LLB 3 years Sem 3 Family Law 2 April 2024 - II 60/40 Question Paper with Solutions

The karta is the manager of a Hindu joint family. Ordinarily he is the senior-most male coparcener, and he holds the position by virtue of his status in the family, not by appointment, election or agreement. His position is described as sui generis: he is not a partner, not an agent of the coparceners and not a trustee.

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, may also be karta.

Under section 3(1)(a) of the Hindu Succession Act, 1956, one person is an agnate of another if the two are related by blood or adoption wholly through males.

Under section 3(1)(c), one person is a cognate of another if the two are related by blood or adoption but not wholly through males.

Two disqualifications under the Hindu Succession Act, 1956:

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.

Permanent alimony and maintenance is the provision a court orders for the support of a spouse at the time of passing a decree or at any time afterwards, as distinct from alimony pendente lite, which runs only while the case is pending.

Section 25 of the Hindu Marriage Act, 1955 provides that any court exercising jurisdiction under the Act may, at the time of passing any decree or at any time subsequent to it, on the application of either the wife or the husband, order the other to pay for the applicant's maintenance and support a gross sum or a monthly or periodical sum for a term not exceeding the applicant's lifetime, having regard to the respondent's own income and other property, the applicant's income and property, the conduct of the parties and other circumstances; and it may secure the payment by a charge on the respondent's immovable property.

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 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.

Partition in Mitakshara law is the severance of the joint status: the conversion of an undivided, fluctuating coparcenary interest into a fixed and defined share. Division of the property by metes and bounds is a consequence of partition, not partition itself. In the Dayabhaga, where each coparcener already holds a definite share, partition means the physical division only.

What is divisible. Only coparcenary property, that is ancestral property and property blended with it. Separate or self-acquired property is not divisible, and property impartible by custom or grant is excluded. Before division, provision must be made for the maintenance and marriage expenses of dependants, for the debts of the family, and for family idols and places of worship, which are held in turn rather than divided.

Who may demand partition. Every coparcener, which since the 2005 Amendment includes a daughter; a son, grandson and great-grandson within the four degrees; a minor coparcener through his next friend where the court finds it in his interest; an absent coparcener, whose share is kept apart; and a son of a void or voidable marriage to the extent of his father's share, on Revanasiddappa v. Mallikarjun (2023).

Partial partition is permitted, as to property or as to persons. Reopening is possible for fraud, mistake, the omission of property, undue influence, the birth of a son who was in the womb, the return of an absent coparcener, or an adoption afterwards. Reunion is possible, but only with the father, brother or paternal uncle.

2. Capacity of the giver, section 9. Only the father, mother or guardian may give. Since the Personal Laws (Amendment) Act, 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.

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

4. The other conditions, section 11, of which three bear on a male adopter:

• 11(i) if the adoption is of a son, he must have no Hindu son, son's son or son's son's son living at the time, whether by legitimate blood relationship or by adoption;
• 11(ii) if the adoption is of a daughter, he must have no Hindu daughter or son's daughter living;

Section 2 of the Dowry Prohibition Act, 1961 defines "dowry" as any property or valuable security given or agreed to be given, directly or indirectly, by one party to a marriage to the other, or by the parents of either party or by any other person to either party or to any other person, at, before or any time after the marriage in connection with the marriage of the said parties. The Explanation excludes dower or mahr in the case of persons to whom Muslim personal law applies.

The offences.

• Section 3, giving or taking dowry. Punishable with imprisonment of not less than five years and a fine of not less than fifteen thousand rupees or the amount of the value of the dowry, whichever is more, the court being able for adequate and special reasons recorded in the judgment to impose a shorter term. Section 3(2) exempts presents given at the time of the marriage to the bride or the bridegroom without any demand, provided they are entered in a list maintained under the rules and, where given to the bride, are of a value not excessive having regard to the financial status of the giver.

• Cruelty by a husband or his relatives, formerly section 498A of the Indian Penal Code, now section 85 of the Bharatiya Nyaya Sanhita, 2023, punishable with imprisonment up to three years and fine, "cruelty" being defined in section 86 to include harassment with a view to coercing the woman or her relatives to meet an unlawful demand for property or valuable security;
• Dowry death, formerly section 304B, now section 80 of the Sanhita: where a woman dies of burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage, and it is shown that she was subjected to cruelty or harassment for dowry, the death is a dowry death and the husband or relative shall be punished with imprisonment of not less than seven years and up to life;
• the presumption in section 113B of the Indian Evidence Act, now section 118 of the Bharatiya Sakshya Adhiniyam, 2023, that where such cruelty is shown, the court shall presume that the accused caused the dowry death.

• Section 3, attempt to commit sati. Notwithstanding anything in the Indian Penal Code, whoever attempts to commit sati and does any act towards such commission is punishable with imprisonment up to six months, or fine, or both. The proviso requires the Special Court, before convicting, to take into consideration the circumstances leading to the offence, the act committed, the state of mind of the person charged at the time, and all other relevant factors.

Powers of prevention, Part III. Section 6 empowers the Collector or District Magistrate, where he is of opinion that sati or any abetment of it is being or is about to be committed, to prohibit by order the doing of any act towards its commission, and to prohibit the glorification of sati; section 7 empowers the State Government to direct the removal of any temple or other structure built to perpetuate the honour of a person who committed sati; and section 8 provides for the seizure of funds and property collected for glorification.

Procedure, Part IV. Section 9 provides for Special Courts; section 11 for summary trial; section 15 for a presumption, that where a person has been proved to have been present at the commission of sati, the court shall presume, unless the contrary is proved, that he abetted it; and section 16 for disqualification from inheriting the property of the person who committed sati where a person is convicted of an offence under section 4.

Examine the rights of the both the sons in respect of the all the above kinds of properties left by the deceased female Hindu.

The answer is that both sons take all three kinds of property equally, one-half each. The reason is that section 15(2) never comes into play, and that is the whole of the question.

Step one: the general order, section 15(1). The property of a female Hindu dying intestate devolves, in accordance with section 16, firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. Both husbands have predeceased her, so there is no husband to take. Her two sons are both in entry (a), and by Rule 1 of section 16 heirs in the same entry take simultaneously, in equal shares.

So the son of the second husband inherits the property that came from the first husband, and vice versa. That is the result the problem is testing, and it strikes most candidates as wrong. It is right, because the statute makes the presence of any child the trigger that switches off the source rule, and once switched off there is nothing to trace the property back to its source.

Applying that: a husband who taunts his wife with being barren attacks her at the point of greatest vulnerability, in a society where a woman's worth is still measured by childbearing. If the accusation is repeated or public, or is made to justify ill-treatment or a second marriage, it plainly satisfies the Samar Ghosh test.

Four supporting propositions should be stated:

1. Cruelty need not be intentional. In Shobha Rani v. Madhukar Reddi (1988) the Supreme Court held that the enquiry is into the effect of the conduct on the petitioner, not the respondent's motive, and that dowry demands are of their nature cruel.
2. False and humiliating allegations are themselves cruelty. In V. Bhagat v. D. Bhagat (1994) wild allegations of insanity made in the pleadings were held to be mental cruelty, and in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate (2003) written allegations imputing unchastity to the wife were held to be cruelty even after they were withdrawn.
3. Cruelty may be by either spouse. In Mayadevi v. Jagdish Prasad (2007) the Court confirmed that the provision is not confined to a wife's complaint.
4. A single act may suffice if grave enough; otherwise a course of conduct is needed.

Section 13(1), for either party: adultery, 13(1)(i); cruelty, 13(1)(ia); desertion for two years, 13(1)(ib); conversion, 13(1)(ii); unsoundness of mind or mental disorder, 13(1)(iii); venereal disease in a communicable form, 13(1)(v); renunciation of the world, 13(1)(vi); and not being heard of as alive for seven years, 13(1)(vii). Leprosy, formerly 13(1)(iv), was omitted by the Personal Laws (Amendment) Act, 2019.

Section 13(1A), for either party: no resumption of cohabitation for one year after a decree of judicial separation, or no restitution for one year after a decree of restitution of conjugal rights.

Section 13(2), for the wife alone: pre-Act polygamy; the husband's rape, sodomy or bestiality; non-resumption of cohabitation for one year after a maintenance order under section 18 of the Hindu Adoptions and Maintenance Act or section 125 of the Code of Criminal Procedure; and the option of puberty, where her marriage was solemnised before she was fifteen and she repudiated it after fifteen and before eighteen.

Section 13B, mutual consent: living separately for one year, inability to live together, mutual agreement, and a second motion between six and eighteen months, the six months being waivable: Amardeep Singh v. Harveen Kaur (2017).

Under the Hindu Marriage Act, 1955.

Section 5(iii) requires that the bride shall have completed eighteen years and the bridegroom twenty-one at the time of the marriage. It is breached: the bride is ten.

But breach of section 5(iii) does not make the marriage void or voidable under this Act. Section 11 makes void only a marriage contravening clauses (i), (iv) and (v); section 12 makes voidable only the four grounds it names. So the marriage is, under the Hindu Marriage Act alone, valid and subsisting.

What follows instead is punishment. Section 18(a) punishes a person who procures such a marriage of himself or herself with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Under the Prohibition of Child Marriage Act, 2006, which is the Act that really governs.

• Section 10 punishes whoever performs, conducts, directs or abets a child marriage with the same punishment, unless he proves that he had reason to believe that it was not a child marriage.
• Section 11 is the provision that answers the "consent of the parents" in the problem. Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it, is punishable with rigorous imprisonment up to two years and fine up to one lakh rupees; the proviso adds that no woman shall be punishable with imprisonment. So the parents' consent is not a defence: it is itself an offence, and section 11(2) raises a presumption that a person having charge of the child negligently failed to prevent the marriage.
• Section 12 makes the marriage of a minor child void where the child is taken or enticed away from the lawful guardian, or compelled by force or induced by deceitful means to go from any place, or sold or trafficked for the purpose of marriage.

• rape. Under section 63 of the Bharatiya Nyaya Sanhita, 2023 the marital exception is confined to a wife not under eighteen years of age; and in Independent Thought v. Union of India (11 October 2017) the Supreme Court read down the corresponding exception in section 375 of the Indian Penal Code, holding that sexual intercourse by a man with his wife aged between fifteen and eighteen is rape. Below fifteen it always was.

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 will displace it.
3. It operates for all purposes affecting succession to property, and for those purposes only. It settles no other question between the two estates.

A worked illustration. A, aged 60, and his son B, aged 30, die together in a road accident, and it cannot be known who died first. The younger, B, is presumed to have survived. So:

• A's property devolves first on B, as a Class I heir under section 8, along with A's other Class I heirs, that is A's widow, his mother and his other children, each taking one share under section 10;
• the share which thus vested in B then passes, from B, to B's own heirs, that is B's widow, mother and children, under section 8. It does not stay in A's line.

Reverse the ages and the result reverses with them.

For full marks, cover: the four ancient sources with their internal hierarchy and the rule for resolving conflict; the requirements of a valid custom; the three modern sources; and a closing paragraph on which source actually governs each part of the subject today.

PART ONE: THE ANCIENT SOURCES

1. Shruti, "that which was heard". The four Vedas, Rig, Yajur, Sama and Atharva, with the Upanishads, regarded as revelation and therefore of the highest theoretical authority. In practice it is of almost no use as a source of legal rules: the Vedas are religious and philosophical, and contain scattered references to marriage, adoption and partition rather than rules capable of application. Its importance is that every later source claims to derive from it.

2. Smriti, "that which was remembered". The works of the sages, and the place where the rules of law actually are. Two classes:

• the Dharmasutras, in prose, of Gautama, Baudhayana, Apastamba, Vasistha and Vishnu, the earliest; and

4. Custom. A rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in a local area, tribe, community, group or family. The Smritis themselves subordinated the text to usage, and the Privy Council repeatedly held that clear proof of custom outweighs the written text of the law.

The requirements of a valid custom:

1. antiquity, observed for a long time;
2. continuity and uniformity of observance;
3. certainty, clear and unambiguous;
4. reasonableness, and not opposed to public policy or morality;
5. not contrary to any express enactment;
6. obligatory, not optional; and
7. in the case of a family custom, not discontinued by the family.

Custom is of three kinds, local, class or community, and family.

6. Judicial decisions, or precedent. By Article 141 of the Constitution the law declared by the Supreme Court binds all courts in India. In substance a great deal of modern Hindu law is judge-made: V. Tulasamma v. Sesha Reddy (1977) on a widow's absolute estate under section 14; Commissioner of Wealth Tax v. Chander Sen (1986) on inherited property being separate property; Githa Hariharan v. Reserve Bank of India (1999) on the mother as natural guardian; Vineeta Sharma v. Rakesh Sharma (2020) on the daughter as coparcener; Revanasiddappa v. Mallikarjun (2023) on the child of a void marriage.

7. Justice, equity and good conscience. Where no rule of statute, precedent, text or custom governs, the courts decide by justice, equity and good conscience, which in Indian practice has meant the principles of English common law so far as applicable to Indian conditions. Its field has shrunk with codification, but it survives in the uncodified areas: the joint family, the coparcenary, the karta's powers and partition.

He is described as one who is a guardian in fact but not in law. He is not within the definition in section 4(b) of the Hindu Minority and Guardianship Act, 1956, which lists the natural guardian, the testamentary guardian, a guardian appointed or declared by a court, and a person empowered under an enactment relating to a Court of Wards.

B. What section 11 does to him.

Section 11 provides: "After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor."

Three consequences follow, and they are the heart of this question.

1. He has no power of alienation at all. A sale, mortgage, gift or exchange of the minor's property by a de facto guardian is void, not voidable. It cannot be validated by proving that it was for the minor's benefit or was made out of necessity.

The natural guardian, identified by section 6, may under section 8(1) do all acts necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but can in no case bind the minor by a personal covenant. Under section 8(2) he may not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the minor's immovable property, or lease it for a term exceeding five years or for a term extending more than one year beyond the minor's majority. A disposal in breach is voidable at the instance of the minor or anyone claiming under him, section 8(3), and the court will not permit such an act except in case of necessity or for an evident advantage to the minor, section 8(4).

D. The powers of the testamentary guardian, section 9.

For full marks, cover: who the Act applies to; section 5 clause by clause, each with the consequence of breach; section 7 on ceremonies with Bhaurao Lokhande; section 8 on registration with Seema v. Ashwani Kumar; the effect of the Prohibition of Child Marriage Act on the age condition; and section 16 on the children.

A. To whom the Act applies, section 2. The Act applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; to any person who is a Buddhist, Jaina or Sikh by religion; and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew, unless it is proved that he would not have been governed by Hindu law. It does not apply to a Scheduled Tribe unless the Central Government by notification otherwise directs. Section 5 therefore governs a marriage "between any two Hindus".

B. The five conditions, section 5, each with its consequence.

(iv) Degrees of prohibited relationship. The parties are not within the degrees of prohibited relationship defined in section 3(g), unless the custom or usage governing each of them permits a marriage between them. Consequence: void under section 11; offence under section 18(b), simple imprisonment up to one month or fine up to one thousand rupees or both.

(v) Sapinda relationship. The parties are not sapindas of each other within the limits in section 3(f), unless the custom or usage governing each of them permits it. Consequence: void under section 11; offence under section 18(b).

Two clauses were repealed and are no longer conditions: the requirement of the guardian's consent in marriage, formerly clauses (vi) and section 6, was omitted by the Child Marriage Restraint (Amendment) Act, 1978, which also raised the ages to eighteen and twenty-one.

C. Ceremonies, section 7. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Where those rites include the saptapadi, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

For full marks, cover: what the 2005 Amendment did and from when; the text of section 6 sub-section by sub-section; her rights listed; her liabilities including section 6(4); the two limits, the proviso and section 6(5); Vineeta Sharma and what it overruled; a daughter as karta; and what the Amendment did not do.

A. How a female became a coparcener.

Before 2005 a Mitakshara coparcenary consisted only of males: a common ancestor and three generations of his male lineal descendants. A daughter was a member of the joint family, entitled to maintenance, residence and her marriage expenses, but she took no interest by birth and could not demand partition.

The Hindu Succession (Amendment) Act, 2005, with effect from 9 September 2005, substituted section 6 of the Hindu Succession Act, 1956. Section 6(1) provides that in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall:

• (a) by birth become a coparcener in her own right in the same manner as the son;

5. The right to dispose of her interest by will. By section 6(1) she has the same rights as a son, and by section 30 with its Explanation a Hindu may will away his or her undivided interest in Mitakshara coparcenary property.
6. The right to be karta. Being the senior-most coparcener, the eldest daughter may be manager: Sujata Sharma v. Manu Gupta (Delhi High Court, 2016), affirmed by a larger Bench of the Delhi High Court in December 2023.
7. The right to challenge an unauthorised alienation by the karta and to sue to set it aside, and the right to restrain waste.
8. The right to joint possession and enjoyment of the whole property, and to be maintained out of it.
9. The right to accounts on partition.
10. Marriage makes no difference. She is a coparcener in her father's family by birth and remains one after marriage; the Amendment contains no exception for a married daughter.

C. Her liabilities.

One liability was expressly withheld. Section 6(4) provides that after the commencement of the Amendment no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of a debt due from his father, grandfather or great-grandfather on the ground of the pious obligation. Rather than extend that religious liability to daughters, Parliament abolished it prospectively for sons as well; the proviso saves debts contracted before 9 September 2005. So a daughter is not subject to the doctrine of pious obligation, and neither, for post-2005 debts, is a son.

D. The two limits.

• The proviso to section 6(1) protects any partition or testamentary disposition of property effected before 20 December 2004, the date the Bill was introduced.
• Section 6(5) defines "partition" for that purpose as one effected by a registered deed or by a decree of a court. So an alleged oral partition before that date will not defeat her.