Nature and Origin of Hindu Law

Hindu Law, also known as Dharmashastra, is a legal system deeply rooted in ancient Indian culture and
traditions. It is based on Dharma principles, encompassing religious, moral, and ethical duties.

Nature of Hindu Law

The nature of Hindu Law can be understood through various aspects discussed below.

Dharma as the Supreme Authority

According to Hindu jurisprudence, the law is not simply a command of the sovereign but an adherence to the
Supreme authority known as “Dharma.” Dharma is the guiding principle that governs the conduct and duties of
individuals. It provides a framework for individuals, kings and subjects to follow to achieve salvation. Hindu
Law emphasises the importance of fulfilling one’s rights and duties in accordance with Dharma.

The Role of Brahmins in Legislation

Although Hindu Law does not embody the commands of a king, it acknowledges the influential role of the
Brahmins in the legislative process. Historically, the Brahmins were considered the absolute rulers of the Hindu
community and enjoyed supreme legislative power. The people generally followed the commands imposed by
the Brahmins. Thus, the Brahmins played a crucial role in shaping and interpreting Hindu Law.

Smritis and Sanskrit Commentaries

Hindu Law is primarily derived from the Smritis, ancient religious texts that provide guidelines for personal
conduct, social norms, and legal principles. The law, as expounded in the Sanskrit Commentaries and Digests,
along with customary practices, forms the basis of Hindu Law. These texts are often supplemented and
modified by evolved customs and traditions.

Continuity and Progression

Hindu Law is considered one of the oldest systems of law in the world, with a rich and unbroken lineage. It has
continuously evolved and adapted to meet society’s changing needs and dynamics. Hindu Law has shown
remarkable resilience despite its ancient origins and remains relevant even in modern times. The Privy Council,
in the case of Mookka Kone vs Amma Kutti, recognised that Hindu Law is not static or rigid but undergoes
continuous progression while adhering to its core values.

Application by Courts
Hindu Law is administered by courts, which interpret and apply the principles of Hindu Law in legal disputes.
Courts rely on the Smritis, Sanskrit Commentaries, Digests, and customary practices while adjudicating cases
related to Hindu Law. The courts ensure that the principles of Dharma are upheld, and justice is served in
accordance with the nature and spirit of Hindu Law.

The Origin of Hindu Law

The origin of Hindu Law, also known as Dharmashastra, has been debated among scholars. Two main theories
provide different perspectives on the origins of Hindu Law. Let’s explore these theories in detail.

Divine Origin Theory

According to the first theory, Hindu Law is believed to have a divine origin bestowed by the Almighty God. It
is considered to have originated from the Vedas, regarded as God’s divine revelations. The Vedas are ancient
scriptures that contain hymns, rituals, and philosophical teachings. The law derived from the Vedas is
considered independent of the state and is binding on both the king and the subjects with equal legal force. This
theory highlights the divine nature of Hindu Law, which is often referred to as Apauruseya.
Customary Origin Theory
The second theory posits that Hindu Law is based on immemorial customs, religious texts, and scriptures that
predate Brahmanism. It suggests that before the invasion of the Aryans, there existed customs and usages
among the indigenous people, and some of these practices were incorporated into Hindu Law after the Aryans
arrived. The Aryans, who brought their own customs and practices, assimilated certain existing customs into
their legal framework, leading to the formation of Hindu Law. It is important to note that some customs and
practices, such as polyandry and incestuous marriage, were not recognised or accepted by the Aryans.

Evolution of Hindu Law

In ancient times, “law” was often synonymous with “Dharma” in Hindu society. Dharma encompassed
religious, moral, and ethical duties, guiding individuals’ conduct. Over time, Hindu Law evolved to ensure that
the social and moral life of Hindus continued with a diverse element of harmony. This evolution aimed to
reconcile society’s changing needs while upholding Dharma’s fundamental values.

Henry Maine, a renowned jurist, aptly remarked that Hindu Law has the oldest pedigree among all known
systems of jurisprudence. Hindu Law has shown remarkable resilience and adaptability despite its ancient
origins, remaining relevant to this day. Its longevity can be attributed to the ability of Hindu Law to evolve with
the changing times while preserving its core principles.

Conclusion
The nature of Hindu Law is deeply rooted in Dharma, which guides individuals in fulfilling their rights and
duties. It is an ancient legal system that has continuously evolved to meet the changing needs of society.

The role of the Brahmins in legislation, the reliance on Smritis and Sanskrit Commentaries, and the application
of Hindu Law by courts contribute to its unique nature. Despite its age, Hindu Law remains a significant and
living legal system, reflecting the rich cultural heritage of India.

Sources of Hindu Law

The sources of Hindu law provide the foundation for the legal system followed by Hindus in India, and
understanding these sources is crucial to comprehend the principles and practices of Hindu personal law.

Hindu law, also known as Hindu personal law, is a body of legal principles and rules that govern the social,
religious, and personal affairs of Hindus in India. It is primarily based on ancient Hindu scriptures, customs, and
traditions, and has evolved over time through various judicial decisions and legislative enactments.

Sources of Hindu Law

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

I. Ancient Sources

Under this would come the following:

 Shruti
 Smriti
 Digests and Commentaries and
 Custom.
II. Modern Sources

Under this head would come:

 Justice, equity and good conscience

  Precedent, and
 Legislation.
Ancient Sources

Ancient Texts: Vedas, Smritis, and Dharmashastras

The ancient texts of Hinduism form the primary source of Hindu law in India. These texts are revered as sacred
scriptures and contain philosophical, ethical, and moral principles that guide the conduct of Hindus. The three
main types of ancient texts that are considered as sources of Hindu law are:

Vedas (Shrutis): The Vedas are the oldest and most sacred texts of Hinduism. They are believed to be of divine
origin and are considered as the foundation of Hindu law. The Vedas are divided into four main texts: Rigveda,
Yajurveda, Samaveda, and Atharvaveda.

They contain hymns, rituals, and prayers, and provide guidance on religious, social, and moral duties of
individuals.

Smritis: Smritis are the secondary scriptures of Hinduism that expound on the principles laid down in the
Vedas. They are written by sages and scholars and provide detailed instructions on personal and social conduct.

The most famous Smritis are Manusmriti, Yajnavalkya Smriti, and Narada Smriti, which are considered as
important sources of Hindu law. These texts cover a wide range of topics, including marriage, inheritance,
property rights, and religious practices.

Dharmashastras: Dharmashastras are treatises on dharma, which is the moral and ethical law governing the
conduct of individuals.

They provide guidelines on social and moral duties, and are considered as important sources of Hindu law.
Some of the well-known Dharmashastras include Manavadharmashastra, Parasharasmriti, and Brihaspatismriti.

Digests and commentaries

Digests and commentaries are also important sources of Hindu law in India. These are secondary sources that
provide explanations, interpretations, and commentaries on the ancient texts, customs, and statutory laws related
to Hindu personal law.

Digests are compilations of legal principles and rules extracted from various ancient texts, customs, and judicial
precedents. These compilations are often written by legal scholars and provide a systematic and organized
overview of Hindu law. Commentaries, on the other hand, are explanatory writings that provide detailed
analyses, interpretations, and insights into the legal principles and practices of Hindu law.

Customs: Local and Regional Practices

Customs are an important source of Hindu law, as they reflect the social, cultural, and religious practices
followed by Hindus in different regions of India. Customary law is based on long-established practices that
have been recognized and followed by the community for a considerable period of time. Customary law is
recognized as a valid source of Hindu law and is applied in cases where there is no specific provision in the
scriptures or legislation.

Customs vary from region to region in India, and they are influenced by factors such as geography, climate,
caste, and religious beliefs. For example, the customs followed in a rural village in North India may differ from
those followed in a cosmopolitan city in South India. Some of the common customs that are recognised as
sources of Hindu law include customs related to marriage, succession, adoption, and religious practices.
Modern Sources

Justice, Equity and Good Conscience

Another significant source of Hindu law in India is the principle of justice, equity, and good conscience. This
principle is based on the concept of natural justice and is often invoked by courts in cases where there is no
specific provision in the ancient texts, customs, or statutory laws to address a particular issue.

The principle of justice, equity, and good conscience allows courts to exercise their discretion and interpret and
apply Hindu law in a fair and just manner, taking into account the facts and circumstances of each case. This
principle is particularly relevant in cases where existing laws may not adequately address modern social,
economic, or cultural changes.

For example, in cases where there is no clear guidance on matters such as maintenance for divorced wives,
property rights of illegitimate children, or the adoption of a child born out of wedlock, courts have relied on the
principle of justice, equity, and good conscience to arrive at decisions that are fair and just.

It is important to note that the principle of justice, equity, and good conscience is not a standalone source of
Hindu law, but rather a guiding principle that complements and supplements the other sources mentioned
earlier. It is often used as a fallback option when other sources are silent or inadequate in addressing a particular
legal issue.

Judicial Precedents: Case Laws and Judicial Interpretation

Judicial precedents, also known as case laws, are another important source of Hindu law in India. Judicial
precedents are the decisions of courts in cases involving Hindu law, which are considered as authoritative
interpretations of the law. The decisions of higher courts, such as the Supreme Court of India, have a binding
effect on lower courts, and they are considered as precedents that are to be followed in similar cases. Judicial
precedents play a significant role in the development and evolution of Hindu law, as they provide
interpretations and clarifications on legal principles and practices.

Over the years, the Indian judiciary has delivered numerous landmark judgments on various aspects of Hindu
law, including marriage, divorce, property rights, inheritance, adoption, and religious practices.

These judgments are considered as important sources of Hindu law and have shaped the legal framework for
Hindus in India.

For example, the Supreme Court of India clarified the rights of a Hindu woman as a coparcener in a joint Hindu
family property.

Another example can be, in the case of Mohd. Ahmed Khan v. Shah Bano Begum the court established the
rights of Muslim women to maintain under Hindu law.

Judicial precedents are based on legal principles, statutes, and customs, and they provide guidance on the
interpretation and application of Hindu law in contemporary times. They help in filling the gaps in the legal
framework and adapting the law to changing societal needs and values. Judicial precedents are cited and relied
upon by courts in subsequent cases to ensure consistency and uniformity in the application of Hindu law.

Legislative Enactments: Statutory Laws

Legislative enactments, or statutory laws, are another important source of Hindu law in India. The Indian
Parliament and state legislatures have enacted various laws that govern different aspects of Hindu personal law.
These laws are based on constitutional principles, social policies, and contemporary needs, and they provide a
comprehensive legal framework for Hindus in India.
Some of the important statutory laws that are sources of Hindu law include:

 Hindu Marriage Act, 1955: The Hindu Marriage Act is a central legislation that governs the
solemnisation, registration, and dissolution of marriages among Hindus, Buddhists, Jains, and Sikhs. It
provides for the conditions for a valid Hindu marriage, the rights and duties of spouses, and the grounds
for divorce and judicial separation. The Act also deals with issues such as maintenance, custody of
children, and property rights of married couples.
 Hindu Succession Act, 1956: The Hindu Succession Act is a central legislation that governs the
inheritance and succession of property among Hindus, Buddhists, Jains, and Sikhs. It provides for the
rules of intestate succession, i.e., succession in case of death without a valid will, and testamentary
succession, i.e., succession based on a valid will. The Act also provides for the rights of female heirs,
coparcenary rights, and rules related to joint family property.
 Hindu Minority and Guardianship Act, 1956: The Hindu Minority and Guardianship Act is a central
legislation that deals with the minority and guardianship of Hindu minors. It provides for the rights and
liabilities of minors, the appointment and powers of guardians, and the duties and responsibilities of
guardians towards the minors’ welfare and property.
 Hindu Adoption and Maintenance Act, 1956: The Hindu Adoption and Maintenance Act is a central
legislation that governs the adoption and maintenance of Hindus. It provides for the rules and procedures
for adoption, the rights and duties of adopted children and adoptive parents, and the maintenance rights
of Hindu women, children, and aged parents.
 Customary Laws: In certain regions of India, Hindus also follow customary laws that have been
codified and recognized by local legislation. For example, in some states like Goa, the Goa Family Law,
which is based on Portuguese civil law, applies to Hindus for matters related to marriage, divorce,
inheritance, and succession.
Evolving Hindu Law
The sources of Hindu law in India are diverse and multifaceted, encompassing ancient texts, customs, judicial
precedents, and legislative enactments. These sources provide the foundation for the legal framework that
governs various aspects of Hindu personal law, including marriage, divorce, property rights, inheritance,
adoption, and religious practices. These sources have evolved and adapted over time to reflect changing societal
needs, values, and legal interpretations.

The ancient texts, such as the Vedas, the Smritis, and the Puranas, are considered as the primary sources of
Hindu law, providing the philosophical, ethical, and moral basis for Hindu personal law. Customs, as another
important source, are based on long-standing practices and traditions followed by Hindu communities and are
recognized by courts as valid sources of law.

Judicial precedents play a crucial role in the development of Hindu law, as they provide interpretations and
clarifications on legal principles and practices. The decisions of the Indian judiciary, including the Supreme
Court and High Courts, have shaped the legal framework for Hindus in India, providing guidance on
contemporary issues related to marriage, divorce, property rights, inheritance, adoption, and religious practices.

Legislative enactments, or statutory laws, are also important sources of Hindu law in India. The Hindu Marriage
Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoption and Maintenance Act
are some of the key central legislations that provide a comprehensive legal framework for various aspects of
Hindu personal law. Customary laws, recognised by local legislation in certain regions of India, are also
followed by Hindus for matters related to marriage, divorce, inheritance, and succession.

It is important to note that Hindu law is not static and continues to evolve through the interplay of these various
sources. The judiciary, in particular, plays a crucial role in interpreting and adapting Hindu law to changing
societal needs and values, while also ensuring consistency and uniformity in its application.
Conclusion
The sources of Hindu law in India are ancient texts, customs, judicial precedents, and legislative enactments.
These sources provide the foundation for the legal framework that governs various aspects of Hindu personal
law, and their interplay continues to shape and evolve Hindu law in contemporary times.

Schools of Hindu Law

There are 2 main schools of Hindu Law, the Mitakshara School and Dayabhaga School of Hindu Law.

One of the unique features of Hindu Law is that it has different schools of thought, each with its own set of
rules, principles, and practices.

Hindu Law, also known as Hindu personal law, is a complex legal system that governs the personal and family
matters of Hindus in India. It is derived from ancient Hindu scriptures, customs, and traditions, and has evolved
over time through various interpretations and judgments by courts.

Introduction to Hindu Law

Hindu Law is a system of laws that governs the personal matters of Hindus, such as marriage, inheritance,
adoption, and succession. It is based on the principles of dharma, which refers to duty, righteousness, and moral
values in Hindu philosophy. Hindu Law is not codified, and it is primarily based on ancient Hindu scriptures,
such as the Vedas, the Smritis, and the Puranas, as well as customs and traditions followed by Hindus for
generations.

Historical Origins of Hindu Law

The origins of Hindu Law can be traced back to ancient India, where it was formulated by rishis or sages who
codified the principles of dharma into various texts known as Smritis. The most important Smritis are the Manu
Smriti, the Yajnavalkya Smriti, and the Narada Smriti, which are considered authoritative sources of Hindu
Law. These texts provide guidelines on various aspects of personal law, including marriage, inheritance, and
property rights.

Over time, Hindu Law evolved through various interpretations and commentaries by scholars, philosophers, and
jurists. Different schools of thought emerged based on their interpretations of the Smritis and other texts. These
schools of Hindu Law have different perspectives and principles, and they continue to influence the legal
system in India today.

Mitakshara School of Hindu Law

The Mitakshara School of Hindu Law is one of the oldest and most widely followed schools of Hindu Law in
India. It is based on the commentary on the Yajnavalkya Smriti by Vijnanesvara, a medieval Hindu jurist. The
Mitakshara School is prevalent in most parts of India, except for the state of Kerala.

Key Concepts of Mitakshara School

a) Joint Family: The Mitakshara School recognizes the concept of joint family, where the property is held
jointly by all the members of the family and is inherited by the male members of the family in a line of
unbroken male descent. The property is considered to be undivided and coparcenary, and the male members
have equal rights in the property.

b) Coparcenary: Coparcenary refers to the joint ownership of property by male members of a Hindu joint
family. The Mitakshara School recognizes the concept of coparcenary, where the sons, grandsons, and great-
grandsons of the holder of the property have an equal share in the property by birth.
c) Right to Survivorship: The Mitakshara School recognizes the right to survivorship, where upon the death of
a coparcener, his share in the property passes by survivorship to the surviving coparceners, and not by
succession or inheritance.

d) Hindu Succession Act, 1956: The Hindu Succession Act, 1956, which is the main legislation governing
succession and inheritance in Hindu Law, is based on the principles of the Mitakshara School. According to the
Mitakshara School, only male coparceners have a right to inherit ancestral property, and female members do not
have coparcenary rights.

However, the Hindu Succession Act, 1956, brought about significant changes to the Mitakshara School of
Hindu Law by introducing gender equality and giving equal rights to both male and female heirs in matters of
inheritance. As per the amended Hindu Succession Act, daughters now have equal coparcenary rights in
ancestral property, which means that they are entitled to a share in the property by birth, just like sons.

This amendment has been a significant step towards gender equality in Hindu Law and has brought about a
significant change in the principles of the Mitakshara School.

Advantages
 The Mitakshara School follows the concept of joint family and coparcenary, where property is held
jointly by the family members, and the eldest male member is the head of the family. This promotes
family unity and ensures that property remains within the family lineage.
 The Mitakshara School provides for ancestral property rights, where the property inherited from
ancestors cannot be alienated or disposed of without the consent of all coparceners. This helps in
preserving the family property and prevents its misuse or alienation.
 The Mitakshara School recognizes the concept of survivorship, where upon the death of a coparcener,
his share in the joint family property passes on to the surviving coparceners. This ensures that the
property remains within the family and does not get divided among the heirs.
Criticisms
 One of the main criticisms of the Mitakshara School is its gender-biased approach, as it recognizes only
male coparceners and does not give equal rights to females in matters of property inheritance. This has
been seen as discriminatory towards women and not in line with the principles of gender equality.
 The concept of survivorship in the Mitakshara School can sometimes lead to unjust results, as the share
of a coparcener who dies without leaving a male heir may pass on to the surviving coparceners, leaving
out the heirs of the deceased coparcener.
 The Mitakshara School does not recognize the concept of individual ownership and control of property,
as the property is held jointly by the family and managed by the eldest male member. This can
sometimes lead to disputes and conflicts within the family over the management and control of the
property.
Dayabhaga School of Hindu Law
The Dayabhaga School of Hindu Law is primarily followed in the state of West Bengal and other parts of
eastern India. It is based on the commentary on the Yajnavalkya Smriti by Jimutavahana, a medieval Hindu
jurist. The Dayabhaga School has some differences in its principles and practices as compared to the Mitakshara
School.

Key Concepts of Dayabhaga School

a) Individual Property: Unlike the concept of joint family in the Mitakshara School, the Dayabhaga School
recognizes the concept of individual property, where the property is owned and inherited by individuals and not
by the joint family as a whole. There is no concept of coparcenary in the Dayabhaga School, and each
individual has independent ownership and control over the property.
b) Testamentary Succession: The Dayabhaga School recognizes the concept of testamentary succession,
where a person has the right to make a will and dispose of his/her property as per his/her wishes. The
Mitakshara School, on the other hand, does not recognize the concept of will and the property is inherited by the
coparceners as per the rules of succession.

c) Hindu Succession Act, 1956: The Hindu Succession Act, 1956, has also made significant changes to the
Dayabhaga School of Hindu Law. As per the amended Act, daughters have been given equal rights in matters of
inheritance, including the right to succeed to the property of their parents, just like sons. This amendment has
brought about a significant change in the principles of the Dayabhaga School and has promoted gender equality
in Hindu Law.

Advantages
 The Dayabhaga School recognizes the concept of individual ownership and control of property, as
opposed to joint family property under the Mitakshara School. This allows for greater flexibility in the
management and disposal of property and gives more autonomy to individuals in matters of property
inheritance.
 The Dayabhaga School does not discriminate based on gender, as both males and females have equal
rights in matters of property inheritance. This is in line with the principles of gender equality and
promotes a more inclusive approach towards property rights.
 The Dayabhaga School does not recognize the concept of survivorship, and the property of a deceased
person is inherited by his heirs according to his will or intestate succession, rather than passing on to the
surviving coparceners. This allows for greater testamentary freedom and ensures that the property is
inherited according to the wishes of the deceased.
Criticisms
 One criticism of the Dayabhaga School is that it is not widely followed in most parts of India, and its
principles are limited to certain regions, primarily West Bengal and other parts of eastern India. This can
sometimes create conflicts and disputes in cases where individuals belonging to different schools of
Hindu Law are involved.
 The Dayabhaga School does not recognize the concept of coparcenary, and the property is held
individually by family members. This can sometimes result in fragmentation of property and make it
more difficult to manage and dispose of property as a whole.
 The Dayabhaga School may be seen as deviating from the traditional joint family concept followed in
Hindu society, and some may argue that it weakens the family structure and unity by promoting
individual ownership and control of property.
Current Positions of Schools of Law
In recent times, there have been significant legislative reforms that have brought about changes to the principles
of Hindu Law, promoting gender equality, individual rights, and social justice. The Hindu Succession Act,
1956, has been a landmark legislation that has brought about significant changes to the principles of inheritance
and succession in Hindu Law, giving equal rights to daughters and promoting gender equality.

It is important to note that Hindu Law is a dynamic and evolving system of law, and it continues to be
influenced by changing social, cultural, and legal contexts. The principles of Hindu Law are subject to
interpretation by courts and can be modified by legislative reforms. As society progresses and evolves, it is
essential to ensure that the principles of Hindu Law are in line with the principles of equality, social justice, and
individual rights.

In conclusion, the schools of Hindu Law in India have their own distinct principles, practices, and customs, and
have evolved over time. They are influenced by commentaries, judicial interpretations, and legislative reforms.
The legislative reforms that have brought about changes to the principles of Hindu Law, promoting gender
equality, individual rights, and social justice.
As society evolves, it is crucial to ensure that the principles of Hindu Law are in line with the changing times
and promote equality and justice for all individuals, regardless of gender or caste.

Conclusion
The schools of Hindu Law in India, namely the Mitakshara and Dayabhaga have their own distinct principles,
practices, and customs. These schools have evolved over time, and their principles have been shaped by various
commentaries, judicial interpretations, and legislative reforms.

While the Mitakshara School is widely followed in most parts of India, the Dayabhaga School is followed
primarily in West Bengal and other parts of eastern India, and the unique systems followed in Kerala are
specific to that state.

Succession in Hindu Males under Hindu Succession Act

Introduction
The distribution of the property among Hindus can be traced back to ancient Hindu laws. Though there were
several schools and customs practiced throughout the country relating to inheritance, the present day laws of
inheritance have been enacted with the aid of principles derived from two ancient schools i.e., Mitakshara
system and Dayabhaga system. The legislated product of these consolidated practices is the Hindu Succession
Act which was passed by the parliament in the year 1956. The aim of the Act was to eliminate the different
schools of law relating to inheritance and compile them into one universal and comprehensive system of
succession.

The preamble of the Act indicates that this is an Act applicable only to intestate succession of Hindus. Unlike
the ancient Hindu laws, this Act i.e. ‘The Hindu Succession Act’ applies to all Hindus including Buddhists,
Jains and Sikhs. Moreover, it is applicable to those people who have converted into Hinduism or any other
religion on which this Act applies. However, this Act is not applicable to other religions like Muslims,
Christians, Jews and Parsis. Also, this Act does not apply to the property of a Hindu who has married under
‘Special Marriage Act’ to a non-Hindu.

Basics of Succession Law Under the Hindu Succession Act

Application of the Act

The Hindu Succession Act is applicable to determine the inheritance of certain categories of properties of males
based on ancient Hindu practices. These include:

A. The separate properties of a Mitakshara male

B. The separate properties and coparceners’ properties of a Dayabhaga male and
C. The undivided interest in the joint family property of a Mitakshara Coparcener.
Types of Succession
Testamentary Succession – This is the type of succession where the propositus leaves behind a will to be
executed on his death.

Intestate Succession- If the propositus dies without a will the division of property among his legal heirs is to be
governed by these laws.

Methods of Division of Property

Per Capita – Under this method all the individuals under a particular class or category will inherit the same
share of the property.
Per Stirpes – Under this method there’s a certain hierarchy according to which the shares are distributed among
individuals.

Prospective Nature of the Act

The Hindu Succession Act is, in general, prospective in nature. Section 8 of the Act which talks about
devolving of the property of a Hindu male dying intestate was held inapplicable in a case where succession had
opened before the commencement of the Act.[1] In another case, Supreme Court has held that the section
applies to a case where on death of a male intestate, devolution of his property happens post the commencement
of the Act.[2]

Succession of A Hindu Male

Section 8 to Section 13 talks about devolution of the property of a Hindu Male dying intestate. These sections
apply to intestate property only. Section 8[3] offers a novel and comprehensive scheme of succession.

There are certain categories of heirs listed in The Hindu Succession Act. These include:

1. Class I heirs,
2. Class II heirs,
3. Agnates,
4. Cognates and,
5. Government.
List of Heirs in Each Category and their Share in the Property
Class I heirs- Class I heir originally consisted of twelve relatives. Consecutively, four more heirs were added to
the list.[4] Class I heirs include mother, widow, daughter, son, widow of a predeceased son, son of a
predeceased son, daughter of a predeceased son, widow of a predeceased son of a predeceased son, daughter of
a predeceased son of a predeceased son, son of a predeceased son of a predeceased son, daughter of a
predeceased daughter, and son of a predeceased daughter. Four new heirs which were added by 2005
Amendment are: son of a predeceased daughter of a predeceased daughter, daughter of a predeceased daughter
of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, and daughter of a
predeceased daughter of a predeceased son.

Distribution of share in Class I – Section 10 of the Act talks about distribution of the property of the Hindu
male dying intestate. The property of the propositus is first distributed among heirs in Class I, ignoring all other
categories of heirs. Among Class I heir list there is no priority in distribution of the property. The rules of
distribution are

A. Mother, sons and daughters take one share each. For instance, if A dies leaving behind his mother M, a
son S and two daughters D1 and D2, each of them will take one share each i.e., 1/4 th share of the
property will be given to each of them.
B. Widow of the deceased takes one share of the property. If there is more than one widow, all of them
together take one share which is divided equally among them.
C. Among the heirs of the predeceased son/daughter, each branch gets the share which their parent would
have taken and that share is distributed among themselves. For instance, if A dies leaving behind his
daughter D, widow (W) and son (SS) of a predeceased son, predeceased daughter’s sons DS and DS1.
Distribution starts from the point where branches meet. There are three branches, thus each will take
1/3rd share i.e., D will take 1/3rd. The next branch has two heirs; thus, W and SS will take 1/6 th share
each. The third branch also has two heirs, thus DS and DS1 will take 1/6th share each.
The courts have adjudged in a landmark case,[5] that upon the death of a Hindu male, his property will be
distributed equally among heirs present in Class I. If there are heirs present in Class I of the schedule, it will
result in the exclusion of every other category of heirs i.e., Class II, agnates and cognates will not be considered.
Class II heirs – The list of relatives present under this Class is not random and the relatives are placed
according to categories which decides the distribution of the property. There are nine categories present inside
this class in the following order:

Category I – Father

Category II – Son’s daughter’s son, son’s daughter’s daughter, brother, sister.

Category III – Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s
daughter’s daughter.

Category IV – Brother’s son, brother’s daughter, sister’s son, sister’s daughter.

Category V – Father’s father, father’s mother.

Category VI – Father’s widow (Step-mother), brother’s widow.

Category VII – Father’s brother, father’s sister.

Category VIII – Mother’s father, mother’s mother.

Category IX – Mother’s brother, mother’s sister.

Distribution of share in Class II heir – If there are no heirs present in Class I, property will be distributed
among Class II heirs. The rule under this Class is different from that of Class I. As per the law, an heir in the
initial category will exclude the heirs of later category. Further, heir under same category gets equal amount of
share of the property. For instance, if heir in category I is present, it will exclude all the other categories and
will take the entire share of the property. Further, if heir of category I is not present but each of the heir in
category II are present, they will share equal part of the property among themselves. In a case[6] it was
observed by the court that a entry in any particular category under Class II heir does not have any priority over
any other entry in that same category.

Agnates and Cognates

If no specified heirs in Class I and II are present, the property is distributed among agnates and cognates.
Among agnates and cognates, preference is given to former over latter.

A person who traces his relationship with the other person through males is known as agnate to that person. Few
examples of agnates would be father’s father, brother’s son, son’s son, son’s daughter, father’s sister etc.

Whereas, while tracing the relationship of two persons, there intervenes a female anywhere between them, they
are called cognates to each other. Few examples of cognates would be father’s sister’s son, sister’s son,
mother’s brother, daughter’s son etc.

The rules governing distribution of property among agnates and cognates are same. The rules are

Rule 1 says that out of two or more cognates or agnates present as the case maybe, the one who has less or no
degrees of ascent from the propositus shall be preferred. That is to say, the lesser the degree of ascent, more the
preference.

Rule 2 says that where the degrees of ascent between two or more cognates/agnates are same, the one with
lesser or no degrees of descent shall be preferred.
Rule 3 says that even after applying rule 1 and 2 where two or more cognates/agnates cannot be said to be
nearer to the propositus, they take simultaneously. This means that the property will be distributed equally
among the respective cognates/agnates.

Devolution to the Government

If a Hindu dies without any heir in Class I or Class II neither any agnate nor any cognate, then his property will
be transferred to the government. When the government takes the property as a heir, it also takes all the
obligations and liability of the propositus.

Residuary Rules
Under Section 18 of The Hindu Succession Act 1956, it is mentioned that heirs related to the propositus by full
blood are always given preference over heirs related by half-blood. Further, Section 19 says that if two or more
heirs qualify together to the property, the property shall be distributed as per capita and not per stirpes.

Section 20 of the Act talks about child in womb. Under this section, if the propositus passed away while the
child is in womb, after the birth of the child he or she will have the share in the property.

Critical Analysis of Section 8

Though the 2005 Amendment of The Hindu Succession Act empowered women and gave them the right to the
share, it failed in bridging the gap between genders. Firstly, the daughter’s son’s son and daughter’s son’s
daughter have been placed in different classes though there is no distinction in the relationship other than the
gender. Secondly, it can be seen that mother is placed in Class I whereas father is placed in Class II of the list.
The parliamentary Bill introduced in Rajya Sabha in pursuance of this Act did not provide for such a
discrimination. Therefore, there seems to be no philosophical, legal or cultural justification for the same. This is
a clear sign of discrimination by placing father and mother in different classes. The object of this Act was to
remove gender discrimination but the fact that it places father and mother in different class clearly goes against
the very object it was enacted in pursuance of. The Indian courts have also held that this section of the Act is
discriminatory as it deprives the father to inherit a preferential part in his deceased son’s property.[7]

Amendments
The Hindu Succession (Amendment) Act, 2005, basically aimed at removing gender discrimination in the
Hindu Succession Act. It amended Section 6 of the Act to give daughters of the deceased equal right as that of a
son. It aims at making this Act gender neutral and empowering daughters and women in general to own
property in case of death of their parents. An application of the amendment can be seen in the extension of the
principle to hold that the daughter has the birth right of being a coparcener irrespective of her father being dead
or alive before the amendment.8
Conclusion
Prior to the commencement of this Act, law regarding succession of property of a Hindu was not uniform and it
depended mostly on schools and region. This Act however codified the Hindu laws and made it uniform for
every Hindu no matter the region they reside. This Act also aimed to protect women from patriarchy laws and
giving them equal rights to own property. This goal was achieved finally after the 2005 Amendment of the Act.
This Amendment made these laws gender neutral and protected women from discrimination while acquiring
property of their parents.

Hindu Marriage Act 1955

 Introduction

Marriage is a sacred union in Hinduism that signifies the coming together of two individuals to lead a fulfilling
life. The concept of marriage in Hinduism is rooted in the belief that it is a sacred duty to fulfill the four aims of
life – Dharma, Artha, Kama, and Moksha.

Forms of Hindu Marriage

In Hinduism, there are eight different forms of marriage, which are considered to be sacred and binding.
They are as follows:

1. Brahma Vivah: This is the most superior form of Hindu marriage, in which the groom’s family invites a
suitable bride and her family to perform the wedding ceremony. The bride is chosen based on her virtues,
character, and family background.
2. Daiva Vivah: This form of marriage is arranged by the bride’s family, in which the groom is selected through a
religious ceremony. This type of marriage is considered to be divine, as the groom is believed to be a gift from
the Gods.
3. Arsha Vivah: In this form of marriage, the groom offers a cow and some wealth to the bride’s father, as a token
of respect and gratitude. This type of marriage is based on mutual trust and respect.
4. Prajapatya Vivah: This form of marriage is performed without any rituals or formalities. The bride and groom
exchange vows in the presence of a sacred fire, and pledge to be faithful to each other for life.
5. Gandharva Vivah: This form of marriage is based on mutual love and attraction, without any formal
arrangements. The bride and groom come together voluntarily, without the consent of their families.
6. Asura Vivah: This form of marriage involves the groom offering wealth and gifts to the bride’s family, in
exchange for her hand in marriage. This type of marriage is based on materialistic values and is not considered
to be ideal.
7. Rakshasa Vivah: In this form of marriage, the groom abducts the bride against her will, and the wedding is
performed in the presence of a sacred fire. This type of marriage is considered to be barbaric and is not
practiced in modern times.
8. Paishacha Vivah: This form of marriage is performed without the consent of the bride, who is either drugged
or seduced by the groom. This type of marriage is considered to be immoral and is not recognized by Hindu
law.

Essential Features of Hindu Marriage

Hindu Marriage is an institution that is considered sacred in Hinduism. It is a union of two individuals who
come together to form a lifelong partnership. The concept of marriage in Hinduism is based on the belief that
marriage is a divine bond between two individuals, and it is essential for the continuation of the human race.

1. Sacrament: Hindu marriage is considered a sacrament, a sacred institution in Hinduism. The ritual of marriage
is performed in the presence of a sacred fire, and it is believed that the divine blessings of the Gods are invoked
during the ceremony.
2. Monogamy: Hindu marriage is monogamous, meaning it is a union between two individuals. Polygamy is not
allowed under Hindu marriage laws, and a person cannot marry more than one person at the same time.
3. Consent: The consent of both individuals is essential for a Hindu marriage. The bride and groom must both
agree to the marriage, and they must be of legal age. The legal age for marriage is 18 years for the bride and 21
years for the groom.
4. Ceremony: Hindu marriage is a ceremonial affair, and it involves several rituals and customs that are
performed before, during, and after the marriage. These rituals are performed to sanctify the union and seek the
blessings of the Gods.
5. Duty: Hindu marriage is not just a union of two individuals; it is also a union of two families. It is believed that
the duty of the husband is to provide for the family, while the duty of the wife is to maintain the household and
take care of the family.

Applicability of Hindu Marriage Act

The Hindu Marriage Act was passed by the Indian Parliament in 1955, and it governs Hindu marriages in India.
The Act applies to all Hindus, including Buddhists, Sikhs, and Jains, and it provides guidelines for the
registration and solemnization of Hindu marriages.

Under the Hindu Marriage Act, a Hindu marriage is legally valid if the following conditions are met:

1. Both parties should be Hindus – This means that both the bride and the groom should be Hindus. In addition
to this, the parties should not have converted to any other religion at the time of marriage.
2. Monogamy – The Hindu Marriage Act prohibits polygamy, which means that a Hindu man cannot have more
than one wife at the same time.
3. Age – The bridegroom must be at least 21 years of age, and the bride must be at least 18 years of age at the time
of marriage. Any marriage performed before this age is considered illegal.
4. Consent – Both parties should give their free and informed consent to the marriage. If either party is forced into
the marriage or is unable to give consent due to mental illness or incapacity, the marriage is considered invalid.
5. Prohibited relationships – Hindu law prohibits marriages between certain close relatives, such as between
siblings, parents and children, and uncles and nieces.
6. Ceremony – The marriage must be performed according to Hindu customs and ceremonies. The ceremony
should be witnessed by at least two people who are not close relatives of either party.

If all of these conditions are met, the Hindu marriage is considered legally valid.

Guardians under the Hindu minority and Guardianship Act, 1956

The Hindu Minority and Guardianship Act, of 1956 has been enacted to modify and codify certain provisions of
Hindu law dealing with minority as well as guardianship. It regulates the entire territory of India. Furthermore,
it governs Hindus who reside within the areas referred to in the Act but are not in the area. It is relevant for
Hindus as well as Buddhists, Jains and Sikhs.

A child cannot care for himself, his own body and property in the early years of life owing to his minority. He
is incompetent to manage his problems. Nonetheless, understanding the difference between what is correct and
what is not is beyond the capacity of a minor. He needs someone’s support and guardianship of someone for
take care of himself. Laws have been implemented by taking into consideration the well-being of minors.

Definitions
“Minor” and “Guardian” are defined in Section 4 of the Hindu Minority and Guardianship Act, 1956.

1. Minor

Minor is defined under section 4(a) of the Hindu Minority and Guardianship Act, 1956 as a person who is
below the age of 18 years is a minor.

2. Guardian
A guardian is defined under section 4(b) of the Hindu Minority and Guardianship Act, 1956 as a person who is
responsible for the property and well-being of a minor. There are 4 types of guardians under the Act-

i.Natural Guardian (Section 6)

ii. Testamentary Guardian (Section 9)

iii. De facto Guardian (Section 11)

iv. Guardian appointed by the court (Section 12)

Types of Guardians under the Hindu minority and Guardianship Act, 1956
The aforementioned types of guardians have been authorized by the Hindu Minority and Guardianship Act of
1956-

1. Natural Guardian
“Natural Guardian” is described under section 6 of the Hindu Minority and Guardianship Act,1956. It asserts
that a Hindu minor’s natural guardian about his well-being as well as his property (eliminating his or her
undivided interest in the family property that is jointly owned) shall be

I. Father will be the natural guardian of a boy and an unmarried girl. Mother will be their natural guardian after
him. Furthermore, the mother will have the custody of a minor who is below the age of 5 years.

ii. Mother will be the natural guardian of an illegitimate boy and an illegitimate girl. Father will be their natural
guardian after her.

iii. The husband will be the guardian of a married girl.

In addition, Section 6 of the Hindu Marriage Act, 1956 also asserts that no person is authorized to act as a
natural guardian of a minor on the following grounds:

i.If he has lost his Hindu identity by converting to a different religion.

ii. If he has entirely and finally left the world by becoming an ascetic or a hermit (vanaprastha).

Moreover, the terms “father” and “mother” do not include a stepfather and a stepmother.

Natural guardian of an adopted son

The natural guardian of an adopted son has been described under section 7 of the Hindu Minority and
Guardianship Act,1956. The natural guardianship of a child who has been adopted and is a minor goes to the
adoptive father after adoption, followed by the adoptive mother.

Powers of a natural guardian

The powers of a natural guardian are outlined in section 8 of the Hindu Minority and Guardianship Act, 1956.

 As per section 8 (1), the natural guardian of a Hindu minor is authorized to perform any act which is
essential or appropriate and is suitable for the good of the minor or for safeguarding the minor’s estate.
Under any circumstances, the minor cannot be bound by a personal covenant by his guardian.
 As per section 8 (2), a natural guardian must have prior consent of the court to
a.mortgage or charge, or sell, gift, interchange, or transfer any part of the minor’s immovable property; or
b.lease any portion of the property in question for a duration that exceeds five years or for a duration that
exceeds one year immediately after the minor attains majority.

 As per section 8 (3), if a natural guardian disposes of any immovable property by violating sub-section
(1) or sub-section (2), it can be revoked at the minor’s request or by anyone who has claimed on his
behalf.
 As per section 8 (4), the natural guardian is not permitted by any court to perform any of the acts
referred to in subsection (2), unless in cases where it is necessary or the child will undoubtedly benefit
from it.
 As per section 8 (5), The Guardians and Wards Act, 1890 must be applicable to and in regards to an
application seeking court permission under subsection (2) in all circumstances as though it was an
application seeking court permission according to section 29 of that Act.
2. Testamentary guardian
“Testamentary Guardian” and their powers are described in Section 9 of the Hindu Marriage Act,1956.

 As per section 9 (1), a father who is the natural guardian of his legitimate minor children is authorized to
appoint any individual as their guardian by will, about the minor person and his property (excluding the
undivided interest mentioned in section 12).
 As per section 9 (2), the appointment of a guardian made under sub-section (1) will be ineffective if the
father dies before the mother, but will resurrect if the mother passes away without assigning a guardian
in her will.
 As per section 9 (3), a Hindu widow who is qualified to act as the natural guardian of her minor
legitimate children and a Hindu mother who is qualified to act as the natural guardian of her minor
legitimate children because the father is no longer authorized to act as the natural guardian may appoint
a guardian by will with regards to minor’s property and well being (excluding the undivided interest
mentioned in section 12).
 As per section 9 (4), a Hindu mother who is qualified to act as a natural guardian of her minor legitimate
children is authorized to appoint a guardian by will for the minor’s property and well-being.
 As per section 9 (5), the guardian whose appointment has been made by the will has the authority to act
as the minor’s guardian following the death of the minor’s father or mother, depending upon the facts
and circumstances of the case and exercise all rights of a natural guardian by certain restrictions
mentioned in the will and Act.
 As per section 9 (6), the rights of the testamentary guardian whose appointment has been made by will,
for a minor girl, shall terminate after her marriage.
3. De facto guardian
According to section 11 of the Hindu Minority and Guardianship Act, 1956, a de facto guardian is a person who
is interested in taking care of the minor and his property. He is not a legal guardian of a minor and has no
authority over the property of the minor.

4. Guardian appointed by the court

The court is authorized to appoint any individual as a guardian for a minor. Minor’s welfare is taken into
consideration while appointing a guardian for him. According to the Act’s specifications, no one is entitled to
act as a minor’s guardian if the court deems that his or her guardianship is not appropriate for the minor’s well-
being.

Conclusion
Children are the future leaders of our country. They should be nurtured in a positive environment which will be
fruitful for their personality development. In the initial years, they cannot make their own decisions and
understand the difference between right and wrong.
They need someone who can look after them, provide love, and support and take care of their basic needs. They
bring pleasure and optimism and play a crucial role in the growth, development and prosperity of the society.
They are the upcoming generation who will contribute to the cultural and economic development of the
country.

Their actions towards society depend on the kind of environment they are brought up. They are highly
influenced by their surroundings. If they are nurtured in a positive environment, they will develop a positive
outlook for other people. They will develop a positive approach to bringing changes beneficial to society and
contribute to the progress of the nation. Hence, a guardian for a child should be appointed only after taking
consideration of his safety, protection and welfare. The Court takes into account the welfare of the minor while
assigning a guardian for him.

Concept of Adoption under Hindu Adoption and Maintenance Act, 1956

INTRODUCTION
Adoption was considered as a sacramental act. There has been an acute controversy not only among writers, but
also among judges, whether in adoption the secular motive predominates.[1] Some judges still insist that the
object of adoption is twofold: to secure performance of one’s funeral rites and to preserve the continuance of
one’s lineage.[2] Under Hindu Adoption and Maintenance Act, there can be two types of adoption, one purely
secular, and the other the sacramental. All adoptions after 1956 are secular, and to be valid, must conform to the
requirement of the Act. Adoption has a significant impact on a child’s right to information we have your
consent. It is clear when the child was born. we cannot accept the consent of the child in infancy, but when the
child is of such age he can also say that he wants the child to get involved.

ADOPTION
Adoption has been described in Manu smriti and its mean transplantation of a child from one family to another
family. Their ideal was not just to have a son, but the adopted son must bear a reflection of the natural son.
Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word
‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son. According to act – a
Hindu means not only a person that follows Hinduism but also includes other sects of Hinduism, such as-
Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. As a matter of fact, the Hindu Adoption
and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.

WHO MAY TAKE IN ADOPTION?

Under this Act if adoption is made in consideration of some pecuniary benefit the adoption is valid. Both Hindu
male and a female can make adoption and it is not necessary to enquire into the motive of adoption.[3]

CAPACITY OF A HINDU MALE TO ADOPT

Section 7 [4]states that a male Hindu who is willing to adopt a child must fulfil the following conditions- must
be sound mind and ‘all the condition of insanity including epilepsy, idiocy and lunacy will come under the
unsoundness of mind’[5], must be major and has the ability to have a son or a daughter. The consent of wife is
necessary for the valid adoption ‘An adoption made without the consent of wife is void’.[6] ‘In case he have
more than one wife then consent of all wives is necessary’.[7]
CAPACITY OF A HINDU FEMALE TO ADOPT
Section 8[8] of the act states that a Hindu Female willing to adopt a child must: must attained the age of
minority, must be of sound mind, be a widow Divorced, or Unmarried in order to adopt.
If the woman has converted to another religion or has renounced the world, consent is not required for adoption.
But the presence of a living woman was a necessary requirement for Indian men to adopt children. If she has a
husband who is alive, she will not have the capacity to adopt a child.
RIGHT TO GIVE CHILD ADOPTION
The parents and guardian of the child can give them up for adoption as per sec.9[9] of the Hindu Adoption and
Maintenance Act..
According to act: The biological father of a child has the authority to give him up for adoption and the consent
of the child’s biological mother is necessary. In some circumstances a mother will have the right to give the
child up for adoption if: The father is dead, if he is unsound mind, renounced the world; or he Converted to
some other religion.

Guardian right to give children – ‘Guardian include both de jure and de facto guardians. A manager, secretary
or any person in charge of an orphanage or a person who has brought up the child, or under whose care the child
is, can give the child in adoption If adoption is for the welfare of the child and no payment has been made in
any form in exchange for the child’.[10]

WHEN IS ADOPTION VALID?

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed
in Section 6 of the act: The adoptive parent/s have the capacity and rights to adopt. The person/s giving up the
child for adoption has the capacity to do so, person being adopted has the capacity to be taken in adoption,
adoption is made in according with the act. If these requirements are fulfilled, then adoption be valid.

RESISTANCE CONDITIONS OF ADOPTION

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be
complied with-

 ADOPTION OF A SON
A person has capacity to adopt, it is not necessary that he has also the right to make an adoption. The act states
that if someone desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at
the time of adoption.[11] It is not valid whether the son is legitimate, illegitimate, or adoptive.

 ADOPTION OF A DAUGHTER
As same to the conditions of adopting a daughter –It spells that someone desire to adopt a daughter must not
have a hindu daughter or a son’s daughter. But if daughter or son’s daughter has ceased to be a Hindu, adoption
of a daughter can be valid.[12]These conditions were challenged in the case of Sandhya Supriya Kulkarni v.
Union of India.[13]
 ADOPTION OF A FEMALE CHILD BY A MALE
A Hindu male who wants to adopt a daughter must have the right to adopt a daughter as provided for in Section
7 of the Act and Section 11 (iii) must be at least 21 years older than the girl to be adopted.

 ADOPTION OF A MALE CHILD BY A FEMALE

If a Hindu female who desire to adopt a boy, she must first meet the requirements set out in Section 8 of the Act
and have the right to adopt a child. Also, she must be at least 21 years older than the child she wishes to adopt.

 TWO PERSONS CANNOT ADOPT THE SAME CHILD

Here the person does not mean husband and wife, as in such case, both adoptive parents of the child.[14]

 AGE DIFFERENCE BETWEEN PARENT AND CHILD

If a Hindu desire to adopt a child of the opposite sex he/she must be older to the child by at least 21 years.[15]

EFFECTS OF ADOPTION
Adoption will change a child’s life in many ways. Become part of a new family and will have property rights.
When a child is adopted, are considered the children of all adoptive parents. Adopting parents will have all the
rights and responsibilities and the child must have all the rights and responsibilities. However, there are certain
conditions that must be met after the child is adopted:

1. He should not have close contact with anyone from his biological family and should not marry anyone
from his birth family.
2. If the child has property before he or she is adopted, they will continue to own it later. However, such
ownership may impose certain obligations on him and he must support all of these obligations, including
his biological family if necessary.
3. An adopted child should not deprive any member of his or her family of ownership before he or she is
adopted.
IS IT POSSIBLE TO CANCEL THE ADOPTION RIGHT?
Section 15 of the law makes it clear that no parent can cancel the actual adoption or that the child has no right to
refuse adoption and return to his or her biological family. Adoption cannot be abolished if a person chooses to
adopt and is properly executed. You cannot go back after you have been adopted properly. That is the decent
thing to do, and it should end there. Prohibition of payments.

CONCLUSION
After studying the Hindu Adoption and Maintenance Act, 1956, a brought a new perspective on Indian law has
been determined. The document discusses not only the law on the adoption and care of Indians, but also the law
on Indian marriage and marriage, as well as the care of children and elderly parents, the care of widows, and
unmarried girls, serving members of the municipality, family, widowed bride. Recent court rulings show that
the Indian courts have gradually been liberal in ruling on alimony cases. Maintenance not only for the wife but
also for all, which includes the maintenance of the daughter-in-law, the widow, the maintenance of children and
elderly parents, the maintenance of dependents or the maintenance of family members. This provision,
therefore, implies the public duty of a person who can support himself to support those who cannot. Over time,
people have made a preconceived notion of the Code, the fear of minorities cannot be forgotten, on the contrary,
the fear of being overshadowed by the laws of the executive majority.

Concept of Maintenance under Hindu Adoption and Maintenance Act, 1956

Maintenance has been defined in the sec.3(b) of the Act and it is used in the wide sense. It defines that
‘providing food, clothing, shelter, education, and medical expenses’ and in case of unmarried daughter, it
includes reasonable expenses of her marriage.[1]

It is mainly financial support paid by the spouse or father that covers all the necessities of life. This section
states that if a marriage grant is given to an unmarried daughter, it will cover all the expenses necessary for
daily living before marriage. Md. Ahmed Khan v. Shah Bano Begum[2] The court in this case provided alimony
to the accused wife of Islam, where it is considered that there is no need to take any care of the wife as the
husband has paid the girl (the girl’s return) during the marriage. The controversy led to the enactment of the
Muslim Women’s Law (Protection of Divorce) in 1986 to overturn the Shah Bano decision. However, he is in
an alliance with Daniel Latifi v. Union of India[3]
RIGHTS OF MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE ACT, 1956

MAINTENANCE OF WIFE
Under sec.125 crpc women have a right to claim maintenance, in case of Savitabenben bhatiya v. state of
Gujrat[4] ,the apex court define the term wife which mean legally wedded wife and give two conditions first
wife must be legally wedded and second marriage should be legal in the eye of law.
MAINTENANCE OF WIDOWED DAUGHTERS-IN-LAW
After the divorce, the husband must pay alimony to his wife. However, it is the father’s duty to pay alimony to
his bride if her husband dies. Section 20 of the act spells-
A Hindu is required to maintain his natural as well as adopted sons. The mere refusal of a son to live with his
father does not disentitle him from claiming maintenance, though quantum of maintenance may be affected.
[5]Hindu male or female should support their children, whether legal or illegal. Raj Kishore Mishra v. Smt.
Meena Mishra, it was held that the obligation of father-in-law shall not be enforceable if he has no means to
maintain his daughter-in-law from any coparcenary property in his possession out of which the daughter-in-law
has not obtained any share.
MAINTENANCE OF DEPENDANTS
Before 1956, the term ‘dependent’ was not used in Hindu law. Dependent is someone who relies on his parents,
siblings or other relatives for support. Section 21 of the act spells that in the context of this act dependents refer
to the following relatives of the deceased- father, mother, widow who has not remarried and a minor son,
grandson, or great-grandson with predeceased father and grandfather. If the deceased cannot make dependents
independent, support must be provided. Section 21 of the Act defined dependent persons while Section 22
clarify that such persons have the right to care.

MAINTENANCE OF FATHER OR MOTHER

The family structure also changes as the weather and social needs change. As we have seen today, families are
more nuclear and unwilling to take responsibility for the parents of children. In case of Areefa Beedi v. K.M
sahib[6] the Kerala High Court held “The sentence of the father or mother must be interpreted as the meaning
of the father and mother.” Now, the next most important question related to this rule is, this rule indicates that
the terms “father” and “mother” refer to “adoptive father or mother” and “adoptive father or stepmother.” As
per sec.3 (20) of the General Conditions Act of 1897, a ‘father’ must be a ‘adoptive father’, but nonetheless
there is a ‘mother’.
MAINTENANCE TO THE MEMBER OF JOINT FAMILY
The maintenance of ordinary family members is necessary. As long as the family remains united, all its
members are entitled to maintenance against the property of the common family. People applying for family
fund interviews can be divided into the following three items Coparceners qualified as well as unqualified,
wifes, widows and unmarried daughters of guardian’s Other family members it includes male members who are
not co-guards (only a male descendant after the fourth grade) and Wives and illegitimate children of the father.

MAINTENANCE TO THE CHILDREN

The obligation to maintain children is a personal obligation and stems from the personal relationship between
parent and child. What has happened before is that only the father has the obligation to keep the legal child.
Modern Hindu law has imposed an obligation on both parents and legal and illegitimate children. T Vimala and
Others v. Ramakrishnan[7] “Eligibility of Children to Claim maintenance” was discussed it was held that
children who become major and do not suffer any kind of disability (mental or physical) can claim maintenance
from their fathers. Children can also claim for educational expenses under section 125 of Code of Criminal
Procedure “In a case the Supreme Court to advance the scheme of social justice incorporated in Section 125 of
the Code of Criminal Procedure maintained the maintenance granted to a daughter who attained the majority
and did not suffer any disability for incorporating section 20 of the Hindu Adoption and Maintenance Act.”
PERSONS OBLIGED TO MAINTENANCE HINDU ADOPTION AND MAINTENANCE ACT, 1956
For wife– To support his wife financially, she must have grown up after the divorce. But there are some
exceptions to this rule. Section 18 (3) of the Act spells that forfeiture of the claim of maintenance- an unchaste
wife has no right to claim separate residence and maintenance, Even if you are no longer Indian and have
converted to another religion that is not a Hindu religion and when the wife who had cohabitation with her
husband forfeits her claim for separate residence and maintenance, because the pre- condition of the claim is
that the wife is living separately from her husband, if that pre-condition ceases to exist the wife cannot continue
claim maintenance.[8]
 As per sec.18(2) when wife lives apart with the consent of the husband is entitled to maintenance. She is also
entitled if she lives separate from the husband for a justifiable cause. In case of Sanju Devi v. State of
Bihar[9], the apex court, the SC overturned the Court’s decision to waive the right to alimony due to the divorce
of the couple under Section 125 of the Criminal Procedure Code of 1973 in court. The court also ruled that a
divorced woman had the right to alimony and that a legally divorced woman had no right to alimony.
According to the section, a woman can live apart from her husband and require maintenance in the following
cases:

1. Her husband divorces her for no apparent reason and without permission or indirect attention.

2. man is incurable and suffers from an infectious disease.

3 Husband has another wife or master in the same house or lives elsewhere with another wife or master.

1. Husband has moved on to other religions or other valid reasons that could lead to a woman living
separately.
SUPREME COURT LATEST GUIDELINES- AWARD OF MAINTENANCE
for all courts- In the payment of interim maintenance, the court has decided that disclosure of assets and
liabilities should be filed by both parties. this precondition should be uniform throughout the country for all
courts.
this will lead to determining the amount of maintenance to be paid. apart from the above requirements, the
court in question can also ask for other documents to be filed as and when required to arrive at a figure.
LATEST JUDGEMENTS
Unmarried Hindu daughter can claim maintenance from father until she Is married- In case Abhilasha vs.
Prakash & Others[10], here the unmarried daughter was found to be entitled to get maintenance from October
17, 2002, when she filed the application till February 7, 2005, when she became a major.
Maintenance of wife- Husband doesn’t have to pay maintenance in each of the proceedings under different
Maintenance laws- In case of Rajnesh vs. Neha[11]
CONCLUSION
After studying the Hindu Adoption and Maintenance Act, 1956, a brought a new perspective on Indian law has
been determined. The document discusses not only the law on the adoption and care of Indians, but also the law
on Indian marriage and marriage, as well as the care of children and elderly parents, the care of widows, and
unmarried girls, serving members of the municipality, family, widowed bride. Recent court rulings show that
the Indian courts have gradually been liberal in ruling on alimony cases. Maintenance not only for the wife but
also for all, which includes the maintenance of the daughter-in-law, the widow, the maintenance of children and
elderly parents, the maintenance of dependents or the maintenance of family members. This provision,
therefore, implies the public duty of a person who can support himself to support those who cannot. Over time,
people have made a preconceived notion of the Code, the fear of minorities cannot be forgotten, on the contrary,
the fear of being overshadowed by the laws of the executive majority.

Joint Family and Coparcenary under Hindu Law

A joint family is an important aspect of Hindu Law. It is an institution where members of the family own
property in their name or Coparcener’s name. It started through a common male ancestor and continued till
perpetual by birth and death of a member in the family. The head of the family who manages all the affairs of
the Joint Hindu family is Karta. He had a right to alienate property without asking from other coparceners if
done in good faith. The coparceners in the family had an interest in the property by birth, vest unity of
possession and community of interest, shares is specified and at any time asks for partition.
To constitute a Joint Hindu family, all the members should be Hindu and consists of a common ancestor and
male descendants with their mothers, wives, or widows and their unmarried daughters. It is a continuous
process as if upper members removed through death then lower members are added through marriage or by
birth.[1] In Mitakshara law, the son has a right over the property since birth whether it is a legitimate son or
illegitimate son. In earlier times, daughters do not become a member of her father’s joint family after getting
married but this situation has changed. Widowed daughter or deserted by her husband can again become a
member of her father’s family but her children will always be a member of their father’s joint family. The
member can be added to the family through adoption and will be competent to equal rights and obligations
given to a natural-born child.
The Coparcenary is a narrower institution and included under Joint Family. It only comprises a male member
who had born in the family and acquires an interest in the Coparcenary property. To constitute a Coparcenary as
a minimum two male members should be needed to start and continued for a longer time.

Joint Hindu family has unlimited members but Coparcenary is only limited to four generations of unlimited
male members. The property acquired by a senior most male member is known as the last holder of the
property. For example, the Coparcenary was consisting of father F, his son S1, and his son’s son S2. All these
have form Coparcenary and if the son died the Coparcenary will continue between the father and his grandson.
In the case of Commissioner of Income Tax V. Laxmi Narayan [2], the court held that if the male ancestor died
leaving behind the son, his wife and his mother would remain in the same status i.e., a single male member with
a female member can constitute Joint Hindu Family. The court in the case of Attorney General of Ceylon V.
Arunachalam Chettiar[3], said after the death of all male members in the family the joint family will continue if
their wives are capable of adding a male member either by adoption or if any of them is pregnant.
The Hindu Joint Family is presumed to be a joint through worship, food, and shelter. In Joint Hindu Family it is
presumed that they do not possess any property at all but in Hindu Undivided Family is only connected with
property matters.