BLS LLB 5 Years Sem 7 Family Law II 2024-25 - ATKT Set 2 60/40 Question Paper with Solutions

Unobstructed heritage, apratibandha daya, is property in which a person acquires an interest by birth: the property a male Hindu inherits from his father, father's father or father's father's father. The existence of the owner is no obstruction to his son's right, because the son takes an interest the moment he is born.

Obstructed heritage, sapratibandha daya, is property in which the right arises only on the death of the last owner: property inherited from any other relation, such as a brother, a paternal uncle or a nephew. The existence of that owner is an obstruction to it.

The proviso to section 6 of the Hindu Minority and Guardianship Act, 1956 provides that no person shall be entitled to act as the natural guardian of a minor:

• (a) if he has ceased to be a Hindu; or
• (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Section 8(5) of the Hindu Marriage Act, 1955 provides that the validity of a Hindu marriage shall in no way be affected by the omission to make the entry in the Hindu Marriage Register. So a marriage that satisfies section 5 and has been solemnised under section 7 is fully valid though never registered.

The only consequence prescribed is evidentiary and penal. Under section 8(2) a State Government may make registration compulsory, and where it has, section 8(2) makes contravention of the rules punishable with a fine up to twenty-five rupees. The register is by section 8(4) open to inspection and its certified extracts are admissible as evidence.

Apratibandha daya, literally "heritage without obstruction", is the Mitakshara term for unobstructed heritage: property in which a person acquires an interest by birth, being the property inherited by a male Hindu from his father, father's father or father's father's father.

It is called unobstructed because the existence of the owner is no obstruction to his male issue's right; the son, grandson and great-grandson take an interest the moment they are born.

Two disqualifications:

1. Murder, section 25. A person who commits murder or abets the commission of murder is disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he committed or abetted the murder.
2. Children of a convert, section 26. The children born to a person after that person has ceased to be a Hindu by conversion, and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless they are Hindus when the succession opens.

Section 16 of the Hindu Marriage Act, 1955 protects the children, though it does not save the marriage.

Section 16(1). Notwithstanding that a marriage is null and void under section 11, any child of such a marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

Section 16(2). Where a voidable marriage is annulled under section 12, any child begotten or conceived before the decree who would have been legitimate if the marriage had been dissolved instead of annulled shall be deemed to be the legitimate child of the parties, notwithstanding the decree.

Section 16(3). Nothing in the two sub-sections above confers on any such child any rights in or to the property of any person other than the parents, in a case where but for the Act the child would have been incapable of possessing or acquiring such rights.

3. Section 9(3). A Hindu widow entitled to act as natural guardian, and a Hindu mother so entitled because the father has become disentitled, may appoint on the same terms.
4. Section 9(4). A Hindu mother entitled to act as natural guardian of her minor illegitimate children may appoint in respect of person, property or both, and here there is no exclusion of the undivided interest, an illegitimate child having none.

When it 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 the Act, to such extent and subject to such restrictions as are specified in the Act and in the will. So his powers are those in section 8, cut down by the will:

• 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;

A Uniform Civil Code is one body of civil law on marriage, divorce, maintenance, adoption, guardianship and succession, applicable to all citizens, in place of the personal laws that now apply by religion.

Article 44 of the Constitution, a Directive Principle, provides that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". By Article 37 it is not enforceable by any court, but is fundamental in the governance of the country. In the Constituent Assembly on 23 November 1948 Dr B.R. Ambedkar pointed out that India already had a uniform criminal code and a uniform law of property, and that only the family lay outside; Muslim members' amendments to protect personal law were defeated, and the compromise was to place the article in Part IV rather than Part III.

The case for. Personal laws differ on the age of marriage, polygamy, grounds of divorce, maintenance and shares in inheritance, and those differences sit badly with Articles 14 and 15; a common code would generalise the gender-justice reforms that have already happened in each system; it would end forum-shopping by conversion; and it would advance national integration.

Section 28 completes the answer: no person shall be disqualified from succeeding on the ground of any disease, defect or deformity, or, save as provided in this Act, on any other ground whatsoever. A conviction for an unrelated murder is not a ground provided by the Act. It follows that a criminal record, however grave, does not disqualify an heir, and Vinod takes his full share.

(i) The heirs and the shares.

The problem reads as though Vijay is a predeceased son who left a widow Shruti and a minor son Sujay, and that Suman, Vinod and Jaya survive Amit.

All of them are Class I heirs under section 8 read with the Schedule: the widow, the son, the daughter, the widow of a predeceased son and the son of a predeceased son are all in Class I. Section 9 provides that Class I heirs take simultaneously and to the exclusion of all other heirs.

Section 10 distributes:

• Rule 1, the widow Suman takes one share;
• Rule 2, the surviving son Vinod and the surviving daughter Jaya each take one share (Amit's mother, if living, would take one too, but the facts do not mention her);

(i) The first marriage, with Sheetal, is void from the beginning.

Section 5(iv) of the Hindu Marriage Act, 1955 requires that the parties be not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits a marriage between them. Section 3(g) defines those degrees: where one is a lineal ascendant of the other; where one was the wife or husband of a lineal ascendant or descendant of the other; where one was the wife of the brother, or of the father's or mother's brother, or of the grandfather's or grandmother's brother of the other; or where the two are brother and sister, uncle and niece, aunt and nephew, or the children of a brother and sister or of two brothers or of two sisters.

Nor is it bigamy. Section 17 makes a second marriage an offence only where it is void by reason of taking place during the lifetime of a spouse, that is where a valid subsisting marriage exists. There was none, so section 82 of the Bharatiya Nyaya Sanhita, 2023, which replaced sections 494 and 495 of the Indian Penal Code, is not attracted either.

The citations.

• Bhaurao Shankar Lokhande v. State of Maharashtra (1965): bigamy requires proof that the second marriage was validly solemnised with the essential ceremonies; and, by the same reasoning, the offence presupposes a subsisting valid first marriage.
• Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988): a marriage void under section 11 is void from its inception, no decree is necessary, and a woman party to such a marriage is not a "wife" for section 125 of the Code of Criminal Procedure.
• Sarla Mudgal v. Union of India (1995): the converse case, where the first marriage was valid, so a second marriage after conversion to Islam was bigamous. It is worth citing because it shows what the answer would be if Sheetal's marriage had been good.
• Revanasiddappa v. Mallikarjun (2023): on the position of any child of the void marriage.

If she is older, guardianship and custody must be kept apart. Lalman is the natural guardian; that is the legal office. Custody is the physical care of the child, and it is governed by section 13(1), which makes the welfare of the minor the paramount consideration in the appointment or declaration of any guardian by a court, and by section 13(2), which provides that no person shall be entitled to guardianship under the Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

Applying that:

• Lalman's status as natural guardian is a preferential right, not an absolute one, and it yields to welfare. In Gaurav Nagpal v. Sumedha Nagpal (2009) the Supreme Court held that in custody matters the court is not adjudicating a right of property between parents, and that the father's right is subordinate to the child's welfare; Rosy Jacob v. Jacob A. Chakramakkal (1973) held that children are not chattels; Nil Ratan Kundu v. Abhijit Kundu (2008) restated the principle.

Githa Hariharan v. Reserve Bank of India (1999) was decided on the word "after" in section 6(a), which on its face made the mother the natural guardian only after the father. The petitioner, a mother, had applied for a bond in her minor son's name and the Reserve Bank required the father's signature.

The Supreme Court read down the provision and held:

1. "after him" does not mean "after the lifetime of the father"; it means "in the absence of the father", whether that absence is physical or otherwise, temporary or total, and includes indifference, illness, or an arrangement by which the father has left the child's affairs to the mother;
2. so construed, section 6(a) is constitutional; had it been read literally, giving the mother a lesser status, it would have violated Articles 14 and 15;
3. in every case the welfare of the minor under section 13 prevails, and the court is not bound by the order in section 6.

The practical effect is that a mother who is in fact looking after the child is the natural guardian for that purpose and can act as such, and institutions cannot insist on the father's signature merely because he is alive.

Rule 1 of section 16 provides that heirs in one entry are preferred to those in any succeeding entry, and those in the same entry take simultaneously.

Leela's son, her daughter and her husband are all in entry (a). Her father is in entry (c) and is therefore excluded, because heirs of an earlier entry exist.

The daughter of the previous marriage takes exactly as any other daughter. Section 15(1)(a) says "the sons and daughters" without qualification; it does not ask by which marriage. She is Leela's daughter, and that is the whole of the enquiry. Nor does it matter that the present husband is not her father.

(ii) The proportion: one-third each.

Rule 1 of section 16 requires heirs in the same entry to take simultaneously, and they take in equal shares. There are three of them, the son, the daughter and the husband, so each takes one-third.

For full marks, cover: what partition is, that it is severance of status and not division by metes and bounds; what property is divisible; who may demand partition and who may only take a share; the modes; partial partition; reopening; reunion; and section 6(5) with Vineeta Sharma.

A. What partition is. Partition in Mitakshara law is the severance of the joint status: the conversion of a fluctuating, undivided coparcenary interest into a fixed and defined share. The physical division of the property by metes and bounds is a consequence of partition, not partition itself. This distinction runs through the whole topic and every examinable point depends on it.

In the Dayabhaga there is nothing to sever, because each coparcener already holds a fixed share; partition there means division by metes and bounds only.

Who may not demand it but takes a share when it happens: in Mitakshara law, where partition takes place between sons, the father's wife, the widowed mother and, in the schools that recognised it, the paternal grandmother take a share equal to a son's. A widow cannot demand partition, but she inherits under section 8 and, since 2005, takes on the notional partition under section 6.

D. The modes of effecting partition.

1. By a clear and unequivocal declaration of intention to separate, communicated to the other coparceners. The severance dates from the communication, and the property need never be divided: Raghavamma v. Chenchamma (1964).
2. By notice, written or by registered letter, which is the usual way of making that communication.
3. By agreement among the coparceners to hold in defined shares, after which they are tenants in common even if they continue to live and enjoy the property together.
4. By suit. The institution of a suit for partition is itself an unequivocal declaration, so severance dates from the filing of the plaint, not from the decree.

E. Partial partition. Partition may be partial as to property or as to persons: the family may divide some property and hold the rest jointly, or one member may separate while the rest remain joint. Where it is proved that some members separated, the presumption is that the others remained joint.

F. Reopening. A partition once made is final, but it may be reopened for fraud, mistake, the omission of property, a share obtained by undue influence, the birth of a son who was in the womb at the time, the return of an absent coparcener, or the adoption of a son afterwards.

G. Reunion. A separated coparcener may reunite, but only with his father, brother or paternal uncle, and only if there was a previous partition and an intention to revert to the joint status. Reunion restores the joint status with all its incidents.

• Section 8, a female Hindu, as substituted by the Personal Laws (Amendment) Act, 2010 with effect from 31 August 2010: of sound mind, not a minor, and if she has a husband living she cannot adopt except with his consent, subject to the same three exceptions. Before 2010 a married woman could not adopt at all.

C. Capacity to give, section 9. Only the father, mother or guardian. Since 2010 the father and mother have an equal right, neither exercising it without the consent of the other unless that other has renounced the world, ceased to be a Hindu, or been declared of unsound mind. Where both parents are dead, have renounced the world, have abandoned the child, or are of unsound mind, or the parentage is unknown, the guardian may give the child with the previous permission of the court, which must be satisfied that the adoption is for the child's welfare and that no payment or reward has passed.

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

2. In a Mitakshara family the adopted son becomes a coparcener in the adoptive family from the date of the adoption, and may demand partition. The adopted daughter likewise becomes a coparcener, section 6 as substituted in 2005 speaking of "the daughter of a coparcener" without distinguishing how she became one.
3. The child ceases to inherit in the family of birth. He is not an heir to his natural father, and his natural relations are not his heirs.

Three qualifications, the provisos to section 12.

• (a) the child cannot marry any person whom he or she could not have married if he or she had remained in the family of birth. The marriage bars survive the severance, so a boy adopted out of his family still cannot marry his natural sister.

Two related sections. Section 13 provides that adoption does not deprive the adoptive father or mother of the power to dispose of their property by transfer or by will, so an adopted child has no right that prevents the parent from willing the property elsewhere. Section 14 decides who is the adoptive mother, which decides through whom the child inherits: where a man with a wife adopts, she is the adoptive mother; where he has more than one wife, the senior-most in marriage is the adoptive mother and the others are step-mothers; where a widower or bachelor adopts and afterwards marries, the wife is the step-mother; and correspondingly where a widow or unmarried woman adopts and afterwards marries.

• Dayabhaga, written by Jimutavahana in the twelfth century, is a digest rather than a commentary on a single Smriti. It prevails in Bengal and Assam and has no sub-schools.

B. The two organising ideas. Every difference between them follows from one point.

• The Mitakshara holds that ownership arises by birth (janmasvatvavada): a son acquires an interest in ancestral property the moment he is born, so the family owns and the individual holds an undivided interest.
• The Dayabhaga holds that ownership arises only on the death of the last owner (uparamasvatvavada): the son takes nothing during the father's lifetime, so the individual owns and jointness is merely the state of not having divided.

The basis of inheritance differs with it. The Mitakshara prefers heirs by consanguinity, nearness of blood; the Dayabhaga by religious efficacy, the capacity to offer the funeral cake (pinda).

C. The differences.

D. How much of the difference survives.

This is what a 12-mark answer must reach, and it is where most answers stop too early.

• The Hindu Succession Act, 1956 gave one order of succession to all Hindus, so the difference in the list of heirs disappeared in 1956. Sections 8 to 13 for a male and 15 and 16 for a female apply to Bengal and Maharashtra alike.

For full marks, cover: section 5 clause by clause with the consequence of breaking each; section 7 and section 8; then section 13(1), 13(1A), 13(2) and 13B with the statutory periods; and the bars in sections 14 and 23. Two tasks, so divide the time.

PART ONE: the conditions of a valid Hindu marriage.

Section 5 allows a marriage between any two Hindus if:

• (i) neither party has a spouse living. Breach makes the marriage void, section 11, and is bigamy, section 17 read with section 82 of the Bharatiya Nyaya Sanhita, 2023;
• (ii) 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);

The age condition is the one most often placed in the wrong column. Under the Prohibition of Child Marriage Act, 2006 a child marriage is voidable at the option of the party who was a child, by petition before that party completes two years after attaining majority, section 3; it is void in the aggravated cases in section 12, where the child was taken away, enticed, compelled, trafficked or sold; and a male adult above eighteen who contracts a child marriage is punishable under section 9 with rigorous imprisonment up to two years or fine up to one lakh rupees or both.

PART TWO: the grounds of divorce.

Section 13(1), available to either party, on the ground that the other party:

1. has had voluntary sexual intercourse with any person other than the spouse, 13(1)(i);
2. has treated the petitioner with cruelty, 13(1)(ia), physical or mental: Samar Ghosh v. Jaya Ghosh (2007), Shobha Rani v. Madhukar Reddi (1988) on dowry demands;
3. has deserted the petitioner for not less than two years, 13(1)(ib): Bipin Chandra Jaisinghbhai Shah v. Prabhawati (1957);
4. has ceased to be a Hindu by conversion, 13(1)(ii);

2. the husband has been guilty of rape, sodomy or bestiality since the marriage;
3. a decree or order for maintenance has been passed against the husband under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, and cohabitation has not been resumed for one year;
4. her marriage was solemnised before she attained fifteen and she has repudiated it after fifteen and before eighteen.

Section 13B, divorce by mutual consent: a joint petition on the ground that the parties have been living separately for one year or more, that they cannot live together, and that they have mutually agreed to dissolve the marriage, with a second motion between six and eighteen months. The six-month period is directory and may be waived: Amardeep Singh v. Harveen Kaur (2017).

The bars. Section 14, no petition within one year of the marriage except for exceptional hardship or exceptional depravity. Section 23, the court must be satisfied that the petitioner is not taking advantage of his own wrong, that there is no accessory, connivance or condonation in a case of adultery, no collusion and no improper or unnecessary delay, and it must attempt reconciliation.