BLS LLB 5 Years Sem 7 Family Law II 2025-26 - ATKT 75/25 Question Paper with Solutions

Under section 2(10) of the Prohibition of Benami Property Transactions Act, 1988, as that definition was inserted by the Benami Transactions (Prohibition) Amendment Act, 2016, a "benamidar" means a person or a fictitious person, as the case may be, in whose name the benami property is transferred or is held, and includes a person who lends his name.

The karta is the manager of a Hindu joint family, ordinarily the senior-most male coparcener, who holds the office by virtue of his position in the family and not by agreement or appointment. Since Sujata Sharma v. Manu Gupta (Delhi High Court, 2016, affirmed by a larger bench in December 2023) the eldest daughter, being a coparcener under the substituted section 6 of the Hindu Succession Act, can also be karta.

Three of his functions.

1. To manage the joint family property and business, deciding what is spent and on what, without being liable to account for past dealings in the absence of fraud.
2. To represent the family in suits and in dealings with third parties, so that a decree obtained against him in that capacity binds the other members.
3. To maintain every member of the family entitled to maintenance and to meet the marriage expenses of unmarried daughters out of the joint funds.

A patrilineal joint family is one in which descent, succession and family name are traced through the male line, from father to son. The typical Hindu joint family governed by the Mitakshara is patrilineal and also patriarchal, the senior male being the head, and patrilocal, the bride moving to the husband's home.

A matrilineal joint family is one in which descent, succession and inheritance are traced through the female line, from mother to daughter. In India the surviving examples are the marumakkattayam system of Kerala among the Nairs, the aliyasantana system of coastal Karnataka among the Bunts, and the Khasi and Garo systems of Meghalaya.

Under section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, "children" includes son, daughter, grandson and grand-daughter, but does not include a minor.

4. It is not an obligation to pay every debt. The debt must not be avyavaharika, that is illegal or immoral. Debts held avyavaharika include those incurred for liquor, gambling, a bribe, the satisfaction of lust, the fine or damages awarded for the father's own crime or tort, and a debt due to a breach of trust. The classic definition is that of Colebrooke, adopted by the Privy Council in Hemraj v. Khem Chand (1943): a debt for a cause "repugnant to good morals".
5. The antecedent debt rule follows from it: a father may alienate coparcenary property, including the sons' interest, to pay a debt that is antecedent in time and independent in fact of the alienation, and that is not avyavaharika.

Section 26, children of a convert. Where a Hindu has ceased to be a Hindu by conversion, the children born to him or her after the conversion, and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time the succession opens.

Section 27, the effect. A person disqualified is treated as though he had died before the intestate. The property therefore passes to the next heir; it does not go to the Government and it is not held in suspense.

Two sections repealed in 2005. The Hindu Succession (Amendment) Act, 2005, with effect from 9 September 2005, omitted:

• section 24, which disqualified a son's widow, a son's son's widow and a brother's widow who had remarried before the succession opened; and
• section 23, which prevented a female heir from claiming partition of a dwelling house wholly occupied by members of the family until the male heirs chose to divide, and confined her to a right of residence.

4. By suit for partition. The institution of a suit is itself an unequivocal declaration of intention, so the severance dates from the filing of the plaint, not from the decree.
5. By arbitration. A reference of the dispute to arbitrators with a direction to divide effects the severance from the date of the agreement to refer, even if no award follows.
6. By conduct. Separate enjoyment, separate accounts, separate messing and separate businesses may show that the family has in fact separated, though conduct alone is weaker evidence than a declaration.
7. By father's will or deed, in the exercise of his superior right in Mitakshara law to divide the property among his sons in his lifetime.
8. By conversion or renunciation. A coparcener who ceases to be a Hindu by conversion is automatically severed and takes his share, though he is not divested of it: the Caste Disabilities Removal Act, 1850 protects him. A coparcener who enters a religious order likewise goes out of the coparcenary.
9. By marriage under the Special Marriage Act, 1954. By section 19 of that Act, a member of an undivided Hindu family who marries under it is deemed to be severed from the family.

• The obligation is not enforceable if the father-in-law has no means to discharge it from any coparcenary property in his possession out of which the daughter-in-law has not obtained a share. The liability therefore attaches to coparcenary property, not to the father-in-law's separate or self-acquired property.
• The obligation ceases on the remarriage of the daughter-in-law.

Quantum. Under section 23(1) the amount is in the discretion of the court, and by section 23(2) the court must have regard to 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.

At the time of marriage A was already married to C, whose marriage with A had not been dissolved by any decree of divorce or by death of C. A concealed this fact from B and the Marriage Officer.

B came to know about A's subsisting marriage with C only in October 2025.

(i) The marriage between A and B is void, and it was void from the beginning.

Section 4(a) of the Special Marriage Act, 1954 lays down as the first condition of solemnisation that neither party has a spouse living. A had a spouse living: his marriage with C was subsisting, undissolved by decree and unended by death.

1. A decree of nullity under section 24. B may petition the district court to declare the marriage null and void. There is no period of limitation for a void marriage.
2. Prosecution of A for bigamy. By section 43 A is deemed to have committed an offence under section 494 of the Indian Penal Code, and, because he concealed the former marriage from B, under section 495, which carries up to ten years. Those provisions are now sections 82(1) and 82(2) of the Bharatiya Nyaya Sanhita, 2023. Unlike a Hindu bigamy prosecution, no question arises here of proving the ceremonies of the second marriage: it was solemnised before a Marriage Officer and certified.
3. Prosecution for the false declaration. A signed the declaration in the Second Schedule stating that he was not married. Section 45 makes a person who signs a declaration or certificate under the Act containing a statement he knows or believes to be false guilty of the offence described in section 199 of the Indian Penal Code, false statement made in a declaration receivable as evidence.

Ramesh, the biological father, filed an application under the Hindu Minority and Guardianship Act, 1956, seeking custody of Aryan, claiming that as the natural guardian, he has the right to the custody of the minor son. Sita opposed the application contending that it would not be in the welfare of Aryan to shift him to his father's house, as Aryan is deeply attached to her and is doing well in his current school.

So the father's right 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 deciding a dispute about a right of property between two parents but exercising a jurisdiction in which the child's welfare is decisive, and that "the father's right is subordinate to the child's welfare". Rosy Jacob v. Jacob A. Chakramakkal (1973) had already held that the children are not chattels and that the father's right yields; Nil Ratan Kundu v. Abhijit Kundu (2008) restated it.

Applying this to the facts, the mother's remarriage is not by itself a disqualification. Aryan has lived with Sita continuously since the divorce, he is settled with her, and the burden is on Ramesh to show that a change is for the child's welfare, not on Sita to justify the status quo. The court will consider Aryan's age, his schooling, the continuity of his environment, the primary attachment figure, each parent's capacity and conduct, and, since he is seven, his own preference if he is of sufficient understanding, which section 17(3) of the Guardians and Wards Act, 1890 expressly permits the court to consider.

(ii) The paramount consideration is the welfare of the minor.

Ramesh and Suman transferred their only residential flat, worth Rs 80 lakhs, in the name of their elder son Anil in 2022, on the oral assurance that Anil would maintain them and provide them shelter for the rest of their lives. After the transfer, Anil started neglecting his parents.

He refused to provide them with any maintenance, frequently abused them verbally, and asked them to leave the flat.

(i) Their remedies under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Ramesh is 68 and Suman 65, so both are senior citizens under section 2(h) and both are parents under section 2(d). Anil is a child under section 2(a).

Claim maintenance, sections 4, 5 and 9. A parent unable to maintain himself may apply for a maintenance allowance, and by section 9(2) the Tribunal may order a monthly allowance up to ten thousand rupees. By section 4(2) the obligation of the children extends to the needs of the parent so that he may lead a normal life, and "maintenance" under section 2(b) includes food, clothing, residence and medical attendance and treatment.

Bring in the other son. Anil is not the only child. Under section 4(1) a parent may claim from one or more of his children, and section 4(3) says the obligation is on the children in the proportion in which they would inherit the property. So Sunil is liable as well, and the Tribunal may apportion.

The criminal provision. Section 24 punishes whoever, having the care or protection of a senior citizen, leaves him in any place with the intention of wholly abandoning him, with imprisonment up to three months or fine up to five thousand rupees or both. Verbal abuse alone is not abandonment, but a forced eviction may be.

What the transfer does is give the parents a further and much stronger remedy, and only if it was subject to the condition of maintenance. This is the point on which the problem turns. In Sudesh Chhikara v. Ramti Devi (2022) the Supreme Court held that section 23(1) is attracted only if two conditions are satisfied: the transfer must have been made subject to the condition that the transferee will provide basic amenities and basic physical needs, and the transferee must have refused or failed to do so. A transfer made out of natural love and affection, with no such condition, cannot be set aside under section 23 merely because the child later behaves badly.

Here the condition was an oral assurance. Section 23 does not require the condition to be in writing, so an oral condition is enough if it can be proved, and Urmila Dixit shows that the Court will construe the section liberally in favour of the senior citizen; in that case the condition was evidenced by a separate promissory note. Ramesh and Suman should therefore lead whatever evidence exists of the assurance: the surrounding circumstances, that it was their only residential flat, that they continued to live in it, family witnesses, and any writing or message. If the condition cannot be proved at all, section 23 fails and they are left with their maintenance claim under section 4, which does not depend on it.

The son S, the daughter D and the husband W are all in entry (a) and take simultaneously and in equal shares: one-third each.

The mother M is in entry (c). Since heirs of entry (a) exist, she is excluded altogether.

(b) D takes one-third, W takes one-third, DD1 and DD2 take one-sixth each. SW and M take nothing.

Rule 2 of section 16 provides that if any son or daughter of the intestate predeceased her leaving his or her own children alive at the time of her death, the children of such son or daughter shall take between them the share which that son or daughter would have taken if living.

So the estate is still divided into three shares, one for the branch of S, one for D and one for W.

• D takes one-third.
• W takes one-third.
• The branch of S takes one-third, and within that branch DD1 and DD2, being S's children, take between them that one-third, that is one-sixth each.

The Mitakshara joint family. Vijnaneshwara's Mitakshara, an eleventh-century commentary on the Yajnavalkya Smriti, prevails everywhere in India except Bengal and Assam, with four sub-schools: Benares, Mithila, Bombay or Maharashtra, and Dravida or Madras.

Its characteristic features are these.

1. Right by birth. A son acquires an interest in the ancestral property at the moment of his birth, equal to that of his father. This is janmasvatvavada, ownership by birth.
2. The coparcenary is limited to four degrees. The last holder and three generations of his lineal male descendants: son, son's son, son's son's son. Since 2005 the daughter of a coparcener is a coparcener by birth in the same manner as the son.
3. Unity of ownership and community of interest. No coparcener can point to a defined share before partition; the whole body owns the whole property.
4. The share fluctuates. It increases on the death of a coparcener and decreases on a birth.
5. Devolution was by survivorship. On the death of a coparcener his interest passed to the survivors, not to his heirs.

5. Females can be coparceners, in the sense that a widow succeeding to her husband's share becomes a member of the body, which the classical Mitakshara never allowed.
6. Partition means division of property by metes and bounds, because the shares are already defined; there is nothing to sever.
7. The basis of inheritance is religious efficacy (pinda, the capacity to offer the funeral cake), not consanguinity as in the Mitakshara.

The comparison.

For full marks, cover: section 14 and the conversion of limited estate into absolute ownership; the five entries of section 15(1); the source rule in section 15(2) and its two limbs; the three rules of section 16 with a worked example; section 17 for marumakkattayam and aliyasantana; the disqualifications; and the criticism of the scheme with Om Prakash v. Radhacharan.

Begin with section 14, because there would be little to succeed to without it. Section 14(1) provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not as a limited owner. The Explanation defines "property" widely: property acquired by inheritance, device, partition, in lieu of maintenance or arrears of maintenance, by gift, by her own skill or exertion, by purchase or prescription, or in any other manner, and also any such property held by her as stridhana. Section 14(2) is the exception: where property is acquired under a gift, will, instrument, decree, order or award which itself prescribes a restricted estate, the restriction stands.

• (a) any property inherited by a female Hindu from her father or mother devolves, in the absence of any son or daughter of the deceased, including the children of any predeceased son or daughter, not on the heirs in the order above, but upon the heirs of the father;
• (b) any property inherited by her from her husband or from her father-in-law devolves, in the same absence of a son or daughter, upon the heirs of the husband.

The rules of distribution, section 16.

• Rule 1. Heirs in one entry are preferred to those in any succeeding entry; those in the same entry take simultaneously.
• Rule 2. If a son or daughter predeceased the intestate leaving his or her own children alive at her death, those children take between them the share which that son or daughter would have taken if living. This is per stirpes.
• Rule 3. Devolution upon the heirs in clauses (b), (d) and (e) of section 15(1), and upon the heirs under section 15(2), takes place in the same order and by the same rules as if the property had been the father's, the mother's or the husband's as the case may be, and that person had died intestate immediately after the intestate's death.

Disqualifications. Sections 25 to 28 apply to a female intestate exactly as they do to a male: the murderer is disqualified, the children born to a convert after conversion are disqualified, a disqualified person is treated as having predeceased, and no other disqualification exists. Sections 23 and 24 were omitted in 2005.

Capacity of a male, section 7. Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption. The proviso is the operative part: if he has a wife living, he shall not adopt except with her consent, unless she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. The Explanation adds that if he has more than one wife living, the consent of all is necessary, unless the consent of one of them is unnecessary for one of the three reasons above.

The consent must be prior or contemporaneous, not given afterwards, and an adoption made without it is void, not merely voidable.

Capacity of a female, section 8, as substituted in 2010. Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption. The proviso: if she has a husband living, she shall not adopt except with his consent, unless he has renounced the world, ceased to be a Hindu, or been declared of unsound mind.

• Section 9(4): where both parents are dead, or have renounced the world, or have abandoned the child, or have been declared of unsound mind, or where the parentage is not known, the guardian may give the child in adoption with the previous permission of the court, to any person including the guardian himself.
• Section 9(5): before granting permission the court must be satisfied that the adoption is for the welfare of the child, giving due consideration to the child's wishes according to age and understanding, and that no payment or reward has been made or agreed except what the court sanctions.

Who may be adopted, section 10. The person must be a Hindu; must not already have been adopted; must not have been married, unless a custom permits; and must not have completed fifteen years, unless a custom permits.

The other conditions, section 11.

1. If the adoption is of a son, the adoptive father or mother must not have a Hindu son, son's son or son's son's son living at the time, whether by legitimate blood relationship or by adoption.
2. If the adoption is of a daughter, the adopter must not have a Hindu daughter or son's daughter living.

• property already vested in the child before the adoption continues to vest in him, subject to its obligations, including the obligation to maintain relatives in the family of birth;
• the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Related sections. Section 13: adoption does not deprive the adoptive parents of the power to dispose of their property by transfer or will. Section 14: rules on who becomes the adoptive mother where a man with one or more wives adopts, or where a widower or bachelor adopts and later marries, in which case the wife becomes the step-mother. Section 15: a valid adoption cannot be cancelled by the adoptive father or mother or by anyone else, and the adopted child cannot renounce his adoptive family and return to the family of birth. Section 16: a registered document recording the adoption, signed by the person giving and the person taking, raises a presumption that the adoption was made in compliance with the Act, until it is disproved.

1. it provides for the solemnisation of a marriage between any two persons, whatever their religion, caste or community, without either party renouncing his or her faith (Chapter II);
2. it provides for the registration of a marriage already celebrated in some other form, Hindu, Muslim, Christian or customary, which then takes effect as a marriage under the Act (Chapter III, section 15); and
3. it provides its own law of nullity, restitution, judicial separation, divorce, maintenance and custody (Chapters V and VI).

Two consequences of choosing this Act must be stated, because they are what makes the choice significant.

• Section 21. Succession to the property of a person married under the Act, and to the property of the issue of such a marriage, is regulated by the Indian Succession Act, 1925, and not by the parties' personal law. Section 21A modifies this where both parties are Hindus, Buddhists, Jains or Sikhs: their succession then remains governed by the Hindu Succession Act.
• Section 19. The marriage of a member of an undivided Hindu family under this Act operates as his severance from that family.

C. Procedure. Section 5, notice in writing to the Marriage Officer of the district in which at least one party has resided for thirty days; section 6, entry in the Marriage Notice Book and publication; section 7, objections within thirty days; section 8, inquiry into objections, to be completed within thirty days, with an appeal to the district court under section 8(2); section 11, declaration by the parties and three witnesses; section 12, solemnisation in any form the parties choose, at the Marriage Officer's office or elsewhere; section 13, the certificate.

D. Matrimonial relief and the grounds of divorce. Section 22 restitution of conjugal rights, section 23 judicial separation, section 24 void marriages, section 25 voidable marriages, section 26 legitimacy of children of void and voidable marriages, section 27 divorce, section 27A alternative relief, section 28 divorce by mutual consent, section 29 the one-year bar, section 30 remarriage, sections 36 and 37 alimony, section 38 custody.

Section 27(1) allows either the husband or the wife to petition on the ground that the respondent:

Section 28 provides for divorce by mutual consent on the same pattern as section 13B of the Hindu Marriage Act: living separately for one year or more, inability to live together, mutual agreement, and a second motion between six and eighteen months.

• Uniformity is not sameness of outcome; it is one rule for everyone. A code could adopt the most protective rule from each existing personal law.
• India is not starting from nothing. Criminal law, contract, evidence, transfer of property and company law are already uniform. What is left outside is precisely the family.

Article 44 provides: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." It sits in Part IV, so by Article 37 it is not enforceable by any court, but is "fundamental in the governance of the country" and it is the duty of the State to apply it in making laws.

The Constituent Assembly debated it on 23 November 1948. Dr B.R. Ambedkar pointed out that India already had a uniform criminal code and a uniform law of transfer of property, and that the only province left was the family; he added that a future Parliament might make the code purely voluntary to begin with. K.M. Munshi argued that a common code was necessary for national unity and that personal law could not be treated as part of religion. Muslim members, including Mohammad Ismail Sahib and B. Pocker Sahib, moved amendments to protect personal law, which were defeated. The compromise was to put it in Part IV rather than Part III.

• Mohd. Ahmed Khan v. Shah Bano Begum (1985), where the Court granted maintenance under section 125 of the Code of Criminal Procedure and observed that Article 44 had remained a dead letter;
• Sarla Mudgal v. Union of India (1995), on Hindu husbands converting to Islam to marry again, holding the second marriage bigamous and calling again for a common code;
• John Vallamattom v. Union of India (2003), striking down section 118 of the Indian Succession Act as discriminatory against Christians, with a further reference to Article 44;
• Shayara Bano v. Union of India (2017), setting aside instant triple talaq, decided on manifest arbitrariness rather than Article 44 but supplying the strongest recent example of reform.

Balance this with the other side of the case law. In Ahmedabad Women Action Group v. Union of India (1997) the Supreme Court declined to examine the validity of personal laws, holding that this was a matter of State policy for the legislature, not for the courts. And in Lily Thomas v. Union of India (2000) the Court clarified that its observations in Sarla Mudgal were not a direction to enact a code.