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MARRIAGE IS A SACRAMENT OR CONTRACT

NATURE OF HINDU MARRIAGE: Amongst Hindus marriage is a settled

institution with a religious character. Marriage is considered an essential samskara with the
Hindus and as a holy union between a man and a woman for begetting a son necessary for
salvation and for the performance of religious duties. Marriage is not a civil contract and
does become invalid on the ground that it is effected during the minority of either the bride
or the bridegroom but a strictly religious institution.
The Supreme Court held in the case Smt. Mayadevi V. Jagdish prasad 2007
that “The foundation of a sound marriage is tolerance, adjustment and respecting one
another. Tolerance to each other's fault to a certain bearable extent has to be inherent in
every marriage. Petty quibbles, trifling differences should not be exaggerated and
magnified to destroy what is said to have been made in heaven. All quarrels must be
weighed from that point of view in determining what constitutes cruelty in each particular
case and as noted above, always keeping in view the physical and mental conditions of the
parties, their character and social status. A too technical and hypersensitive approach
would be counterproductive to the institution of marriage. The courts do not have to deal
with ideal husbands and ideal wives. It has to deal with particular man and woman before
it”.
EVOLUTION OF THE INSTITUTE OF MARRIAGE.
When the institution of Marriage was not established, well the man was not more than
an animal. The discovery of twin was meant for fulfillment of physical needs. Civilization
drawn on man with the acquisition of knowledge of family relationship some sort of sex
regulation come to be established probably it began with group of marriage and later on
couple marriage.
CONCEPT OF MARRIAGE

In Hindu’s religion system marriage treated as a holly bond or union between the two
soul. It is not the union for the life but the coming life as well. Marriage treated as an
essential sanskaras and every Hindu must marry. According to Satpatha brahman- wife
is considered as ardhangani. In addition, no religion duty can be fulfilled without wife or
marriage. It has been treated that marriage is the tie, which cannot be untied. Manu says-
husband and wife are united to each other not merely is this life but even after death. In the
other world its implications has been that widow remarriage has not been recognized in
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Hindu law. Apasthamba says – marriage was meant for doing good deeds for attainment
of Moksha. Thus, Hindu marriage is one of the oldest and essential institutions of Hindu’s.
It occupies a very important role in their social life. It is regarded as one of the most
important Sanskara out of Ten Sanskara, which cannot be abolished or prohibited, any one
irrespective of cast and sex it is compulsory for all Hindu’s.
HINDU MARRIAGE IS A SACRAMENT AND NOT A CONTRACT.

GOPAL KISHAN Vs. MITHILESH KUMARI- ALLAHABAD High Court

observed that “The institution of matrimony under the Hindu law is a sacrament and not a
mere socio legal contract, it is not performed for mere emotional gratification in its
context it is religious a husband and wife become one. The bride on the Seventh Step of
the Saptapadi losses her original gothra and acquire the gotra of the bridegroom”.
SHIVANANDY Vs. BHAGAWANTHYAMMA -Marriage is binding for life because
the marriage tie completed by Saptapadi and once it tie it cannot be untied. It is not a mere
contract in which a consenting mind is indispensable.
HINDU MARRIAGE A CONTRACT ALSO- The modern concept of marriage is as a
contract. it is an outcome of industrialization which based on the principle that –all human
and social relationship must be based on the free volition of individual.
BHAGWATI SARAN SINGH Vs. PARMESHVARI MANOHAR SINGH -Marriage
is not only a sacrament but also a contract.
MUTHUSAMI Vs. MAHALAXMI -Marriage whatever else it is i.e. a sacrament or an
institution, is undoubtedly a contract enters into for consideration with correlative rights.
ANJANA DEVI Vs. GHOSE - Suits relating to marriage deal with that which in the eye
of law must be treated as a civil contract and important civil right arise out of that contract.
HINDU MARRIAGE ACT 1955
This Act has introduced some far-reaching consequences, which have undermined the
sacramental character of marriage and rendered it contractual in nature to a great extant.
Section 5, 11 and 12 of this Act is the pertaining provisions which deal whether marriage
is a contract or sacrament.
Section 5 of HM Act 1955- deals with the condition of Marriage.
Clause (ii) of Section 5 deals with the MENTAL CAPACITY.
Clause (iii) of Section 5 deals with the AGE OF THE PARTIES.
This means Age and Soundness of mind is the essential conditions of a valid marriage.
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If we compare it with the Section, 11 of Indian contract act- it says- The consent of
minor or a person of unsound mind is void. But the fact of the matter is that- Marriage of
a person who is of unsound mind is a valid marriage under this Act, not merely the
violation of the requirements of clause (ii) & (iii) of Section 5 not render the marriage
void. Thus the section 11 of Indian Contract Act is not applicable to marriage if marriage
regarded as a contract.
U/S 12 OF HM Act 1955- violation of Section 5 render the marriage merely voidable
while under Law of Contract for want of capacity is totally vide. Thus, HM Act does not
consider the question of consent of much importance. But the only concern is the consent
is obtain by force or fraud the marriage is voidable which follow the same line of IC Act
1872.
Conclusion
It has been seen that the sacramental marriage among Hindu’s has three characters-
1. It is conserved as a Permanent and indissoluble union where if it is tied once it cannot
be untied.
2. It is an Eternal union wherein it is valid in all the life to come
3. It is Holy union where it is essential to perform religious ceremonies.
The first element has been destroyed by the Act, Divorce is recognized. The second
element destroyed in 1856 when the widow remarriage was given statutory recognition.
And the third element is still restrained. Thus the Hindu marriage has not remained a
sacramental marriage and has not become a contract through it has semblance of both.

KINDS OF MARRIAGES
According to Hinduism there are eight different types of Hindu marriages. Among the
eight types not all had religious sanction. The first four were considered proper. Rakshasa
and Gandharva marriage was regarded acceptable to Kshatriyas as was Asura marriage
forVaishyas and Shudras. The eight types are:
1. Brahma marriage The Brahma marriage is the marriage of one's daughter, after
decking her with costly garments and with presents of jewels, to a man of good
conduct learned in the Vedas, and invited by oneself.
2. Daiva marriage The Daiva rite is the marriage of one's daughter, decked with
ornaments to a priest who duly officiates at a religious ceremony, during the
course of its performance.
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3. Arsha marriage Arsha marriage is when the father gives away his daughter, after
receiving from the bridegroom a cow and a bull or two pairs of either as bride
price.
4. Prajapatya marriage Prajapatya is when a girl's father gives her in marriage to the
bridegroom, treating him with respect, and addresses them: 'May both of you
perform together your civil and religious duties'
5. Gandharva marriage The voluntary union of a maiden and her lover which
springs from sexual desire is called Gandharva marriage.
6. Asura marriage Asura marriage is when the bridegroom receives a maiden, after
having given of his own free will as much wealth as he can afford, to the bride and
her kinsmen.
7. Rakshasa marriage Rakshasa marriage is the marriage of a maiden involving her
forcible abduction from her home after her kinsmen have been slain or wounded.
8. Paishacha marriage When a man by stealth seduces a girl who is sleeping,
intoxicated, or mentally challenged, it is called Paishacha marriage. This is
condemned in the Manusmriti as a base and sinful act.
Monogamy means that one is permitted to have only one wife or one husband at a
time. Bigamy is the reverse of monogamy. Section 5(i) of the Hindu Marriage Act
prohibits bigamy. Section 11 makes a bigamous marriage void and section 17 makes it a
penal offence for both Hindu males and females under Sections 494 and 495 of IPC.
Bigamy includes both polygamy and polyandry. Polygamy permits a male to
have more than one wife simultaneously. It was recognized in Hindu law from the ancient
time to 1955. Polyandry permits the female to have more than one husband
simultaneously. Polyandry was not recognized by Hindu law, though by custom it
prevailed in some regions, in North and South. Polygamy and polyandry have abolished
and monogamy has been made a rule for all Hindus. Section 5(i) of the Hindu Marriage
Act, 1955 lays down that neither party should have a spouse living at the time of marriage.
This is a condition precedent to every marriage.
The offence of bigamy is committed by a Hindu marrying again during the life
time of his or her spouse, provided that the first marriage is not null and void. The offence
of bigamy is attracted even if the subsisting marriage is voidable. The offence is bigamy is
committed only if the required ceremonies of marriage are performed and the second
marriage cannot be taken to be proved by mere admission of the parties.
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WHO IS HINDU AND TO WHOM HINDU LAW APPLIES?

Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses
(a), (b) and (c) of sub-section (1) of Section 2 make the Act applicable to a person who is a
Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist,
Jain or Sikh by religion.
It is also applicable to any other person domiciled in the territories of India who is not a
Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore,
comprehensive and applicable to all persons domiciled in the territory of India who are not
Muslims, Christians, Parsis or Jews by religion
After the codification of Hindu law, it gives the negative definition means: A
person who was not a Muslim, Christian, Parsi or Jew was a Hindu.
Who is Hindu? Hindu is a general term, it denotes all those person who Profess
Hindu religion either by birth or by conversion to Hindu faith.
1. Hindu By Religion- Any person who is a Hindu, Jain, Sikh or Buddhist by
religion, i.e. Hindu by religion.
Under this category two types of person falls:
I. Those who are originally Hindus, Jain, Sikhs or Buddhist by religion.
II. Those who are converts or re converts to Hindu, Jain, Sikhs or Buddhist
religion.
2. Hindu By Birth- Any person who is born of Hindu parents ( viz. when both the
parent or one of the parents is a Hindu, Jain, Sikh, or Buddhist.
3. Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed
by any other law.
Hindu law not applies
Scheduled Tribes- the codify Hindu law lays down that its provisions do not apply to the
member of the Scheduled tribes coming within the meaning of clauses (25) of Article 366
of the Constitution of India unless the Center Government notification in the official
Gazette directs that any of the enactments shall apply to them also.
It does not mean that any Scheduled tribes which were governed by Hindu Law
before the Codification of Hindu Law, not being governed by Hindu Law, they will
continue to be under the periphery of it.
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It is well said that Hindu law is a Law of Status. It means that wherever a Hindu
goes , he will be considered as a person under Hindu Law, even when he moves out of his
homeland.
The Kerala High Court held in Mohandas Vs. Dewaswom Board1975 KLT 55 ,
that Declaration by a non Hindu is sufficient to be treated as a Hindu. Jesudas , famous
play back singer, was a catholic Christian by birth. He used to render devotional music in a
Hindu temple and used to worship the presiding deity. He also filed a declaration stating
that he was the follower of Hindu faith. It has been held that such a bonafide declaration
amounts to his acceptance of Hindu faith and becomes a Hindu by conversion.

The Supreme Court in Perumaal Vs Ponnuswami 1971 observed that a person

may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith
by a person born in another faith does not convert him into a Hindu, nor is a bare
declarations that he is a Hindu is sufficient to convert him to Hinduism. But a bona fide
intention to be converted to the Hindu faith accompanied by conduct unequivocally
expressing that intention may be sufficient evidence of conversion.
Sastri Yagnapurushadji and others Vs Muldas Brudardas Vaishya and Anr AIR
1966 SC 1119 the Supreme Court pronounces that there are three distinguishing features
of Hindus . They are
1. Acceptance of absolute supremacy of Vedas
2. Belief in Polytheism(many Gods)
3. Recognition of the fact that ways or means of salvation are diverse.

Maneka Gandhi Vs Indira Gandhi and anr 1985 Delhi High Court held that child
brought up a Hindu must be a Hindu.
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JOINT FAMILY
A Hindu joint family consists of the common ancestor and all his lineal male
descendants up to any generation together with the wife or wives (or widows) and
unmarried daughters of the common ancestor and of the lineal male descendants. A joint
family may consist of a single male member and widows of deceased male members. This
body is purely a creature of law and cannot be created by act of parties but by adoption or
marriage a stranger may be affiliated as a member thereof. An undivided family which is
the normal condition of Hindu society is ordinarily joint not only in estate but in food and
worship. The presumption is that the members of a Hindu family are living in a state of
union, until the contrary is established. There is a presumption of jointness in a Hindu
family and that the jointness subsists till a partition is proved. But there is no presumption
that because a family is joint, it possesses any joint property. Thus, merely because
members lived and worked at different places but owned a joint family house in common
it cannot be said that they do not form a joint Hindu family. A Hindu joint family is not a
corporation and it has no legal entity distinct and separate from that of the members who
constitute it. It is not a juristic person either. It is a unit and in all affairs it is represented
by its Karta or head.
Hindu Joint Family ( mitakshara)
A Mitakshara Hindu Joint Family consisting of common ancestor and his male lineal
descendants, their wives, unmarried daughters and dependants of the family. HJF is
neither corporation nor juristic person.
Basic characteristic of Hindu Joint Family
1. Unity of ownership and worship
2. Unity of protect community interest
3. Prevention of fragmentation of agricultural lands
4. Common caring and sharing responsibilities
5. Right to maintenance of the members to the family
6. Right to devolution of property by Rule of survivorship.

What is Joint Family Property?

 Ancestral property received by Hindu from F,FF, FFF
 Members jointly acquired for the purpose of Joint Family
 Separate property of the members blended into joint stock
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 Property acquired by a members with the help of Joint Family funds

What is self acquired property?
 Property acquired with his own skill and labour.
 Property inherited from any person for his exclusive use
 Property gifted to him by any person for his exclusive use
 Property obtained in partition , provided that he has no child
 Property gifted by the father with love and affection
 Property acquired by the grants of government Eg. Provident Fund
 Property under Hindu Gains and Learning Act, 1930

Characteristics of the Joint Family:

1. Depth of Generations ( Large in size) : The joint family consists of people of three or
more generations including at least grandparents, parents , children and grandchildren.
Sometimes, other kith and kin such as uncles, aunts, cousins and great grandsons also live
in the joint family itself.
2. Common Residence: Members of the joint family normally reside together under the
same household. This joint living creates a sense of unity among all the members of the
family. Due to the scarcity of accommodation or due to educational and employment
problems, members of the joint family may reside separately. Still, they try to retain
regular contacts and the feeling of belonging to the same family.
3. Common Kitchen: Members eat the food prepared jointly at the common kitchen.
Normally, the eldest female member of the family supervises the work at the kitchen. In
the patriarchal joint families, women serve the food to men at first and take their meals
afterwards.
4. Common Worship: The Hindu joint family derives its strength from religion. Hence, it
is associated with various religious rituals and practices. Every family may have its own
deity of ‘Kula devata’ and its own religious tradition. Members of the family take part in
common worship, rites and ceremonies. The joint worship passes from generation to
generation.
5. Joint or Common Property: The members hold a common property. All movable and
immovable property of the family held jointly. As Melley writes: the joint family “is a co-
operative institution similar to a joint stock company in which there is a joint property”.
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The head of the family manages the family property like a trustee. The total earnings of the
members are pooled into a family treasury and family expenses are met with out of that.
The head of the family acts as a trustee of the family property and looks towards the
material and spiritual welfare of the family members. A family continue to remain joint till
its property held jointly. Division of property means division of family.
6. Exercise of Authority: In the patriarchal joint family usually the eldest male member
exercises authority. The super-ordination of the eldest member and the subordination of all
the other members to him is a keynote of the joint family. His commands are normally
obeyed by others. As opposed to it, in the matriarchal joint family the eldest female
member in theory exercises the supreme authority.
7. Arranged Marriages: In the joint family, the head considers it as his privilege to
arrange the marriages of the members. The individual’s right to select his/her life-partner
is undermined. The younger members rarely challenge their decisions and arrangements.
But now-a-days, the feelings of younger ones are being given due weightage.
8. Procreation: The size of the joint family is by nature bigger. It is found to be associated
with higher rate of production. It is so because in the past procreation was regarded as a
religious duty. Members rarely practised birth control measures. But today the situation
has changed.
9. Identification with obligations towards the Family: The members tend to identify
themselves with their family. Every member has his own duties and obligations towards
the family. The family in turn, protects the interests and promotes the welfare of all. The
senior-most member of the family acts as the guide for other members.
10. Self-sufficiency: There was a time when the joint family was mostly self-sufficient. It
used to meet the economic, recreational, medical, educational and other needs of the
members. The rural agricultural joint families were mostly self-reliant. But they can hardly
depend on themselves today. No type of family is self-reliant that way today.
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KARTA OR MANAGER
In the entire Hindu joint family, the Karta or manager occupies a very important
position. He possesses a pivotal position. His position is sui generis. He is a person with
limited powers.
Who can be a Karta: In joint family, ordinarily the senior most male member is the
Karta. He is Karta by virtue of the fact that he is senior most male member. He does not
owe his position to agreement or consent of other coparceners. So long as the father is
alive, he is the Karta and after his death it passes to the senior most male member. In the
presence of a senior male member, a junior member cannot be the karta but if all the
coparceners agree, a junior male member can be Karta. There can be more than one Karta.
The Supreme Court in Commr. Of Income-tax Vs Seth Govind Ram ( AIR 1966 2) held
that female could not be the Karta of the Joint family.
In a Hindu family the karta or manager occupies a position superior to that of the
other members. He manages the family property or business or looks after the family
interest on behalf of the other members.
Powers and duties of Karta : the main powers of the Karta are
1. Possession and management
2. Power to contract debts
3. Liability to account
4. Power of representation
5. Power of alienation
Possession and management: as the head of the family, the actual possession and
management of the coparcenary property must vest in the manager. No coparcener is
entitled to separate possession the coparcenary property. He is the protector of the house
hold. Karta 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.
Power to contract debts: karta has power to enter into contract debts for family purposes
in his capacity as the manager and such debts are binding on the other members to the
extent of their interest in the family property.
Power of representation: karta acts as its representative in all matters concerning the
joint family as a whole ( legal , social and religious). He can enter into any transaction on
behalf of the family; his acts are binding on the entire joint family.
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Power of alienation: The power of the manager of a Hindu joint family to alienate joint
family properly so as to bind the other members of the family , is limited and qualified
power. He can alienate property legitimately for a legal necessity and benefit of estate.

Liability to account: In the absence of proof of direct misappropriation or fraudulent and

improper conversion of the joint family moneys to the personal use of the manager , Karta
is liable to account only for what he received and not for what he ought to or might have
received if the said moneys had been profitably dealt with
Liability 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 arrears of maintenance.
Liability to recover debts due to the family: Karta should realize all debts due to the
family within reasonable time but should not allow them to bar by limitation.
Liability not to alienate coparcenary property: unless it is for benefit for family, estate
or for necessity Karta cannot alienate joint family property without the consent of all the
coparceners.

PRIVILEGES
Benefit of Estate: Karta, as a prudent manager, can do all those things which are in
furtherance of the family’s advancement, to prevent probable losses, provided his acts are
not purely of speculative or visionary nature. The last clause means that the property
cannot be converted into money just because the property is not yielding enough income.
Indispensable Duties: This term implies the performance of those acts which are
religious, pious or charitable. Examples of indispensable duties are marriages,
grihapravesham etc. In this case there is a requirement to differentiate between alienation
made for indispensable duties and gifts for charitable purposes. The difference lies in the
fact that in the former case while discharging indispensable duties, the Karta has unlimited
powers in the sense that he can alienate the entire property for that purpose. But in the case
of gifts for charitable purposes, only a small portion can be alienated.
Note: If the alienation is not made for any of the three purposes, then the alienation is not
void but voidable at the instance of any coparcener.
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Legal Necessity: The term “legal necessity” has not been expressly defined in any law or
judgment. It is supposed to include all those things which are deemed necessary for the
members of the family. “Necessity” is to be understood, not in the sense of what is
absolutely indispensible, but what would be regarded as proper and reasonable. If it is
shown that family’s need was for a particular thing, and if property was alienated for the
satisfaction of that particular need, then it is enough proof that there was a legal necessity.

A few illustrative cases are:

a) Food, shelter and clothing.
b) Marriage (second marriages are not considered a legal necessity).
c) Medical care.
d) Defense of person accused of a crime (exception to this rule is murder of a family
member).
e) Payments of debts, taxes etc.
f) Performance of ceremonies (like marriage, grihapravesham).
g) Rent etc.

NATURE AND ORIGIN OR HINDU LAW :

Historically the term 'Hindu' is of foreign origin. It was used to designate people
who were living east of the Hindi river, now known as the Indus. Etymologically, the
term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed.
In course of time, the term Hindu has been associated with religion. Thus logically, the
term 'Hindu' is used to signify persons who are Hindus by birth and by faith and this is the
basis for the applicability of Hindu Law.

The following persons are governed by Hindu Law:

1. a Hindu by birth : If the parents are both Hindus, their children whether legitimate or
illegitimate become Hindus automatically.
2. A Hindu by faith or conversion of hinduism: Previously, it was a contention that "a
Hindu is born and nor made". But now even a person converted to Hinduism is treated as
a Hindu.
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3. Illegitimate children : Illegitimate children born to Hindu parents or both the parents.
4. Illegitimate children : Illegitimate children born to Christian father and Hindu mother,
and brought up as a Hindu.
5. Jain Sikh, Buddhist lingayat, brahmos, arya samaj: Jain sikh, budhist, Lingayat,
Brahmos, Arya Samajist and Santhals of Chota Nagpuri, If not varied by custom.
6. A person who is Hindu by birth, and who has renounced Hinduism and reverted back
to Hinduism either by religious rites or recognition from community.
7. The sons of Hindu dancing grils of the Naik caste who are converted to
Mohammedanism, but whose sons are brought up by the Hindu grand parents as Hindus.
8. To Hindu who have made a declaration that they were not Hindus for the purpose of
Special Marriage Act 1872
PERSONS NOT GOVERNED BY HINDU LAW :
1. Illegitimate children born to Hindu father and Christian mother and brought up as
Christians.
2. Illegitimate children born to a Hindu father and a Muslim mother.
3. Hindu converted to islam religion
4. Hindu coverted to christianity.

EFFECT OF CONVERSION ON INHERITANCE RIGHTS: Previously a convert from

one religion to another could not inherit the property of his original religion. But the
Caste Disabilities Removal Act 1850 abolished the said forfeiture of rights to inheritance
by a convert.

EFFECT OF CONVERSION ON MARITAL RIGHTS : Under the Hindu Marriage Act

1956 if any of the spouse converts himself to another religion the other party is entitled
for a divorce.

EFFECT OF CONVERSION ON RIGHT TO MAINTENANCE: The spouse who gets

converted from Hinduism to another religion cannot claim maintenance. However if a
Hindu himself renounces Hinduism the Hindu wife can claim separate residential
maintenance from him
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COPARCENARY AND ITS CHARACTER

The essence of a coparcenary is unity of ownership with the necessary appendage
of unity of possession. The conception of a coparcenary is that of a common male ancestor
with his linear descendants in the male line with four degrees counting from such ancestor
(ie three degrees exclusive of such ancestor). ( coparcenary is a small body within the joint
family consisting of common ancestor and all his three male lineal descendants) No
coparcenary can commence without a common male ancestor. A coparcenary is purely a
creature of law and cannot be created by contract. But the adopted person may be
introduced as a member of the coparcenary. No individual member of the family while
remaining joint can predicate of the joint property that he has a definite share. The
undivided interest of a member of a coparcenary is fluctuating interest capable of being
enlarged by deaths and being diminished by births in the family. It is only on the partition
that he becomes entitled to a definite share. The rights of each coparcener until a partition
takes place, consists in a common possession and a common enjoyment of the coparcenary
property.
Incidents of the coparcenership
The incidents of coparcenership under the Mitakshara law are
1. The lineal male descendants of a person up to the third generation acquire on birth
ownership in the ancestral properties of such person and not as representing their
ancestors.
2. Such descendants can at any time work out their rights by demanding for partition.
3. Till partition, each member has got ownership extending over the entire property
conjointly with the rest and so long as no partition takes place, it is difficult for any
coparcener to predicate the share which he might receive.
4. As a result of such co-ownership, the possession and enjoyment of the properties is
common.
5. No alienation of the property is possible unless it be for necessity, without the
concurrence of the coparceners.
6. The interest of the deceased member lapses on his death to the survivors.
7. A coparcenery under the Mitakshara School is a creature of law and cannot arise by
act of parties except on adoption; the adopted son becomes a coparcener with his
adoptive father as regards the ancestral properties of the latter.
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8. As a logical corollary and counterbalance of his birth acquires an interest in the

JFP, a pious obligation is imposed on him to pay his father’s debts incurred for a
purpose which is not avyavaharika (illegal or immoral).
The main points of distinction between the joint Hindu family and the Hindu
coparcenery is that joint Hindu family consists of all persons lineally descended from a
common ancestor, and includes their wives and unmarried daughters. A coparcenery is
narrower body than the joint family and consists of only those persons who acquire by
birth an interest in the joint or coparnery property of the holder for the time being and who
can enforce a partition whenever they like. e.g.sons, grandsons and great grandsons of the
holder of the joint property.
Illegitimate son of a coparcener not be a member of a coparcenary none of the rights of a
coparcener such as the right by birth, the right to joint possession and the right of partition
can be claimed by him against the father.
Classification of property
According to the Hindu law , property is divided into the following two classes for the
purposes of devolution (i.e) Joint family property or coparcenary property’and
Separate property

Joint family property or coparcenary property

It consists of according to the source from which it comes
1. ancestral property received from the three immediate paternal ancestral (or
apratibandha daya) and property acquired with the aid of the ancestral property;
and
2. Separate property of coparcener, which he might have thrown into the common
coparcenary stock.
The chief features of the joint family property are
1. in joint family property every coparcener has a joint possession
2. The joint family property passes by survivorship and not by succession.
3. In the joint property the male issue of the coparcener takes an interest by birth.
Ancestral property
(A) property inherited from paternal grandfather
All property inherited by a male Hindu from paternal ancestor’s (ie) father,
father’s father and father’s father’s father is ancestral property as regards his son,
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grandson and great grandson. Property inherited from any other relation is not
ancestral property but it is the separate property of a person inheriting it.
Ancestral property is unobstructed heritage (apratibandha daya)
According to Mitakshara law the essential feature of unobstructed heritage is that the
sons, grandsons and great grandsons acquire an interest in their property inherited by
birth. Their rights attach to it by their birth. This property is called unobstructed
because the accrual of the right to it is not obstructed by the existence of the owner.
Unobstructed heritage devolves by survivorship.
Obstructed heritage (sapratibandha daya)
Property inherited by a Hindu from a person other than his father, grandfather or
great grandfather is obstructed heritage. It is called obstructed because the accrual of
the right to it is obstructed by the existence of the owner. The owner holds it as his
separate and absolute property. The relations of the owner do not take a vested interest
in it by birth. They are entitled to it only on the death of the owner. Thus the property
which devolves on parents, brothers, uncles, nephews, on the death of the last owner is
obstructed heritage. Obstructed heritage devolves by succession.
The Mitakshara law recognizes the distinction between obstructed and
unobstructed heritage, but under dayabhaga law all heritage is obstructed and it does
not recognize any such distinction
The following are also the ancestral property
(a) Accumulations of income of ancestral property
(b) Property purchased or acquired out of the income or with assistance of the
ancestral property.
(c) Proceeds of sale of ancestral property
(d) Property purchased out of the proceeds said in © above
(B) Property inherited from maternal grandfather by his sons
The property inherited by the two brothers from their maternal grandfather was
joint property in their hands and that the divided interest of deceased brother passed on
his death by survivorship to his other brother and not by succession to his widow.
( C ) Share allotted on partition
The share which a coparcener obtains on partition of ancestral property is ancestral
property as regards his male issue who takes an interest in it by birth whether they are
 17

existing at the date of partition or born subsequent to such date. As regards other
relations, it is separate property.
Separate property of coparcener when thrown into the common coparcenary stock
converts into the joint family property.
Rights of coparceners:
1. No coparcener is entitled to any special interest in the coparcenary property nor he
is entitled to exclusive possession of any part of the property. The reason is that
there is community of interest and unity of possession between all the members of
the joint Hindu family.
2. No member while the family continues joint is entitled to a definite share in the
joint family property or its income. The share of a member become defined only
when a partition takes place.
3. Every member has a right to joint possession and joint enjoyment of the family
property. Where a coparcener is excluded from joint possession, he is entitled to
enforce his right by a declaration suit.
4. A person who belongs to a Mitakshara joint Hindu family is free to use his holding
in any manner he likes, subject to any lawful objection on the part of his
coparceners.
5. Every coparcener in a joint Hindu family has a right to be maintained out of the
family estate.
6. A coparcener has no right to do unauthorized act. He cannot enter into the contract
of suretyship and his contract if entered into will be void.
7. Every adult coparcener is entitled to claim partition of the coparcenary property
and to take his share in the property.
No coparcener can dispose of his interest in the joint family property either by gift or
will .

Ancestral business and joint family business

An ancestral business is that business which is inherited by a person from his
father, father’s father or father’s father’s father. When a joint Hindu family carries on
the ancestral business, the business is called the joint family business and the family is
said to be a trading family. Business is a distinct heritable asset.
 18

Alienation of coparcenary property

The following persons alone can alienate the coparcenary property so as to pass a
good to the alienee
1. the whole body of coparceners where they are all adults’
2. The manager or the karta of the joint family for the legal necessity or for the
benefit of the estate or for family business.
3. the father in the capacity of the manager or karta
4. A sole surviving coparcener.
SECTION 6 deals with the devolution of interest in coparcenary property.
After coming into force of this Act the daughter is equal to a son and she gets all
the rights which her brother has. The daughter will also be liable to pay the debts of the
deceased coparcener. She is also liable to maintain all those whom the deceased
coparcener was under an obligation to maintain. Sub section (2) states that any
property to which a female Hindu becomes entitled by virtue of subsection (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded as
property capable of being disposed of by her by testamentary disposition. Sub section
(3) deals with the interest of the deceased coparcener who died after the
commencement of the Act will devolve by testamentary or intestate succession under
this Act and not by survivorship. The property should be deemed to have been divided
for the purpose of such devolution of interest. The interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition had taken place immediately before his/her death,
irrespective of whether he was entitled to partition or not.
The doctrine of pious liability is not available to the creditors after the
commencement of the new Act. Only the liability of the deceased has to be shared by
the sons and daughters in proportion to the shares they inherit.
Any partition which has taken place before the 20th day of December, 2004 will not
be effected and nothing contained in this section will be applicable to this partition.
The fact of partition should be evidenced by a deed of partition duly registered under
the Registration Act or partition effected by a decree of the court. No other kind of
partition Is recognized by the court.
 19

Modes of succession to a share in the property

Per Capita: According to the number or in other words, equally. Persons having the same
relationship with the deceased owner share the property equally (ie) the property of the
deceased shall be divided in as many shares as the number of such heirs, each heir taking
one share.
Per stripes: Where the persons succeeding do not have the same relationship with the
deceased they will take the property per stripes (ie) in accordance with roots or branches
Tenancy in Common : is a form of survivorship in which each tenant in common has an
equal right to the possession of every part and parcel of the property. The shares of each
tenant in common may or may not be equal. If A and B are tenants in Common, on the
death of A, his heirs take his share and B cannot claim by survivorship.
Joint Tenancy: Property in which there is a single estate in land or other property owned
by two or more persons created under one instrument and at one time, all such persons
having an equal right to share in the use and enjoyment of the property during their
respective lives. On the death of joint tenant, the right in the property pass to the survivors
and finally goes to the last survivor, which is unknown to Hindu law. If A and B are joint
tenants, on the death of one of them, the property survives to the other.

The Hindu Succession (Amendment) Act, 1986

w.e.f. 5-9-1985

Section 29-A : Right to the daughter in coparcenary property. The daughter of a

coparcener shall by birth become a coparcener in her own right in the same manner in her
own right in the same manner as the son and have the same rights in the coparceners
property to that of a son, subject to the same liabilities and disabilities.

However, she is not entitled to the coparcenary rights if her marriage was
solemnized before the commencement of the Act, 1986 (ie ) 5-9-1985
The Hindu Succession ( Amendment) Act, 2005
1. The daughter of a coparcener shall by birth becomes a coparcener in her own
right the same manner as the son, subject to liabilities in the respective
property.
2. the Act came into force on 9-9-2005
 20

3. the amended Act is not applicable to the properties disposed or partitioned by

20-12-2004
4. Any property which a Hindu female entitled as coparcener shall be regarded as
her own property with all rights of alienation.
5. If a Hindu dies after the commencement of their Act, his interest in the Joint
Family shall devolve by testamentary or intestate succession but not by rule of
survivorship
6. There is deemed partition of coparcenary property as on the day of death of a
coparcener.
7. The share of the pre deceased son or pre deceased daughter goes to their
surviving children.
8. The sons pious obligation has been removed for the debts incurred by his father
on or after 9-9-2005
9. The concept of dwelling house has been abolished.

Doctrine of survivorship - The shares of the coparceners are not specific and are
subject to change with the births and deaths of the coparceners, in the family. Under the
traditional or the classical law, on the death of the coparcener in a joint family, 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
dependants. This phenomenon is called the doctrine of survivorship. On birth, he takes an
interest, enjoys it during his life time, but leaves nothing for his female dependants on his
death. In Dayabhaga system, one is entitled to succeed the property after the death of the
male holder. Till then, he is just an heir.

SOURCES OF HINDU LAW

The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources are

(i) Shruti
(ii) Smriti
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(iii) Digests and Commentaries and

(iv) Custom.
II. Modern Sources are
(i) Justice, equity and good conscience
(ii) Precedent, and
(iii) Legislation.

Ancient Sources
(i) Shruti- It literally means that which has been heard. The word is derived from the
root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of
Hindu law and is believed to be the language of the divine revelation through the
sages.The synonym of shruti is Veda. It is derived from the root “vid” meaning ‘to
know’. The term Veda is based on the tradition that they are the repository ( source) of
all knowledge.
There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be
recited by the chief priest), Yajurva Veda (containing formulas to be recited by the
officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva
Veda (containing a collection of spells and incantations, stories, predictions, apotropaic
charms and some speculative hymns).Each Veda has three parts viz. Sanhita (which
consists mainly of the hymns), Brahmin (tells us our duties and means of performing
them) and Upanishad (containing the essence of these duties). The shrutis include the
Vedas along with their components.

(ii) Smritis- The word Smriti is derived from the root “smri” meaning ‘to remember’.
Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their
original form and the idea whereby they wrote in their own language with the help of their
memory. Thus, the basis of the Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras( early smritis) and
Dharmashastras (later smritis). Their subject matter is almost the same. The difference is
that the Dharmasutras are written in prose, in short maxims (Sutras) and the
Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find
Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word
 22

Smriti is used to denote the poetical Dharmashastras. The Dharmasutras deal with the
duties of men in their various relations.The main Dharmasutras are: Gautama, Bauthayana,
Apastamba, Haritha, Vasistha and Vishnu.Gautham belonged to the Sama Veda School is
considered to be the oldest of the Dharmasutras, and it deals with legal and religious
matter, inheritance, partition and stridhan. Baudhayana belonged to the Krishna Yajurveda
School deal with marriage, sonship, adoption and inheritance. Apastamba, native of
Andhra Pradesh belonged to the Krishna Yajurveda school. His dharmasutra is the best
preserved one and his language is very forceful and full of clarity. He rejected the
Prajapatya forms of marriage. Vasustha belonged to Northern India is concerned with
the Rigveda. He permits the marriage of virgin widows and deals with marriage, sonship,
adoption, inheritance, source of law and jurisdiction of courts.Vishnu. Vishnu smriti deals
with criminal law, civil law, marriage , sonship, adoption, inheritance,debt, interest etc
Haritha: Haritha Dharmasutra deals with the source of Dharma, Brahmacharya, Snataks,
householder, prohibition about food, impurity on birth and death.

Dharmashastras were mostly in metrical verses and were based of Dharmasutras. They
deal with the subject matter in a very systematic manner. Most of the Dharmashatras are
divided into three parts: Achara which deals with the rules of religious
observances;Vyavahara which deals with civil law; Prayaschitta which deals with the
penance or expiation.The main dharmashastras are Manu, Yjnavalkya and Narada
Smriti.

Manu smriti: It is divided into 12 chapters and contains 2694 slokas. In the eight chapter
are stated rules on eighteen titles of law which includes both civil and criminal law. Manu
was a protagonist to Brahminical revival, preached orthordox doctrines and he was harsh
to women and sudras. If a sudra marries a Brahman woman, death is the only punishment
for him.
Yajnavalkya Smriti: (sage from Mithila and a major figure in the Upanishads) . It based
on Manusmriti, though it is more synthesized, concise and logical. It deals with procedural
law in detail. Like Manu , Yajnavalkya attaches importance to custom. According to him
the King is subordinate to law.
Narada smriti: it is the first legal code which is mostly free from moral and religious
feelings. He deals only with Vyavahara and does not deal with Achara and Prayaschitta. It
 23

deals with the law of procedure and pleadings in detail. Narada confers right on women to
hold and inherit property.
The rules laid down in Smritis can be divided into three categories viz. Achar (relating to
morality), Vyavahar (signifying procedural and substantive rules which the King or the
State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying
the penal provision for commission of a wrong).

(iii) Digests and Commentaries-

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya)
and Digests (Nibandhs) covered a period of more than thousand years from 7th century to
1800 A.D. In the first part of the period most of the commentaries were written on the
Smritis but in the later period the works were in the nature of digests containing a
synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the
different commentaries that were written by various authorities. The original source of
Hindu law was the same for all Hindus. But schools of Hindu law arose as the people
chose to adhere to one or the other school for different reasons. The Dayabhaga and
Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based
on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all
Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the
Code of Yajnavalkya.

(iv) Custom-
Custom is regarded as another source of Hindu law. From the earliest period custom
(‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee
custom signifies a rule which in a particular family or in a particular class or district has
from long usage obtained the force of law.

Custom is a principle source and its position is next to the Shrutis and Smritis but usage of
custom prevails over the Smritis. It is superior to written law. There are certain
characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-
 24

(i) The custom must be ancient. The particular usage must have been practised for a long
time and accepted by common consent as a governing rule of a particular society.
(ii) The custom must be certain and should be free from any sort of ambiguity. It must also
be free from technicalities.
(iii) The custom must be reasonable and not against any existing law. It must not be
immoral or against any public policy and
(iv) The custom must have been continuously and uniformly followed for a long time.

Indian Courts recognize three types of customs viz: (a) Local custom – these are customs
recognised by Courts to have been prevalent in a particular region or locality. (b) Class
custom – these are customs which are acted upon by a particular class. Eg. There is a
custom among a class of Vaishyas to the effect that desertion or abandonment of the wife
by the husband abrogates the marriage and the wife is free to marry again during the life-
time of the husband. (c) Family custom – these are customs which are binding upon the
members of a family. Eg. There is a custom in families of ancient India that the eldest
male member of the family shall inherit the estates.

II. Modern Sources

(i) Justice, equity and good conscience-
Occasionally it might happen that a dispute comes before a Court which cannot be settled
by the application of any existing rule in any of the sources available. Such a situation may
be rare but it is possible because not every kind of fact situation which arises can have a
corresponding law governing it.

The Courts cannot refuse to the settle the dispute in the absence of law and they are under
an obligation to decide such a case also. For determining such cases, the Courts rely upon
the basic values, norms and standards of fairplay and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They
may also be termed as Natural law. This principle in our country has enjoyed the status of
a source of law since the 18th century when the British administration made it clear that in
the absence of a rule, the above principle shall be applied.
 25

(ii) Legislations-
Legislations are Acts of Parliament which have been playing a profound role in the
formation of Hindu law. After India achieved independence, some important aspects of
Hindu Law have been codified. Few examples of important Statutes are The Hindu
Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu
Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment
overrides all prior law, whether based on custom or otherwise unless an express saving is
provided for in the enactment itself. In matters not specifically covered by the codified
law, the old textual law contains to have application.
(iii) Precedents-
After the establishment of British rule, the hierarchy of Courts was established. The
doctrine of precedent based on the principle of treating like cases alike was established.
Today, the decisions of Privy Council are binding on all the lower Courts in India except
where they have been modified or altered by the Supreme Court whose decisions are
binding on all the Courts except for itself.

MITAKSHARA SCHOOL AND DAYABHAGA SCHOOL

.
Due to the emergence of various commentaries on SMIRITI and SRUTI, different
schools of thoughts arose. The commentary in one part of the country varied from the
commentary in the other parts of the country. The Hindu Succession Act is based on the
vision provided by the two schools of thought.
Because of these differences two main schools emerged:
MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal and
Assam. The Yagna Valkya Smriti was commented on by Vigneshwara, a great thinker
and a law maker from Gulbarga, Karnataka under the title Mitakshara. The followers of
Mitakshara are grouped together under the Mitakshara School. The Inheritance is based on
the principle of propinquity i.e. the nearest in blood relationship will get the property. The
 26

school is followed throughout India except Bengal state. Sapinda relationship is of blood.
The right to Hindu joint family property is by birth. So, a son immediately after birth gets
a right to the property. The system of devolution of property is by survivorship. The
share of coparcener in the joint family property is not definite or ascertainable, as their
shares are fluctuating with births and deaths of the coparceners. The coparcener has no
absolute right to transfer his share in the joint family property, as his share is not definite
or ascertainable. A woman could never become a coparcener. But, the amendment to
Hindu Succession Act of 2005 empowered the women to become a coparcener like a male
in ancestral property. A major change enacted due to western influence. The widow of a
deceased coparcener cannot enforce partition of her husband’s share against his brothers.

There are four Sub-Schools under the Mitakshara School:

1. DRAVIDIAN SCHOOL OF THOUGHT : (MADRAS SCHOOL)
It exists in South India. The principle authorities are the Smriti Chandrika, the
Parashara Madhaviya, the Saraswati Vilasa and theVyavadhara Virnaya. In the case of
adoption by a widow it has a peculiar custom that the consent of the sapindas was
necessary for a valid adoption. (‘Sapindas’ – blood relation)

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):

The zaminder of Ramnad died without sons and in such a condition, the zamindari would
have escheated to the Government, the widow Rani Parvatha vardhani made an adoption
of a son, with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the
Zamindari would escheat to the State. The adopted son brought a suit for declaration of
the validity of the adoption. It was a question whether a widow can make a valid adoption
without her husband’s consent but his sapinda’s consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law,
held that Hindu law should be administered from clear proof of usage which will outweigh
the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy
Council concluded that in the Dravida School, in the absence of authority from the
husband, a widow may adopt a son with the assent of his kindred.

2. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT)

 27

It exists in Bombay (Mumbai) , From the above four bases, there are two more bases.
They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire
work of religious and Civil laws. Widow has no Lord, so she can choose to adopt.
3. BANARAS SCHOOL OF THOUGHT:
It exists in Orissa and Bihar. This is a modified Mitakshara School. The main authorities
are the Virmitrodaya and the Nirnaya Sindhu. Husband must have given consent before
his death for adoption by widow.
4. MITHILA SCHOOL OF THOUGHT:
It exists in Uttar Pradesh near the Jamuna river areas. The main authorities are
theVivada Chintamani and the Vivada Ratnakara. Widow cannot get consent of her
husband, so she cannot adopt.
Apart from the above schools, there are four more schools which are now existent
today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.

DAYABHAGA SCHOOL
The Dayabhaga School, which is followed mainly in Bengal is not a commentary
or any particular code, but is a digest of all the codes. It has been written by Jimutavahana
It has no sub-school. It differs from Mistakshara School in many respects. It may also be
noted that the Mitakshara is the orthodox school, whereas the Dayabhaga is the reformist
school of Hindu law. Inheritance is based on the principle of spiritual benefit. It arises by
pinda offering i.e. rice ball offering to deceased ancestors.. Sapinda relation is by pinda
offerings. The right to Hindu joint family property is not by birth but only on the death of
the father. The system of devolution of property is by inheritance. The legal heirs (sons)
have definite shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and so can
transfer his share. The widow has a right to succeed to husband’s share and enforce
partition if there are no male descendants. On the death of the husband the widow becomes
a co-parcener with other brothers of the husband. She can enforce partition of her share.

Effect of migration on the school of Hindu law.

 28

When a Hindu family migrates from one state to another, the law draws a presumption that
it carries with it its personal law. i.e. the laws and customs prevailing in the state from
which it came. The presumption can, however, be rebutted, by showing that such a family
has adopted the law and usages of the new provision where it has settled down. Thus for
interest, where a Hindu family migrates, say from Maharashtra (where Mitakshara law
prevails), to Bengal (where the Dayabhaga laws prevails), the presumption is that the
family continuous to be governed by the Mitakshara law. This presumption is that the
family has abandoned the law of the province of its origin (i.e. Mitakshara), and adopted
the law of the province where it has settled. (i.e. Bengal).
But the differences between the schools swept away by Hindu Succession Act, 1956 and
Hindu Adoptions and Maintenance Act, 1956.

STRIDHAN AND WOMEN’S ESTATE

Stridhan means woman’s property. In the entire history of Hindu Law, woman’s
rights to hold and dispose of property have been recognized.
Kinds of Woman’s Property
What is the character of property that is whether it is stridhan or woman’s estate,
depends on the source from which it has been obtained. They are:
Gifts and bequests from relations- Such gifts may be made to woman during
maidenhood, coverture or widowhood by her parents and their relations or by the
husband and his relation. Such gifts may be inter vivos or by will. The Dayabhaga School
doesn’t recognize gifts of immovable property by husband as stridhan.
Gifts and bequests from non-relations- Property received by way of gift inter vivos or
under a will of strangers that is, other than relations, to a woman, during maidenhood or
widowhood constitutes her stridhan. The same is the position of gifts given to a woman by
strangers before the nuptial fire or at the bridal procession. Property given to a woman by a
gift inter vivos or bequeathed to her by her strangers during covertures is stridhan
according to Bombay, Benaras and Madras schools.
Property acquired by self exertion, science and arts-A woman may acquire property at
any stage of her life by her own self exertion such as by manual labour, by employment,
by singing, dancing etc., or by any mechanical art. According to all schools of Hindu Law,
the property thus acquired during widowhood or maidenhood is her stridhan. But, the
 29

property thus acquired during covertures does not constitute her stridhan according to
Mithila and Bengal Schools, but according to the rest of the schools it is stridhan. During
husband’s lifetime it is subject to his control.
Property purchased with the income of stridhan- In all schools of Hindu Law it is a
well settled law that the properties purchased with stridhan or with the savings of stridhan
as well as all accumulations and savings of the income of stridhan, constitute stridhan.
Property purchased under a compromise- When a person acquires property under a
compromise; what estate he will take in it, depends upon the compromise deed. In Hindu
Law there is no presumption that a woman who obtains property under a compromise
takes it as a limited estate. Property obtained by a woman under a compromise where
under she gives up her rights, will be her stridhan. When she obtains some property under
a family arrangement, whether she gets a stridhan or woman’s estate will depend upon the
terms of the family arrangement.
Property obtained by adverse possession- Any property acquired by a woman at any
stage of her life by adverse possession is her stridhan.
Property obtained in lieu of maintenance- Under all the schools of Hindu Law
payments made to a Hindu female in lump sum or periodically for her maintenance and all
the arrears of such maintenance constitute stridhan. Similarly, all movable or immovable
properties transferred to her by way of an absolute gift in lieu of maintenance constitute
her stridhan.
Property received in inheritance- A Hindu female may inherit property from a male or a
female; from her parent’s side or from husband’s side. The Mitakshara constituted all
inherited property a stridhan, while the Privy Council held such property as woman’s
estate.
Property obtained on partition-. In the Mitakshara jurisdiction, including Bombay and
the Dayabhaga School it is an established view that the share obtained on partition is not
stridhan but woman’s estate her absolute property, the female has full rights of its
alienation. This means that she can sell, gift, mortgage, lease, and exchange her property.
This is entirely true when she is a maiden or a widow. Some restrictions were recognized
on her power of alienation, if she were a married woman. For a married woman stridhan
falls under two heads:
• the sauadayika (gifts of love and affection)- gifts received by a woman from relations on
both sides (parents and husband).
 30

• the non-saudayika- all other types of stridhan such as gifts from stranger, property
acquired self exertion or mechanical art.
Over the former she has full rights of disposal but over the latter she has no right of
alienation without the consent of her husband. The husband also had the power to use it.
On her death all types of stridhan passed to her own heirs.

GUARDIANSHIP under Hindu Law

Introduction

In the Hindu Dharamshastras, not much has been said about the guardianship. This
was due to the concept of joint families where a child without parents is taken care of by
the head of the joint family. Thus no specific laws were required regarding the
guardianship. In modern times the concept of guardianship has changed from the paternal
power to the idea of protection and the Hindu Minority and Guardianship Act, 1956
codifies the laws regarding minority and guardianship with the welfare of the child at the
core.
Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor
that is below the age of Eighteen years who is incapable of taking care of himself or of
handling his affairs and thus requires help, support and protection. Then, under such a
situation a guardian has been appointed for the care of his body and his property.
According to Section 4 of HMG Act, 1956 Guardian means a person having the
care of a person of a minor or of his property or of both the person and his property. This
includes:
Natural guardian
Guardian appointed by the will of a natural guardian (testamentary guardian)
A guardian appointed or declared by court
A person empowered to act as such by the order of Court of Wards.
This list of 4 types of guardians is not exhaustive. A person, who is taking care of a
minor without authority of law, can also be a guardian under the above definition and is
called a de facto guardian. De facto guardians include self-appointed guardians and
guardians by affinity, such as guardians for a minor widow. However, a person does not
have right to sell or deal with minor’s property if he is merely a de-facto guardian as per
section 11.
 31

Who are the natural guardian:-

Under Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the expression
natural guardian refers to the father and after him the mother of the Minor. The natural
guardian of wife is her husband. Section 6 of Act provides that the natural guardian
consists of the three types of person:-
(i) Father
(ii) Mother
(iii) Husband
Thus the natural guardian can only be father, mother and husband and according to it:-
In case of a boy or unmarried girl firstly the father and later mother is the guardian
of a minor. Provided that upto age of five year mother is generally the natural guardian of
a child. The guardian of illegitimate boy or illegitimate unmarried girl shall be firstly the
mother and later the father. The guardian of married girl is her husband.
The guardianship can be terminated in the following situations:-
(i) When such guardian is no more Hindu.
(ii) When he has renounced the world.
In case of E.M. Nadar v. Shri Haran, 1992, it was held by the court that the father is
guardian of minor even if living separately. In case of Vijaylakshmi v. Police Inspector,
1991, it was held that when father converts to be non-Hindu then mother shall be natural
guardian. In case of Chandra v. Prem Nath, 1969, it was held that the guardian below the
age of 5 years is mother. But in several decisions, it has been considered that if the father
is unable and do not have sufficient fund then the natural guardian shall be mother as
described by the court in the following cases:-
(i) R. Venkat Subaiya v. M. Kamalamma, 1992
(ii) Smt. Geeta Hariharan v. Reserve Bank of India, 1999.
The power of Natural Guardian
The power of Natural Guardian can be kept under two heading:-
Right regarding the body of Minor and Right regarding the property of Minor.
Keeping in the view of the importance of above lines the body of minor under
Section 8 (i) that the natural guardian can perform all the function regarding care of the
minor which are in his benefits.
The Power of Natural Guardian Property of Minor – Section 8 of HMGA 1956
describes the powers of a natural guardian as follows:
 32

A guardian can do any act, subject to provisions of this section, that are necessary
or are reasonable and proper for the benefit of the minor or the benefit of the minor’s
estate. But the guardian, in no case, shall bind the minor by a personal covenant.
The guardian cannot, without prior permission from the court, Mortgage, charge, or
transfer the immovable property of the minor by way of sale, gift, exchange, or otherwise.
Lease the immovable property for a term more than 5 years or where the lease ends one
year after the minor attains majority. Any sale of immovable property in violation of the
above two points, is voidable at the insistence of the minor. The court shall not give
permission for sale of immovable property unless it is necessary or clearly in the benefit of
the minor.
These powers also include the following:-
Right in education, right to determine religion, right to custody, right to control
movement, right to chastisement
In the case of Manik Chandra v. Ram Chandra AIR 1981 SC has held that the meaning of
“necessity” and “advantage” of a minor are quite wide and the courts have the power to
widen their scope as per the case facts before giving the permission. As per section 12, no
guardian can be appointed for the undivided interest in the joint property of the minor.
However, the court may appoint a guardian for the complete joint family if required.

Minor cannot the guardian of another minor: – As described in Section 10 of the Act
that no minor cannot be guardian of another minor. In the case ofIbrahim v. Ibrahim, 1916,
it was held the minor can be the guardian of his wife but cannot be guardian of her
property.
Testamentary Guardian (Sec 9) – a person who becomes a guardian due to the will of a
natural guardian is called a testamentary guardian. Section 9 defines a testamentary
guardian and his powers. For a legitimate boy or a girl, the father, who is a natural
guardian, may appoint any person to act as the guardian of the child after the death of the
father. However, if the mother is alive, she will automatically become the natural guardian
and after her death, if she has not named any guardian, the person appointed by the father
will become the guardian. A widow mother who is a natural guardian, or a mother who is a
natural guardian because the father is not eligible to be a natural guardian, is entitled to
appoint a person to act as a guardian after her death. For an illegitimate child, the power of
appointing a testamentary guardian lies only with the mother.
 33

Powers
A testamentary guardian assumes all powers of a natural guardian subject to limitations
described in this act and to the limitations contained in the will. A testamentary guardian is
not liable personally for the expenses and he can ask the guardian of the property of the
minor to meet the expenses through the property. The rights of the guardian appointed by
will cease upon the marriage of the girl.
Guardianship by Affinity
In Paras Nath v. State, Allahabad HC 1960, held that the father-in-law is the rightful
guardian of a minor widow. However, this view has not been adopted by Nagpur HC.
Madras HC also did not hold this view and held that the welfare of the child is to be
considered first before anything else.
De Facto Guardian
Section 11 says that a de facto guardian is not entitled to dispose or deal with the property
of the minor merely on the ground of his being the de facto guardian. There is controversy
regarding the status of a de facto guardian. Some HC consider that alienation by de facto
guardian is void while alienation by de jure guardian is voidable (Ashwini Kr v.
Fulkumari, Cal HC 1983), while some HC have held that both are voidable (Sriramulu’
case 1949). It is now well settled that de facto guardian does not have the right to assume
debt, or to gift a minor’s property, or to make reference to arbitration.
Custody of a minor
Custody of a minor is also subordinate to section 13, which declares the welfare of the
child to be of paramount interest. Regarding a child, who is at the age of discretion, his
wishes are also to be considered, though his wishes may be disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic condition of
the father than maternal grandfather is considered to be in favour of the father. In Kumar
v. Chethana AIR 2004, SC has held that mother’s remarriage is not a sufficient cause in
itself to lose custody of a minor. It was further held that convenience of the parents is
irrelevant.
To ensure the welfare of the child, the custody may even be given to the third person as
was given to the mother and grandfather by SC in case of Poonam v. Krishanlal AIR 1989.
In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a
minor and after a long time demanded the guardianship. His claim was rejected.
In the case of Chakki v. Ayyapan 1989, a mother who says she will keep living with
 34

friends and may beget children from others, was not considered appropriate for custody in
the minor’s interest.
Power over minor’s property
In general, a guardian may do all acts that are in the interest of the minor. A third party
may deal safely with the guardian in this respect. However, this excludes fraudulent,
speculative, and unnecessary deals. Before this act, a natural and testamentary guardian
had the power to alienate the minor’s property if it is necessary as determined by SC
in Hanuman Prasad v. Babooee Mukharjee 1856. However, this rule has been restricted
through sec 8, which mandates courts permission before alienating the minor’s interest in
the minor’s property. Also, a guardian does not have any right over the joint family
interest of a minor.
In the case of Vishambhar v. Laxminarayana, 2001, SC has held that a sale of minor’s
immovable property without courts permission is voidable and not void ab-initio. It further
held that Sec 60 of Limitations Act would be applicable when the minor repudiates the
transaction.
In case, a minor repudiates an improper alienation made by the guardian, he is liable to
return the consideration.
Liabilities of a guardian
Since the legal position of a guardian is fiduciary, he is personally liable for breach of
trust.
He is not entitled to any compensation unless explicitly specified in a will.
A guardian cannot take possession of minor’s properties adversely.
Must manage the affairs prudently.
Liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a settlement of
account, the guardian’s liability comes to an end.
Rights of a guardian:
A guardian has a right to:-
Represent the minor in litigations.
Get compensation for legal expenses from minor’s property.
Sue the minor after he attains majority to recover expenses.
Refer matters to arbitration if it is in the best interest of the minor.
Have exclusive possession of minor’s property.
 35

Removal of a guardian
Court has the power to remove any guardian in accordance to section 13.
Ceases to be a Hindu.
Becomes hermit or ascetic.
Court can remove if it finds that it is not in the best interest of the child.
Welfare of the minor is of paramount importance (Sec 13)
While appointing or declaring a guardian for a minor, the count shall take into account the
welfare of the minor.
No person shall have the right to guardianship by virtue of the provisions of this act or any
law relating to the guardianship in marriage if the court believes that it is not in the interest
of the minor.
Thus, under this doctrine, any guardian may be removed depending on the circumstances
on per case basis and the court may appoint a guardian as per the best interests of the
minor.

Live- In-Relationship in India

In India as per Hindu Vedic philosophy marriage is a holy union for the
performance of religious duties. It is not a contract but it is a sanskar or sacrament. The
husband and wife are considered one in the eye of law. Marriage, as its legal
consequences, entitles both the persons to cohabit; the children born out of a legal wedlock
have legitimacy as legal heir; the wife is entitled to maintenance during and after the
dissolution of marriage, protects a woman by guaranteeing her legal rights for restitution
of conjugal rights in case of desertion, legitimacy of the children, relief in case of cruelty,
adultery, impotency, claim of maintenance and alimony etc. To avoid these obligations
and to enjoy the benefit of living together, the concept of live-in relations has come into
picture. Live in relationship provides for a life free from responsibility and commitment
unlike as in a marriage.

Live- in relation i.e. cohabitation is an arrangement whereby two people decide to

live in a long term or permanent basis in an emotionally and/or sexually intimate
relationship. The term is most frequently applied to those unmarried couples who live
 36

together in a long time relationship that resembles a marriage. The legal definition of live-
in relationship is “an arrangement of living under which the couple which is unmarried
lives together to conduct a long going relationship similarly as in marriage”.

Live-in relationships in India are often seen as a taboo and a sin. However its
existence can be traced back to ancient India when the many kings cohabited without
marriage. Due to change in time and values in the society it is now no longer a taboo in big
cities. Even it is still often found in rural areas with more conservative values. In modern
times, live-in relationship has become an acceptable norm. It is not a crime; it is now
acceptable in society as observed by the Apex Court.
Legal Status of Live- In-Relationship The status of the live-in relationship is not very
clear in India. There are no specific laws on the subject of live-in relationship. Neither any
legislation defines the rights and obligations of the parties and the status of children born
to such couples. Constitution is the mother of all the laws. Constitution of India in itself
contained handful of provisions for the upliftment of the status of women. Within the
meaning of Article 21 which provides the right to life, a right to live with dignity is also
included. In order to pursue a dignified life one should also be able to fulfill the basic
standards of living. Thus, a woman who is living with a man without marriage for
longtime, deserve the equality and equal protection of law, equal rights, status and
privileges granted under various laws as given to a legally wedded wife.
Live-in-relationship is not recognized by the Hindu Marriage Act, 1955 or by the
Criminal Procedure Code, 1973, or by the Indian Succession Act, 1956. However, the
expression relationship in the nature of marriage which is included within the definition of
domestic relationship has been defined in the Protection of Women from Domestic
Violence Act, 2005 as follows: Section 2(a) “Aggrieved person” means any woman who
is, or has been, in a domestic relationship with the respondent and who alleges to have
been subjected to any act of domestic violence by the respondent; Section 2(f) “Domestic
relationship” means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family
members living together as a joint family. Thus females live in partners have certain
economic rights which are protected under Act. Certain measures are taken to regulate this
issue. As the Malimath Committee, 2003 suggested that the word ‘wife’ under Cr.P.C.
 37

should be amended to include a woman living with the man like his wife so that even a
woman having a live- in relationship with a man would also be entitled to alimony. If a
man and woman are living together as husband and wife for a reasonable long period the
man shall deemed to have a married the women. The Maharashtra Government in 2008
approved a proposal suggesting that a woman involved in a live- in relationship for a
reasonable period, should get the status of a wife .Whether a period is a reasonable period
or not is a determined by the facts and circumstances of each case. The National
Commission for Women recommended to the Ministry of Women and Child Development
on 3th June 2008 that the definition of wife as described in Section 125 of Cr. P.C. must
include women involved in live- in relationship. The aim of the recommendation was to
harmonize the provisions of law dealing with protection of women from domestic violence
and also to put a live- in relationship at par with that of a legally married couple.
Judicial Response on Live- In-Relations
Judiciary is a key mechanism for protecting the rights of the female who is living under
this relation. In Payal Katara vs.Superintendent Nari Niketan Kandra Vihar, Agra
(AIR 2002) the Allahabad High Court ruled that a lady of about 21 yrs of age being a major
has right to go anywhere and that anyone man and woman even without getting can live
together if they wish. In Patel and others case (2006) SC (8)478 the Apex Court observed
that live in relationship between two adult without formal marriage cannot be construed as
an offence. In Radhika vs. State of M P (AIR 2008) the Supreme Court observed that man
and woman involved in live- in relationship for a long period ,will be treated as a married
couple and their child would be called legitimate. In Abhijeet Bhikaseth Auti vs. State of
Maharashtra ((2009) S C 112) the Supreme Court stated that a woman living in
relationship may also claim maintenance under Sec.125 of Cr.P.C. Since 2010, the
Supreme Court has consistently given the woman in the live-in relationship the rights of a
lawful wife. In Khushboo vs. Kanniamal MANU/S C/0310/2010 and others the Supreme
Court ruled that entering into live in relationship cannot be an offence. A three judge
bench observed that when two adult people want to live together what is the offence? Does
it amount to go offence? Living together is not an offence, it cannot be an offence. Living
together is a fundamental right under Article 21 Constitution of India and it constitutes
right to life and personnel liberty. The Supreme Court placing reliance upon its earlier
decision in Lata Singh vs. State of UP AIR 2006 S C 2522 held that live in relationship is
permissible only in unmarried major persons of heterogeneous sex. Again the apex court
 38

of the land in Madan Mohan Singh vs. Rajni Kant ( Civil Appeal 6466/2004 ) has once
entered the debate on legality of the live in relationship as well as legitimacy of child born
out a presumption of marriage between those who are in live in relationship for a long
period and this cannot be termed as walking in and walking out relation. In case of Bharat
Matha vs. R Vijaya Renganthan AIR 2010 S C 2685 dealing with the legitimacy of child
born out of a live in relationship may be allowed to succeed inheritance in the property of
the parents if any but doesn’t have any claim as against Hindu ancestral coparcenaries
property. In Alok Kumar vs. State Delhi High Court held that live –in relationship is a
walk-in and walk-out relationship. There are no strings attached to this relationship,
neither this relationship creates any legal bond between parties. In D.Velusamy vs. D.
Patchalammal AIR 2010 SC 2770 Apex court held that a relationship in the nature of
marriage under Domestic Violence Act, 2005 must also fulfill the following criteria(a)the
couple must hold themselves out to society as being akin to spouses;(b)they must be of
legal age to marry;(c)they must be otherwise qualified to enter in to a legal marriage
including being unmarried;(d)they must have voluntary cohabited and held themselves out
to the world as being akin to spouses for a significant period of time and in addition the
parties must have lived together in a shared household.

The SupremeCourt, in Indra Sarma vs. VKV Sarma Cr. Appeal 2009/2013
observed that “Live-in or marriage like relationship is neither a crime nor a sin. Long-
standing relationship as a concubine, though not a relationship in the nature of a marriage,
of course, may at times, deserves protection because that woman might not be financially
independent.” The Apex Court identified five kinds of livein relationships in this case
which are asfollows:
1. The first one is a domestic relationship between an adult male and an adult female, both
unmarried. This is the most uncomplicated sort of relationship.
2. The second one is a domestic relationship between a married man and an adult
unmarried woman, entered knowingly. This is a problematic grey area. This one can lead
to a conviction under Indian Penal Code for the crime of adultery.
3. The third one is a domestic relationship between an adult unmarried man and a married
woman, entered knowingly. This is also a problematic grey area.
4. The fourth one is a domestic relationship between an unmarried adult female and a
married male, entered unknowingly.
 39

5. The fifth one is a domestic relationship between two gay or lesbian partners. The Court
has clarified that the above are merely illustrative.
The Court had asked Parliament to bring in proper amendments to the Protection of
Women from Domestic Violence Act, or enact a suitable legislation so that women and
children born out of live in relationships are protected, though those types of relationship
might not be a relationship in the nature of a marriage. In a landmark judgment on 13
April 2015 by the bench consisting of Justice M.Y. Eqbal and Justice Amitava Roy, the
Supreme Court ruled out that couples living in live-inrelationships will be presumed
legally married. The apex court also said that in case the man dies, then his partner would
inherit his property. Since 2010, the Supreme Court has ruled in favour of women
declaring that women should get the rights as that of a wife, in case of live-in couples.
Conclusion
Live-in relationships are now gradually getting acceptance in the metro India. As on today
there is no law meeting the demands of the live in relationship .It are ethics and social
norms which explain the essence of living in a welfare model. The judiciary has accorded
legality to the concept of live in relationship and has protected the rights of the parties and
the children of live in couples. It is not a crime or sin Awareness has to be created in these
young minds of just from the point of the emotional and societal pressure that such a
relationship may create but also the fact it would give rise to various legal hassles on
issues like division of property, violence, cases of desertion by death of a partner and
handing of custody and other issues when it comes to children resulting from such
relationship. The live- in relationship may be immoral, but not illegal. There is no law
which makes a live- in relationship illegal. It is need of time to create a legal status for
live-in relationship.
SURROGACY
The word surrogate, is derived from Latin word ‘surrogates’ which means to
substitute, or appointed to act in the place of. Surrogacy is a well known method of
reproduction whereby a woman agrees to become pregnant for the purpose of gestating
and giving birth to a child she will not raise but hand over to a contracted party. She
may be the child’s genetic mother (the more traditional form for surrogacy) or she may
be, as a gestational carrier, carry the pregnancy to delivery after having been implanted
with an embryo. In some cases surrogacy is the only available option for parents who
 40

wish to have a child that is biologically related to them. The intended parent(s) is the
individual or couple who intends to take care of the child after its birth.
The successful birth of the world’s first baby conceived by in VITRO
FERTILIZATION (IVF) and embryo transfer occurred on July 25, 1978, in UK.
India’s first scientifically documented IVF baby was, born on August 6, 1986 in
Mumbai, through the support of the Indian Council of Medical Research. It started
from a small town Anand, in Gujarat.
There are four types of surrogacy
1. TRADITIONAL SURROGACY
2. GESTATIONAL SURROGACY
3. ALTRUISTIC SURROGACY
4. COMMERCIAL SURROGACY
TRADITIONAL SURROGACY is done via artificial insemination, with the
surrogate using her egg and another man's sperm. (It also know as
the Straight method) the surrogate is pregnant with her own biological child, but this
child was conceived with the intention of relinquishing the child to be raised by others;
by the biological father and possibly his spouse or partner, either male or female. The
child may be conceived via home artificial insemination using fresh or frozen sperm or
impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination)
which is performed at a fertility clinic.
GESTATIONAL SURROGACY is done via In Vitro Fertilization (IVF), where
fertilized eggs from another woman are implanted into the surrogate's uterus. (It is
also know as the Host method) the surrogate becomes pregnant via embryo transfer
with a child of which she is not the biological mother. She may have made an
arrangement to relinquish it to the biological mother or father to raise, or to a parent
who is unrelated to the child (e. g. because the child was conceived using egg
donation, sperm donation or is the result of a donated embryo). The surrogate mother
may be called the gestational carrier.
ALTRUISTIC SURROGACY ( uncompensated) - Altruistic surrogacy In other
words, free surrogacy. Is a situation where the surrogate receives no financial reward
for her pregnancy or the relinquishment of the child (although usually all expenses
related to the pregnancy and birth are paid by the intended parents such as medical
 41

expenses, maternity clothing, and other related expenses). The surrogate mother can be
one of close relative or friend.
COMMERCIAL SURROGACY (Compensated) - Commercial surrogacy is a form
of surrogacy in which a gestational carrier is paid to carry a child to maturity in her
womb and is usually resorted to by higher income infertile couples who can afford the
cost involved or people who save and borrow in order to complete their dream of being
parents. This procedure is legal in several countries including in India where due to
high international demand and ready availability of poor surrogates it is reaching
industry proportions. But some European countries & states commercial surrogacy is
banned. Commercial surrogacy is sometimes referred to by the emotionally charged
and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby
farms".

LEGAL ASPECT OF SURROGACY IN INDIA

Commercial surrogacy has been legal in India since 2002. India is emerging as a
leader in international surrogacy. Indian surrogates have been increasingly popular with
fertile couples in industrialized nations because of the relatively low cost. Indian clinics
are at the same time becoming more competitive, not just in the pricing, but in the hiring
and retention of Indian females as surrogates. Clinics charge patients between $10,000 and
$28,000 for the complete package, including fertilization, the surrogate's fee, and delivery
of the baby at a hospital
Surrogacy in India is much simpler and cost effective than anywhere else in the world.
There is an increasing amount of Intended Parents who choose India as their surrogacy
destination. The main reason for this increase is the less costly surrogacy and better
flexible laws. In 2008, the Supreme Court of India has held that commercial surrogacy is
permitted in India. That has again increased the international confidence in going in for
surrogacy in India
SURROGACY AGREEMENT
"Surrogacy Agreement" is an agreement between the intended parent and the
Surrogate, which expresses their necessity and fully volitional desire to opt for Assisted
Reproductive Technique of Surrogacy, whereby the surrogate shall bear and gestate the
embryo of the Intended Parents.
 42

"Agreements" generally means the meeting of minds i.e. the parties to an

agreement understanding each other's intention at the point of entering into the agreement
and there is a total synchronization of thought and action.
Since there is no specific law with regard to Surrogacy or Assisted Reproductive
Technique in India, 'Surrogacy agreement' is the only foundation which governs the parties
to Surrogacy. Therefore the Intended Parents are required to devote attention to have a
perfect agreement in place, so that the surrogacy agreement is not held void or voidable in
the court of law. As in every agreement, each party to a surrogacy agreement should
express his/her purpose and situations, the need for surrogacy, free will of the surrogate,
details about the surrogate and the terms on which the surrogate agrees to gestate the child
etc. The terms chosen to be used in the agreement play an important role in determining
the meaning accrued according to the context. Surrogacy agreement, being a very sensitive
medical issue, should be drafted by a well experienced hand in the field. Since this
agreement is a document which validates the birth of a child, it should be made sure that
the agreement is be able to meet the worst twist of situations.
International Surrogacy Agreements
International Surrogacy Agreements can be enforceable in dual countries. With the
Intended Parents coming from abroad and taking up surrogacy in India, it is important that
the surrogacy agreement is compatible to the laws of India and the Home Land of the
Intended Parent. It is a quite a legal complex situation where the surrogate is an Indian
National and the Intended Parents are from abroad. In such cases, the Intended Parents
have to make sure that the surrogacy agreement is enforceable according to the laws of
their land as well. These agreements shall have impact over the nationality of the surrogate
child. Where this agreement is void or voidable according to the laws the land of the
Intended Parents, the agreement shall go unvalued and the surrogacy agreement loses its
sanctity. This questions the validity of the surrogacy arrangement as well.
The Law Commission of India on August 2009 has submitted the 228th Report on “NEED
FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY
CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.”
The following observations had been made by the Law Commission: -
(a) Surrogacy arrangement will continue to be governed by contract amongst parties, which will
contain all the terms requiring consent of surrogate mother to bear child, agreement of her
husband and other family members for the same, medical procedures of artificial insemination,
 43

reimbursement of all reasonable expenses for carrying child to full term, willingness to hand
over the child born to the commissioning parent(s), etc. But such an arrangement should not be
for commercial purposes.
(b) A surrogacy arrangement should provide for financial support for surrogate child in the event
of death of the commissioning couple or individual before delivery of the child, or divorce
between the intended parents and subsequent willingness of none to take delivery of the child.
(c) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
(d) One of the intended parents should be a donor as well, because the bond of love and affection
with a child primarily emanates from biological relationship. Also, the chances of various
kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case
the intended parent is single, he or she should be a donor to be able to have a surrogate child.
Otherwise, adoption is the way to have a child which is resorted to if biological (natural)
parents and adoptive parents are different.
(e) Legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parent(s) without there being any need for adoption or even declaration of
guardian.
(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning
parent(s) only.
(g) Right to privacy of donor as well as surrogate mother should be protected.
(h) Sex-selective surrogacy should be prohibited.
(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971
only.

The Report has come largely in support of the Surrogacy in India,

highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the
women through surrogacy is another worrying factor, which the law has to address. The Law
Commission has strongly recommended against Commercial Surrogacy. However, this is a
great step forward to the present situation

The Surrogacy (Regulation) Bill, 2019

 The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health
and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill
defines surrogacy as a practice where a woman gives birth to a child for an
intending couple with the intention to hand over the child after the birth to the
 44

intending couple.

 Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows

altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to
the surrogate mother other than the medical expenses and insurance coverage
during the pregnancy. Commercial surrogacy includes surrogacy or its related
procedures undertaken for a monetary benefit or reward (in cash or kind)
exceeding the basic medical expenses and insurance coverage.

 Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i)
for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for
commercial purposes; (iv) not for producing children for sale, prostitution or other
forms of exploitation; and (v) for any condition or disease specified through
regulations.

 Eligibility criteria for intending couple: The intending couple should have a
‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate
authority.

 A certificate of essentiality will be issued upon fulfilment of the following

conditions: (i) a certificate of proven infertility of one or both members of the
intending couple from a District Medical Board; (ii) an order of parentage and
custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance
coverage for a period of 16 months covering postpartum delivery complications for
the surrogate.

 The certificate of eligibility to the intending couple is issued upon fulfilment of the
following conditions: (i) the couple being Indian citizens and married for at least
five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband);
(iii) they do not have any surviving child (biological, adopted or surrogate); this
would not include a child who is mentally or physically challenged or suffers from
life threatening disorder or fatal illness; and (iv) other conditions that may be
 45

specified by regulations.

 Eligibility criteria for surrogate mother: To obtain a certificate of eligibility

from the appropriate authority, the surrogate mother has to be: (i) a close relative of
the intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35
years old; (iv) a surrogate only once in her lifetime; and (v) possess a certificate of
medical and psychological fitness for surrogacy. Further, the surrogate mother
cannot provide her own gametes for surrogacy.

 Appropriate authority: The central and state governments shall appoint one or
more appropriate authorities within 90 days of the Bill becoming an Act. The
functions of the appropriate authority include; (i) granting, suspending or
cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy
clinics; (iii) investigating and taking action against breach of the provisions of the
Bill; (iv) recommending modifications to the rules and regulations.

 Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy

related procedures unless they are registered by the appropriate authority. Clinics
must apply for registration within a period of 60 days from the date of appointment
of the appropriate authority.

 National and State Surrogacy Boards: The central and the state governments
shall constitute the National Surrogacy Board (NSB) and the State Surrogacy
Boards (SSB), respectively. Functions of the NSB include, (i) advising the central
government on policy matters relating to surrogacy; (ii) laying down the code of
conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

 Parentage and abortion of surrogate child: A child born out of a surrogacy

procedure will be deemed to be the biological child of the intending couple. An
abortion of the surrogate child requires the written consent of the surrogate mother
and the authorisation of the appropriate authority. This authorisation must be
compliant with the Medical Termination of Pregnancy Act, 1971. Further, the
surrogate mother will have an option to withdraw from surrogacy before the
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embryo is implanted in her womb.

 Offences and penalties: The offences under the Bill include: (i) undertaking or
advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii)
abandoning, exploiting or disowning a surrogate child; and (iv) selling or
importing human embryo or gametes for surrogacy. The penalty for such offences
is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a
range of offences and penalties for other contraventions of the provisions of the
Bill
The Surrogacy (Regulation) Bill 2019, was introduced in the Upper House on 21st
November, 2019 by Union Health Minister Harsh Vardhan. Rajya Sabha members
sought changes in certain provisions of the Surrogacy (Regulation) Bill 2019, which
mandates that only a close relative can be a surrogate mother and provisions of five
years of marriage for commissioning parents.