MODERN

HINDU LAW
[Amended by Hindu Marriage (Amendment) Act, 1999
and Family Court Act, 1984]

By
Prof. U.P.D. KESARI
MA., LL.M., D.Phil
Ex Dean Faculty of Law, University of Allahabad,
Ex. Professor of Law L.B.S. National Academy of Administration,
Mussorie (Govt. of India)

Co-Author
ADITYA KESARI
LL.M.

THIRD EDITION
2001

CENTRAL LAW PUBLICATIONS

Law Publishers & Booksellers
107, DARBHANGA COLONY, ALLAHABAD - 211 002
 CONTENTS
Parti
CHAPTER 1
NATURE OF LAW
Page
Early concept of Law ... 1
Rule of Law ... 4
Equality before Law ... 5

CHAPTER 2
APPLICATION OF HINDU LAW
Persons to whom Hindu Law applies ... 7
Persons who have changed religion ... 9
Persons to whom Hindu Law does not apply ... 9
Extent of the application of Hindu Law ... 9
Application of law on Migration ... 11
Hindu Law now, not a law of all Hindus or of Hindus alone ... 11

CHAPTER 3
SOURCES AND SCHOOLS OF HINDU LAW
Shmtis ... 12
Smritis ... 13
Arthashashtras ... 13
Commentaries and Digests ... 16
Conflict of laws in the texts ... 17
Treatises on Adoption ... 18
Judicial Decisions ... 18
Legislation ... 19
Equity, Justice and good conscience ... 20
Customs and usages ... 21
What is Custom ... 22
Kinds of Custom ... 22
Essentials of custom ... 23

CHAPTER 4
SCHOOLS OF HINDU LAW
Mitakshara ... 25
Dayabhag ... 27
Differences between the Mitakshara and Dayabhag school ... 27
Migration and the school ... 28

(vii)
viii MODERN HINDU LAW

Part II
CHAPTER 5
MARRIAGE
Page
Nature of Hindu Marriage ... 29
Eight forms of marriage (Before 1955) ... 31
Approved forms , ... 32
Unapproved Forms ... 32
Divorce and Remarriage ... 36
Marriage under the Hindu Marriage Act, 1955 ... 36
Nature of Marriage under the Act ... 37
Changes made by Hindu Marriage Act, 1955 ... 39
Changes brought about by the Marriage Laws
(Amendment) Act, 1976 ... 39
Conditions for a valid Hindu marriage under the Act. ... 41
Guardianship in marriage • ... 51
Marriage Ceremonies ... 51
Proof of Marriage ... 53
Restitution of conjugal rights ... 53
Subsistence of marriage—A pre-requisite ... 54
Withdrawal from society ... 54
Previous cohabitation not necessary ... 55
Agreement of separation ... 55
Reasonable and just cause ... 55
Mode of execution of decree for restitution of conjugal rights ... 61
Relevance of the remedy ... 61
Judicial Separation ... 62
Relevance of Judicial Separation ... 64
Characteristics of Judicial separation and its distinction
from divorce ... 64
Grounds : Extra-martial voluntary sexual intercourse ... 65
Cruelty ... 66
Desertion ... 73
Conversion ... 78
Unsoundness of mind ... 78
Leprosy ... 78
Venereal disease ... 79
Renunciation of the world ... 79
Presumption of death ... 79
Effect of judicial separation ... 80
Nullity of Marriage ... 81
Void Marriages ... 81
Voidable Marriage ... 82
Distinction between void and voidable marriages ... 94
Divorce ... 95
Old Hindu law ... 95
 CONTENTS ix

Page
Modern law—Hindu Marriage Act, 1955 . ... 96
Grounds of Divorce ... 98
Adultry ... 98
Cruelty ... 102
Desertion ... 108
Conversion ... 112
Unsoundness of mind ... 112
Leprosy ... 113
Venereal disease ... 114
Renunciation of the world ... 114
Presumped death ... 114
Non-resumption of cohabitation after the decree of judicial
separation ... 115
Failure to comply with the decree of restitution of
conjugal rights ... 116
Additional grounds of divorce in favour of wife ... 117
Divorce by mutual consent ... 119
Necessary Ingredients ... 119
Petition for Divorce ... 122
Divorced person when may marry again ... 123
Punishment for Bigamy ... 124
Punishment for contravention of certain other conditions for
a Hindu Marriage ... 125
Legitimacy of children ... 125
Contents and verification of petition ... 128
Power to transfer petitions ... 128
Special provisions relating to trial ... 129
Proceedings to be in camera ... 129
Decree in Proceedings ... 129
Interim maintenance and expenses ... 134
Quantum of maintenance ... 135
Permanent alimony and Maintenance ... 136
Custody of Children ... 139
Disposal of property ... 140
Enforcement of and appeal from decrees and order ... 141
Savings ... 141
CHAPTER 6
MAINTENANCE
Nature and extent of the right of maintenance
—Twofold liability ... 142
Modern law ... 143
Persons entitled to be maintained ... 143
Wife ... 144
When wife is not entitled to separate residence
and maintenance ... 147
Widowed daughter-in-law ... 148
 MODERN HINDU LAW

Page
Maintenance of aged infirm parents and the children ... 149
Maintenance of legitimate and illegitimate son ... 150
Legitimate and illegitimate daughter ... 151
Aged and Infirm parents ... 151
Dependents ... 151
Maintenance of dependants ... 153
Other persons entitled to maintenance under prior law ... 153
Amount of maintenance ... 154
Effect of a charge over the joint family property ... 157
CHAPTER 7
SONSHIP AND ADOPTION
Kinds of sons ... 159
Adoption ... 160
Present law ... 163
Changes made by the Act ... 163
Essentials of valid adoptions ... 164
Who may adopt—Pre law ... 164
Present law ... 165
Who can adopt ... 166
The capacity of a male Hindu to adopt ... 166
Consent of wife ... 166
Capacity of females to adopt ... 167
Who can give the child in adoptions ... 169
Consideration before the court ... 172
Who could be adopted ... 172
Age of adopted boy ... 174
Who may be adopted (Present law) ... 174
Adoption of an orphan ... 175
The ceremonies for adoption and other essentials ... 175
Effect of adoption ... 177
Doctrine of Relation back ... 178
Effect of adoption—Present law ... 179
Right of adoptive parents to dispose of their property ... 184
Determination of adoptive parents ... 185
Annulling an adoption ... 185
Prohibition of certain payments ... 187
Doctrine of factum valet ... 187
CHAPTER 8
MINORITY AND GUARDIANSHIP
Introduction ... 188
Changes made by the Act ... 188
Minority under Hindu law ... 189
Guardian—Meaning of ... 190
Natural Guardian ... 191
Disabilities to act as a guardian ... 194
 CONTENTS xl

Page
Effect of remarriage by widow ... 195
Natural guardian of an adopted son ... 195
Powers of a natural guardian ... 195
Limitation of powers of natural guardian ... 201
Testamentary guardian ... 203
Widowed mother ... 205
Powers of testamentary guardian ... 206
Removal of a testamentary guardian ... 206
De facto guardian ... 207
Ad hoc guardians ... 209
Overriding effect of the Act ... 209
Overriding the pre-existing rules of Hindu law ... 209
CHAPTER 9
INHERITANCE AND SUCCESSION
(GENERAL PRINCIPLES)
Modes of devolution of property ... 212
Nature of property vis-a-vis obstructed and
unobstructed heritage ... 214
Devolution under the Mitakshara system ... 214
Inheritance under the Dayabhag system ... 215
Distinction between Mitakshara and Dayabhag law of
inheritance ... 216
Exclusion from inheritance ... 217
Succession ... 219
Object ... 219
Main features of the Act ... 219
Certain definitions under the Act ... 221
Intestate Succession ... 223
Devolution of interest in coparcenary property. ... 224
Coparcenary property ... 226
Rule of survivorship ... 226
Devolution of interest in the property of Tarwad, Tavazhi,
Kutumba, Kavaru or Mom ... 232
Succession to property of a male ... 234
List of heirs specified in class I of the Schedule ... 235
List of heirs in class II of the Schedule ... 240
Computation of degrees ... 244
Hindu woman's right to property ... 247
Rules of Succession to the property of female ... 259
Order of succession and distribution ... 262
General rules of Succession. ... 267
Disqualification for heirs ... 272
Testamentary Succession. ... 275
Property capable of its being disposed of by will ... 276
xil MODERN HINDU LAW

PART 3
UNCODIFIED LAW
CHAPTER 10
JOINT FAMILY AND COPARCENARY
Page
Joint family—Origin, its nature and Constitution ... 277
Members of joint family ... 278
Hindu Coparcenary ... 279
When coparcenary comes to an end ... 282
Coparcenary and Joint family—Distinction ... 282
Characteristic features of coparcenary ... 283
Classification of property ... 286
Joint family property or Coparcenary property. ... 286
Separate or self-acquired Property ... 291
Salary and remunerations ... 293
Mitakshara classification of property ... 294
Obstructed heritage ... 294
Unobstructed heritage ... 295
Distinction between joint Hindu family firm and partnership. ... 296
Rights of Coparceners ... 297
Effect of Section 6 of the Hindu Succession Act, 1956 ... 300
Manager or Karta of joint Hindu family ... 301
Powers of Karta ... 302
Duties and liabilities of Manager (Karta) ... 305
No power to make a will. ... 310
Setting aside alienation ... 310
Rights of Purchaser of Undivided Coparcenary Interest ... 312
Dayabhag law ... 313
Points of similarity between Dayabhag and Mitakshara
coparcenary. ... 314
Points of distinction between the two systems ... 315.

CHAPTER 11
DEBTS
A—Mitakshara Law
Nature of liability ... 316
Religious obligation ... 317
Meaning of Avyavaharik debt ... 322
Suretyship debts ... 325
Liability for the debt contracted before partition ... 326
Father's power of sale to satisfy antecedent debts ... 328
Dayabhag law of debt ... 331
Distinction between the Mitakshara and Dayabhag law of debts... 332
Rules of Damdupat ... 332
 CONTENTS Xlil

CHAPTER 12
PARTITION
(Mitakshara Law)
Page
Meaning of partition ... 334
Division of Right and Division of Property ... 336
Persons entitled to demand partition ... 338
Partition how effected ... 343
Suit for partition ... 348
Death of a minor during the pendency of the suit—Effect ... 349
Special powers of father to effect partition ... 350
Re-opening of partition ... 352
Re-union ... 353
B. Dayabhag law ... 354
Points of similarity and distinction between the Mitakshara
and the Dayabhag laws ... 355
CHAPTER 13
STRIDHAN
Meaning of Stridhan ... 356
Stridhan according to the smritikars ... 357
According to Yagyavalkya ... 357
Stridhan according to commentators ... 358
Salient features of Stridhan ... 360
Sources of Stridhan ... 360
Kinds of Stridhan and incidents thereof ... 361
Rights of women over stridhan ... 361
Married status ... 361
Stridhan, its succession under Hindu Succession Act, 1956 ... 362
CHAPTER 14
WOMEN'S ESTATE
Meaning of woman's estate and its nature ... 364
Incidents of women's estate ... 364
Effects of alienation made without legal necessity and
without the consent of reversioners ... 366
Reversioners ... 367
Nature of the reversioner's interest ... 367
Compromise and family arrangement by the widow ... 368
Surrender ... 368
CHAPTER 15
GIFT
Definition of Gift under Mitakshara law ... 370
Void gift ... 371
Persons competent to receive gifts — 371
Gift in favour of unborn person ... 372
Restrictions upon right to make a gift ... 372
Present law of gift ... 373
xiv MODERN HINDU LAW

CHAPTER 16
WILLS
Page
Which property can be bequeathed ... 374
Other Rules relating to will ... 375
Bequest to an unborn person ... 377
When will is void ... 377
Rule for construing the will ... 377

CHAPTER 17
IMPARTIBLE ESTATES
Origin of impartible estates ... 379
Incidents of Impartible estates ... 380
Rules of Succession ... 382
Debts ... 382

CHAPTER 18
REUGIOUS AND CHARITABLE ENDOWDMENTS
What are endowments ? ... 383
Kind of endowments ... 383
Subject of endowment and its proof ... 386
Mode of Creation of an endowment ... 386
Proof and essentials of endowments ... 387
Math—Devasthana—Dharmashala ... 390
Kinds of Math ... 390
Powers and obligations of Mahant and Shebait ... 394
Removal and replacement of Idol — 395
Whether a female can held the office of Mahantship
or Shebait ••• 398
Distinction between a Shebait and Trustee ... 399
Doctrine of Cypres ... 399

APPENDICES
1. The Hindu Succession Act, 1956 ... 400
2. The Hindu Minority and Guardianship Act, 1956 ... 413
3. The Hindu Adoptions and Maintenance Act, 1956 ... 418
4. The Hindu Marriage Act, 1955 ... 427