Who is Karta?

Discuss the power and function of karta with related to joint property
according to the Hindu Law?

Karta in Hindu Law

Definition of Karta:
In a Hindu joint family, the Karta is the senior-most male member who acts as the head of the family. He is
responsible for managing the affairs of the joint family, including its property and finances. The Karta
enjoys a unique position as he has special powers, duties, and responsibilities that no other member of the
family possesses.

Who can be a Karta?

1. Generally the eldest male: The Karta is usually the eldest male member of the family.
2. By consent: If the eldest male is not capable or unwilling, another member can take the role with the
family's consent.
3. Female as Karta: After the landmark judgment in Sujata Sharma v. Manu Gupta (2016), a senior-
most female member can also act as Karta if she is capable and willing.

Powers and Functions of Karta with Respect to Joint Property

The Karta plays a vital role in managing the joint family property. His powers and functions can be
categorized as follows:

1. Power to Manage the Joint Family Property

• Administration: The Karta has the authority to manage the property and make decisions regarding
its maintenance and preservation.
• Alienation: He can sell or mortgage the joint family property, but only for legal necessities, such as:
a. Payment of family debts.
b. Performance of religious or charitable duties.
c. Expenses related to marriage, education, or medical treatment.
d. Preservation of family property in emergencies.

Case Reference: Sundaramoorthy v. T. Sambasivam (1933) – Alienation without legal necessity can be
challenged by other coparceners.

2. Power to Represent the Family

The Karta represents the joint family in legal and financial matters. He can:

• Enter into contracts and agreements on behalf of the family.

• File suits or defend the family in court proceedings.

3. Power to Partition

• The Karta has the power to divide the joint family property and effect a partition when demanded by
the coparceners.
• However, his role ends after the partition, and he no longer acts as Karta.

4. Power to Settle Disputes

The Karta resolves disputes among family members to ensure harmony and smooth functioning of the joint
family.

5. Limited Liability

The Karta is not personally liable for family debts unless incurred for an illegal or immoral purpose.

Case Reference: Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu (2000) – Karta’s liability is limited
to family property unless the debt is illegal.

Duties and Responsibilities of Karta

1. Maintenance of Family Members:

He must ensure the welfare and maintenance of all dependent members of the family, including
widows and minors.
2. Proper Accounts Maintenance:
Though not bound to maintain detailed accounts, he must be fair and transparent.
3. Equal Distribution of Income:
Income from joint family property should be utilized for the benefit of all members.

4. Religious and Charitable Duties:

The Karta must perform religious ceremonies, pujas, and charitable activities as per family traditions.

Limitations on Karta’s Powers

1. Consent of Coparceners:
For major decisions like alienation, the Karta requires the consent of adult coparceners.

2. Judicial Scrutiny:
His actions can be challenged in court if they are unfair, arbitrary, or not for the benefit of the family.
3. Cannot Act Against Family Interest:
Any act done against the interest of the family or for personal gain is not valid.

Conclusion

The Karta holds a unique position in Hindu joint family law, combining authority with responsibility. His
powers are extensive, but they are not absolute. The courts ensure that his decisions align with the family's
interests and Hindu law principles. The evolution of law, allowing a female member to act as Karta, marks a
significant step toward gender equality in Hindu joint family law.
Discuss the ancient and modern sources of law of Hindu law. Briefly highlight their
relative importance.

Sources of Hindu Law

Hindu Law is one of the oldest legal systems in the world. Its sources can be broadly classified into two
categories: Ancient Sources and Modern Sources. These sources shape the legal principles governing the
personal and family matters of Hindus.

Ancient Sources of Hindu Law

The ancient sources are the foundational texts and traditions that governed Hindu society in earlier times.
They include:

1. Shruti (Vedas)

• Meaning: Shruti means "that which is heard." The Vedas are the earliest and most authoritative
scriptures of Hinduism.
• Content: They contain hymns, rituals, and philosophical teachings.
• Legal Principles: The Vedas provide guidelines on moral, ethical, and social conduct, which form
the basis of Dharma.

2. Smriti (Texts)

• Meaning: Smriti means "that which is remembered." These are secondary texts based on the
teachings of Shruti.
• Famous Smritis: Manusmriti, Yajnavalkya Smriti, and Narada Smriti.
• Importance: Smritis provide detailed laws on family, marriage, inheritance, and crimes.
o Example: Manusmriti elaborates on the duties of men and women, laws of inheritance, and
caste regulations.

3. Commentaries and Digests

• Meaning: Commentaries (Vyakhyanas) and Digests (Nibandhas) are explanations and

interpretations of Smritis.
• Notable Works: Mitakshara by Vijnaneshwara and Dayabhaga by Jimutavahana.
• Significance: These works formed the basis of Hindu law in different regions of India.

4. Customs (Achara)

• Meaning: Customs are long-established practices followed by the people over generations.
• Types:
o Local Customs: Specific to regions.
o Caste Customs: Specific to castes.
• Importance: Customs were recognized as legally binding if they were ancient, reasonable, and not
against public policy.

Modern Sources of Hindu Law

Modern sources include developments brought about by legislation, judicial decisions, and other factors
post-British rule.

1. Legislation

• Definition: Statutes enacted by the legislature.

• Key Legislations:
1. Hindu Marriage Act, 1955.
2. Hindu Succession Act, 1956.
3. Hindu Minority and Guardianship Act, 1956.
4. Hindu Adoption and Maintenance Act, 1956.

Importance: These laws codified and reformed traditional Hindu law, addressing issues like gender equality
and modern societal needs.

2. Judicial Decisions

• Definition: Decisions made by the courts interpreting Hindu law.

• Role of Judiciary: The judiciary plays a significant role in clarifying ambiguous areas of Hindu law.
• Landmark Cases:
o Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya (1966): Defined who is a Hindu.
o Danamma @ Suman Surpur v. Amar (2018): Recognized daughters as coparceners under the
Hindu Succession Act.

3. Equity, Justice, and Good Conscience

• Definition: In the absence of specific laws, courts rely on principles of fairness and morality.
• Significance: Ensures justice in cases where traditional Hindu law is silent.

4. Precedents

• Definition: Decisions of higher courts that serve as binding principles for lower courts.
• Importance: Precedents modernize Hindu law by adapting it to contemporary needs.

5. International Influences

• Exposure to Western legal systems during British rule introduced principles of equality and
secularism, influencing Hindu law reform.

Relative Importance of Ancient and Modern Sources

Aspect Ancient Sources Modern Sources

Based on traditional and religious
Relevance Reflect contemporary values and social justice.
principles.
Flexibility Less flexible; rigidly adheres to customs. More flexible and adaptable to changing times.
Broader scope, emphasizing equality and
Scope Limited to the Hindu community.
secularism.
Practicality Suitable for ancient society. Suitable for modern society and diverse needs.

Conclusion

Both ancient and modern sources play an integral role in shaping Hindu law. While ancient sources provide
the historical and cultural foundation, modern sources ensure that the law evolves to meet the demands of
contemporary society. Together, they create a balance between tradition and progress in Hindu personal law.
What is adoption? What are the essential elements of valid adoption? Briefly discuss
the Rights, obligations, and disqualification of a guardian with the help of suitable case
law under the Hindu Adoption and Maintenance Act 1956.

Adoption under Hindu Law

Meaning of Adoption:

Adoption is a legal process by which a person permanently takes a child, who is not biologically their own,
as their son or daughter. Under Hindu law, adoption is governed by the Hindu Adoption and Maintenance
Act, 1956 (HAMA). It allows Hindus to adopt a child, ensuring their welfare while also fulfilling religious
and legal obligations.

Essential Elements of a Valid Adoption

For an adoption to be valid under Section 6 of HAMA, 1956, the following conditions must be met:

1. Capacity of the Adoptive Parent

• Male: A Hindu male can adopt if he has the consent of his wife, unless she is incapacitated (e.g.,
mentally ill or has renounced the world).
• Female: A Hindu female can adopt independently if she is unmarried, divorced, or widowed.

2. Capacity of the Person Giving the Child in Adoption

• The child can only be given in adoption by their biological parents or a legal guardian.
• Both parents must consent unless one is deceased, renounced the world, or declared incapable.

3. Capacity of the Child to Be Adopted

• The child must be Hindu.

• The child must be unmarried (except if customs allow otherwise).
• The child must not have already been adopted.

4. Compliance with Legal Procedures

• The adoption must be formalized through a registered deed or ceremonies recognized by Hindu law.
• There must be an actual transfer of the child from the biological family to the adoptive family.

5. Prohibition on Certain Adoptions

• A male or female cannot adopt a child of the same sex if they already have a child of that sex.
o Example: If a couple already has a son, they cannot adopt another son.

Rights and Obligations of a Guardian under HAMA, 1956

Rights of a Guardian
 1. Control Over the Ward’s Property:
A guardian has the right to manage the minor's property for their benefit but cannot sell or mortgage
it without court approval.
2. Custody of the Minor:
A guardian has the right to maintain the custody of the minor and provide for their education, health,
and welfare.
3. Decision-Making Authority:
The guardian can make important decisions regarding the minor’s education, marriage, and overall
welfare.

Obligations of a Guardian

1. Duty of Care:
The guardian must act in the best interest of the minor and ensure their physical, emotional, and
financial well-being.
2. Accountability:
The guardian is accountable for the minor’s property and must maintain proper records.
3. No Personal Benefits:
The guardian cannot use the minor’s property for personal gain.

Disqualification of a Guardian

A guardian may be disqualified if:

1. They act against the minor's interests or misuse the property.

2. They have been convicted of a criminal offense.
3. They are found mentally or physically incapable of fulfilling their duties.

Case Reference: Githa Hariharan v. Reserve Bank of India (1999)

In this case, the Supreme Court clarified that a mother could also act as a natural guardian, challenging the
traditional dominance of the father in matters of guardianship.

Conclusion

Adoption under the Hindu Adoption and Maintenance Act, 1956 aims to ensure the welfare of the child
while preserving the religious and social principles of Hindu law. Guardianship, a related concept, comes
with significant rights and responsibilities, ensuring the child's welfare and proper upbringing. However,
guardians must act in good faith and in the minor's best interest, as courts strictly oversee their conduct.
What do you mean by Testamentary guardian? Who can appoint a Testamentary
Guardian? Discuss the power of the Testamentary Guardian. When and how can a
Testamentary Guardian be removed?

Testamentary Guardian under Hindu Law

Meaning:
A Testamentary Guardian is a person appointed by a parent through a will to take care of the person and
property of their minor child after their death. This concept is governed by Section 9 of the Hindu
Minority and Guardianship Act, 1956 (HMGA).

Who Can Appoint a Testamentary Guardian?

1. Father (in case of a legitimate child):

o The father has the primary right to appoint a testamentary guardian for his minor legitimate
children.
o This right applies only if the father dies before the child attains majority.
2. Mother (in certain circumstances):
o The mother can appoint a testamentary guardian for her legitimate child if the father is
deceased or unable to act as a guardian.
o For illegitimate children, the mother has the primary right to appoint a testamentary guardian.
3. Guardian for Property:
o Both parents can appoint a testamentary guardian to manage the minor's property, ensuring it
is preserved and utilized in the child’s best interest.

Powers of a Testamentary Guardian

A testamentary guardian has extensive powers, subject to limitations imposed by law or the will. These
powers include:

1. Custody of the Minor:

o The testamentary guardian has the right to custody of the minor, ensuring their welfare and
education.
2. Management of Property:
o The guardian can manage the minor's property and use the income for the child’s benefit.
o Sale, mortgage, or lease of the property requires court approval.
3. Decision-Making Authority:
o They can make crucial decisions regarding the minor's upbringing, including education,
healthcare, and marriage.
4. Representation:
o The guardian can represent the minor in legal proceedings.

Removal of a Testamentary Guardian

A testamentary guardian can be removed under certain circumstances to protect the interests of the minor.

When Can a Testamentary Guardian Be Removed?

1. Misconduct or Abuse of Power:

o If the guardian misuses the minor's property or acts against the child’s welfare.
2. Incapacity:
o If the guardian becomes mentally or physically incapable of performing their duties.
3. Conflict of Interest:
o If the guardian's personal interests clash with the minor's interests.
How Can a Testamentary Guardian Be Removed?

1. Application to the Court:

o A family member or interested party can file an application in the appropriate court for the
removal of the guardian.
2. Judicial Decision:
o The court will decide based on evidence of misconduct or incapacity.

Case Reference

Kushboo Sharma v. Anil Sharma (2009):

The court ruled that the welfare of the child is of paramount importance. A testamentary guardian can be
removed if it is in the best interest of the minor.

Conclusion

A testamentary guardian plays a crucial role in ensuring the welfare of a minor after the natural guardian's
death. However, their powers are not absolute, and courts can intervene to prevent abuse or misconduct. The
legal framework under the Hindu Minority and Guardianship Act, 1956, ensures that the minor’s best
interests remain the primary consideration.
Discuss the grounds for divorce under the Hindu Marriage Act 1955 with the help of
landmark case laws.

Grounds for Divorce Under the Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 (HMA), provides specific grounds on which a spouse can file for divorce
under Section 13. These grounds apply to both the husband and the wife, with certain additional grounds
available exclusively to the wife. Below are the major grounds for divorce, explained with relevant case
laws:

1. Adultery (Section 13(1)(i))

• Definition: If one spouse has voluntary sexual intercourse with someone other than their spouse, it
constitutes adultery.
• Key Elements:
o Voluntary act.
o Sexual relationship outside the marriage.

Case Law: Joseph Shine v. Union of India (2018)

Adultery was decriminalized, but it remains a valid ground for divorce under personal laws.

2. Cruelty (Section 13(1)(ia))

• Definition: If one spouse treats the other with physical or mental cruelty, it is a ground for divorce.
• Types of Cruelty:
o Physical violence.
o Mental harassment, such as abuse, humiliation, or false accusations.

Case Law: Shobha Rani v. Madhukar Reddi (1988)

The Supreme Court held that cruelty can be both physical and mental. A single act of grave cruelty is
sufficient to grant divorce.

3. Desertion (Section 13(1)(ib))

• Definition: If one spouse voluntarily abandons the other for a continuous period of at least two years
without reasonable cause, it amounts to desertion.
• Key Elements:
o Permanent intention to desert.
o Two years of continuous separation.

Case Law: Bipinchandra Jaisinghbhai Shah v. Prabhavati (1956)

The court explained desertion as a total repudiation of marital obligations.

4. Conversion (Section 13(1)(ii))

• Definition: If a spouse converts to another religion and ceases to be a Hindu, the other spouse can
seek divorce.
• Example: Conversion to Islam for a second marriage may lead to divorce.

Case Law: Sarla Mudgal v. Union of India (1995)

Conversion to another religion to escape marital obligations was held invalid.
5. Mental Disorder (Section 13(1)(iii))

• Definition: If a spouse suffers from a mental disorder that makes it impossible to live together, it is a
ground for divorce.
• Key Elements:
o Incurable mental illness.
o Dangerous or abnormal behavior.

Case Law: Rita Nijhawan v. Balkishan Nijhawan (1969)

Mental illness must be severe enough to disrupt marital life.

6. Leprosy (Section 13(1)(iv))

• Definition: If a spouse suffers from a virulent and incurable form of leprosy, it is a ground for
divorce.
• Note: This ground has lost relevance due to modern medical advancements and societal changes.

7. Venereal Disease (Section 13(1)(v))

• Definition: If a spouse suffers from a communicable venereal disease without the other's fault, it is a
ground for divorce.

8. Renunciation of the World (Section 13(1)(vi))

• Definition: If one spouse renounces the world and takes sanyasa, the other spouse can seek divorce.

9. Presumption of Death (Section 13(1)(vii))

• Definition: If a spouse has not been heard of as being alive for seven years, the other spouse can file
for divorce.

Additional Grounds for Wife (Section 13(2))

1. Pre-Marriage Rape, Sodomy, or Bestiality:

If the husband was guilty of rape, sodomy, or bestiality before or during the marriage.

2. Bigamy:

If the husband has another wife living at the time of marriage.

Case Law: Narayanlal Shivlal Mali v. Bhuvaneshwari Narayanlal Mali (1993)

The wife was granted divorce when bigamy was proved.

3. Repudiation of Marriage:

If the wife was married before attaining the age of 15 and repudiates the marriage after attaining the age of
15 but before turning 18.

Conclusion

The Hindu Marriage Act, 1955, has evolved to include diverse grounds for divorce, ensuring the welfare
and dignity of individuals trapped in irretrievable marriages. Judicial interpretations and reforms have
further clarified these grounds, emphasizing fairness and justice in matrimonial disputes.
What is maintenance? Discuss when a wife is not entitled to maintenance from her
husband under the Hindu Adoption and Maintenance Act 1956 and briefly discuss
maintenance Under the Code of Criminal Procedure Code 1973 with the help of
decided case laws.

Maintenance: Meaning and Purpose

Maintenance refers to the financial support provided by one person to another who is unable to sustain
themselves. Under Hindu Adoption and Maintenance Act, 1956 (HAMA) and Section 125 of the
Criminal Procedure Code, 1973 (CrPC), maintenance ensures the basic needs of food, clothing, shelter,
and other necessities for dependents such as wives, children, and parents.

Maintenance Under the Hindu Adoption and Maintenance Act, 1956

Meaning of Maintenance (Section 3(b)):

It includes:

• Provision for food, clothing, residence, education, and medical treatment.

• In the case of an unmarried daughter, it includes expenses for marriage.

Grounds When a Wife Is Not Entitled to Maintenance (Section 18(3)):

Under Section 18(3) of HAMA, a wife is not entitled to maintenance in the following circumstances:

1. Unchastity:
o If the wife is living in adultery, she loses her right to claim maintenance.
o Case Law: Vimala v. Veeraswamy (1991)
The court ruled that living in adultery disqualifies a wife from claiming maintenance.
2. Refusal to Live with Husband Without Reasonable Cause:
o If the wife refuses to cohabit with her husband without justifiable reasons, she forfeits her
claim for maintenance.
3. Mutual Separation Agreement:
o If both spouses mutually agree to live separately, the wife cannot claim maintenance unless
otherwise stated in the agreement.
4. Conversion to Another Religion:
o If the wife converts to another religion, she is not entitled to maintenance.

Maintenance Under the Code of Criminal Procedure, 1973 (Section 125)

Section 125 of the CrPC is a secular provision to prevent vagrancy and destitution. It applies to all religions
and provides maintenance to wives, children, and parents.

Key Features of Section 125 CrPC:

1. Wife Entitled to Maintenance:

o A wife, unable to maintain herself, can claim maintenance.
o Includes divorced wives who remain unmarried.
2. Conditions for Denial of Maintenance to Wife:
o Living in Adultery: Similar to HAMA, a wife living in adultery cannot claim maintenance.
o Refusal to Live Without Reasonable Cause: If the wife deserts the husband without valid
reasons, she is disqualified.
o Mutual Agreement: Maintenance is denied if there is a mutual agreement for separation
without provision for maintenance.
 3. Amount of Maintenance:
o The amount is determined based on the husband's income and the wife's standard of living.

Landmark Case Laws:

1. Mohd. Ahmed Khan v. Shah Bano Begum (1985):

o The Supreme Court ruled that a divorced Muslim wife is entitled to maintenance under
Section 125 CrPC if she cannot maintain herself.
2. Chaturbhuj v. Sita Bai (2008):
o The Supreme Court clarified that the wife does not need to be completely destitute to claim
maintenance; the inability to maintain the same standard of living as during the marriage is
sufficient.
3. Bhuwan Mohan Singh v. Meena (2014):
o Maintenance was deemed a basic right to prevent destitution and ensure dignity.

Comparison Between HAMA and CrPC

Aspect HAMA (1956) CrPC (1973)

Applicability Hindus only All religions
Basis Personal law Secular law
Entitlement of Wife Includes marriage and children Includes wives, children, parents
Adultery as Ground Denies maintenance Denies maintenance
Divorced Wife Not expressly mentioned Eligible until remarriage

Conclusion

Maintenance under HAMA, 1956 and CrPC, 1973 ensures the financial well-being of dependents. While
both legislations have overlapping provisions, CrPC is broader in scope as it applies to all religions. The law
emphasizes fairness by providing exceptions, such as denying maintenance to unfaithful or unreasonable
wives, while ensuring dignity and preventing destitution.
What are eight Forms of marriage before the Hindu Marriage Act 1955?

Eight Forms of Marriage in Ancient Hindu Law

Before the enactment of the Hindu Marriage Act, 1955, Hindu law recognized eight forms of marriage.
These were classified into two categories: approved (Dharmya) and unapproved (Adharmya) forms.
They reflected the social, religious, and cultural practices of the time.

A. Approved Forms (Dharmya Vivahas)

These were considered socially and morally acceptable:

1. Brahma Marriage
o The father gives his daughter to a learned and virtuous man, without demanding any dowry.
o Considered the highest and most sacred form of marriage.
2. Daiva Marriage
o The daughter is given to a priest (Brahmin) during a religious ceremony as a gift for
performing a yajna or sacrifice.
o It was a less preferred form compared to Brahma marriage.
3. Arsha Marriage
o The bride is married in exchange for a token gift, such as a cow or bull, given to the bride's
family.
o This form symbolized simplicity and mutual respect.
4. Prajapatya Marriage
o The daughter is given away by her father with a blessing, where the husband and wife are
expected to perform their household duties together.
o There is no dowry or material exchange involved.

B. Unapproved Forms (Adharmya Vivahas)

These were considered inferior or against the principles of dharma:

5. Asura Marriage
o The groom gives money or valuable gifts to the bride’s family in exchange for the bride.
o It resembles a "purchase" and was considered inappropriate.
6. Gandharva Marriage
o A marriage based on mutual consent and love, without the involvement of families.
o Commonly associated with romantic unions, like those in Hindu epics (e.g., Shakuntala and
Dushyanta).
7. Rakshasa Marriage
o Marriage by abduction, where the bride is forcibly taken by the groom.
o Often associated with warriors and rulers in ancient times.
8. Paishacha Marriage
o The most condemned form, where the bride is married after being seduced or taken
advantage of, often under intoxication or deceit.
o This form was strictly prohibited in society.

Relevance and Decline

These forms of marriage reflected the societal norms of ancient India, with approved forms highlighting
religious sanctity and social approval. However, with the advent of modern laws like the Hindu Marriage
Act, 1955, these classifications became obsolete. The Act established uniform requirements for a valid
marriage, ensuring the dignity and equality of individuals.
Conclusion

The eight forms of marriage in Hindu law showcased the diversity of ancient marital customs. While some
forms were highly respected, others were discouraged due to their unethical practices. The Hindu Marriage
Act, 1955, replaced these distinctions with a modern legal framework.
Section 11 and Section 12 of the Hindu Marriage Act 1955?

Section 11 and Section 12 of the Hindu Marriage Act, 1955

Sections 11 and 12 of the Hindu Marriage Act, 1955, deal with void and voidable marriages,
respectively. These provisions are critical in determining the validity of a marriage under Hindu law.

Section 11: Void Marriages

Definition:
A marriage is declared void ab initio (invalid from the beginning) if it violates certain essential conditions
specified in Section 5 of the Act.

Grounds for Void Marriage:

The following are the grounds under which a marriage is void:

1. Bigamy:
o If either party has a living spouse at the time of the marriage (Section 5(i)).
o Example: A second marriage during the subsistence of a first valid marriage is void.
2. Prohibited Degrees of Relationship:
o If the parties are within the prohibited degrees of relationship, unless customs permit (Section
5(iv)).
o Example: Marriage between close relatives like a brother and sister is void.
3. Sapinda Relationship:
o If the parties are in a sapinda relationship, unless permitted by custom (Section 5(v)).
o Sapinda Relationship: Blood relationship within three generations on the paternal side or five
generations on the maternal side.

Legal Effect of a Void Marriage:

• The marriage is considered non-existent in the eyes of the law.

• No legal rights or obligations arise from the marriage.

Case Law:

• Sarla Mudgal v. Union of India (1995):

The Supreme Court held that a Hindu marriage conducted while a previous marriage is subsisting is
void under Section 11.

Section 12: Voidable Marriages

Definition:
A marriage is voidable if it is valid initially but can be annulled at the option of one of the parties based on
specific grounds.

Grounds for Voidable Marriage:

1. Impotency of Spouse:
o If the respondent is incapable of consummating the marriage due to impotency.
2. Unsound Mind or Mental Disorder:
o If either party was of unsound mind or suffering from a mental disorder at the time of
marriage (Section 5(ii)).
3. Consent Obtained by Fraud or Force:
 If the consent of either party was obtained through coercion or fraud.
o
4. Pregnancy by Another Man:
o If the wife was pregnant by another man at the time of marriage, and the husband was
unaware of it.

Conditions for Annulment:

• The petition for annulment must be filed within one year of discovering the ground for voidability.

Legal Effect of Annulment:

• Upon annulment, the marriage is treated as if it never existed.

Case Law:

• Bai Appibai v. Khimji Cooverji (1936):

A marriage was annulled because the wife was pregnant by another man at the time of marriage.

Key Differences Between Void and Voidable Marriages

Aspect Void Marriage (Section 11) Voidable Marriage (Section 12)

Nature Invalid from the beginning (ab initio). Valid until annulled by the court.
Violation of basic conditions under Grounds such as fraud, impotency, or mental
Grounds
Section 5. disorder.
Legal Rights No legal rights or obligations arise. Rights exist until the marriage is annulled.
Petition for Not required; marriage is void
Required to make the marriage void.
Annulment automatically.

Conclusion

Sections 11 and 12 ensure the sanctity of marriage by invalidating unions that violate fundamental
conditions or allowing individuals to opt out of defective marriages. While Section 11 addresses illegal and
prohibited marriages, Section 12 offers a remedy for defective but initially valid marriages. Together,
they form a critical framework for regulating marital relations under the Hindu Marriage Act, 1955.
Can the First Wife Bring an Injunction to Restrain the Husband from Taking a Second
Wife?

Under Hindu law, monogamy is the recognized norm, and the practice of bigamy is prohibited under the
Hindu Marriage Act, 1955. However, before the enactment of this law, polygamy was allowed in certain
circumstances under customary law, and bigamy was common in many communities. The question of
whether the first wife can bring an injunction to restrain her husband from taking a second wife arises
primarily in the context of bigamy or the potential for bigamy.

The first wife may seek an injunction to prevent the husband from marrying another woman, but the
effectiveness of such a remedy depends on the legal status of the marriage and the specific facts of the case.

Legal Position:

1. Under the Hindu Marriage Act, 1955 (HMA)

The Hindu Marriage Act, 1955 prohibits bigamy under Section 5(i), which requires that neither
party should have a living spouse at the time of marriage.
o If the husband is already married, any subsequent marriage is void, and the first wife can
challenge the second marriage.
o The wife may not need to file for an injunction specifically but can file for divorce, judicial
separation, or annulment under various provisions of the Act.
2. Injunction for Restraining Bigamy (Specific Relief Act, 1963)
A first wife may seek an injunction to prevent her husband from entering into a second marriage.
This would be based on the Specific Relief Act, 1963 for the breach of a legal right.
o The injunction would restrain the husband from marrying again during the subsistence of the
first marriage.

However, the courts are usually reluctant to grant an injunction for restraining marriage, as they do
not generally interfere in personal matters unless there is a clear legal violation (such as bigamy).

Case Laws Supporting the First Wife’s Claim:

1. Sarla Mudgal v. Union of India (1995)

o In this landmark case, the Supreme Court dealt with the issue of bigamy and polygamy. The
Court ruled that if a Hindu husband, married under the Hindu Marriage Act, solemnizes a
second marriage while the first marriage is still subsisting, the second marriage would be
considered void under Section 11 of the Hindu Marriage Act.
o The Court held that a first wife could approach the Court for relief, including annulment of
the second marriage or judicial separation.
o The case emphasized the Hindu Marriage Act's provision against bigamy and recognized
the legal rights of the first wife.
2. V. Bhagat v. Mrs. D. Bhagat (1994)
o In this case, the Delhi High Court held that a wife could file for relief if her husband
attempted to take a second wife while the first marriage was in existence. The Court stated
that a first wife could approach the court for a declaration that the second marriage is void.
o This case indicates that if the husband has not divorced his first wife, the second marriage
would not be legally valid and could be restrained by the Court.
3. K. K. Verma v. Union of India (2011)
o The Delhi High Court reiterated that bigamy is a punishable offense under the Indian Penal
Code, 1860, and a wife can seek legal recourse if her husband marries another woman while
she is still married to him.
o Although an injunction against marriage might not be granted, the court could provide a
remedy through other means, such as a declaration of the second marriage as void.
Possible Remedies for the First Wife:

1. Judicial Separation:
The first wife may seek judicial separation under Section 10 of the Hindu Marriage Act, 1955, if
the husband has taken or intends to take a second wife. This allows the wife to live separately and
seek maintenance.
2. Divorce:
If the husband marries again without the first wife's consent, the wife may seek a divorce on the
grounds of adultery or cruelty under Section 13 of the Hindu Marriage Act, 1955.
3. Annulment of Second Marriage:
If the second marriage takes place while the first marriage is subsisting, the first wife can file a
petition for the annulment of the second marriage under Section 11 of the Hindu Marriage Act,
1955.
4. Criminal Prosecution:
The husband may be prosecuted under Section 494 and Section 495 of the Indian Penal Code, 1860,
for bigamy. The first wife can lodge a criminal complaint against the husband for marrying again
during the existence of the first marriage.

Conclusion:

While the first wife has legal rights to prevent a second marriage (if it involves bigamy), an injunction
may not always be the most effective remedy. Courts typically focus on declaring the second marriage void
under the Hindu Marriage Act, 1955, rather than issuing an injunction to prevent the marriage. The wife has
multiple legal avenues, including filing for divorce, judicial separation, or seeking the annulment of the
second marriage, based on the facts and circumstances of the case.
Difference Between Mitakshara and Dayabhaga Schools

The Mitakshara and Dayabhaga schools are two major schools of Hindu law that govern the laws of
inheritance among Hindus. These schools have different principles regarding the distribution of property
among heirs, especially in joint family systems.

Here’s a detailed comparison of the Mitakshara and Dayabhaga schools:

1. Origin and Geographic Applicability

Aspect Mitakshara School Dayabhaga School
Originated from Yajnavalkya Smriti Originated from the Bengal region, based on
Origin and Mitakshara, a commentary by Jimutavahana's work, primarily followed in
Vijnaneswara. Bengal, Assam, and parts of Orissa.
Followed across most of India,
Geographic Predominantly followed in Bengal, Assam, and
including Northern, Western, and
Applicability parts of eastern India.
Southern India.

2. Nature of Coparcenary
Aspect Mitakshara School Dayabhaga School
In the Mitakshara system, there is a joint The Dayabhaga school does not recognize the
family coparcenary. All male descendants joint family system in the same way.
Coparcenary of a common ancestor, from the father’s Coparcenary rights are not automatic but
side, are coparceners. The coparcenary depend on the father’s property and are
begins at birth. vested only after the father’s death.
A son does not have an automatic right to
A coparcener has an inherent right to
Participation in ancestral property. He only acquires a share
property by birth, and the coparceners
Joint Property when the father dies and leaves the property
share property equally.
to the heirs.

3. Inheritance and Succession

Aspect Mitakshara School Dayabhaga School
Sons, grandsons, and great-grandsons Only the father's self-acquired property can
Inheritance inherit ancestral property by birth, and the be inherited by sons. There is no birthright to
Rights property is divided equally among all male ancestral property, and the father's will is very
descendants. important.
The property devolves by inheritance. The
The property devolves by survivorship
Succession to property passes according to the will or intestate
(i.e., the remaining coparceners keep the
Property succession rules, and sons inherit property after
property on the death of any coparcener).
the father's death.

4. Role of Women
Aspect Mitakshara School Dayabhaga School
Women do not have a coparcenary right in Women have full inheritance rights to
Women's Mitakshara law. However, they may be entitled to property under Dayabhaga law. A
Rights maintenance and a share in property under certain daughter can inherit property from her
conditions, such as in partition. father if he dies intestate.

5. Partition of Property
Aspect Mitakshara School Dayabhaga School
Partition Partition can occur at any time with the consent Partition of the property can only happen
Aspect Mitakshara School Dayabhaga School
of the coparceners. Once a coparcener after the father's death. Before that, the sons
separates, they have no further claim on the do not have an automatic right to demand a
ancestral property. partition.
The property remains ancestral property
Effect of After partition, the property becomes individual
even after partition, and the heirs still retain a
Partition property of the coparceners.
right to the property even after separation.

6. Ancestral Property
Aspect Mitakshara School Dayabhaga School
Ancestral property refers to property inherited Ancestral property is property inherited
Ancestral by a male from his paternal ancestors up to four from the father. Sons have no right to
Property generations. Coparceners have a right to it by ancestral property until after the father’s
birth. death.

7. Concept of Will and Testamentary Succession

Aspect Mitakshara School Dayabhaga School
A person can dispose of their property by will or
The father can dispose of the property by
testamentary succession, but coparceners have a
Will will as there is no birthright. The will has
birthright to ancestral property, so it cannot be
more significance in the Dayabhaga system.
completely alienated.

8. Application in Modern Law

Aspect Mitakshara School Dayabhaga School
Under the Hindu Succession Act, The rights of adopted children are governed by the
Modern 1956, adopted children are treated as Hindu Adoption and Maintenance Act, 1956, but they
Adoption coparceners under the Mitakshara do not automatically inherit ancestral property under the
law. Dayabhaga system.

Summary of Key Differences

Aspect Mitakshara School Dayabhaga School
Geographic Widespread across India (except Bengal Predominantly followed in Bengal, Assam,
Region and Assam). and parts of Orissa.
Exists from birth, and male descendants Coparcenary rights arise only after the father’s
Coparcenary
are coparceners. death.
Inheritance by Sons inherit only after the father's death, not
Sons inherit property by birth.
Birth by birth.
Partition Can occur at any time. Occurs only after the father’s death.
Women do not have a right to ancestral Women can inherit property, including
Women’s Rights
property. ancestral property.

Conclusion

Both the Mitakshara and Dayabhaga schools of Hindu law deal with inheritance but in different ways. The
Mitakshara system is more based on the joint family concept, where property is shared by male
descendants from birth. The Dayabhaga system, on the other hand, is more individualistic, with a focus on
inheritance after the father’s death and the absence of automatic rights to ancestral property. The distinction
between the two schools highlights the diversity in Hindu law, reflecting regional variations in legal
traditions and customs.