BLS LLB 5 Years Sem 7 Family Law II 2019-20 Question Paper with Solutions

Under section 3(c) of the Hindu Marriage Act, 1955, two persons are said to be related to each other by half blood when they are descended from a common ancestor but by different wives, and by full blood when they are descended from a common ancestor by the same wife. Section 3(1)(e) of the Hindu Succession Act, 1956 is in almost the same words.

Escheat is the devolution of property on the State where the owner has died leaving no heir qualified to succeed. Section 29 of the Hindu Succession Act, 1956 provides that if an intestate has left no heir qualified to succeed to his or her property under the Act, the property devolves on the Government, and the Government takes it subject to all the obligations and liabilities to which an heir would have been subject.

Section 18(3) provides that a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or if she ceases to be a Hindu by conversion to another religion.

These are the only two disqualifications, and both must be proved.

A person who has once separated may reunite only with his father, brother or paternal uncle, and with no one else. The authority is the text of Brihaspati quoted in the Mitakshara: "He who, being once separated, dwells again through affection with his father, brother or paternal uncle, is termed reunited."

Section 3 of the Commission of Sati (Prevention) Act, 1987 provides that, notwithstanding anything in the Indian Penal Code, whoever attempts to commit sati and does any act towards such commission shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

The proviso requires the Special Court trying an offence under the section, before convicting any person, to take into consideration the circumstances leading to the commission of the offence, the act committed, the state of mind of the person charged at the time of the commission of the act, and all other relevant factors.

Enforcement. Not by force. Order XXI Rule 32 of the Code of Civil Procedure allows enforcement by attachment of property, and by sale if disobedience continues for six months. Non-compliance for one year becomes a ground of divorce under section 13(1A)(ii).

The constitutional challenge. T. Sareetha v. T. Venkata Subbaiah (Andhra Pradesh, 1983) held section 9 void under Articles 14 and 21, calling it a savage and barbarous remedy. Harvinder Kaur v. Harmander Singh Choudhry (Delhi, 1984) disagreed, holding the object to be cohabitation and consortium, not intercourse. In Saroj Rani v. Sudarshan Kumar Chadha (1984) the Supreme Court upheld section 9, approved Harvinder Kaur and overruled T. Sareetha, holding that the remedy serves a social purpose as an aid to preventing the break-up of the marriage and carries its own safeguards in the words "without reasonable excuse" and in section 23.

2. It is rebuttable: the words are "until the contrary is proved". Medical evidence, an eyewitness, a recorded time of death or the nature of the injuries displaces it.
3. It operates for all purposes affecting succession to property, and for those purposes only.

A worked illustration. A, aged 60, and his son B, aged 30, die together in a road accident. The younger, B, is presumed to have survived. So A's property devolves first on B as a Class I heir, along with A's widow, mother and other children, each taking one share under section 10; and the share that thus vested in B then passes from B to B's own heirs, his widow, mother and children. It does not stay in A's line. Reverse the ages and the result reverses with them.

1. The obligation is personal, binding the Hindu during his or her lifetime and out of any property or income; contrast sections 21 and 22, where the dependants of a deceased Hindu claim against the estate from the heirs who take it.
2. It is gender-neutral in both directions: "a Hindu" is bound, and the claim lies against father or mother.
3. Illegitimate children are expressly included, and this is unusual: they are excluded from succession to the father by section 3(1)(j) of the Hindu Succession Act, under which "related" means related by legitimate kinship and an illegitimate child is deemed related to its mother only.
4. The unmarried daughter's claim in section 20(3) has no age limit. A minor child claims under 20(2) whatever her means; an unmarried daughter over eighteen claims under 20(3) only if she cannot maintain herself.

Quantum, section 23(2): the position and status of the parties, the reasonable wants of the claimant, whether the claimant is justified in living separately, the value of the claimant's own property and income, and the number of persons entitled to maintenance under the Act.

When the appointment takes effect, section 9(5). The guardian so appointed has the right to act after the death of the minor's father or mother, as the case may be. He never displaces a living natural guardian.

His powers, section 9(5). He may exercise all the rights of a natural guardian under this Act, to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. So his powers are those in section 8, cut down twice:

• he may do all acts necessary or reasonable and proper for the benefit of the minor or of the minor's estate, but cannot bind the minor by a personal covenant, section 8(1);
• he may not, without the previous permission of the court, mortgage, charge or transfer by sale, gift, exchange or otherwise any part of the minor's immovable property, or lease it for more than five years or for more than one year beyond the minor's majority, section 8(2);
• a disposal in breach is voidable at the instance of the minor or anyone claiming under him, section 8(3), and permission is granted only in case of necessity or for an evident advantage to the minor, section 8(4);
• and whatever the will says by way of restriction binds him in addition.

Ancestral property, in the strict sense, is property inherited by a male Hindu from his father, father's father or father's father's father, in which his own issue take an interest by birth. It is apratibandha daya, unobstructed heritage, and it is the core of coparcenary property.

Its incidents.

1. A right by birth. The owner's sons, and since the 2005 Amendment his daughters, take an interest the moment they are born; the property is not his to deal with as absolute owner.
2. The interest fluctuates, rising on a death and falling on a birth, until partition fixes it.
3. Limited power of alienation. It may be sold or mortgaged only for legal necessity, benefit of the estate, or indispensable religious or pious purposes: Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856); an alienation outside those heads is voidable and must be challenged within twelve years.

An in camera proceeding is one heard in the judge's chamber or in a closed court, from which the public and the press are excluded.

Section 22 of the Hindu Marriage Act, 1955, as substituted in 1976: every proceeding under this Act shall be conducted in camera, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the court. Contravention is punishable with a fine which may extend to one thousand rupees.

Section 11 of the Family Courts Act, 1984: in every suit or proceeding to which the Act applies, the proceedings may be held in camera if the Family Court so desires, and shall be so held if either party so desires. The word "shall" is the point: on a party's request the Court has no discretion.

Section 33 of the Special Marriage Act, 1954 is in the same terms as section 22 of the Hindu Marriage Act.

(i) The marriage is voidable, not void.

Section 12(1)(d) of the Hindu Marriage Act, 1955 makes a marriage voidable and liable to be annulled by a decree of nullity on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner. This is pregnancy per alium, pregnancy by another.

Being voidable, the marriage is valid for all purposes until a decree of nullity is passed. B is A's wife today: she may claim maintenance, the marriage is a subsisting marriage for the purpose of bigamy, and if A does nothing the marriage simply continues. Only A may move; no third party can challenge it, and it cannot be annulled after the death of either party.

All the claimants named are Class I heirs under section 8 with the Schedule, except the father, who is Class II. Section 9 provides that Class I heirs take simultaneously and to the exclusion of all other heirs, and section 10 distributes.

(i) S takes one-third, SW one-third, and DS and DD one-sixth each.

Count the shares in the first line under section 10:

• Rule 2: the surviving son S takes one share;

• Rule 2: the mother M takes one share, and the surviving son S takes one share;
• Rule 3 and 4: the branch of the predeceased son, that is SW, takes one share;
• Rule 3 and 4: the branch of the predeceased daughter, that is DS and DD, takes one share between them.

Four shares in all.

B has ceased to be a Hindu. He is therefore not a "Hindu son" living, and the bar in section 11(i) is not attracted. The statute says "Hindu son", not "son", and the word is doing the work. So A may validly adopt C.

The other conditions must also be satisfied: section 9, C must be given by his father or mother, each with the consent of the other, or by a guardian with the previous permission of the court; section 10, C must be a Hindu, not already adopted, not married unless custom permits, and under fifteen unless custom permits; section 11(iv), A must be at least twenty-one years older than C, the adopter being female and the child male; and section 11(vi), there must be an actual giving and taking.

(ii) D is C's step-father.

Section 14(4) provides: "Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child."

A was a widow when she adopted C, and married D afterwards. D is therefore C's step-father, and not his adoptive father. The child's ties in law run to A alone as the adoptive parent. Section 15 confirms that the later marriage cannot unsettle the adoption: a valid adoption cannot be cancelled by anyone.

For full marks, cover: the four grounds of section 12(1) with what each requires; both limbs of section 12(2); the grounds of a void marriage under section 11; the comparison in a table; section 16 on the children; and the place of section 5(iii), which is in neither category.

A. The four grounds of a voidable marriage, section 12(1). A marriage, whether solemnised before or after the commencement of the Act, is voidable and may be annulled by a decree of nullity on any of the following grounds:

1. Section 12(1)(a), impotence: that the marriage has not been consummated owing to the impotence of the respondent. Impotence means incapacity to consummate, physical or psychological, and includes impotence quoad hunc or quoad hanc, that is towards this particular spouse; it is not the same as sterility, so a man who is fertile but incapable of the act is impotent and one who consummates but cannot beget children is not. There is no limitation for this ground.

• For (c): no petition if presented more than one year after the force ceased or the fraud was discovered, or if the petitioner has with full consent lived with the other party as husband and wife after that.
• For (d): no petition unless the petitioner was ignorant of the facts at the time of the marriage, proceedings were instituted within one year from the date of the marriage, and marital intercourse with the petitioner's consent has not taken place since the discovery.

C. Void marriages, section 11. A marriage solemnised after the commencement of the Act is null and void if it contravenes clause (i), a spouse living; clause (iv), the degrees of prohibited relationship; or clause (v), sapinda relationship, of section 5, the last two being subject to a custom governing each of the parties.

D. The distinction.

For full marks, cover: section 4(b) and the place of the natural guardian among the kinds; section 6 clause by clause with the proviso and Explanation; section 7 for an adopted son; section 8 sub-section by sub-section; sections 11, 12 and 13; and Githa Hariharan and ABC.

A. Who he or she is, section 6. The natural guardians of a Hindu minor, in respect of the minor's person as well as property, excluding the minor's undivided interest in joint family property, are:

• (a) in the case of a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
• (b) in the case of an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father;
• (c) in the case of a married girl, the husband.

3. Section 8(3), the consequence of breach. Any disposal of immovable property in contravention of sub-section (1) or (2) is voidable at the instance of the minor or any person claiming under him. It is not void: the minor may affirm it, and must sue to avoid it within three years of attaining majority, Article 60 of the Limitation Act, 1963.
4. Section 8(4), the test for permission. The court shall not grant permission except in case of necessity or for an evident advantage to the minor.
5. Sections 8(5) and (6), procedure. The application is governed by the Guardians and Wards Act, 1890 as if made under section 29 of that Act, and an order refusing permission is appealable to the court to which appeals ordinarily lie.

For full marks, cover: section 6 as the four-fold test; sections 7 and 8 with the 2010 amendment; section 9 with the 2010 amendment and the guardian's power; section 10; section 11 clause by clause; sections 12, 15 and 16 briefly; and the CARA alternative.

A. Section 6, the four-fold test. No adoption is valid unless: the person adopting has the capacity and also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken; and the adoption is made in compliance with the other conditions in Chapter II. The four are cumulative, and an adoption failing any one of them is void.

B. Capacity to take.

Section 7, a male: of sound mind and not a minor; if he has a wife living, he shall not adopt except with her consent, unless she has renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind; and where he has more than one wife living, the consent of all is necessary.

D. Who may be adopted, section 10. A Hindu; not already adopted; not married, unless a custom permits; and not over fifteen, unless a custom permits.

E. The other conditions, section 11.

1. On adopting a son: no Hindu son, son's son or son's son's son living, whether by legitimate blood relationship or by adoption.
2. On adopting a daughter: no Hindu daughter or son's daughter living.
3. Male adopting a female: the adoptive father must be at least twenty-one years older.
4. Female adopting a male: the adoptive mother must be at least twenty-one years older.
5. The same child may not be adopted simultaneously by two or more persons.
6. There must be an actual giving and taking in adoption, with intent to transfer the child from the family of its birth to the family of its adoption; the proviso adds that datta homam is not essential.

For full marks, cover: the definition and why it governs the modes; what is divisible; each mode with the date severance runs from; who may demand partition; partial partition, reopening and reunion; and section 6(3) and 6(5) with Vineeta Sharma.

A. What partition is. Partition in Mitakshara law is the severance of the joint status: the conversion of an undivided and fluctuating coparcenary interest into a fixed and defined share. The division of the property by metes and bounds is a consequence of partition and not partition itself. In the Dayabhaga, where each coparcener already holds a definite share, there is no status to sever and partition means physical division only.

Because partition is severance of status, it may be effected by anything that unequivocally shows the intention to sever, and the date of severance is the date that intention takes effect. That is why the list of modes is as wide as it is.

5. By arbitration, a reference of the dispute to arbitrators with a direction to divide, which severs from the date of the agreement to refer, even if no award follows or the award is set aside.
6. By conduct: separate messing, separate accounts, separate residence and separate businesses. This is evidence of partition rather than an independent mode, and weaker than a declaration, the presumption being that a Hindu family is joint.
7. By the father's own act. In Mitakshara law the father has a superior right to divide the property among his sons in his lifetime, by deed or by will, even against their wishes, provided he acts bona fide and divides equally.
8. By conversion. A coparcener who ceases to be a Hindu is automatically severed and takes his share as at that date; he is not divested of it, by force of the Caste Disabilities Removal Act, 1850.
9. By renunciation, where a coparcener enters a religious order and renounces the world.
10. By marriage under the Special Marriage Act, 1954. By section 19 of that Act, the marriage of a member of an undivided Hindu family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect his severance from the family.

For full marks, cover: the definition of a joint family and how it comes into existence; the presumption of jointness; the coparcenary inside it and the four-degree rule; the differences between the two bodies in a table; the rights and duties of a coparcener; and Vineeta Sharma and Sujata Sharma.

A. The concept. A joint Hindu family consists of all persons lineally descended from a common ancestor, together with their wives and unmarried daughters. It is a status arising by operation of law, not by contract: a Hindu is born into it, and the only ways of coming into it from outside are marriage and adoption.

B. Its formation and characteristics.

1. It is a creature of law, not of agreement. Members cannot agree to create one, and a stranger cannot be admitted except by marriage or adoption.
2. The presumption is of jointness. Every Hindu family is presumed to be joint in food, worship and estate, and the burden of proving separation lies on the person who asserts it. The presumption is strongest between a father and his sons.

D. The rights of a coparcener.

1. An interest by birth, which fluctuates, rising on a death and falling on a birth.
2. Joint possession and enjoyment of the whole property; no coparcener may exclude another.
3. A right to demand partition at any time and without the consent of the others, a son being able to demand it against his father in Mitakshara law. On partition the daughter is allotted the same share as a son, section 6(3).
4. A right to restrain an unauthorised act, and to sue to set aside an alienation made otherwise than for legal necessity, benefit of the estate or a pious purpose, within twelve years of the alienee taking possession.

For full marks, cover: the concept and Article 44 with the Constituent Assembly; the arguments for and against; the case law on both sides, in order, with what each decided; the existing uniform statutes, Goa and Uttarakhand; the Law Commission's position; and a reasoned conclusion.

A. The concept. A Uniform Civil Code is one body of civil law on marriage, divorce, maintenance, adoption, guardianship, succession and inheritance for all citizens alike, in place of the personal laws that now apply by religion. It concerns civil law only and does not touch worship, ritual or the internal affairs of a denomination.

C. The case against. Articles 25 and 26; the fear that a "uniform" code will be the majority's law renamed; the protection of tribal custom under the Sixth Schedule and Articles 371A and 371G for Nagaland and Mizoram; the diversity within Hindu law itself, marumakkattayam and aliyasantana being preserved by section 17 of the Succession Act and custom saved in several places; and the absence of any published draft.

D. The case law.

1. Mohd. Ahmed Khan v. Shah Bano Begum (1985): maintenance to a divorced Muslim wife under section 125 of the Code of Criminal Procedure; the Court held section 125 applies irrespective of personal law and observed that Article 44 had remained a dead letter. The decision was followed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.
2. Sarla Mudgal v. Union of India (1995): Hindu husbands converting to Islam to take a second wife; the second marriage was held bigamous, the first marriage remaining governed by the Hindu Marriage Act, and the Court again called for a code. Lily Thomas v. Union of India (2000) affirmed it and clarified that Sarla Mudgal contained no direction to enact a code.

E. What already exists. The Special Marriage Act, 1954, an optional uniform law of marriage and divorce open to any two persons of any religion, carrying succession under the Indian Succession Act, 1925 through section 21; Goa's common civil code; and Uttarakhand's Uniform Civil Code, in force from 27 January 2025, the first State code after independence, which excludes Scheduled Tribes and whose live-in registration provisions are under challenge.

F. The Law Commission. The 21st Law Commission, in its consultation paper of 31 August 2018, concluded that a Uniform Civil Code was "neither necessary nor desirable at this stage", and recommended instead the reform of discriminatory provisions within each personal law. The 22nd Law Commission issued a fresh public notice in June 2023 and consultation continues.

Under section 3(1)(a) of the Hindu Succession Act, 1956 a person is an agnate of another if the two are related by blood or adoption wholly through males; under section 3(1)(c) a person is a cognate if they are related by blood or adoption but not wholly through males.

Sapratibandha daya, "heritage with obstruction", is the Mitakshara term for obstructed heritage: property in which a person's right arises only on the death of the last owner, being property inherited from any relation other than the father, father's father or father's father's father, for example from a brother, a paternal uncle or a nephew. The existence of that owner is an obstruction to the heir's right, and no interest arises by birth.

Escheat is the devolution of property on the State where the owner dies leaving no heir qualified to succeed. Section 29 of the Hindu Succession Act, 1956 provides that if an intestate has left no such heir, the property devolves on the Government, which takes it subject to all the obligations and liabilities to which an heir would have been subject.

Polygamy is plural marriage, a marriage in which a person has more than one spouse at the same time. Its two forms are polygyny, one man with more than one wife, and polyandry, one woman with more than one husband. Polyandry is therefore a species of polygamy, and its opposite is polygyny.

A patriarchal family is one in which authority is vested in the eldest male, descent and the family name are traced through the male line, and property passes from father to son. The Hindu joint family, headed by the karta, is patriarchal, and also patrilineal and patrilocal.

A matriarchal family is one in which authority rests with the eldest female, and descent and inheritance are traced through the female line, the husband being received into the wife's household.

Quantum, section 23. For a wife, child or aged parent, section 23(2): the position and status of the parties, the reasonable wants of the claimant, whether the claimant is justified in living separately, the value of the claimant's own property and income, and the number of persons entitled. For a dependant, section 23(3): the net value of the estate after debts, any provision made by will, the degree of relationship, the reasonable wants of the dependant, past relations, the dependant's own means, and the number of dependants.

Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as property, excluding the minor's undivided interest in joint family property, are:

• (a) for a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
• (b) for an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father;
• (c) for a married girl, the husband.

The proviso disqualifies a person who has ceased to be a Hindu, or who has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). The Explanation excludes a step-father and step-mother. Section 7 passes the natural guardianship of an adopted son, on adoption, to the adoptive father and after him the adoptive mother.

Section 7(1) of the Family Courts Act, 1984 confers on a Family Court all the jurisdiction exercisable by any district court or any subordinate civil court in respect of the suits and proceedings described in the Explanation, and provides that the Family Court shall be deemed to be a district court for that purpose. The Explanation covers:

• (a) nullity of marriage, restitution of conjugal rights, judicial separation or dissolution of marriage;
• (b) a declaration as to the validity of a marriage or as to the matrimonial status of any person;
• (c) a suit between the parties to a marriage with respect to the property of the parties or of either of them;
• (d) an order or injunction in circumstances arising out of a marital relationship;
• (e) a declaration as to the legitimacy of any person;
• (f) maintenance;
• (g) guardianship of the person or the custody of, or access to, any minor.

Section 5 of the Hindu Marriage Act, 1955 allows a marriage between any two Hindus if the following conditions are fulfilled:

• (i) Monogamy: neither party has a spouse living at the time of the marriage. Breach makes the marriage void, section 11, and is bigamy, section 17 with section 82 of the Bharatiya Nyaya Sanhita, 2023.
• (ii) Capacity to consent: neither party is incapable of giving a valid consent through unsoundness of mind, or, though capable, suffers from mental disorder of such a kind or extent as to be unfit for marriage and the procreation of children, or is subject to recurrent attacks of insanity. Breach makes the marriage voidable, section 12(1)(b).
• (iii) Age: the bridegroom has completed twenty-one and the bride eighteen. Breach makes the marriage neither void nor voidable under this Act, but is punishable under section 18(a) with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Hindu law developed through commentaries and digests on the Smritis, and the differences between them produced the two schools.

Mitakshara, the commentary of Vijnaneshwara on the Yajnavalkya Smriti, eleventh century, prevails throughout India except Bengal and Assam, with four sub-schools distinguished by local usage rather than principle: Benares, over most of north India; Mithila, in north Bihar; Bombay or Maharashtra, in western India, the most liberal to women; and Dravida or Madras, in the south.

Dayabhaga, the digest of Jimutavahana, twelfth century, prevails in Bengal and Assam and has no sub-schools.

Section 3(f)(i) of the Hindu Marriage Act, 1955: "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Section 3(f)(ii): two persons are sapindas of each other if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

The counting rule. You count yourself as the first generation. Three through the mother means the person, the mother, and the mother's parent; five through the father means the person and four ascendants above.

The bar, section 5(v): the parties must not be sapindas of each other, unless the custom or usage governing each of them permits the marriage. Breach makes the marriage void under section 11 and is punishable under section 18(b) with simple imprisonment up to one month, or fine up to a thousand rupees, or both.

Section 23(1)(a) obliges the court to be satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief. A wife seeking a decree on the strength of her own conversion is doing exactly that.

The Act continues to govern the marriage. A marriage solemnised between two Hindus remains a Hindu marriage, and one party's later conversion does not take it out of the Act; that is the reasoning of Sarla Mudgal v. Union of India (1995), where the Supreme Court held that a Hindu husband who embraced Islam and married again remained bound by the Hindu Marriage Act, so the second marriage was bigamous. Lily Thomas v. Union of India (2000) affirmed it.

What she can do. She may petition on any other available ground in section 13(1), such as cruelty or desertion, if the facts support one; she may seek judicial separation under section 10 on the same grounds; and she may join in a petition under section 13B, on which see below.

(ii) Yes. The couple may seek a divorce by mutual consent under section 13B.

The ordinary conditions apply: they must have lived separately for at least a year, which means not living as husband and wife and not necessarily in different houses (Sureshta Devi v. Om Prakash, 1991); the consent must subsist until the decree, either party being free to withdraw before it (Sureshta Devi, affirmed in Smruti Pahariya v. Sanjay Pahariya, 2009); and section 23(1)(bb) requires the court to be satisfied that the consent was not obtained by force, fraud or undue influence. The six-month period is directory and may be waived: Amardeep Singh v. Harveen Kaur (2017).

(ii) B's property: the mother takes the whole. The father takes nothing.

The mother is a Class I heir; the father is only a Class II heir. Since a Class I heir survives, she takes the entire estate and the father is wholly excluded.

Her capacity is otherwise complete. Under section 8, as substituted by the Personal Laws (Amendment) Act, 2010, any female Hindu who is of sound mind and not a minor may adopt; being unmarried, she needs nobody's consent, the proviso applying only where a husband is living. Under section 11(i) she must have no Hindu son, son's son or son's son's son living, which on the facts she has not. But section 11(iv) defeats her.

(ii) Yes. B can adopt the girl, and the age gap is irrelevant.

The twenty-one-year rule applies only where the adopter and the child are of OPPOSITE sexes. Section 11(iii) requires the gap where a male adopts a female; section 11(iv) where a female adopts a male. Where a female adopts a female, as here, the Act imposes no age gap at all. So the fact that B is only twenty-four years older than the child is beside the point.

4. A right to restrain an unauthorised act and to sue to set aside an alienation made otherwise than for legal necessity, benefit of the estate or a pious purpose, within twelve years of the alienee taking possession.
5. A right of survivorship, now confined to the case where a coparcener dies leaving no heir taking under the substituted section 6.
6. A right to maintenance and to marriage expenses out of the joint funds.
7. A right to accounts, but only as at the date of partition, unless fraud or misappropriation is alleged.
8. A right to become karta if senior-most.
9. A right to will away the undivided interest, section 30 with its Explanation.

C. Duties.

1. To allow every other coparcener joint possession.
2. Not to alienate coparcenary property except within the limits allowed to a karta.
3. To maintain the members of the family entitled to maintenance, and to meet the marriage expenses of unmarried daughters.
4. To bring into hotchpot at partition anything received out of joint funds beyond his share.

Section 6(3) provides that on the death of a Hindu after the Amendment, his interest devolves by testamentary or intestate succession and not by survivorship, on a notional partition in which the daughter is allotted the same share as a son, the share of a predeceased son or daughter goes to their surviving children, and the share of a predeceased child of a predeceased son or daughter goes to that child's child.

Section 6(4) abolished the pious obligation prospectively: after the commencement of the Amendment no court shall recognise any right to proceed against a son, grandson or great-grandson for a debt of his father, grandfather or great-grandfather on that ground, the proviso saving debts contracted before 9 September 2005. Parliament abolished rather than extended a liability that could fall only on male descendants.

The two limits. The proviso to section 6(1) protects any partition or testamentary disposition effected before 20 December 2004, and section 6(5) defines "partition" for that purpose as one by registered deed or by decree of a court.

B. Cruelty is not defined, and deliberately. No two marriages are alike, and the courts have consistently refused to lay down an exhaustive definition; what is cruelty in one household may be ordinary in another.

C. The test. In Samar Ghosh v. Jaya Ghosh (2007) the Supreme Court held that the enquiry is whether the conduct is such that the petitioner cannot reasonably be expected to live with the respondent, judged on the whole matrimonial relationship and not on isolated incidents, and having regard to the social status, education, and the physical and mental condition of the parties and the customs of the community. It set out an illustrative and non-exhaustive list of instances of mental cruelty, including:

• sustained unjustifiable conduct and behaviour reasonably likely to cause anguish and mental pain;
• sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness;
• a sustained course of abusive and humiliating treatment;
• unilateral refusal of sexual intercourse for a considerable period without physical incapacity or valid reason;

• A. Jayachandra v. Aneel Kaur (2005): persistent baseless allegations against a spouse's professional conduct amount to cruelty;
• Mayadevi v. Jagdish Prasad (2007): the ground is available to either spouse; cruelty by a wife is cruelty;
• Naveen Kohli v. Neelu Kohli (2006): a long course of false criminal complaints, litigation and public humiliation was cruelty, and the Court recommended that irretrievable breakdown be added as a ground.

E. What has been held not to be cruelty. The ordinary wear and tear of married life; occasional quarrels, sulking or trivial irritations; a single trivial act unless grave; a genuine and bona fide difference of opinion about where to live or whether the wife should work, Swaraj Garg v. K.M. Garg (1978) holding that a wife's employment is not itself a wrong; and conduct provoked by the petitioner's own behaviour, which engages section 23(1)(a).

• a daughter may be adopted as well as a son, section 10 speaking of a "person";
• a female Hindu may adopt in her own right, section 8;
• the welfare of the child is the test where a guardian gives the child, section 9(5);
• payment or reward is forbidden, section 9(5);
• the adopted child is the child of the adoptive parents for all purposes, section 12, so the object is now the creation of a family relationship, not the securing of a ritual.

The modern object is therefore the welfare of the child and the provision of a family to a person without one, and the Juvenile Justice (Care and Protection of Children) Act, 2015 completes that movement: adoption there is defined as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities attached to a biological child, and section 3(iv) makes the best interest of the child a governing principle.

B. The capacity of a male Hindu to take in adoption, section 7.

C. The other requisites, so far as they bear on him. Section 6, the four-fold test; section 9, the child must be given by the father or mother, each with the consent of the other, or by a guardian with the previous permission of the court; section 10, the child must be a Hindu, not already adopted, not married unless custom permits, and under fifteen unless custom permits; and section 11, under which he must have no Hindu son, son's son or son's son's son living if he adopts a son, no Hindu daughter or son's daughter living if he adopts a daughter, and must be at least twenty-one years older than the child if the child is female; there must also be an actual giving and taking, datta homam not being essential.

D. Who becomes the adoptive mother, section 14. Where a Hindu who has a wife living adopts, she is deemed to be the adoptive mother; where the adoption is made with the consent of more than one wife, the senior-most in marriage is the adoptive mother and the others are step-mothers; and where a widower or a bachelor adopts, any wife he subsequently marries is the step-mother of the adopted child.

C. Natural guardian, sections 6, 7 and 8. By section 6: for a boy or an unmarried girl, the father, and after him the mother, with custody of a minor under five ordinarily with the mother; for an illegitimate boy or unmarried girl, the mother, and after her the father; for a married girl, the husband. The proviso disqualifies a person who has ceased to be a Hindu or renounced the world; the Explanation excludes a step-parent. Section 7 passes the natural guardianship of an adopted son to the adoptive father and after him the adoptive mother.

His powers, section 8: all acts necessary or reasonable and proper for the benefit of the minor or of his estate, but no personal covenant, 8(1); no mortgage, charge, sale, gift, exchange or other transfer of immovable property, and no lease beyond five years or beyond one year past majority, without the previous permission of the court, 8(2); a dealing in breach is voidable at the instance of the minor, 8(3); permission only for necessity or evident advantage, 8(4); and the application is governed by the Guardians and Wards Act, 1890 with an appeal against refusal, 8(5) and (6).

F. Section 13, the welfare principle. 13(1): in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 13(2): no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

B. What partition changes. On severance: the coparcener's share becomes fixed and ceases to fluctuate; the right of survivorship ends as between him and the others; the property allotted becomes his separate property, which he may sell, gift or will away freely; his sons born afterwards take an interest by birth in his share but not in the rest; and the karta's authority over him ends. Before severance none of that is true. That is why the date of severance is the practical question in every dispute.

C. The modes by which partition is effected.

1. A clear and unequivocal declaration of intention to separate, communicated to the other coparceners; severance dates from the communication: Raghavamma v. Chenchamma (1964).
2. Notice, in writing or by registered letter, which is how that communication is usually made.
3. Agreement among the coparceners to hold in defined shares.
4. Suit for partition, severance dating from the filing of the plaint, not the decree.
5. Arbitration, severance dating from the agreement to refer, even if no award follows.

Reopening. A completed partition is final, but a court will reopen it for:

• fraud by one of the sharers;
• mistake, including as to the extent of the property or the shares;
• the omission of property, by oversight or by concealment;
• a share obtained by undue influence or coercion;
• the birth of a son who was in the womb at the date of the partition, where no share was reserved for him and the partition was not postponed;
• the return of an absent coparcener whose share was not kept apart;
• an adoption made afterwards, in the cases in which it entitles the child to share;
• a disqualified coparcener whose disqualification is later removed.

Reunion. A separated coparcener may reunite, but only with his father, brother or paternal uncle, and only on proof of a previous partition and an intention to revert to the joint status; reunion restores the joint status with all its incidents. A female cannot reunite.

For full marks, cover: what void and voidable mean; section 11 with the three clauses of section 5; section 12 with all four grounds and the bars in 12(2); the distinction, organised by consequence; the position of section 5(iii); section 16 and the children; and the remedies of the woman.

A. What the two terms mean. A void marriage is no marriage at all: it is a nullity from the beginning, and the parties never acquire the status of husband and wife. A voidable marriage is a valid marriage until it is annulled by a decree at the instance of the aggrieved party; if that party does not move, the marriage continues for all purposes.

B. Void marriages, section 11. Any marriage solemnised after the commencement of the Act shall be null and void, and may on a petition presented by either party against the other be so declared by a decree of nullity, if it contravenes any one of the conditions in clauses (i), (iv) or (v) of section 5:

• 5(i): either party had a spouse living at the time of the marriage;

D. The distinction, organised by consequence.