Hindu LAW Model Answers PDF

Preview

Summary

AL-AMEEN COLLEGE OF LAWPREPARATORY EXAMINATION Dec - HINDU LAW Ist sem 3 yrs LL and V sem 5 yrs B.A.LLDURATION: 3 HRS MAX MARKS: 100INSTRUCTIONS TO CANDIDATES:- Answer Q.No and any 5 of the following questions Q.No carries 20 marks and the remaining questions carry 16 marks each. Answer should be wr...

Description

AL-AMEEN COLLEGE OF LAW PREPARATORY EXAMINATION Dec -2015 HINDU LAW Ist sem 3 yrs LL.B and V sem 5 yrs B.A.LL.B DURATION: 3 HRS

MAX MARKS: 100

INSTRUCTIONS TO CANDIDATES:1. Answer Q.No.9 and any 5 of the following questions 2. Q.No.9 carries 20 marks and the remaining questions carry 16 marks each. 3. Answer should be written either in English or Kannada completely. 04X16=64 Q.NO.1. Trace the history of the different schools of Hindu Law, pointing out their distinguishing features. Answer:INTRODUCTION The Schools of Hindu Law came into being when different commentaries appeared to interpret smritis with reference to different local customs in vogue in different parts of India. SCHOOL OF HINDU LAW There are 2 schools of Hindu Law 1. Mitakshara School 2. Dayabhaga School 1. Mitakshara School:This school prevails in all parts of India. It is a running commentary on code of Yajnavalkaya & was written by Vijanneshwara in 11th century. It is of supreme authority thought out India except Bengal.

2. Dayabhaga School :This School prevail in Bengal. It is not a commentary on any one code, but purports to be a digest of all the codes. It was written by Jimutavahana. It was written 2 centuries after mitakshara. It is supreme authority in Bengal. Here also Mitakshara is supreme but if there is no conflict between this schools. The Mitakshara school is sub-divided into 4 main schools I. II. III. IV. V.

Banaras School Mithila School Bombay School Madras School Punjab school also recognizes the authority of mitakshara.

Mitakshara School It is divided into 5 Schools, they materially differed on the law of adoption and inheritance. All these Schools acknowledge the supreme authority of the Mitakshara, but give preference to certain treaties and to commentaries which contain certain passages of the Miitakshara. I. Benaras School:Except in Mithila and Punjab this school prevails in the whole of Northern India including Orissa. The following commentaries are also held in high esteem in this school. 1.Mitakshara. 2. Viramitrodaya 3. Dattaka Mimansa 4. Nirnayasindu 5. Vivada Tandava 6. Subodhini & 7. Balam Bhatti II. Mithila School

It prevails in Tirhoot & Bihar. The following are the commentaries treated as authoritative in this school. 1.Mitakshara. 2. Vivada Ratnakar 3. Vivada Chintamani 4.Smriti sara & 5. Madana Parijata III.Bombay School or Maharastra School It prevails in almost the whole of the state of Bombay including Gujarat, Kanara and the parts where the Marathi language is spoken as the local language. The following works are treated as authoriatative in this school 1.Mitakshara. 2.Vyavhar Mayukha 3. Viramitrodaya 4. Nirnayasindu 5. Vivada Tandava 6. Parasara Madhaviya IV. Madras School:The whole Madras state is governed by the madras School of Hindu Law This school was once sub-divided into Tamil, Karnataka and Andra school, but there is no justification The authorities accepted in this school are the following 1.Mitakshara. 2.Smriti Chandrika 3. Parasara Madhaviya 4.Saraswati Madhaviya 5. Viramitrodaya 6. Vyavhar Mayukha 7. Dattaka Chandrika

8.Daya Vibhaga 9. Vaiyayanti 10. Madhabi 11. Nirnay Sindu 12. Narada Rajya 13. Vivada Tandava V.Punjab School It prevails in East Punjab. The following are authorities in this school 1.Mitakshara. 2. Viramitrodaya & 3. Punjab customs. 2.DAYABHAGA:It prevails in west Bengal, Assam with some variances. Dayabhaga is written by Jimutvahana. The accepted authorities 1. 2. 3. 4. 5.

Dayabhaga Dayatatva Daya-sangraha Viramitrodaya Dattaka Chandrika

Difference between Mitakshara & Dayabhaga Mitakshara As regards to joint property 1 Right to property arises by birth, hence the son is a co-owner with the father in ancestral property, now even daughter 2 Father has a restricted power of alienation and son can claim partition even against the father

Dayabhaga

Right to property by death (of the last owner). Hence son has no right to ancestral property during father’s lifetime Father has absolute power of alienation and son cannot claim partition or even maintenance

3 The interest of a member of the joint family would on his death passed to the other member by survivorship (now it is abolished) As regards Alienation 5 Members of joint family cannot dispose of their shares while undivided Inheritance 6 The principle of inheritance is consanguinity (blood relationship) 7 Doctrine of Factum Valet The fact cannot be altered by hundred texts . It is recognized to a very limited extent

The interest of every person would on his death, pas by inheritance to his heirs, like widow or daughters.

Any member of joint family may sell or give away his share even when undivided. The principle of inheritance is spiritual efficacy (offering pindas) It is fully recognized.

Conclusion : On the migration the family continues to be governed by the law of locality of origin. The family carries with it the customs regulating succession and family relation prevailing in the state from where it came. But the family has option of adopting the law and usages of the state to which it has migrated. ------------------------xxxxxx------------------Q.NO.2.Discuss the important changes brought by the Hindu Marriage Act 1955 and marriage laws(Amendment) Act, 1976 to the Hindu Law. Answer:Introduction This act is a landmark in the history of social legislation This enactment is exhaustive and it has brought important and dynamic changes in Hindu matrimonial concept. It has not simply codified the Hindu law of marriage but has introduced certain important changes in many respects.

The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has introduced some changes of far- reaching consequences which have undermined the sacramental character of marriage and rendered it contractual in nature to a great extent. CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT 1955. The following changes were brought about by the Act in the law of marriage are important, 1. Inter- caste marriage in not prohibited. According to Section 29 of the Act, the marriage solemnized between the different caste or different religion is valid. 2. Monogamy which is essentially the voluntary union for life of one man with one women to the exclusion of all others, is not enforced by legislationSection 5(i) . any marriage solemnized after the commencement of this Act is null and void if at the date of such marriage either party had a husband or wife living 3. Bigamy has been made punishable as an offence under the Indian Penal Code (sec 17). 4. The conditions and requirements of a valid Hindu marriage have been considerably simplified (section 5 to 7). • The sapinda prohibition has although been accepted yet the degree of sapinda relationship has been curtailed. • It has now been confined to fifth degree from the father and third degree from the mother in upward line. • Further, the Act has enumerated the list of prohibited degree of relations, between whom a valid marriage could not take place. • Several matrimonial reliefs has been provided by the act. Ex. Divorce, judicial separation. • Legitimacy has been conferred on such children who are born of void and voidable marriage. • Provision for alimony pendent lite, permanent alimony and maintenance have been made.

• Wide discretionary powers have been conferred on the court to pass suitable orders relating to the custody, maintenance and education of minor children of the parties. CHANGES BY VIRTUE OF MARRIAGE LAWS(AMENDMENT) ACT, 1976. A few more changes have been brought by Act of 1976. 1. Section 13-B now provides for divorce by mutual consent of the parties. 2. Divorce on the ground of adultery has made easy. Now a single instance of adultery on the part of the other spouse entitles the spouse to seek divorce. 3. Divorce on the ground of incurable unsoundness of mind, incurable leprosy or venereal disease, formerly the party seeking divorce could not file petition for 3 years had elapsed. Now the party seeking divorce on this ground need not wait for 3 years. 4. Section 21 –B has been added which provides for the continuance of the trial (day to day) until conclusion of the case. ------------------------------xxxxxxxxxxxxxxxxx-------------------------Q.NO.3. Explain the general rules of succession of Hindu female dying intestate under the Hindu Succession Act, 1956. INTRODUCTION :The Hindu succession Act 1956 marks a new era in the history of social legislation in India. It has attempted to bring some reforms in the system of inheritance and succession. RAU’S COMMITTEE was set up to codify Hindu law Under this committee Hindu marriage act 1955, Hindu Minority and Guardian ship Act 1956, Hindu adoption and Maintenance Act 1956 and Hindu Succession Act 1956 was passed Objects of the Hindu Succession Act 1956 1. It is was passed to meet the needs of a progressive society.

2. Removes inequality between male and women with respect of rights and property and it evolves a list entitled to succeed 3. It is passed to codify and amend the Hindu law succession. RULES OF SUCCESSION TO THE PROPERTY OF FEMALE;SECTION 15:- prescribes the general rules of succession of the property of a female dying intestate, and section 16 lays down the order of succession. Section 15(1):- 1. The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16a.

b. c. d. e.

Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. Secondly, upon the heirs of the husband. Thirdly, upon the mother and father. Fourthly, upon the heirs of the father; and Lastly upon the heirs of the mother.

2. Not withstanding anything contained in sub-section (1) a. any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father and, b. any property inherited by a female hindu from her husband or from her fatherin-law shall devolve, in the absence of any person or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

ORDERS OF SUCCESSION – SECTION 16. The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate’s property among those heirs shall take place, according to the following rules, namelyRule 1- among the heirs specified in sub-section (1) of section 15 those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2- if any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter shall have taken if living at the intestate’s death. Rule 3- the devolution of the property of the intestate on the heirs referred to in clauses (b) (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been father’s or the mother’s or the husband’s as the case may be and such person had died intestate in respect thereof immediately after the intestate’s death”. Who are the heirs? Sec 15(1) divides the heirs of a hindu female into 5 categories. 1). Heirs in the first entry: a. b. c.

Sons Daughters. Children

of

Children

of

predeceased son. d. pre-deceased daughter. e. 2). Heirs in the second entry:

Husband.

The heirs of the husband of the female dying intestate come under second entry. The heirs of the husband are: a.

Heirs

of

the

Heirs

of

the

husband specified in class I of the schedule. b. husband specified in class II of the Schedule. c.

Agnates

of

husband. d.

Cognates of the husband.

3). Heirs in the third entry. a. Mother- it does not include step-mother but includes natural as well as adoptive mother. b. father “father” does not include step-father of putative father. But includes natural or adoptive father. 4. Heirs in the fourth entryHeirs of the father of the female dying intestate comes under this entry. The heirs of the father are: a) Heirs of the father specified in class I of the schedule. b) Heirs of the father specified in class II of the schedule. c) Agnates of the father. d) Cognates of the father. 5. Heirs in the fifth entryHeirs of her mother come under this entry.

1)

2) 3) 4) 5)

Sons, daughters of the mother including sons and daughters of a pre-deceased son and daughter, and husband. Heirs of husband of the mother. Father and mother of the mother. Heirs of father of the mother. Heirs of mother of the mother.

Section 15(2) is an exception to the general rule mentioned above  Property inherited from her father or mother. Property inherited from her father or mother shall devolve upon the heirs of father provided the intestate died leaving no son or daughter or any children of any predeceased son or daughter. This excludes the heirs if alive, in the first entry, second entry, and the third entry. Therefore it is excluded the husband who is in the first of entry and his heir in the second entry. Property inherited from her husband or her father-in-law. Such property shall devolves upon the heirs of the husband, who came in as father, or mother, or the heirs of the father or mother from inheriting such property. Order of succession :The order of succession and manner of distribution among heirs of a female hindu dying intestate are given in section 16 of the Act. Rule-1:- heirs in the first entry of section 15(1) of the Act shall be preferred to those in the second entry. In the absence of heirs in the first entry heirs in the second entry shall be preferred to those in the third entry and so on. Where there

are more heirs than one, in the entry preferred, such heirs shall take simultaneously. Rule-2:- the children of pre-deceased son or daughter between them, get the share which son or daughter would have taken if living at the intestate’s death i.e., the division is per stripes. ---------------------xxxxxxxxxxxx-------------------Q.NO.4. Explain the different types of guardians and their powers with reference of Hindu Minority and Guardianship Act, 1956. Introduction :This act has significantly made many changes in the position and status of the mother as the natural guardian. AGE OF MAJORITY:- SECTION 4: It defines the word minor as a person who has not completed the age of eighteen years. GUARDIAN - A Guardian means a person have the care of the person of another or of his property, or of both. Section 4(b):- Guardina means a person having the care of the person of a minor, or of his property or of both his person and property and includes. 1. 2. 3. 4.

Natural guardian. A guardian appointed by the will of the minor’s father or mother A guardian appointed or declared by a court ; and A person, empowered to act as such by or under any enactment relating to any court of wards.

KINDS OF GUARDIAN Section 4:- of the Act mention four kinds of guardians, these are:1. A natural guardian. 2. A guardian appointed by the will or the minor’s father or mothers (testamentary guardian)

3. A guardian appointed or declared by a court, and 4. A person empowered to act as such by or under any enactment relating to any court of wards. Besides this, there are other types of guardians such as. 5. De facto guardian and 6. Ad hoc guardian. NATURAL GUARDIAN:-MEANING OF NATURAL GUARDIAN. A natural guardian is one who becomes so by reason of the natural relationship with the minor. In other words a natural guardian is a person having the care of the person of a minor or of his property or of both, by virtue of his natural relationship with the minor. Section 6:- of the Hindu minority and guardian ship act, runs as follows, The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property) are, a. In case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. b. In the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father. c. In the case of a married girl the husband. Provided that no person shall be entitled to act as the natural guardian of a minor under the provision of this section. a. If he has ceased to be a Hindu, or b. If he has completely and finally renounced the world by becoming a hermit or an ascetic (sanyasi) Who are natural guardians? Among the Hindus, the father is the natural guardian of his children during their minority and in the absence the mother during their minority. He may, in exercise of his discretion as guardian entrust the custody and education of his children to another, but the authority he thus confers is revocable authority.

The powers of the father to act as a natural guardian do not come to an end simply because the child is being looked after by his aunt and is living with her. The father is the natural guardian of the person and of the separate property of his minor children. Case law jijabai v. pathan khan. Where the father was alive but had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping and care of the mother, it was held by the supreme court that in the peculiar circumstances, the father should be treated non-existent and the mother could be considered as the natural guardian of the minor’s person as well as property. K.S. Mohan v. Sandhya Mohan [AIR 1993 MAD 59] The Madras High Court has held that custody of a child below the age of five years should be given to its mother and only in exceptional circumstances, the father may claim the custody of that child. STEP MOTHER AND STEP-MOTHER There are not the natural guardians of the minor child. ILLEGITIMATE BOY AND GIRL. In case of a illegitimate boy or girl the mother is the natural guardian, and in absence of the mother the father will be the natural guardian. Married girl. The husband would be the guardian, unless he has ceased to be a Hindu or he has completely and finally renounced the world by becoming a hermit or an ascetic. DISABILITIES TO BE A GUARDIAN. According to section 6 the disability may arise. 1. Disability arising from apostasy.

Before the passing of the Act the right of a guardian was not affected by the change of his religion. The fact that a father had changed his religion was of itself no reason for depriving him of the custody of his child. If the father voluntarily abandoned his parental rights and entrusted the custody of the child to another person the court may not restore back the custody of the child to the father if such a course is detrimental to the interest of the child. VIJAYA LAXMI V. INSPECTOR OF POLICE. The Madras High court held that where father converted to Islam and married a muslim girl, he creases to be natural guardian as a matter of legal right. It would not be in the interest of child that such convert should be allowed to continue as a natural guardian and exercise the power as such. 2. CIVIL DEATH:Any person who has completely and finally renounced the world by becoming a hermit or an ascetic forfeits his right to continue as the natural guardian of his minor child or wife. 3. MINORITY:A Minor shall be incompetent to act ...