Tag: Family Law

Persons entitled to Demand Partition in Hindu Joint Family

Law

November 3, 2020
/ Leave a Comment on Persons entitled to Demand Partition in Hindu Joint Family

10 min
3 years
1,827 word

Tagged BALLB, Family Law, Partition, Unit 2

Persons entitled to Demand Partition in Hindu Joint Family

Partition is a severance of status of the coparceners and division of coparcenary property by metes and bounds. Therefore, as a general rule , it is the coparceners who have a right to demand partition and destruct their joint status. However, a partition can be demanded by an alienee or a purchaser, in the execution of a decree of court of the undivided share of a coparcener. The general rule that every coparcener has a right to partition is subject to two exceptions that is :

(a) an unqualified coparcener has no right to partition and,

(b) in Bombay school , sons cannot ask for partition against their father if the latter is joint with his own father or a collateral.

ALIENEE OR PURCHASER IN EXECUTION OF A COURTS’S DECREE

General rule stands clear that a non – coparcener can not ask for partition. A suit by an alienee, for claiming equitable remedy from the coparcener, for allotment of shares is not maintainable[1]. However, when an undivided coparcener alienates his share which he is permitted to do, in such case the alienee can ask for partition. In case the individual is not permitted to alienate his part, but still he contracts for a debt and debtor brings a decree against him, that person is also entitled to demand for partition and take his part. Since, they are stranger to the joint family , they do not have the right to joint possession with rest of the coparcener but are entitled to demarcate only the share that they are entitled to . Such alienee or purchaser may file a suit for separation in court of law, under all schools of Mitakshara. An alienee of a coparcener’s interest, if such an alienation is valid, has a right to demand partition. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi[2], the Supreme Court held that the purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and that may be the proper remedy for him to adopt to effectuate his purchase. An execution purchaser of a member’s interest and purchaser of the same for value in Bombay and Madras is entitled to demand partition in the rights of that member.

COPARCENERS

A coparcener, who is a major and of sound mind , can at any time, demand partition and specification of his share. The person from who he can demand partition is the KARTA. It is one of his inherent rights, being the owner of the property with other members. The KARTA does not have a right to deny the separation coming from a major coparcener. A demand from the coparcener, with or without reason, if said clearly, is sufficient and the KARTA legally, has no choice but to comply with his demand. If the KARTA does not give in to the demand of partition made by the coparcener , such a coparcener can go to the court and institute a suit for partition.

FATHER : The father does not have any right to partition in between himself and his sons but he has also the power to affect a partition among the son’s inter se. The Mitakshara School expressly states that a father can divide his property if the partition was claimed and the partition will be done in between himself and his son’s ,here if any minor is present then he has to provide a separate and equal share to him also . An unequal division of shares or partition done without given the separate share to the minor, in the circumstances a former coparcener can claim for reopening of partition also. The father can impose even a partial partition between his minor sons and himself.

SON , GRAND-SON , GREAT GRAND-SON : Under Mitakshara school son, son’s son and son’s son’s son is having right to ask partition but there is an exception in Bombay school it was stated that son’s cannot ask for partition without the consent of his father if the partition was asked from grandfather. Under Dayabhaga School there is no coparcenary consisting of the father and his sons and their sons have no right to claim or ask for separation.

But this view no longer stands valid. The Bombay High Court in a later case accepting the authority of the Supreme Court in Puttorangamma v. Rangamma[3] held that a suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a division.

The Delhi High Court clearly maintained that a son can demand partition during the lifetime of his father without any hindrance. This view was again supported by the Bombay High Court in its latest pronouncement.

ADOPTED SON : The Dharmashastra has dealt with the position of adopted sons in two situations : (a) when there is a subsequently born aurasa (natural) son of his father, and (b) when there is no such son. In the latter case , his position will be same as that of the natural born son. In the first case, he has the same right to partition but no entitled to same share. He would take a lesser share as compared to a natural born son which differs from school to school.

AFTER BORN SONS

According to Vishnu and Yajnavalkya , the partition should be reopened to give a share to the after-born son. On the basis of the Mitakshara formulation, we have two rules; one in respect of a son in the womb at the time of partition and the other in respect of a son who comes into the womb after the partition.

If the pregnancy is known, the partition should be postponed till the child is born. But if the coparceners do not agree to this, then equal share as to the son should be reserved for the child in the womb. In case, no share is reserved for the son in the womb, he can , after his birth, demand re-opening of the partition. If pregnancy is not known and consequently, no share is reserved, then also the redistribution of the estate should take place after the birth of the son.

When the father has already taken a share for himself, the afterborn son becomes a coparcener with his father. When the father has not reserved any share, the after-born son has the right to reopen and get the estate redistributed as it then stands.

MINOR COPARCENER

A minor coparcener, though equal in ownership of property with a major coparcener, does not have a right to demand for partition from the father or the KARTA. But , this does not mean that at his instance, no partition can be effected. A minor needs special protection and ordinarily, the father or the KARTA is presumed to act in his interests. A suit for partition may be filed on behalf of the minor by his next friend or guardian. A minor is a person of immature intellect, and the court acting as ‘parens patriae’ has the duty to protect the minor’s interest. The test would be whether the partition in the circumstances, would be for the benefit of the minor. The court has a discretion and it may order for effecting a partition only when it is satisfied that it would be beneficial to his interests, otherwise, it will not direct the division. A refusal of the father to maintain a minor son, his immemorial behaviour and the investment of joint family funds into speculative transactions, would be sufficient for the courts to conclude that a partition would benefit the minor. It is also an established rule of Hindu law that the presence of minor coparcener is no bar effecting partition by the adult coparceners. An unfair partition can be reopened by a minor on attaining the majority.

DAUGHTER

Daughters have the same rights as sons to reside in and to claim for partition of the parental dwelling house. After passing Hindu Succession (Amendment) Act, now the position has been changed, now Section 23 of the principal Act has been omitted by Hindu Succession (Amendment) Act.

The term “female sharers” include three types of females, namely, (1) the wife, (2) widowed mother, and (3) paternal grand-mother. These female sharers cannot demand a partition but, however, entitled to get their share when the joint family property is actually divided on partition. Where a suit for partition filed by a coparcener has been withdrawn, the female sharer will not be entitled to continue the suit or to press a demand of his share.

The mother and the grand-mother would be entitled to get a share on partition only when such partition is effected between the sons and grand-sons. The female sharers would not be entitled to any share in the property merely by the fact that a suit for partition has been filed or a preliminary decree has been obtained in the suit. So long the actual division is not affected; there is no question of allotment any share to them. Section 23 of the Hindu Succession Act, 1956 postpones the right of female heirs to claim partition of the dwelling house until male heirs choose to divide their respective shares therein.

In Pachi Krishnamma v. Kumaram, the daughter claimed is shared as equal as to the son in the division of joint family property but she failed to prove her customs which says that a daughter can get an equal share as to the son. but after the amendment of 2005 in Hindu succession act it gave the power that a daughter is having right to ask partition and can claim and equal share as to the son in the partition of the joint family property.

In Prakash v. Phulwati, the full bench of the Bombay High Court in this case held that the rights under the the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per the law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the given explanation.

In Danamma @Suman Surpur v. Amar, the honourable Supreme Court of India in this case as on 1-2-18 held that daughters have equal rights in Ancestral Property, even if they were born before enactment of Hindu Succession Act.

In Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Others, in this the Gujarat High Court held that a Hindu daughter after marrying to a Muslim does not lose her right to inherit property under the Hindu Succession Act.

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[1] D Odabbasappa Basappa Belavigi v. Gadigeppa Verappa NElogal (2003) ILR 4 Kant 2987, AIR 2003 NOC 93 (Kant)

[2] AIR 1984 SC 1802, (1985) 1 SCC 405, 1984 (16) UJ 833 SC

[3] 1968 AIR 1018, 1968 SCR (3) 119

Law

September 19, 2020
/ Leave a Comment on Hindu Marriage Act of 1955

11 min
3 years
2,186 words

Tagged Family Law

Hindu Marriage Act of 1955

This section talks about Section 1 – 13 of the Hindu Marriage Act, 1955 in brief. SECTION – 1 Title and extent :- The Act shall be called as the Hindu Marriage Act, 1955 and […]

This section talks about Section 1 – 13 of the Hindu Marriage Act, 1955 in brief.

SECTION – 1

Title and extent :-

The Act shall be called as the Hindu Marriage Act, 1955 and is applicable to the whole of India.

SECTION – 2

Who can be called as a Hindu :-

A Hindu is any person who is

Virashaiva, Lingayat or follower of Brahma Prarthana or Arya Samaj
Buddhist, Jain or Sikh
Not a Muslim, Jew Or Parsi or not governed by any special custom in a specific case.

SECTION – 3

Definitions :-

Customs
District Court
Full Blood – Half Blood
Uterine Blood
Prescribed rules under this Act
Sapinda Relationship
Affinal Relationships & Prohibited Degrees
1. Lineal Descendants
2. If one is the wife or husband of of the lineal ascendant or descendant of the other (parent – step or otherwise)
3. Brothers wife father’s brother mother’s brother grandfather’s brother etc.
4. Siblings uncle and niece aunt and nephew cousins.

Custom – Customs are natural rules that are being followed by the people of a specific region or descent since times immemorial.

Full Blood – Two persons are said to be related by full blood when they are the biological children of the same mother and father.

Half blood – When two persons have the same biological father but different biological mothers they are said to be related by half blood.

Uterine blood – People are said to be related by uterine blood when they have the same biological mother.

Sapinda – Sapinda prohibition exists upto 5 degrees (generations) on father’s side and 3 degrees on mother’s side.

With reference to any person it extends as far as third generation (inclusive) in the the line of ascent through the mother and the fifth generation (inclusive) in the line of ascent through the father. The line being traced upwards in each case from the person concerned who is to be counted as the first generation.

Affinal – Affinal relationships refers to relationships formed by Marriage.

SECTION – 5

Conditions for a Valid Hindu Marriage :-

No Bigamy
Neither party
1. Is incapable of giving consent or is of unsound mind.
2. Is mentally ill or unfit for marriage or is impotent.
3. Is subject to attacks of insanity or elipsy.
The age of the boy should not be less than 21 years while that of the girl should not be less than 18 years
Neither of the parties fall under the prohibited degrees of relationships (customs may play as exception)
Sapinda (except as provided by customs)

Bigamy refers to the practice of second marriage while the first spouse is alive. This practice is strictly prohibited under the Hindu law and is made punishable under the Indian Penal Code.

Person of Unsound mind refers to a person who is medically and legally declared to be of unstable mental condition and is incapable of making decisions for him/herself.

Case

Priya Bala v/s Suresh Chandra
Sarla Mudgal v/s UOI
Nagalingam v. Sivagami

SECTION – 6

Repealed

SECTION – 7

Ceremonies of Marriage :-

Marriage should be solemnized according to customs and rates of either party dare to that is customs are important
Where such rites and ceremonies include Saptapadi, the marriage becomes complete and binding when the seventh step is taken.

Cases

Bhav Rao Lokhande v/s State of Maharashtra

In this case it was held that only already established customary rites can be followed, no invention in the ceremonies of marriage shall be valid. Gandharv Vivah of Bhav Rau with kamlabai was held to be invalid as it was not according to their custom. Further, the second marriage was not held to be valid therefore Bhav Rao Lokhande was not held to be guilty.

Nagalingam v/s Sivagami

In this case the Madras Matrimonial Court held that according to Section 7 sub clause 2 for a valid marriage the ceremony of saptapadi is important and the second marriage was invalid and hence Nagalingam was not held guilty.

But, the Madras High Court held that section 7A, special provision for Tamil Nadu is supposed to be considered and hence the second marriage stands as a valid marriage and Nagalingam was hence prosecuted under Section 494 IPC.

SECTION – 8

Registration of Marriage :-

Registration of marriage is deemed to be a proof of the marriage it also contains manners and conditions regarding the marriage.
if any state makes registration mandatory then its violation will lead to a fine
All ruled under this Section should be laid before the state legislation as soon as they are made.
The register is open for inspection and also a fees shall be paid for getting a certificate of the registration
If the registration of a marriage is not done then also the marriage is valid.

SECTION – 9

Restitution Of Conjugal Rights :-

When either the husband or the wife has without any reasonable excuse withdrawn from the society of the other the aggrieved party mein apply by the way of a petition in the code for the restitution of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and that there is no reason as to why the petition should not be granted, may decree restitution of conjugal rights.

In such cases the onus of proof lies on the party leaving the society of the other.

Cases

T. Sarita v/s Venkata Subbaiah
Sushil Kumari dunger v/s Prem Kumar 11 February 1976
Dharmendra Kumar vs Usha Kumar 23 1 a
Swaraj Garg v/s K. M. Garg (right to setup matrimonial household)
Saroj Rani v/s Sudarshan Kumar Chadda, 1984 (constitutionality of Section 9)

SECTION – 10

Judicial Separation :-

Either party to a marriage whether solemnized before or after the commencement of this app may present a petition praying for a decree of judicial separation on any of the grounds specified under section 13(1) and in case of a wife on any of the grounds on which a petition for divorce may be presented.
Cases where a decree of judicial separation is passed it should no longer be obligatory for the petitioner to cohabit with the respondent. However the court may on the petition of either of the parties and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Cases

Harichandra Sreenivasan Managaokar, v/s Sunanda, 2001
Dastane v/s Dastane
Naveen Kohli v/s Neetu Kohli 2019
Bipin Chandra v/s Prabhavati

SECTION – 11

Void Marriage :-

Marriage that is null (having no effect) from the very beginning is termed as a Void Marriage.

on a petition presented by either party thereto against the other party is so declared by a decree of nullity if it contravenes with any one of the conditions specified in clause (i) (iv) and (v) of Section 5.

Grounds for void marriage under Section 5

(i) Bigamy (second marriage is absolutely void (iv) Prohibited degrees

(v) Sapinda marriage

Cases

Bhav Lokhande v/s State of Maharashtra

In this case BhauRao Lokhande entered into a Second marriage with one Kamla Bai, this marriage was solemnized by the procedure of Gandharva Vivah however neither the law nor the customs of either of the parties provided for the same. Hence the marriage was held to be a void marriage.

Nagalingam v/s Sivagami

In this case Nagalingam entered into a second marriage, the marriage was solemnized by the customary rites of Tamil Nadu. In this case it was held that though the marriage was solemnized without the practice of Saptapadi, under the Hindu Marriage Act, customs override the legal provision as solemnization of marriage. Thus in this particular case Section 7A ie., special provision for Tamilnadu was applied and the second marriage was held to be a valid marriage and Nagalingam was prosecuted under Section 494 IPC.

Sarla Mudgal v/s Union of India

In these cases the husband changed his religion and became a Muslim so as to to get into a second marriage. This act of conversion for the purpose of marriage was held to be illegal and the second marriage thereof was held to be a void marriage.

Dr Surajmani Stella kujur case
Lily Thomas v/s Union of India

SECTION – 12

Voidable Marriage :-

Annulled by a decree of nullity on following grounds
1. Impotent respondent
2. Incapable of giving consent by reason of
  1. Unsound mind
  2. Important not capable of marriage
  3. Get attacks of insanity
3. Consent is obtained by fraud
4. Respondent is pregnant at the time of marriage by some other person
No petition shall be entertained under
1. Subsection 1 clause c
  1. After one year of exposure of fraud
  2. The petitioner has lived normally with the respondent after discovering the fra
2. Ground under clause B of subsection 1 shall be entertained only if
  1. At the time of the marriage the petitioner was ignorant of the true facts
  2. If the preceding is started within one year from the date of the marriage
  3. No sexual intercourse takes place between both the parties after discovering the truth.

Case

Pinnati Venkataraman & ors v/s State of Andhra Pradesh.

SECTION – 13

Divorce :-

Any marriage may be dissolved on a petition by a decree of divorce on the grounds as follows
1. Adultery
  1. Cruelty
  2. Desertion (for a continuous period of two years).
2. The party had ceased to be a Hindu (Conversion)
3. Has been incurable is suffering from unsound mind or intermittent from a mental disorder of such kind that the petitioner cannot reasonably be expected to decide with the respondent
4. Leprosy repealed
5. Communicable venereal diseases.
6. Renounced the word by entering into any religious order
7. Has not been heard of as being alive for a period of seven years or more by those person who would naturally have heard of it had the party been alive

Cruelty is defined as the willful and unjustifiable conduct of such a character so as to cause damage to live life help whether bodily or mentally or a reasonable apprehension of such are damage by either of the spouse.

Cases

On cruelty

Dastane vs Dastane

In this case, Mrs Dastane used to make false allegations against her husband as well as his family members. She used to abuse them and once even said that she wants to ruin the Dastane dynasty. Incidence of tearing her ‘mangalsutra’, locking her husband, rubbing chilli powder on the tongue of the child, and many more such actions became the reason for the suffering of her husband. She was somewhat mentally unbalanced. It was held to be a clear case of Mental Cruelty.

Saptmi v/s Jagdish

Husbands constantly call the wife a prostitute, a girl on the street, etc. The court held that, saying these words is worse than physical violence and shakes the foundation of conjugal life. Thus , it amounts to cruelty.

Samar Ghosh v/s Jaya Ghosh

Both the parties were IAS Officers. Jaya Ghosh was a divorcee and had a daughter from her marriage whose custody was with her. Her previous husband was filing a case against her to which she married Samar Ghosh, so that the decision of the court goes in her favour.

But later, she denied any kind of sexual intercourse as well as marital obligation with Samar Ghosh. Didn’t cook for him, she didn’t go to the hospital when Samar was going through surgery. Appellant ( the husband) prayed for dissolution of marriage, contending that they lived separately for more than 16.5 years with no feelings of cohabitation left now. The District Court granted divorce on the ground of mental cruelty. The High Court in the case said it was an irretrievable breakdown of marriage, which is impossible to be saved.

The cruelty need not be beyond all reasonable doubts. Cruelty may be proved on balance of possibilities.

Harbhajan Singh v/s Amarjeet Kaur

The wife lodged a false complaint against her husband to the bank employees where he used to work. It was alleged that the husband had committed fraud in the bank and he had withdrawn money by forging signatures. This is cruelty on the part of the wife towards the husband.

It has been held that a wife’s refusal to tender her resignation from her job on demand of her husband does not amount to cruelty.

Naveen Kohli Vs Neetu Kohli
Poonam Kaur Case

On Desertion

Bipin Chandra Jaisinghbai v/s Prabhawati

In this case it was held, For the offence of desertion , on behalf of the deserting spouse, Two essential conditions must be there:

(i) fact of desertion for a continuous period of 2 years and

(ii) the intention to end cohabitation permanently.

Two essentials required to be present on behalf of the deserted spouse :

(i) absence of consent and

(ii) the absence of conduct that gives reasonable ground to the spouse leaving the matrimonial home

On Conversion

Lily Thomas v/s Union of India
Sarla Mudgal v/s Union of India

(See above)

SECTION – 13(1 – A)

Any party may file for a decree of divorce on any of the following grounds

A petition for the decree of divorce after receiving a decree of judicial separation may be filed on

No resumption of cohabitation between the parties after 1 year or more after a decree for judicial separation is passed.
There has been no restitution of conjugal rights between the parties after One year or more after a decree for restitution of conjugal rights is passed.

These are the gist of Section 1 – 13 of the Hindu Marriage Act, 1955.

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