygamy, bigamy and other
forms of polygamy.
➢ If a man marries multiple wives, it is polygyny
➢ If a woman marries multiple times, it is polyandry.
Types of Polygamy
➢ Sororal polygamy: In Latin, the word soror means sister. Hence if a
man marries the sister of his wife when the first marriage is subsisting,
it is sororal polygamy. It is observed in tribal areas, if the first wife
is unable to bear the child, the tribals compensate the groom by fixing
his marriage with her younger sister.
➢ Non sororal polygamy: Marrying two or more women who are not sisters
at the same time when the first marriage is subsisting is non sororal
polygamy.
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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.
Q9) Write a short note on Concubine?
➢ The word concubine is derived from a Latin words:- Con and Cubare.
Con means “With” and Cubare:- “to lye”. Together the words concubine
means a woman who lives with a man without being lawfully married to
him.
➢ Concubinage is a state of living together as a wife without being actually
married. In it a man lives with another woman during the subsistence
of his first marriage.
➢ It can be said as an extra marital live in relationship during the
subsistence first marriage.
➢
Concubine is also known as Mistress or Rakhel. (रखेल).
Position of Concubine:
➢ It is recognized by law. However the status of concubine is less than
lawfully wedded wife.
➢ She cannot join her hands with husband in religious ceremonies when
the lawfully wedded wife is present.
➢ She cannot claim maintenance till her male partner is alive. Only after
his death, concubine can claim maintenance.
➢ Children born from concubinage relation are illegitimate. They're not
eligible for inheritance of Ancestral property. However the property
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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.
Q10) Write a note on Child Marriage?
➢ Child marriage is a medieval customary Indian practice and it was not
prevalent in the Vedic Period.
➢ In the Vedic Period; women had right to get educated till the age of
16. However their further education was barred thereafter. Sons and
daughters were both sent to learn Vedas in the Ashramas. Boys
normally studied till age of 23 years and
Girls till age of 16 years.
Girls also had right to thread ceremony. Thereafter, the girls were
generally married.
➢ But in the medieval ages the conditions of women was deteriorated.
➢
As per The Prohibition of Child Marriage Act of 2006, "child marriage"
means a marriage, or a marriage about to be solemnized, to which
either of the contracting parties is a child; and child for purposes of
marriage is defined based on gender of the person. For a male, it is
21 years of age, and for a female, 18 years of age.
Reasons for increase in Child Marriage in Medieval India
➢ Stoppage in female education
➢ Stress on protecting the purity and virginity of women. As a result
they were forced to marry as soon as they hit puberty.
➢ Desire of husband to reproduce the children as early as possible.
➢ Poor people in the social strata considered women as liabilities and as
a result, they forced the girls to get married as soon as possible.
➢ Once the customary practice of child marriage became prevalent in the
upper social strata, even the lower social strata began to follow the
same.
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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.
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➢ 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.
Q12) Write a short note on Dowry?
➢ Dowry in general 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.
➢ The customary practice of dowry was the distorted and fractured
version of Vedic practice of Varadakshina.
➢ According to the Dharmashastras, the Hindu ceremony of marriage
ends with the ritual of Kanyadan. The ritual of Kanyadan is not complete
till the bridegroom was given Vardakshina.
➢ So when a bride is given over to the bridegroom, he has to be given
something in cash or kind which constitute varadakshina. Thus Kanyadan
became associated with varadakshina i.e. the cash or gifts in kind by
the parents or guardian of the bride to the bridegroom.
➢ The varadakshina was offered out of affection and not any kind of
compulsion or consideration for the marriage. It was a voluntary
practice without any coercive overtones. In the course of time, the
voluntary element in dowry has disappeared and the coercive element
has crept in.
➢ It has taken deep roots not only in the marriage ceremony but also
post-marital relationship. What was originally intended to be a taken
dakshina for the has now gone out of proportions and has assumed the
nomenclature 'dowry'.
➢ Dowry Prohibition Act, 1961 forbids the customary practice of dowry.
The Act prohibits the giving or taking of dowry.
➢ As per Section 2 of the act, In this act, “dowry' means any property
or valuable security given or agreed to be given either directly or
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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.
Q13) Explain Joint Hindu Family?
➢ Joint Hindu Family (JHF) consists of: (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.
➢ It Originates only from a common male ancestor.
➢ JHF is a creation of law and cannot be created by an arrangement
between the members.
➢ Sui-generis concept to Hindu Law. There is no such concept prevailing
in any other law.
Characteristics/Features of Joint Hindu Family
➢ If the Common Male Ancestor dies after starting a Joint Hindu Family,
the Joint Hindu Family continues in existence till perpetutity unless
there is a partition in the family.
➢ Membership to Joint Hindu Family is acquired only by: (i) Birth (ii)
Marriage to a male member or (iii) Adoption.
➢ Joint Hindu Family is not a separate juristic person different from it's
members, therefore it cannot sue and cannot be sued in it's own name.
➢ Joint Hindu Family is represented by the " Karta", i.e. the head of
the family.
➢ General presumption is that every family is a Joint Hindu Family unless
partition in the family is proved.
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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.
Q15) Distinguish between Joint Hindu Family and Coparcenary
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Joint Hindu Family
Coparcenary
It is a wider institution as it includes allmale lineal descendants from a common
ancestor, it also includes their wives and
unmarried daughters.
It is a narrower institution as it includes
only three male lineal descendants from
the last holder of the property.
There is no limitation of generations, it can
extend to any number of generations.
There is a four-generation rule i.e. males
within four generations from, and
inclusive of the eldest member of the
family.
Every family member can be part of
it including females and illegitimate sons.
Only males can be coparceners and after
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
property is not essential.
In a Coparcenary, the existence of
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
maintenance and marriage expenses of the
unmarried daughters.
The rights of coparceners are very wide,
viz, Right to partition, and right to
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
coparcenary.
Every coparcenary is a Joint Hindu Family
Hindu
Family
is
not
a
Q16) Joint Family property (Coparcenary Property) vs Separate Property?
➢ Coparcenary property is that in which every coparcener has a joint
interest & joint possession.
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➢ 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).
Q17) Short Note on Ancestral property?
➢ Property inherited from ancestor may be called as ancestral property.
But in hindu law it has technical meaning. It is property inherited from
great grand father, grand father or father( three immediate ancestors)
which is called ancestral property.
➢ Property inherited from any other relation like mother, uncle or brother
is not ancestral property, but it is separate property of person
inheriting it.
➢ Self acquired property of grand father in hands of father is ancestral
property because all property inherited by male hindu from his father
or grand father or great grand father is ancestral property.
➢ Doctrine of accretion-accretion means i) accumulation of income of joint
family property ii) property purchased with joint family income & iii)
proceeds of sale of joint family property or property purchased out of
such sales proceeds.
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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.
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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
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➢ 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.
Q19) Difference between mitakshara and dayabhagya school?
Mitakshara
dayabhagya
Mitakshara
is
a
running Dayabhaga is considered to be a
commentary on the Code of digest for the leading smritis
Yajnavalkya Smruti
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It was written in the latter part of
the
eleventh
century
by
Vijananeshwara.
Mitakshare school is applicable to
whole of India except Assam &
Bengal
In this school joint family consists
of Son, Grand Son,Greatgrand Son,
and A son by birth acquires an
interest in the ancestral property.
Under
Mitakshara,
property
devolves by survivorship
Father has restricted power of
alienation
This school is
Jeemutavahana.
interpret
by
Dayabhaga school is followed in
Assam & Bengal.
In this school; sons do not have
coparcenary
rights.
Therefore
property is devolve after the death
of the father.
Under
Dayabhaga,
Property
devolves by law of sucession.
Father has absolute power of
alienation.
Q20) What is rule of survivorship and how it differs from rule of
succession?
➢ In Rule of survivorship, the person (coparcener) who survives others,
will get the property of the deceased member, whereas, the legal heirs
of such deceased who are not coparceners themselves will not get
anything.
➢ Under Rule of succession, person who is a legal heir will succeed to the
property of the deceased at par with the other legal heirs of the same
status and closeness with that of the deceased in terms of law.
➢ For example-If two brothers viz. A and B are the sole surviving
copreeners of the joint property, and if A dies intestate, then by rule
of survivorship, entire joint family property will be taken by B,
irrespective of the presence of the other legal heirs of A, however, in
case of rule of succession, the share of the property of A will devolve
to his own legal heirs, as per the rule of priority under law of succession
and not exclusively to B, unless he is the only legal heir left to A.
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➢ 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.
Q21) What is Partition?
➢ Partition is the intentional severance of coparcenary property by
members of a joint family.
➢ Partition means bringing the joint status to an end.
➢ The true test of partition of property, according to Hindu Law is the
intention of the members of the family to become separate owners.
➢ The partition of a joint estate, under the Mitakshara law, consist in
defining the share of the coparcener in the joint property.
➢ This may follow by actual division of property in accordance with the
share of each co-parceners
➢ However, it is not necessary that there should be an actual division of
the property by metes and bounds.
➢ No consent of the other members, nor a decree of a court, or any
other writing is necessary for partition
Q22) What are the modes of effecting partition?
The different modes of effecting partition are as follows:
➢ By Mere Declaration Of Separate: Any member entitled to get partition
may communicate the other member his intention by express declaration
or by conduct.
➢ By Notice: The members desiring partition may give notice on other
members and karta. The partition will deem to take place from the
date of dispatch of notice and not when it is received.
➢ By Agreement: A partition may be effected by agreement between all
the members entitled to have share in the joint family property. The
agreement may be either oral or in writing.
➢ By Arbitration: An arbitrator may be appointed by agreement of the
members to make partition of a family property. The family property
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.
Q23) Who is entitled to a share on Partition?
Every coparcener has right to partition and entitled to a share on
partition:
➢ Any Coparcener: According to Hindu law, both a major and minor
coparcener have a right to get a share during the partition irrespective
of whether they are demanding a partition as sons, grandsons, or
great-grandsons.
➢
A coparcener can make a demand for partition anytime with or without
reason.
➢ Minor: can get partition only at the discretion of court. The suit for
partition has to be filed by a guardian of the minor on behalf of the
minor. Court can permit the partition only if it is for the benefit of
the minor.
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.
Q25) Write short note on reunion of Joint Family after partition?
➢ Reunion is a process by which two or more members of Hindu family,
after having become separate, reunite in such a way as to constitute
joint family.
➢ He who once separated dwells again, through affection with father
brother or paternal uncle is termed reunited with him.
➢ A reunion can take place between person who were parties to the
original partition.
➢ There are two conditions of valid reunion under Mitakshara law.
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.
Q26) Write short note on reopening of Partition?
➢ The general rule of law of partition is that partition once made cannot
be re- opened.
➢ However, there are certain exceptions to this rule:
- Son/Daughter in womb: If a son or daughter is in the womb at the
time of partition, and no share was allotted to her or him, at the
time of partition then later it can be reopened.
- Fraud: when the whole scheme of distribution is fraudulent, it may
be set aside by any person unless the affected person was silent
with full knowledge of material facts.
- Disqualified Coparcener-Due to some reasons, the disqualified
coparcener might be underprivileged from his share of the property
at the time of partition. In such a situation, he could get the
partition removed after the disqualification is removed.
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.
Q28) What is avyavharik debt?
➢ A debt is said to be “avyavaharika” when it is “repugnant to good
morals”
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.
Q29) Difference between Mitakshara School and Dayabhaga School?
Ans) Mitakshara School:
a) The son gets a right by birth in the joint family property. In case
he is adult, he can demand partition even during the life time of his
father.
b) He has a say and can prevent his father from unauthorised
alienation of ancestral properly.
c) A coparcener has no right to alienate his share in the joint family
property. On his death without male issue, his interest survives to
his brother.
d) The widow of the deceased coparcener cannot enforce partition. She
has a right of maintenance.
e) The essence of a coparcenary is unity of ownership.
Dayabhaga
a) Son has no right in the joint family property so long as his father
is alive.
b) The father is absolute owner of the property and can deal with it
the way he likes.
c) Each adult member male or female has a right to demand partition
and can alienate his/her interest and on death his/her share will be
inherited by his/her heirs.
d) The widow becomes a coparcener with her husband’s brother and can
demand partition.
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
westernisation.
Q32) Write a note on Modernisation?
➢ Daniel Lerner introduced the term Modernisation.
26
come
closer
to
➢ 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.
Q33) What is urbanization?
➢ Urbanisation is the process of becoming urban, i.e moving to cities,
changing from agriculture to other pursuits common to cities
and
corresponding changes of behavior patterns,
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.
Q35) Define Uterine Blood as per hindu Marriage Act 1955?
➢ Uterine Blood: As per Section 2(c) of Hindu Marriage Act; Uterine blood
"two persons are said to be related to each other by uterine blood when
they are descended from a common ancestress but by different
husbands.
Q36) Write a short note on Sapinda Relationship?
➢ As per Section 3(f) of Hindu Marriage Act, Sapinda relationship means
“with reference to any person extends:
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.
Q37) What are the essential conditions of valid hindu marriage?
The conditions of a valid Hindu marriage under the Hindu marriage Act,
1955.
➢ The Hindu marriage Act 1955 has provided five conditions as prerequisites for valid Hindu marriage, under section 5 of Act.
a) Both the parties should be hindus, here Sikhs, Jains and Buddhists are
also considered as followers of hindu religion
b) Spouse living at time of the marriage: neither of the parties to
marriage should have any spouse living at the time of marriage. Hindu
law supports only monogamy and doesn’t permit bigamy, polygamy.
c) At time of marriage, neither party to marriage should be incapable of
giving a valid consent for the marriage.
d) 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.
e) At the time of marriage, has been subject to recurring attacks of
insanity.
f) Age of the bridegroom and bride must be 21 and 18 years of age,
respectively.
g) 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.
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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
Q38) What are the grounds of divorce of hindu marriage?
As per Section 13 of Hindu Marriage Act 1955, Any marriage solemnized,
whether before or after the commencement of the Act, may, on a petition
presented to the Court either by the husband or the wife, be dissolved
on the ground that since the solemnization of the marriage, the
respondent—
(i)
has committed adultery (voluntary sexual intercourse with any person
other than spouse); or
(ii) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful
or injurious for the petitioner to live with the respondent.
(iii) has deserted the petitioner for at least two years immediately
preceding the presentation of the petition; or
(iv) has ceased to be Hindu by conversion to another religion; or
(v) has been incurably of unsound mind or been suffering from any
mental disease such that the petitioner cannot be reasonably
expected to live;
(vi) In case any of the spouse converts his/her religion and cease to be
hindu then other spouse on petition filed with court and obtaining
decree in favour for divorce; or
(vii) Respondent has deserted the petitioner for a continuous period of
not less than 2 years immediately preceding the presentation of
petition; or
(viii) In addition to above, a wife may also present a petition for the
dissolution of her marriage on the ground that the husband has,
since the solemnization of the marriage, been guilty of bigamy, rape,
sodomy or bestiality
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.
Q40) Short note on Cruelty as ground of marriage?
➢ As per Section 13 of Hindu Marriage Act 1955, cruelty by any partner
can be a valid ground for seeking divorce.
➢ Cruelty may be defined as 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.
➢ Cruelty includes physical and mental cruelty as well.
Q41) Short note on Divorce by mutual consent?
As per Section 13 of Hindu Marriage Act,
➢ Divorce by Mutual Consent or Mutual Divorce is when both husband and
wife mutually agree that they cannot live together anymore and that
the best solution being Divorce,
➢ they would present a Mutual Divorce petition jointly before the
honourable court, without putting forth any allegations against each
other.
➢ The ground for Divorce by Mutual Consent is that they should have
been living separately for a period of at-least one year or more, that
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.
Q42) What is void and voidable marriage?
➢ As per Hindu Marriage Act 1955, A marriage is considered void under
the Hindu Marriage Act if it doesn’t fulfils the following conditions of
Section 5 of the Hindu Marriage Act namely: bigamy/polygamy by any
of the spouse; if it is within the prohibited degree; sapindas etc.
➢ A wife does not have the right to claim maintenance in the void
marriage.
➢ A marriage is voidable on either side of the party is known as voidable
marriage. It will be valid unless the petition for invalidating the
marriage is made. The grounds where marriage can be termed as
voidable.
✓ The party to the marriage is not capable of giving consent due to
the unsoundness of mind
✓ The party is suffering from mental disorder which makes her
unfit for reproduction of children.
✓ If the party has been suffering from repeated attacks of
insanity.
✓ The consent of marriage by either of the parties is done by force
or by fraud.
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.
Q43) Distinguish between Judicial Seperation and Divorce?
➢ Judicial Separation is a chance for the couple to introspect about the
chances of continuing their relationship or wondering whether a divorce
is too drastic a step.
➢ It can be a step towards divorce or a step towards reconciliation
because the court gives the couple time to consider the choices available
to them and the effects of their decision.
➢ The reason that judicial separation is provided for under the law is so
that the courts can ensure that the normal strain and stress of
everyday life are not the causes of a decision to end a marriage.
➢ The Hindu Marriage Act defines divorce as a dissolution of the
marriage.
➢ Judicial Separation only temporarily suspends the marriage while
Divorce is the end of the marriage.
➢ Petition for Judicial Separation can be filed at any time after the
marriage but petition for Divorce can only be filed after at least one
year of the marriage.
➢ Parties can not remarry after decree of Judicial Separation whereas
in case of Divorce they can remarry.
Q44) What is adoption? What are the requisites of valid adoption?
➢ Adoption means the process through which the adopted child is
permanently separated from his biological parents and becomes the
lawful child of the adoptive parents with all the rights, privileges. and
responsibilities that are attached to a biological child
The requisites of valid adoption as per Hindu Adoption and Maintainence
Act 1956:
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.
Q45) Who are the persons capable of giving in adoption?
➢ No person except the father or mother or the guardian of a child shall
have the capacity to give the child in adoption
➢ The father, if alive, shall alone have the right to give in adoption, but
such right can be exercised only with the consent of the mother unless
the mother 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
➢ The mother can give the child in adoption if the father is dead or
completely and finally renounced the world or has ceased to be a Hindu
or has been declared by court of competent jurisdiction to be of
unsound mind
➢ Where both the father and mother are dead or have completely and
finally renounced the world or have abandoned the child or have been
declared by a court of competent jurisdiction to be of unsound mind or
where the parentage of the child is not known, the guardian of the
child may give the child in adoption with the previous permission of the
court to any person including the guardian himself
➢ However, before granting permission to a guardian, the court shall be
satisfied that the adoption will be for the welfare of the child.
Q46) When a hindu wife is entitled to claim maintainence from husband?
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.
Q47) What is doctrine of Relation Back?
➢ This principle is an important principle of Hindu law.
➢ According to it, 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.
➢ In other words, it can be said that as per the doctrine of relation
back, a child adopted by a widow shall be deemed to be child adopted
by her husband, it is considered that a widow adopts a child for her
husband.
➢
Such child is considered to be adopted from the date of the death of
husband.
➢ Hindu adoption and maintenance act, 1956 abrogates this ancient law
but only to the extent to which provisions have been made in the Act.
Q48) Define Guardian? What are different types of guardians?
➢ As per Hindu minority and guardianship act, 1956 a guardian means a
person who takes care of body and property of a minor below the age
of 18 years.
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.
Q49) Who is natural Guardian what are his powers?
➢ Section 6 of the act provides for natural guardian. Natural guardian
may consists of:
o In case of boy or unmarried girl: Father and after him mother;
provided the custody
of a child below 5 years of age shall
ordinarily be with mother;
o In case of illegitimate boy or illegitimate unmarried girl: Mother
and thereafter father;
o In case of married girl: her husband.
Powers of a Natural Guardian:
➢ The powers of natural guardian can be kept under two headings:
➢ Regarding to body of minor: Section 8(1) of the act says that the
natural guardian can perform all those functions regarding the minor
which are for his benefits. The education, maintenance, custody,
marriage etc. of minor come under this heading. The guardian can enjoy
these powers only for benefit and welfare of minor.
➢ Powers regarding the property of minor: As
per Section 8(2) of the
act, natural guardian has the power to mortgage, sale, gift, exchange
or other type of transfer of immovable property of minor. However,
such transfer shall be made only with the prior permission of court,
not otherwise.
➢ If such transfer is made without the permission of court, then it shall
be voidable at the option of minor.
➢ As far as concerned, such permission will only be given in the
circumstances where it is necessary and for welfare of minor.
➢ Lease of the property:- section 8(2)(b) of the act lays down that any
natural guardian cannot lease the immovable property of minor for more
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.
Q50) Who is testamentary guardian?
➢ Testamentary Guardian is a guardian who is appointed by way of will.
➢ It is done to ensure that the child will have a guardian even after the
death of the natural guardian who may require supervision over
themselves or their estate.
➢ A testamentary guardian cannot act as a guardian if the natural
guardians are alive.
➢ After the enactment of Hindu Minorities and Guardianship Act of 1956,
it is clear that natural guardians will have the preference over any
other guardian.
➢ If the Father appoints a Testamentary guardian and mother outlives
him, she will be the natural guardian. The testamentary guardian can
only exercise his rights and power after the passing of the Mother.
➢ The powers of testamentary guardian shall be mentioned in the will or
the
statement
made
by
the
natural
guardian
appointing
the
testamentary guardian.
Q51) What is defacto Guardian?
➢ De-facto guardian of a minor is neither legal guardian nor testamentary
nor appointed by the court. He may be near relative of minor who takes
over the management of the affairs of the minor as a natural guardian.
➢ He has taken the custody of the minor to look after and is having the
care of property of the minor.
➢
Such guardian has no power to alienate the property of minor. Simply
he is the de-facto guardian not appointed by the court.
➢ Suppose he alienates the property, transfer is void-ab-initio and the
purchaser can not be the owner of the property.
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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.
Q53) Write a short note on Family Court?
➢ Family court is a special court that deals with legal issues that arise
from family relationships.
➢ Several sorts of courts dealing with specific family issues, such as
children’s courts and orphans’ courts, are merged into the family court.
➢ According to Section 3 of the Family Court Act 1984, the establishment
of the Family court is to promote conciliation, mediation and quick
resolution of issues involving marriage and family matters
➢ In coordination with the State Government, the State’s High Court can
establish family courts in towns and cities with over one
million
population.
➢ The State Government appoints the family court judges with the
approval of the High Court.
➢ A Family Court can have a single judge or multiple judges and is one
level above the District Court and one level below the High Court.
➢ All family-related matters, such as separation, divorce, alimony and
maintenance, domestic violence, custody, guardianship, education and
financial support for children, and so on, should be handled by the
family court.
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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.
Q55) Write short note on Uniform Civil Code?
➢ Uniform Civil Code resonates with one country one rule, to be applied
to all religious communities.
➢ The term, ‘Uniform Civil Code’ is explicitly mentioned in Part 4, Article
44 of the Indian Constitution. Article 44 says, “The State shall
endeavor to secure for the citizens a uniform civil code throughout the
territory of India.”
➢ A Uniform Civil Code means that all sections of the society irrespective
of their religion shall be treated equally according to a national civil
code, which shall be applicable to all uniformly.
*****
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Brief
Particulars
family
family based on lineage/ancestry
Patrilineal family
Matrilineal family
Family on the basis of Authority
nuclear family
Saptapadi
polygamy
Remarks
a group of persons whose relations to
one
another
are
based
on
consanguinity (ie blood relationship)
Patrilineal family; Matrilineal family
ancestry continues through the father
mother is the basis of the ancestry
Patriarchal Family; Matriarchal family
consist of a husband, wife and their
children
taking seven steps around the holy fire
under the mandap at the time of
marriage
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;
daughters;
(iv)
(iii)
Unmarried
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
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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
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