Category Archive Family Law

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Child Marriage Restraint Act, 1929

(XIX OF 1929)

An Act to restraint the solemnization of child marriages.

Whereas it is expedient to restrain the solemnization of child marriages:

It is hereby enacted as follows:

1. Short titled, extent and commencement.

(1) This Act may be called the Child Marriage Restraint Act (1929).

(2) It extends to the whole of Pakistan and applies to all citizens of Pakistan wherever they may be.

(3) It shall come into force on the 1st day of April, 1939.

2. Definitions.

In this Act, unless there is anything repugnant in the subject or context,

(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “contracting party” to a marriage means either of the parties whose marriage is or is about to be thereby solemnized;

(d) “minor” means person of either sex who is under eighteen years of age,

(e) “Union Council” means the Union Council or the Town Committee constituted under the Law relating to Local Government for the time being in force.

PUNJAB AMENDMENT IN SECTION 2:

(i) at the end of clause ©, the word “and” shall be added;

(ii) the comma appearing at the end of clause (d) shall be replaced by a full stop; and

(iii) clause e shall be omitted.

Punjab Ordinance, 23 of 1971.

3. Omitted by Muslim Family Laws Ordinance, 1961 (VIII of 1961 S. 12 (w.e.f. 15.07.1961).

4. Punishment for male adult above eighteen years of age marrying a child.

Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

5. Punishment for solemnizing a child marriage.

Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.

6. Punishment for parent or guardian concerned in a child marriage.

(1) Where a minor contracts a child marriage any person having charge of the minor, 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 solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both:

Provided that no woman shall be punishable with imprisonment.

(2) For the purpose of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

7. Imprisonment not to be awarded for offence under section 3.

Notwithstanding anything contained in section 25 of the General Clauses At, 1897, or section 64 of the Pakistan Penal Code, Court sentencing an offender under section 3 shall not be competent to direct that, in default of payment of the fine imposed, he shall undergo only term of imprisonment.

8. Jurisdiction under this Act.

Notwithstanding anything contained in section 90 of the Code of Criminal Procedure, 1898, no Court other than that of a Magistrate of the First Class shall take cognizance of or try any offence under this Act.

9. Mode of taking cognizance of offence.

No Court shall take cognizance of any offence under this Act except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken after the expiry of one year from the date on which the offence is alleged to have been committed.

PUNJAB AMENDMENT

In section 9:

The words and commas “except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken” occurring after the words “under this Act” and before the words “after the expiry” shall be omitted.

 Punjab Ordinance, 23 of 1971, S. 3.

10. Preliminary inquiries into offences under this Act.

The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of the Code of Criminal Procedure, 1898, either itself make an inquiry under section 202 of that Code or direct a Magistrate of the First Class subordinate to it to make such inquiry.

11. Omitted by Muslim Family Laws Ordinance, 1961.

12. Power to issue injunction prohibiting marriage in contravention of this Act.

(1) Notwithstanding anything to the contrary contained in this Act, the Court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons mentioned in sections 3, 4, 5 and 9 of this Act prohibiting such marriage.

(2) No injunction under sub-section (1) shall be issued against any person unless the Court has previously given notice to such person, and has afforded him an opportunity to show-cause against the issue of the injunction.

(3) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1).

(4) Where such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader, and if the Court rejects the application wholly or in part, it shall record in writing its reasons for so doing.

(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both:

Provided that no woman shall be punishable with imprisonment.

Bydeb

Administrators-General Act, 1963

Preamble

 No.45 OF 1963

[11th December, 1963]

 An Act to consolidate and amend the law relating to the office and duties of Administrator-General

 BE it enacted by Parliament in the Fourteenth Year of the Republic of India as follow:-

1. Short title extent and commencement.

 (1) This Act may be called the Administrators-General Act, 1963.

 (2) It extends to the whole of India except the State of Jammu and Kashmir.

 (3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint.

 1. lst March 1964; vide Notification No.S.O.588, dated 11-2-1964, Gazette of India Pt.II, Sec.3(ii), p.806.

2. Definitions.

 In this Act, unless the context otherwise requires,–

 (a) “Assets” means all the property, movable and immovable, of a deceased person, which is chargeable with and applicable to the payment of his debt and legacies, or available for distribution among his heirs and next-of-kin;

 (b) “Letters of administration” includes any letters of administration whether general or with a copy of the will annexed or limited in time or otherwise;

 (c) “Next-of-kin” includes a widower or widow of a deceased person, or any other person who by law would be entitled to letters of administration in preference to a creditor or legatee of the deceased; and

 (d) ” Prescribed” means prescribed by rules made under this Act.

2. Definitions.

 In this Act, unless the context otherwise requires,–

 (a) “Assets” means all the property, movable and immovable, of a deceased person, which is chargeable with and applicable to the payment of his debt and legacies, or available for distribution among his heirs and next-of-kin;

 (b) “Letters of administration” includes any letters of administration whether general or with a copy of the will annexed or limited in time or otherwise;

 (c) “Next-of-kin” includes a widower or widow of a deceased person, or any other person who by law would be entitled to letters of administration in preference to a creditor or legatee of the deceased; and

 (d) ” Prescribed” means prescribed by rules made under this Act.

3. Appointment of Administrator General.

 (1) The State Government shall appoint an Administrator-General for the State:

 Provided that nothing herein contained shall be deeded to bar the appointment of the same person as Administrator-General for two or more States.

 (2) No person shall be appointed to the office of Administrator-General unless he has been for at least–

 (a) Seven years an advocate; or

 (b) Seven years an attorney of a High Court; or

 (c) Ten years a member of the judicial service of a State; or

 (d) Five years a Deputy Administrator-General.

4. Appointment and powers of Deputy Administrator-General.

 (1) The State Government may appoint a Deputy or Deputies to assist the Administrator-General; and any Deputy so appointed shall, subject to the control of the State Government and the general or special orders of the Administrator-General, be competent to discharge any of the duties and to exercise any of the powers of the Administrator-General, and when discharging such duties or exercising such powers shall have the same privileges and be subject to the same liabilities as the Administrator-General.

(2) No Person shall be appointed as a Deputy under this section unless he has been for at least three years-

 (a) An advocate; or

 (b) An attorney of a High Court; or

 (c) A member of the judicial service of a State.

5. Incorporation.

 The Administrator-General shall be a corporation sole by the name of the Administrator-General of the State for which he is appointed, and, as such Administrator-General, shall have perpetual succession and an official seal, and may sue and be sued in his corporate name.

6. Jurisdiction of High Court for the whole State.

 So far as regards the Administrator-General of any State, the High Court shall be deemed to be a Court of competent jurisdiction for the purpose of granting probate or letters of administration under any law for the time being in force, wheresoever within the State the estate to be administered is situate:

 Provided that nothing in this section shall be construed as affecting the jurisdiction of any district court.

7. Administrator-General entitled to letters of administration unless, granted to next-of-kin.

 Any letters of administration granted by the High Court shall be granted to the Administrator-General of the State unless they are granted to the next-of-kin of the deceased.

8. Administrator-General entitled to letters of administration in preference to creditors, certain legatees or friends.

 The Administrator-General of the State shall be deemed by all the courts in the State to have a right to letters of administration other than letters pendent lie in preference to that of–

 (a) A creditor; or

 (b) A legatee, other than a universal legatee or a residuary legatee or the representative of a residuary legatee; or

(c) A friend of the deceased.

9. Right of administrator-General to apply for administration of estates. (1) If–

 (a) Any person has died leaving within any State assets exceeding rupees five thousand I value, and

 (b) (Whether the obtaining of probate of his will or letters of administration to his estate is or is not obligatory), no person to whom any court would have jurisdiction to commit administration of such assets has, within one month after his death, applied in such State for such probate, or letters of administration, and

 (c) (In cases where the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Act, 1925) (39 of 1925), no person has taken other proceedings for the protection of the estate,

 The Administrator-General of the State in which such assets are, may, subject to any rules made by the State Government, within a reasonable time after the has had notice of the death of such person, and of his having left such assets, take such proceedings as may be necessary to obtain from the High Court letters of administration of the estate of such person.

 (2) The Administrator-General shall not take proceedings under this section unless he is satisfied, that there is apprehension of misappropriation, deterioration or waste of such assets if such proceedings are not taken by him or that such proceedings are otherwise necessary for the protection of the assets.

10. Power Administrator-General to collect and hold assets where immediate action is required.

 (1) Whenever any person has died leaving assets within any State exceeding rupees five thousand in value, and the High Court for that State is satisfied that there is imminent danger of misappropriation, deterioration or waste of such assets, requiring immediate action, the High Court may, upon the application of the Administrator-General or of any person interested in such assets o in the due administration thereof, forthwith direct the Administrator-General.

 (a) To cleat and take possession of such assets, and

 (b) To hold, deposit, realise, sell or invest the same according to the directions of the High Court and, in default of any such directions, according to the provisions of this Act so far as the same are applicable to such assets.

 (2) Any order of the High Court under sub-section (1) shall entitle the Administrator-General–

(a) To maintain any suit or proceeding for the recovery of such assets;

 (b) If he thinks fit, to apply for letters of administration of the estate of such deceased person;

 (c) To retain out of the assets of the estate any fees chargeable under rules made under this Act; and

 (d) To reimburse himself for all payments made by him in respect of such assets which a private administrator might lawfully have made.

11. Grant of probate or letters of administration to person appearing in the course of proceedings taken by Administrator-General.

 If, in the course of proceedings to obtain letters of administration under the provisions of section 9 or section 10,–

 (a) Any person appears and establishes his claim–

 (i) To probate of the will of the deceased; or

 (ii) To letters of administration as next-of-kin of the deceased and gives such security as may be required of him by law; or

 (b) Any person satisfies the High Court that he has taken and is prosecuting with due diligence other proceedings for the protection of the estate, the case being one in which the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Ac, 1925 (39 of 1925); or

 (c) The High Court is satisfied that there is no apprehension of misappropriation, deterioration, or waste of the assets and that the grant of letters of administration in such proceedings is not otherwise necessary for the protection of the assets;

 The High Court shall–

 (1) In he case mentioned in clause (a), grant probate of the will or letters of administration accordingly;

 (2) In the case mentioned in clause (b) or clause (c), drop the proceedings; and

 (3) In all the cases award to the Administrator-General the costs of any proceedings taken by him under those sections to be paid out of the estate as part of the testamentary or intestate expenses thereof.

12. Grant of administration to Administrator-General in certain cases.

 If, in the course of proceedings to obtain letters of administration under the provisions of section 9 or section 10, and within such period as to the High Court seems reasonable, no person appears and establishes his claim to probate of a will, or to a grant of letters of administration as next-of-kin of the deceased, or satisfies the High Court that he has taken and is prosecuting with due diligence other proceedings for the protection of the estate, the case being one in which the obtaining of such probate or letters of administration in which the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Act, 1925, (39 of 1925) and the High Court is satisfied that there is apprehension of misappropriation, deterioration, or waste of the assets or that the grant of letters of administration in such proceedings in otherwise necessary for the protection of the assets;

or if a person who has established his claim to a grant of letters of administration as next-of-kin of the deceased fails to give such security as may be required of him by law; the High Courts may grant letters of administration to the Administrator-General.

13. Administrator-General not precluded from applying for letters within one month after death.

 Nothing in this Act shall be deemed to preclude the Administrator-General from applying to the High Court for letters of administration in any case within the period of one month from the death of the deceased.

 (b) Revocation of grants

14. Recall of Administrator-Gnarls administration and grant of probate, etc., to executor or next-of-kin.

 If an executor or next-of-kin of the deceased, who has not been personally served with a citation or who has not had notice thereof in time to appear pursuant thereto, establishes to the satisfaction of the High Court a claim to probate of will or to letters of administration in preference to the Administrator-General, any letters of administration granted in accordance with the provisions of this Act to the Administrator-General–

 (a) Shall be revoked, if a will f the deceased is proved in the State;

 (b) May be revoked, in other cases, if an application for that purpose is made within six months after the grant to the Administrator-General and the High Court is satisfied that there has been no unreasonable delay in making the application, or in transmitting the authority under which the application is made;

And probate or letters of administration may be granted to such executor or next-of-kin as the case may be.

15. Cost of obtaining administration, etc.may, on revocation, be ordered to be paid to Administrator-General out of estate.

 If any letter of administration granted to the Administrator-General in accordance with the provisions of this Act are revoked the High Court may order the costs of obtaining such letters of administration, and the whole or any part of any fees which would otherwise have bee payable under this Act, together with the costs of the Administrator-General in any proceedings taken to obtain such revocation, to be paid to retained by the Administrator-General out of the estate:

 Provided that nothing in this section shall affect the provisions of clauses (c) and (d) of sub-section (2) of section 10.

16. After revocation letters granted to Administrator-General to be deemed, as to him, to have been void able only.

 If any letter of administration granted to the Administrator-General in accordance with the provisions of this Act are revoked. General in accordance with the provisions of this Act are revoked, the same shall, so far as regards the Administrator-General and all person acting under this authority in pursuance thereof, be deemed to have been only void able except as to any act done by any such Administrator-General or other person as aforesaid, after notice of a will or of any other fact which would render such letter void:

 Provided that no notice of a will or of any other fact which would render any such letters void shall affect the Administrator-General or any person acting under his authority in pursuance of such letters unless, within the period of one month from the tie of giving such notice, proceedings are commenced to prove the will, to cause the letters to be revoked, and such proceedings are prosecuted without unreasonable delay.

17. Payments made by Administrator-General prior to revocation.

 If any letter of administration granted to the Administrator-General in accordance with the provisions of this Act are revoked, upon the grant of probate of a will, or upon the grant of letters of administration with a copy of the will annexed, all payments made or acts done by or under the authority of the Administrator-General in pursuance of such letters of administration, prior to the revocation, which would have been valid under any letters of administration lawfully granted to him with a copy of such will annexed, shall be deemed valid notwithstanding such revocation.

 (c) General

18. Administrator-Generals petition for grant of letters of administration.

 Whenever any Administrator-General applies for letter of administration in accordance with the provisions of this Act, it shall be sufficient if the petition required to be presented for the grant of such letter states,–

 (i) The time and place of the death of the deceased to the best of the knowledge and belief of the petitioner;

 (ii) The names and addresses of the surviving next-of-kin of the deceased, if known;

 (iii) The particulars and value of the assets likely to come into the hands of the petitioner;

 (iv) Particulars of the liabilities of the estate, if known.

19. Name in which probate or letters to be granted.

 All probates or letters of administration granted to any Administrator-General shall be granted to him by that name.

20. Effect of probate or letters granted to Administrator-General.

 (1) Probate or letters of administration granted by the High Court to the Administrator-General of any State shall have effect over all the assets of the deceased throughout the territories to which this Act extends and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding such assets, and shall afford full indemnity to all debtors paying their debts and all persons delivering up such to such Administrator-General.

 (2) Whenever a grant of probate or letter of administration is made by a High Court to the Administration-General, the High Court shall send to the High Courts for the other States a certificate tat such grant has been made, a and such certificate shall be filed by the High Court receiving the same.

21. Effect of grant by the High Court of Jammu and Kashmir.

 Probate or letters of administration granted by the High Court for the State of Jammu and Kashmir to the Administrator-General of that State shall have effect over all the assets of the deceased throughout all the States to the High Courts of which a certificate is sent by the High Court for the State of Jammu and Kashmir that such grant has been made, and shall afford full indemnity to all debtors paying their debts and all person delivering up such assets to such Administrator-General.

22. Transfer by private executor or administrator of interest under probate or letters.

(1) Any private executor or administrator may, with the previous consent of the Administrator-General of the State in which any of the assets of estate, in respect of which such executor or administrator has obtained probate or letters of administration, are situate, by an instrument in writing under his hand notified in the Official Gazette, transfer the assets of the estate, vested in him by virtue of such probate or letters to the Administrator-General by that name or any other sufficient description.

 (2) As from the date of such transfer, the transferor shall be exempt from all liability as such executor or administrator, as the case may be, except in respect of acts done before the date of such transfer, and the Administrator-General shall have the rights which he would have ad, and be subject to the liabilities to which he would have been subject, if the probate or letters of administration, as the case may be, had been granted to him by that name at the date of such transfer.

23. Distribution of assets.

 (1) When the Administrator-General has given the prescribed notice to creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets or any part thereof in discharge of such lawful claims as he has notice of.

 (2) The Administrator-General shall not be liable for the assets so distributed to any person of whose claims he had not notice at the time of such distribution.

 (3) No notice of any claim which has been sent in and has been rejected or disallowed in part by the Administrator-General shall affect him, unless proceedings to enforce such claim are commence of such claim has been given in the prescribed manner and unless such proceedings are prosecuted without unreasonable delay.

 (4) Nothing in this section shall prejudice the right of any are creditor or other claimant to follow the assets or any part thereof in the hands of the persons who may have received the same respectively.

 (5) In computing the period of limitation for any suit, appeal or application under the provisions of any law for the time being in force, the period between the date of submission of the claim of a creditor or other claimant to the Administrator-General and the date of the final decision of the Administrator-General on such claim shall be excluded.

24. Appointment of Official Trustee as trustee of assets after completion off administration.

(1) When the Administrator-General has, so far as may be, discharged all the liabilities of an estate administered by him, he shall notify the fact in the Official Gazette, and he may, by an instrument in writing, with the consent of the Official Trustee and subject to any rules made by the State Government, appoint the Official Trustee to be the trustee of any assets then remaining in his hands.

 (2) Upon such appointment, such assets shall vest in the Official Trustee as if he and been appointed trustee in accordance with the provisions of the Official Trustees Act, 1913, and shall be held by him upon the same trusts as the same were held immediately before such appointment.

25. Power of High Court to give directions regarding administration of estate.

 The High Court may, on application made to it by the Administrator-General or any person interested in the assets or in the due administration thereof, give to the Administrator-General of the State any general or special directions as to any estate in his charge or in regard to the administration of any such estate.

26. No security to be required from Administrator-General.

 No Administrator-General shall be required by any Court to enter into any administration bond, or to give other security to the Court on the grant of any letters of administration to him by that name.

27. Manner in which petition to be verified by Administrator-General.

 No Administrator-General shall be required to verify, otherwise than by his signature, any petition presented by him under the provisions of this Act, and, if the facts stated in any such petition are not within his own personal knowledge, the petition may be subscribed and verified by any person competent to make verification.

28. Entry of Administrator-General not to constitute notice of a trust.

 The entry of the Administrator-General by the name in the books of a company shall not be entitled to object to entering the name of the Administrator-General on its register by reason only that the Administrator-General is a corporation, and in dealing with assets the fact that the person dealt with is the Administrator-General shall not of itself constitute notice of a trust.

29. In what cases Administrator-General may Grant certificate.

 (1) Whenever any person has died leaving assets within any State and the Administrator-General of such State is satisfied that such assets excluding any sum of money deposited in a Government Savings Bank or in any provident fund to which the provisions of the Provident Funds Act, 1925, (19 of 1925) apply did not at the date of death exceed in the whole five thousand rupees in value, he may grant to any person, claiming otherwise than as a creditor to be interested in such assets or in the due administration thereof, a certificate under his hand entitling the claimant to receive the assets therein mentioned left by the deceased within the State, a value not exceeding in the whole five thousand rupees.

 (2) No certificate under this section shall be granted before the lapse of one month from the death unless before the lapse of the said one month the Administrator-General is requested so to do by writing under the hand of the executor or the widow or other person entitled to administer the state of the deceased and he thinks fit to grant it.

 (3) No certificate shall be granted under this section–

 (i) Where probate of the deceased’s will or letters of administration of his estate has or have been granted; or

 (ii) In respect of any sum of money deposited in a Government Savings Bank or in any provident fund to which the provisions of the Provident Funds Act, 1925, (19 of 1925) apply.

30. Grant of certificate to creditors and power to take charge of certain estates.

 (1) If, in cases falling within section 29, no person claiming to be interested otherwise than as a creditor in such assets or in the due administration thereof obtains, within three months of the death of the deceased, a certificate from the Administrator-General under that section, or probate of a will or letters of administration of the estate of the deceased, the Administrator-General may administer the estate without letters of administration, in the same manner as if such letter had been granted to him.

 (2) If the Administrator-General neglects or refuses to administer such estate, he shall, upon the application of a creditor, grant a certificate to him in the same manner as if he were interested in such assets otherwise than as a creditor; and such certificate shall have the same effect as certificate granted under the provisions of section 29, and shall be subject to all the provisions of this Act which are applicable to such certificate.

 (3) The Administrator-General may, if he thinks fit, before granting a certificate under sub-section (2), require the creditor to give reasonable security for the due administration of the estate of the deceased. (Administrator-General not bound to grant certificate unless satisfied of claimant’s title etc.)

31. Administrator-General not bound to grant certificate unless satisfied of claimants title, etc.

 The Administrator-General shall not be bound to grant any certificate under section 29 or section 30 unless he is satisfied after making such inquiry as he thinks fit of the title of the claimant and of the value of the assets left by the deceased within the State,

32. Effect of certificate.

 The holder of a certificate granted in accordance with the provision of section 29 or section 30 shall have in respect of the assets specified in such certificate the same powers and duties, and be subject to the same liabilities as he would have had or been subject to if letters of administration had been granted to him:

 Provided that nothing in this section shall be deemed to require any person holding such certificate,–

 (a) To file accounts or inventories of the assets of the deceased before any court or other authority; or

 (b) Save as provided in section 30, to give any bond for the due administration of the estate.

33. Revocation of certificate.

 (1) The Administrator-General may revoke a certificate granted under the provisions of section 29 or section 30 on any of the following grounds, namely:–

 (i) That the certificate was obtained by fraud or misrepresentation made to him:

 (ii) That the certificate was obtained by means of an untrue allegation of a fact essential in law to justify the grant though such allegation was made in ignorance or inadvertently.

 (2) No certificate shall be revoked under this section unless the holder of the certificate has been given a reasonable opportunity of showing cause why the certificate should not be so revoked.

34. Surrender of revoked certificate.

 (1) When a certificate is revoked in accordance with the provisions of section 33, the holder thereof shall, on the requisition of the Administrator-General, deliver it up to such Administrator-General, but shall not be entitled to the refund of any fee paid thereon.

 (2) It such person wilfully and without reasonable cause omits to deliver up the certificate, he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

35. Payment to holder of certificate before it is revoked.

 When a Certificate is revoked in accordance with the provisions of section 33, all payments made in good faith under such certificate to the holder thereof before such revocation, shall, notwithstanding such revocation, be a legal discharge to the person making the payment and the holder of such certificate may retain, and reimburse himself in respect of, any payments made by him which the person to whom a certificate or probate or letters of administration may afterwards be granted might lawfully have made.

36. Administrator-General not bound to take out administrator on account of assets for which he has granted certificate.

 The Administrator-General shall not be bound to take out letters of administration of the estate of any deceased person on account of the assets in respect of which he grants any certificate under section 29 or section 30, but he may do so if he revokes such certificate under section 33.or ascertains that the value of the estate exceeded five thousand rupees.

37. Transfer of certain assets to executor or administrator in country in country of domicile for distribution.

 Where–

(a) A person not having his domicile in any State to which this Act extends has died leaving assets in any State and in the country in which he had his domicile at the time of his death, and

 (b) Proceedings for the administration of his estate with respect to assets in any such State have been taken under section 29 or section 30, and

 (c) There has been a grant or administration in the country of domicile, with respect to the assets in that country,

 The holder of the certificate granted under section 29 or section 30, or the Administrator-General, as the case may be, after having given the prescribed notice for creditors and others to send in to him their claims against the estate of the deceased, and after having discharged, at the expiration of the time therein named, such lawful claims as he has notice of, may, instead of himself distributing any surplus or residue of the deceased’s property to persons residing out of India or in the State of Jammu and Kashmir who are entitled thereto, transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile, the surplus residue to him for distribution to those persons.

38. Liability Government.

 The Government shall be liable to make good all sums required to discharge any liability which the Administrator-General, if he were a private administrator, would be personally liable to discharge, except when the liability is one to which neither the Administrator-General nor any of his officers has in any way contributed, or which neither he nor any of his officers could, by the exercise of reasonable diligence, have averted, and in either of those cases the Administrator-General shall not, nor shall the Government, be subject to any liability.

39. Creditors suit against Administrator-General.

 (1) If any suit be brought by a creditor against any Administrator-General, such creditor shall be liable to pay the costs of the suit unless he proves that not less than one month previous to the institution of the suit he had applied in writing to the Administrator-General, stating the amount and other particulars of his claim, and had given such evidence in support thereof as, I the circumstances of the case, the Administrator-General was reasonably entitled to require.

 (2) If any such suit is decreed in favour of the creditor, he shall, nevertheless, unless he is secured creditor, be only entitled to payment of the amount decreed or ordered by the court to be paid out of the assets of the deceased equally and rateably with the other creditors.

40. Notice of suit not required in certain cases.

 Nothing in section 80 of the Code of Civil Procedure, 1908 (5 of 1908) shall apply to any suit against the Administrator-General in which no relief is claimed against him personally.

41. Fees.

 (1) There shall be charged in respect of the duties of the Administrator-General such fees, whether by way of percentage or otherwise, as may by prescribed by the State Government.

(2) The fees under this section may be at different rates for different estates or classes of estates or for different duties, and shall, so far as may be, be arranged so as to produce an amount sufficient to discharge the salaries and all other expenses incidental to the working of this Act, (including such sum as the State Government may determine to be required to insure the Government against loss under this Act.)

42. Disposal of fees.

(1) Any expenses which might be retained or paid out of any estate in the charge of the Administrator-General if he were a private Administrator of such estate shall be so retained or paid and the fees described under section 41 shall be retained or paid in like manner as and in addition to such expenses.

(2) The Administrator-General shall transfer and pay to such authority in such manner and at such time as the State Government may prescribe, all fees received by him under this Act, and the same shall be carried to the account and the credit of the Government.

43. Audit.

 The accounts of every Administrator-General shall be audited at least once annually and at any other time if the State Government so directs, by the prescribed person and in the prescribed manner.

44. Auditors to examine accounts and report to Government.

 The auditors shall examine the accounts and forward to the State Government a statement thereof in the prescribed form, together with a report thereon and a certificate signed by them showing–

 (a) Whether the accounts have been audited in the prescribed manner;

 (b) Whether, so far as can be ascertained by such audit, the accounts contain a full and true account of everything which ought to be inserted therein;

 (c) Whether the books which by any rules made under this Act are directed to be kept by the Administrator-General, have been duly and regularly kept; and

 (d) Whether the assets and securities have been duly kept and invested and deposited in the manner prescribed by this Act, or by any rules made thereunder;

 or (as the case may be) that such accounts are deficient, or that the Administrator-General has failed to comply with this Act or the rules made thereunder, in such respects as may be specified in such certificate.

45. Power of auditors to summon and examine witnesses, and to call for documents.

(1) Every auditor shall have all the powers vested in a civil court under the Code of Civil Procedure, 1908, (5 of 1908) when trying a suit in respect of the following matters, namely:–

(a) Summoning and enforcing the attendance of witnesses and examining them on oath;

(b) Discovery and inspection;

(c) Compelling the production of documents; and

(d) Issuing commissions for the examination of witnesses.

(2) Any person who when summoned refuses, or, without reasonable cause, neglects to attend or to produce any document or thing or attends and refuses to be sworn, or to be examined, shall be deemed to have committed and offence within the meaning of, and punishable under, section 188 of the Indian Penal Code, (45 of 1908) a and the auditor shall report every case of such refusal or neglect to the State Government.

46. Costs of audit, etc.

The costs of and incidental to such audit and examination shall be determined in accordance with rules made by the State Government and shall be defrayed in the prescribed manner.

47. General powers of administration.

The Administrator-General may, in addition to, and not in derogation of, any other powers of expenditure lawfully exercisable by him, incur expenditure–

 (a) On such acts as may be necessary for the proper care and management of any property belonging to any estate in his charge; and

 (b) With the sanction of the High Court, on such religious, charitable and other objects, and on such improvements, as may be reasonable and proper in the case of such property.

48. Power to summon and examine witnesses.

 (1) The Administrator-General may, whenever he desires, for the purposes of this Act, to satisfy himself regarding any question of fact, exercise all the powers vested in a civil court under the Code of Civil procedure, 1908, (5 of 1908) when trying a suit, in respect of the following matters, namely:–

 (a) Summoning and enforcing the attendance of witnesses and examining them on oath;

 (b) Discovery and inspection;

 (c) Compelling the production of documents; and

 (d) Issuing commissions for the examination of witnesses.

 (2) The provisions of sub-section (2) of section 45 shall apply in relation to a person summoned by the Administrator-General under this section as they apply in relation to a person summoned under that section.

49. Power of person beneficially in interested to inspect Administrator-Generals account, etc., and take copies.

Any person interested in the administration of any estate which is in the charge of the Administrator-General shall, subject to such conditions and restriction as may be prescribed, b entitled at all reasonable times to inspect the accounts relating to such estate and the report and certificate of the auditor, and on payment of prescribed fee, to copies thereof and extracts there from

50. False evidence.

Whoever, during any examination authorised by this Act, makes upon oath a statement which is false and which he either knows or believes to be false or does not believe to be true, shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding.

51. Assets unclaimed for twelve years to be transferred to Government.

 All assets in the charge of the Administrator-General which have been in his custody for a period of twelve years or upwards, whether before or after the commencement of this Act, without any application of payment thereof having been made and granted by him shall be transferred, in the prescribed manner, to the account and credit of the Government.

 Provided that this section shall not authorise to transfer of any such assets as aforesaid, if any suit or proceeding is pending in respect thereof in any court.

52. Mode of proceeding by claimant to recover principal money so transferred.

 (1) If any claim is hereafter made to any part of the assets transferred to the account and credit of the Government under the provisions of this Act, or any Act hereby repeated, and if such claim is established to the satisfaction of the prescribed authority, the State Government shall pay to the claimant the amount of the principal so transferred to its account and credit or so much thereof as has been found by the said authority to be due to the claimant.

 (2) If the claim is not established to the satisfaction of the prescribed authority, the claimant may, without prejudice to his right to take any other proceedings for the recovery of such assets, apply by petition to the High Court against the State Government and such Court, after taking such evidence as it thinks fit, shall make such order in regard to the payment of the whole or any part of the said principal sum as it thinks fit, and such order shall be binding on all parties to the proceedings.

 (3) The High Court may further direct by whom the whole or any part of the costs of each party shall be paid.

53. Succession Act or Companies Act not to affect Administrator-General.

Nothing contained in the Indian Succession Act, 1925, (39 of 1925) or the Companies Act, 1956, (1 of 1956) shall be taken to supersede or affect the rights, duties and privileges of any Administrator-General.

54. Savings of provisions of Police Acts for presidency-towns.

 Nothing contained in the Indian Succession Act, 1925 (39 of 1925) or in this Act, shall be deemed to affect, or to have affected, any law for the time being in force relating to the movable property under four hundred rupees in value of person dying intestate within any of the presidency-towns which shall be or has been taken charge of by the police for the purpose of safe custody.

55. Order of court to be equivalent to decree.

 Any order made under this Act by any court shall have the same effect as a decree.

56. Provision for administration by Consular Officer in case of death in certain circumstances of foreign subject.

 Notwithstanding anything in this Act, or in any other law for the time being in force, the Central Government may, by general or special order, direct that, where a subject of a foreign State therein no one in the said territories, other than the Administrator-General, entitled to apply to a court of competent jurisdiction for letters of administration of the estate of the deceased, letters of administration shall, on the application to such court by any Consular Officer or such foreign State, be granted to such Consular Officer on such terms and conditions as the Court may, subject to any rules made in this behalf by the Central Government think fit to impose.

57. Letters of administration not necessary in respect of small estates administered by Administrator- General in accordance with certain Acts.

 It shall not be necessary for the Administrator-General to take out letters of administration of the estate of any deceased person which is being administered by him in accordance with the provisions of the Army and Air Force (Disposal of Private Property) Act, 1950, (40 of 1950) or Navy Act, 1957, (62 of 1957) if the value of such estate does not, on the date when such administration is committed to him, exceed rupees tow thousand, but he shall have the same power in regard to such estate as he would have had if letters of administration had been granted to him.

58. Power to grant Administrator-General letters limited for purpose of dealing with assets in accordance with the Army and Air Force (Disposal of Private Property) Act, 1950, or the Navy Act, 1957.

 If the Administrator-General applies in accordance with the provisions of the Army and Air Force (Disposal of Private Property) Act, 1950, (40 of 1950) or the Navy Act, 1957, (62 of 1957) for letters of administration of the estate of any person subject to the Army Act, 1950 (46 of 1950) , or the Air Force Act, 1950 (45 of 1950), or the Navy Act, 1957, the Court may grant to him letters of administration limited to the purpose of dealing with such estate in accordance with the provisions of the Army and Air Force (Disposal of Private Property) Act, 1950, or, as the case may be, the Navy Act, 1957).

59. Act not to affect Army and Air Force (Disposal of Private Property) Act 1950, or the Navy Act, 1957.

 Nothing in this Act shall be deemed to affect the provisions of the Army and Air Force (Disposal of Private Property) Act, 1950, (40 of 1950) or the Navy Act, 1957 (62 of 1957).

60. Saving of provisions of Indian Registration Act, 1908.

 Nothing in this Act shall be deemed to affect the provisions of the Indian Registration Act, 1908 (16 of 1908).

61. Power of Central Government of make rules.

 The Central Government may, by notification in the Official Gazette, make rules as to the terms and conditions on which letters of administration may be granted to Consular Officers under section 56.

62. Power of State Government to make rules.

 (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act, and for regulating the proceedings of the Administrator-General.

 (2) In particular and without prejudice to the generality of the foregoing pour, such rules may provide for–

 (a) The accounts to be kept by the Administrator-General and the audit and inspection thereof;

(b) The safe custody, deposit and investment of assets and securities which come into the hands of the Administrator-General;

 (c) The remittance of sums of money in the hands of the Administrator-General in cases in which such remittances are required;

 (d) Subject to the provisions of this Act, the fees to be paid under this Act and the collection and accounting for any such fees;

(e) The statements, schedules and other documents to be submitted to the State Government or to any other authority by the Administrator-General, and the publication thereof;

(f) The realization of the cost of preparing any such statements, schedules or other documents;

(g) The manner in which and the person by whom the costs of and incidental to any audit under the provisions of this Act are to be determined and defrayed;

 (h) The manner in which summonses issued under this Act are to be served and the payment of the expenses of any parson summoned or examined under the provisions of this act, and of any expenditure incidental to such examination; and

 (i) Any other matter which is required to be, or may be, prescribed under to Act.

63. Laying of rules made by Central Government before parliament.

 Every rule made by the central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days, which may be comprised in one session or in two successive session, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agreed that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect t, as the case may be; so however that any such modification or annulment shall without prejudice to the validity of anything previously done under that rule.

64. Repeal and savings.

 (1) The Administrator-General’s Act, 1913, (3 of 1913) is hereby repealed.

(2) Without prejudice to the generality of the provisions of the General Clauses Act, 1897, (10 of 1897) relating to the effect of repeals, the repeal effected by this section shall not affect the incorporation of any person holding the office of Administrator-General at the commencement of this Act.

 (3) Notwithstanding contained in this section, the provisions of section 59B of the Administrator-General’s Act, 1913, (3 of 1913) shall continue to apply as if that Act had not been repealed.

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Matrimonial Causes (War Marriages) Act 1948

[Act No. 40 of 1948]

3rd Semptember,1948

“In the course of the judgment delivered in the case of Mrs. Margaret Pierce v, Mr. Goerge Albert Pierce, the Additional District Judge, 24-Parganas, Calcutta, observed as follows:

“The position of a woman domiciled in India who marries a foreigner not domiciled in India appears to be extremely anomalous in regard to the law of divorce. She can apparently obtain no relief under the Indian Divorce Act, 1869, and, inasmuch as the Indian and Colonial Divorce Jurisdiction Act, 1926, is applicable only to parties who are British subjects domiciled in England and Scotland, she can obtain no relief under that Act either…….

The anomaly of this position is intensified in regard to a war-time marriage contracted by a woman domiciled in India with a foreigner serving temporarily in India on military duty, and inasmuch as not a few war-time marriages of this character must presumably have been contracted between women domiciled in this country and foreigners temporarily resident here during the war, it would seem that there is a lacuna in the present law of divorce which ought to be filled.

Under the existing law, no Court in India has jurisdiction to grant a decree of divorce unless the parties are domiciled in India or in England or Scotland. In other cases the woman has no remedy unless she is in a position to institute proceedings in the country of her husband’s domicile. A clear case, therefore, exists on the merits for the enactment in India of a counterpart of the Act in the United Kingdom called the Matrimonial Causes (War Marriages) Act, 1944, whereby in the case of a marriage celebrated during the war period, where the husband was at the time of the marriage domiciled outside India, and the wife was, immediately before the marriage, domiciled in India, the Indian Courts exercising jurisdiction under the Indian Divorce Act should be vested with jurisdiction in relation to proceedings for divorce as if both parties were at all material times domiciled in India. Such a law would obviously apply only in cases where the petitioner or the respondent professes the Christian religion. Hence the present Bill.

Provision is also included in the Bill for limiting the time within which proceedings for divorce or for nullity of marriage may be commenced under the Act.” -Gaz. of Ind., 1948, Part V, page 476.

An Act to confer upon Courts temporary jurisdiction in certain matrimonial causes ;

WHEREAS it is expedient to confer upon Courts 1[* * * * * *] temporary jurisdiction in certain matrimonial causes;

It is hereby enacted as follows :-

This Act has been extended to (1) the new Provinces and merged States by the Merged States (Laws) Act, 1940 (LIX of 1949), S. 3 (1-1-1950), and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories (Laws) Act, 1950 (XXX of 1950), S. 3 (6-4-1950). Manipur and Tripura are States. See Act 81 of 1971, Ss. 3, 4 ( 30-12-1971). Vindhya Pradesh now forms part of M. P. State – See Act 37 of 1956, Section 9(1) (e), and (2) to the Union Territory of Dadra and Nagar Haveli by the Dadra and Nagar Haveli (Laws) Regulation, 1963(Regn.VI of 1963).

1. Words “in the Provinces of India ” were omitted by A.L.O., 1950.

2. Definitions

In this Act, unless there is anything repugnant in the subject or context,-

(a) “High Court” shall have the same meaning as in the Indian Divorce Act, 1869-;.

(b) “marriage” includes a purported marriage which was void ab initio, and “husband” and “wife” shall be construed accordingly:

(c) “war period” means the period commencing on the 3rd day of September, 1939, and ending on the 31st day of March, 1946.

3. Application of Act

The marriages to which this Act applies are marriages solemnized during the war period, where the husband was, at the time of the marriage, domiciled outside India, and the wife was immediately before the marriage, domiciled in India

Provided that this Act shall not apply to any marriage if, since the solemnization thereof, the parties thereto have resided together in the country in which the husband was domiciled at the time of the residence.

4. Temporary extension of jurisdiction of High Courts

In the case of any marriage to which this Act applies, the High Court shall have jurisdiction in and in relation to any proceedings for divorce or for nullity of marriage as if both parties were at all material times domiciled in India; and subject to the provisions of this Act, the provisions of the Indian Divorce Act, 1869-, shall apply, so far as may be, in relation to any such proceedings instituted under this Act as if they were proceedings instituted under that Act: Provided that this section shall not apply in relation to any proceedings for divorce or for nullity of marriage unless-

(a) the petitioner of the respondent professes the Christian religion, and

(b) the proceedings for divorce or for nullity of marriage are commenced not later than three years from the commencement of this Act.

5. Saving

Nothing in this Act shall be deemed to extend or alter the jurisdiction of the High Court in, or in privation to, any proceedings for divorce or for nullity of marriage, where at the commencement of those proceedings the parties are .domiciled anywhere in India.

6. Certain decrees, and orders to be recognised

The validity of any decree or order made in the United Kingdom by virtue of the Matrimonial Causes (War Marriages) Act, 1944 shall, by virtue of this Act, be recognised in all Courts in the States of India.

7. Power to make rules

The High Court may make such rules as may be necessary for the purpose of carrying out the objects of this Act.

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The Arya Marriage Validation Act, 1937

[Act No. XIX of 1937]

[14th April 1937]

An Act to recognise and remove doubts as to the validity of inter-marriage current among Arya Samajists.

Whereas it is expedient to recognise and place beyond doubt the validity of inter-marriages of a class of Hindus known as Arya Samajists; it is hereby enacted as follows:

2. Substituted by the Adaptation of Laws Order, 1956 for the words Part B State these part B states were Hyderabad J&K Mysore Pepsu, Rajastha, Saurashtra and T.C.

2. Marriage between Arya Samajists not to be invalid
2. Marriage between Arya Samajists 1 not to be invalid..

Not standing with any provision of Hindu Law, usage or custom to the contrary no marriage contracted whether before or after the commencement of this Act between two persons being at the time of the marriage Arya Samajists shall be invalid or shall be deemed ever to have been invalid by reason only of the fact that the parties at any time belonged to different castes or different sub-castes of Hindus or that either or both of the parties at any time he marriage belonged to a religion other than Hinduism.

1. Hindu Marriage Act 1955 Now applies to Arya Samajists as well see section 2 (a).

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The Anand Marriage Act 1909

[Act No. 7 of 1909]]

[22nd October 1909]

An Act to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand.

Whereas it is expedient to remove any doubts as to the validity of the marriage ceremony common among the Sikhs called Anand;

It is hereby enacted as follows:

2. Validity of Anand Marriage.

All marriages, which may be or may have been duly solemnized according to the Sikh Marriage ceremony called Anand shall be and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law.

3. Exemption of certain marriages from Act.

Nothing in this Act shall apply to-

(a) Any marriage between persons not professing the Sikh religion, or

(b) Any marriage, which has been judicially declared to be null and void.

4. Saving of marriages solemnized according to other ceremonies.

Nothing in this Act shall affect the validity of any marriage duly solemnized according to any other marriage ceremony customary among the Sikhs.

5. Non-validation of marriages within prohibited degrees.

Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity, which would, according to the customary law of the Sikhs, render a marriage between them illegal.

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Indian and Colonial Divorce Jurisdiction Act 1940

3 of 1940

10th July, 1940

An Act to explain and amend the Indian and Colonial Divorce Jurisdiction Act,1926. Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled and by the authority of the same as follows:- This Act has been amended by the Colonial and Other Territories (Divorce Jurisdiction) Act, 1950(c. 20) and the Burma Independence Act, 1947 (11 and 12 Geo. VI, c. 3).

2. Amendment of certain conditions precedent to the granting of relief

(1) Sub-section (1) substituted section 1(1)-, proviso (c) of the principal Act, see that Act, ante.

(2) For the removal of doubts it is hereby declared that the provision in the said proviso(c) as originally enacted that no Court shall make any decree of dissolution of marriage except where either the marriage was solemnised in India or the adultery or crime was committed in India did not operate so as to prevent the making of such a decree on grounds other than adultery or crime where the marriage was solemnised in India; and where before the appointed day 1 a petition for the dissolution of marriage has been dismissed on the ground that the said provision did so operate the dismissal of the petition shall not prejudice the bringing of a new petition upon the same, or substantially the same facts.

1. i.e. 1st January, 1941 ; see section 7 of this Act.

3. Jurisdiction under the principal Act in case of husband’s change of domicile

Where a wife has been deserted by her husband, and the husband was immediately before the desertion domiciled in England or Scotland but has changed his domicile since the desertion, a High Court in India shall, as from the appointed day, have the same jurisdiction under the principal Act as it would have if the change had not taken place; but, in any such case, a power conferred on the Court by proviso (d) to sub-section (1) of section 1-of the principal Act to require the petitioner to show that she is prevented from taking proceedings in the Court of the Country in which she is domiciled shall include power to require her to show that she is similarly prevented from taking proceedings in the High Court in England, or, as the case may be, the Court of Session,

4. Registration in England and Scotland of decrees and Orders under principal Act

This section substituted sub-section (2) and amended, sub-section (3) of section 1-of the principal Act – see that Act, ante.

5. Application to Burma and Colonies

1The foregoing provisions of this Act shall, with the necessary adaptations, apply in relation to any part of His Majesty’s dominions to which the provisions of section 1 of the principal Act (Act of 1926) apply by virtue of anorder in Council undersection 2-thereof, wherever made, as they would have applied in relation to India, if the Indian Independence Act, 1947, had not passed.

1. Section reads thus after being amended by the Burma Independence Act, 1947, and the Colonial and Other Territories (Divorce Jurisdiction) Act, 1950.

6. Areas for which the various High Courts in India arc to act

(1) A High Court in India on which jurisdiction is conferred by sub-section (1) of section 1-of the principal Act shall, on and after the appointed day. exercise that jurisdiction if, and only if, the parties to the marriage last resided together, or at the date of the presentation of the petition each reside, in the appropriate area.

(2) In this section the expression “the appropriate area” means, in relation to any Court, the area with reference to which that Court is for the time being a High Court for the purposes of the Indian Law known as the Indian Divorce Act, 1869-, or such other area as the Governor-General may from time to time by public notification specify, in relation to that Court as the appropriate area for the purposes of this section.

(3) The functions of the Governor-General under this section shall be deemed, for the purposes of Government of India Act, 1935, to be included among the functions which he is, by or under that Act required to exercise in his discretion and so much of section 18A of the Interpretation Act, 1889, as provides that the expression “Governor-General” shall in relation to the period between the commencement of Part III of the Government of India Act, 1935, and the establishment of the Federation of India, mean the Governor-General in Council shall not apply to this section.

7. Meaning of “appointed day”

In this Act the expression “the appointed day” means the first day of January nineteen hundred and forty-one.

8. Short title and citation

This Act may be cited as The Indian and Colonial Divorce Jurisdiction Act, 1940-, and the principal Act and this Act may be cited together as the Indian and Colonial Divorce Jurisdiction Acts, 1926and 1940.

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The Hindu Adoptions and Maintenance Act, 1956

Chapter I – Preliminary

1. Short title and extent.-

ACT NO. 78 OF 1956 [21st December, 1956.] An Act to amend and codify the law relating to adoptions and maintenance among Hindus. BE it enacted by Parliament in the Seventh Year of the Republic of India as follows:-

(1) This Act may be called the Hindu Adoptions and Maintenance Act, 1956.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Application of Act.-

(1) This Act applies –

(a) to any person, who is a Hindu by religion in any of its forms or developments , including a Virashaiva, a Lingayat or a follower of the Brahmo, Bramho, Prathana or Arya Samaj.

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhist, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;1[***]

2(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh, and

(c) any person who is convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification unless the Central Government, by notification in the Official Gazette, otherwise directs.

3[(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.]

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, through not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

———

1. The word “and” omitted by Act 45 of 1962, sec. 2(a) (w.e.f. 29-11-1962).

2. Ins. by Act 45 of 1962, sec. 2(b) (w.e.f. 29-11-1962).

3. Ins. by Act 26 of 1968, sec. 3 and Sch. (w.e.f. 24-5-1968).

3. Definitions.-

In this Act,

(a) the expression “custom” and “usage” signify and rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;

(b) Maintenance include-

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment,

(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage,

(c) “minor” means a person who has not completed his or her age of eighteen years.

4. Overriding effect of Act.-

Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act,

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

Chapter II – Adoption

5. Adoption to be regulated by this Chapter. –

(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person her birth.

——–

* Date of commencement 21-12-1956.

6. Requisites of a valid adoption.-

No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so

(iii) the person adopted is capable of being taken in adoption, and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

COMMENTS

Requirements for a valid adoption

(i) Under section 6 the law does not recognise an adoption by a Hindu of any person other than a Hindu; Kumar Sursen v. State of Bihar , AIR 2008 Pat 24.

(ii) To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony; M. Gurudas v. Rasaranjan , AIR 2006 SC 3275.

(iii) Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record; Suma Bewa v. Kunja Bihari Nayak , AIR 1998 Ori 29.

(iv) Section 6 does not bar a lunatic person from being adopted; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

7. Capacity of male Hindu to take in adoption.-

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:

Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation.- If a person has more than one wife living at the time of adoption, the consent of all the wives in necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding priviso.

8. Capacity of a female Hindu to take in adoption.-

Any female Hindu-

(a) who is sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Has the capacity to take a son or daughter in adoption.

COMMENTS

Capacity of female Hindu to adopt

There is conceptual and contextual difference between a divorce woman and one who is leading life like a divorced woman. Both cannot be equated. The appellant because of her physical deformity lived separately from her husband and too for a very long period right from the date of marriage. But in eye of law they continued to be husband and wife, because there was no dissolution of marriage or divorce in the eye of law. Son adopted by appellant invalid; Brajendra Singh v. State of Madhya Pradesh , AIR 2008 SC 1056.

Where there is no evidence to show that the female Hindu was seriously ill — mentally or physically, it has been held that she is in a position to adopt; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

9. Persons capable of giving in adoption.-

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2) Subject to the provisions of 1sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

2(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

(5) Before granting permission t a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

Explanation.- For the purposes of this section –

(i) the expression “father” and “mother” do not include an adoptive father and an adoptive mother.3

4(ia) “guardian” means a person having the care of the person or a child or of both his person and property and includes –

(a) a guardian appointed by the will of the child’s father or mother, and

(b) a guardian appointed or declared by a court, and

(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.

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1. Subs. by Act 45 of 1962, sec. 3(a), for “sub-section (3)” (w.e.f. 29-11-1962).

2. Subs. by Act 45 of 1962, sec. 3(b), for sub-section (4) (w.e.f. 29-11-1962).

3. The word “and” omitted by Act 45 of 1962, sec. 3(c)(i) (w.e.f. 29-11-1962).

4. Ins. by Act 45 of 1962, sec. 3(c)(ii) (w.e.f. 29-11-1962).

10. Persons who may adopted.-

No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely :-

(i) he or she is Hindu,

(ii) he or she not already been adopted.

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being take in adoption.

COMMENTS

Capacity to adopt

(i) Adoption of boy more than 15 years of age and married is not illegal on account of non-compliance of section 10(iii) and 10(iv) of the Act provided such custom or usages is prevalent in a community; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123.

(ii) The plaintiff being married and above 30 years of age could not prove any custom or usage being observed openly, continuously and uniformly thereby gaining the force of law in his Digamber Jain community which could validate his adoption; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.

11. Other conditions for a valid adoption.-

In every adoption, the following conditions must be complied with :-

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption.

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted.

(iV) the same child may not be adopted simultaneously by two or more persons.

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family or its both (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) tot he family of its adoption.

Provided that the performance of datta hormam shall not be essential to the validity of adoption.

COMMENTS

Conditions for adoption

(i) Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must’ cannot be read as ‘may’. This breach is fatal to adoption; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123.

(ii) The defendant’s father only wanted that he should be reared up by Sankar and Sasi after the mother’s death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby negativing the adoption; Urmila Devi v. Hemanta Kumar Mohanta, AIR 1993 Ori 213.

(iii) The age of the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby contravening the provisions of section 11(iv) as the difference between the plaintiff and mother was only 19 years and not 21 years; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.

(iv) There was no evidence in hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the plaintiff as required under section 11(vi). Adoption was held not to have taken place; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.

Deed of adoption

Neither any deed of gift and acceptance executed and registered nor deed of acknowledgment acknowledging adoption is sufficient by itself to constitute legal adoption in the absence of actual giving or taking. It is not a substitute for actual giving or taking. Omission of day or date of adoption in a deed of acknowlegement is very vital, Such a deed loses all its significance; Raghunath Behera v. Balaram Behera, AIR 1996 Ori 38.

Subsequent events

Subsequent marriage of the adoptive mother cannot invalidate the adoption; Narinderjit Kaur v. Union of India, AIR 1997 P&H 280.

——

1. Ins. by Act 45 of 1962, sec. 4 (w.e.f. 29-11-1962).

12. Effects of adoption.-

An adopted child shall be deemed to tbe the child of has or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served replaced by those created by the adoption in the adoptive family:

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth.

(b) any property which vested in the adopted child be before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

COMMENTS

Effect of adoption

On adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family; Basavarajappa v. Gurubasamma , (2005) 12 SCC 290.

Right in property after adoption

An adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when the property has not been vested in him and is still a fluctuating coparcener property; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

Vested property

“Vested property” in the context of clause (b) of the proviso to section 12 means property in which indefeasible right is created, i.e., on no contingency it can be defeated in respect of particular property; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

13. Right of adoptive parents to dispose of their properties.-

Subject to any agreement to the contrary an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

14. Determination of adoptive mother in certain cases.-

(1) Where Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

15. Valid adoption not to be cancelled. –

No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.

16. Presumption as to registered documents relating to adoption.-

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

State Amendment

Uttar Pradesh

Section 16 renumbered as sub-section (1) thereof and after sub-section (1) as so renumbered, the following sub-section (2) shall be inserted, namely:—

“(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:

Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872.”

[Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 (U.P. Act 57 of 1976), sec. 35 (w.e.f. 1-1-1977).]

COMMENTS

Burden of proof

(i) Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act. The proof of giving and taking of child is not necessary; Pathivada Rama Swami v. Karoda Surya Prakasa Rao, AIR 1993 AP 336.

(ii) If the adoption is disputed, it is for the plaintiff to prove that ceremony of giving and taking has not taken place; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.

Registered Documents

The petitioner is lawfully adopted by a Hindu lady and the Deed of adoption is registered and therefore the presumption as per the provisions of section 16 of the Act, can be drawn in favour of the petitioner. The said presumption would operate so long as there is not rebuttal by the procedure known to law; N.R. Trivedi v. District Education Officer, Anand , AIR 2004 Guj 53.

17. Prohibition of certain payments.-

(1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward of which is prohibited by this section.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

(3) No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authrorised by the State Government in this behalf.

COMMENTS

Prohibition of payment or reward in consideration of adoption

Section 17 of the Act has been enacted by the legislature with a view to prevent trafficking of children. Where a major had agreed, after receiving considerable properties from the family into which he was to be taken in adoption, not to set up any claims with regard to certain items of the property belonging to the adopting family, the defendant could not be said to be a recipient of any payment or reward in consideration of adoption, of the plaintiff thereby not attracting section 17 of the Act; Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao, AIR 1994 AP 134.

Chapter III – Maintenance

18. Maintenance of wife.-

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her.

(b) if has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injuries to live with her husband.

(c) if he is suffering from a virulent form of leprosy.

(d) if he has any other wife living.

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.

(f) if he has ceased to be a Hindu by conversion to another religion.

(g) if there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

COMMENTS

Interim maintenance

The right to claim interim maintenance in a suit is a substantive right under section 18 of the Act. Since no form is prescribed to enforce the said right civil court in exercise of its inherent power can grant interim maintenance; Purusottam Mahakud v. Smt. Annapurna Mahakud , AIR 1997 Ori 73.

Maintenance pendente lite

After considering the status of the husband the wife should be awarded maintenance pendente lite, even though there is no separate provision in the Act for grant of maintenance pendente lite. The obligation to maintain the wife remains on the husband even though the wife might be living separately. The suit under section 18 of the Act may take decades to decide, the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of filing of suit. Such a view will be against the very intent and spirit of section 18 of the Act. It is settled law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the statute to grant it; Neelam Malhotra v. Rajinder Malhotra, AIR 1994 Del 234.

Maintenance to wife/widow

Widow has no charge on separate property of husband. Neither section 18 relating to maintenance of wife nor section 21 dealing with widow provides for any charge for maintenance on separate property of husband; Sadhu Singh v. Gurdwara Sahib Narike , AIR 2006 SC 3282.

Separate residence and maintenance

(i) The wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion, the wife was entitled to separate residence and maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.

(ii) The thoughtless action of the husband of evicting the wife from the house where she had been living in collusion with the purchasers of the house and the police inflicted a deep wound on her amounting to cruelty, the wife was entitled to live separately and claim maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.

(iii) The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.

19. Maintenance of widowed daughter-in-law.-

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall case on the re-marriage of the daughter-in-law.

20. Maintenance of children and aged parents.-

(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or inform parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation.- In this section “parent” includes a childless step-mother

21. Dependants defined.-

For the purposes of this chapter “dependants” means the following relatives of the deceased.

(i) his or her father.

(ii) his or her mother,

(iii) his widow, so long as she does not re-marry.

(iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he isn minor, provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father’s or mother’s estate, and in the case of a great grand-son, from the estate of his father or mother or father or father’s mother.

(v) his or her unmarried daughter or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried, provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father’s or mother’s estate and in the case of a grand-daughter form her father’s or mother’s estate and in the case of a great-grand-daughter from the estate of her father or mother or father’s father or father’s mother.

(vi) his widowed daughter, provided and to the extent that she is unable to obtain maintenance –

(a) from the estate of her husband, or

(b) from her son or daughter if any, or his or her estate, or

(c) from her father-in-law or his father or the estate of either of them.

(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry: provided and to the extent that she is unable to obtain maintenance from her husband’s estate, or from her son or daughter, if any, or his or her estate, or in the case of a grandson’s widow, also from her father-in-law’s estate.

(viii) his or her minor illegitimate son, so long as he remains a minor.

(ix) his or her illegitimate daughter, so long as she remains unmarried.

22. Maintenance of dependants, –

(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependant has not obtained, by testamentary or intestate-succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

23. Amount of maintenance.-

(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the considerations set out sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be award to a wife, children or aged or infirm parents under this Act, regard shall be had to –

(a) the position and status of the parties.

(b) the reasonable wants of the claimant

(c) if the claimant is living separately, whether the claimant is justified in doing so,

(d) the value of the claimant’s property and any income derived from such property, or from the claimants.

(e) the number of persons entitled to maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to –

(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to –

(a) the net value of the estate of the deceased after providing for the payment of his debts.

(b) the provisions, if any, made under a will of the deceased in respect of the dependant.

(c) the degree of relationship between the two.

(d) the reasonable wants of the dependants.

(e) the past relations between the dependant and the deceased.

(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source.

(g) the number of dependants entitled to maintenance under this Act.

Comments

Quantum of maintenance

The amount payable by way of maintenance depends on the facts of each case and as such, no exception could be taken to the amount fixed by the trial Court as well as the date from which the maintenance could be claimed; Vasantha v. Chandren, AIR 2002 Mad 214.

24. Claimant to maintenance should be a Hindu.-

No person shall be entitled to claim maintenance under this Chapter if he or she has ceased to be a Hindu by conversion to another religion.

25. Amount of maintenance may be altered on change of circumstances.-

The amount maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

26. Debts to have priority.-

Subject to the provisions contained in section 27 debts of every description contracted or payable by the deceased shall have priority over the claims of his dependants for maintenance under this Act.

27. Maintenance when to be a charge.-

A dependant’s claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate or portion, or otherwise.

28. Effect of transfer of property on right to maintenance.-

Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous, but not against the transferee for consideration and without notice of the right.

Chapter IV –  Repeals and Savings

29. Repeals.-

(Rep. By the Repealing and Amending Act, 1960 (58 of 1960), sec. 2 and Sch.1).

30. Savings.-

Nothing contained in this Act shall affect any adoption made before the commencement of this Act*, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.

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* Date of commencement 21-12-1956.

Bydeb

The Hindu Succession Act 1956

The Hindu Succession Act 1956

Chapter I – Preliminary

1. Short title and extent.-

(1) This Act may be called the Hindu Succession Act  1956.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Application of Act.-

(1) This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj.

(b) to any person who is Buddhist, Jaina or Sikh by religion, and

(c) to any of other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such persons would not have been governed by the Hindu law or by custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.

(b) any child, legitimate or illegitimate one of whose parent is a Hindu, Buddhists, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.

(c) any person who is convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, through not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained inn this section.

STATE AMENDMENTS

Pondicherry:

In section 2, after sub-section (2) insert—

“(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renouncants of the Union territory of Pondicherry.”

[Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).]

Comments

Applicability of the Act

The petitioner’s mother after marrying the petitioner’s father changed her religion and name. The petitioner was not able to prove that she was a member of the Hindu community as she could not show bona fide intention of being converted to the Hindu faith accompanied by conduct or unequivocally expressing that intention, thereby failing to avail the opportunity of section 2(b) of the Act; Sapna Jacob v. State of Kerala, AIR 1993 Ker 75.

3. Definitions and interpretations.-

(1) In this Act, unless the context otherwise requires,-

(a) “agnate”- one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males.

(b) “Aliyasantana law” means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary Aliyasantana law with respect to the matter for which provision is made in this Act.

(c) “cognate”- one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males.

(d) the expression “custom” and “usage” signify and rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy, and

Provided further that, in the case of a rule applicable only to a family it has not been discontinued by the family,

(e) “full blood”, “half blood” and ‘uterine blood”-

(i) two persons are said to be related to each other by full blood when they are descented from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but, by different wives.

(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestres but by different husbands.

Explanation.- In this clause “ancestor” includes the father and “ancestress” the mother,

(f) ‘heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act:

(g) “intestate” –a person is deemed to die intestate in respect of property of which he or she has not made at testamentary disposition capable of taking effect,

(h) “marumakkattayam law” means the system of law applicable to persons.-

(a) who, if this Act had not been passed would have been governed by the Madras Marumakkattayam Act, 1932, the Travancore Nayar Act, the Travancore Ezhava Act, the Travancore Nanjinad Vellala Act, the Travacore Kshatriya Act, the Travancore Krishnanavaka Marumakkathayee Act, the Cochin Marumakkathayam Act, or the Cochin Nayar Act with respect to the matters for which provision is made in this Act, or

(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras 1(as it existed immediately before the 1st November, 1956) and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line.

But does not include the aliyasantana law,

(i) “Nambudri law” means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Nambudri Act, 1932, the Cochin Nambudri Act, or the Travancore Malayala Brahmin Act with respect to the matters for which provision is made in this Act.

(j) “related” means related by legitimate kinship :

Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their legitimate descendants shall be deemed to be related to them and to one another , and any word expressing relationship or denoting a relative shall be construed accordingly.

(2) In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.

COMMENTS

Scope of illegitimate children

A child of void marriage is related to its parents within the meaning of section 3(1)(j) of Hindu Succession Act by virtue of section 16 of Hindu Marriage Act, 1955. Proviso to section 3(1)(j) is confined to those children who are not clothed with legitimacy under section 16 of Hindu Marriage Act; Rasala Surya Prakasarao v. Rasala Venkateswararao, AIR 1992 AP 234.

Heirs

Under clause (f) of sub-section (1) of section (3) agnates of deceased are also heirs; Basanti Devi v. Raviprakash Ramprasad Jaiswal, (2007) 11 SCR 444.

———

1. Ins. by the Adaptation of Laws (No. 3) Order, 1956.

4. Over-riding effect of Act.-

(1) Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

1[***]

——————————————-

1. Sub-section (2) omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub-section (2), before omission, stood as under:

“(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”

Chapter II – Intestate Succession

5. Act not to apply to certain properties.-

This Act shall not apply to-

(i) any property succession to which is regulated by the Indian Succession Act, 1925 by reason of the provisions contained in section 21 of the Special Marriage Act, 1954.

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the term of any enactment passed before the commencement of this Act.

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin.

State amendment

(a) Kerala State has passed an Act for the partition of the valiamma Thampuran Kovilegam Estate and the Palace Fund: Kerala Act 16 of 1961, sec. 10.

“10. Amendment of the Hindu Succession Act, 1956.—Clause (iii) of section 5 of the Hindu Succession Act, 1956 (Central Act 30 of 1956), shall be omitted with effect on and from the date of execution of the partition deed under section 6.”

6. Devolution of interest of coparcenary property.-

1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, 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;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

State Amendment

Sections 6A to 6C

Karnataka:

After section 6 the following sections shall be inserted, namely:—

“6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:

Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

6B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.

Explanations.— (1) For the purposes of this section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

6C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.— In this section ‘court’ means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf.

[Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).]

COMMENTS

Disposal of undivided interest in property

A wife inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of her’s was held by the family. As a female heir, having inherited property under section 6, she cannot be treated as having ceased to be a member of the family without her volition. Though she can dispose of her undivided interest in the co-parcenery property by a w ill or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of the other coparceners; Kanna Gounder v. Arjuna Gounder , AIR 2003 Mad 157.

Partition of coparcenary property

(i) The contention of the petitioners that there was automatic partition amongst the heirs of the deceased Karta on his death has been negatived because it is only when the deceased had left his surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is deemed to have taken place in the joint family property for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. If there are male heirs there is no automatic partition; Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72.

(ii) The heirs will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition; Gurupad v. Hirabai, AIR 1978 SC 1239.

(iii) The fiction in the explanation of section 6 of the Act should be carried to a narrow extent only with a new point to implement the purpose for which it was introduced. When there were only two coparceners and one of them died, then if any person other then the coparcener is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such other person will become fixed; Shushilabai v. Naraynarao , AIR 1975 Bom 257.

(iv) The deceased coparcener’s share gets fixed on the date of his death, subsequent fluctuations in the fortunes of the coparceners do not affect it; Karuppa v. Palaniammal; AIR 1963 Mad 254.

Scope

The interpretation of provisions of section 6, its proviso and explanation 1 thereto with legislative intent in regard to the enlargement of share of the female heirs, qualitatively and quantitatively; Gurupad v. Hira Bai , AIR 1978 SC 1239.

———

1. Subs. by Act 39 of 2005, sec. 3, for section 6 (w.e.f. 9-9-2005). Section 6, before substitution, stood as under:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”.

* Date of commencement 9-9-2005.

7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom. –

(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, haing at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be , under this Act and not according to the marumakkattayam or nambudri law.

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of a tarward, tavashi or illom shall be deemed to be the share in the property of the tarward, tavazhi or illom, a the case may be, that would have fallen to him or her if a partition of that property per capital had been made immediately before his or her death among all the members of tarwad, tavashi or illom, a the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.

(2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the aliyasantana law.

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.

(3) Notwithstanding anything contained in sub-section (1), when a sthananmdar dies after the commencement of this Act, sthanama property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been per capita immediately before the death of the sthanamdar among himself and the all the members of his family then living, and the shares falling to the members of his family and heirs of the sthanamdar shall be held by them as their separate property.

Explanation.- For the purposes of this sub-section, the family of a sthanamdar shall include every, branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed.

State Amendment

Kerala:

In section 7, in sub-section (3)—

(a) between the words “him” and “shall”, the words “or her”, between the words “himself” and “and”, the words “or herself” and between the words “his” and “family” in the two places where they occur the words “or her” shall be respectively inserted;

(b) in the e xplanation , the word “male” shall be omitted;

(c) the existing Explanation shall be numbered as Explanation I and the following Explanation shall be added, namely:—

“Explanation II.— The devolution of Sthanam properties under sub-section (3) and their division among the members of the family and heirs shall not be deemed to have conferred upon them in respect of immovable properties any higher rights than the sthanamdar regarding eviction or otherwise as against tenants who were holding such properties under the sthani .”

[Vide Kerala Act 28 of 1958, sec. 27 (w.e.f. 18-5-1958).]

8. General rules of succession in the case of males.-

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and

(d) lastly, if there is no agnate, then upon the cognate of the deceased.

COMMENTS

Ownership of property

When a Hindu inherits the property from his father under section 8 he takes it as his separate property and not as joint family property vis-a-vis his sons; Commissioner of Wealth-tax v. Chander Sen, AIR 1986 SC 1752.

Scope

The property in section 8 includes agricultural land also; Tukaram Genba Jadhav v. Laxman Genba Jadhav, AIR 1994 Bom 247.

9. Order of succession among heirs in the Schedule.-

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.

10. Distribution of property among heirs in class 1 of the Schedule. –

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall take one share.

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.

Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Rule 4.- The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

11. Distributions of property among heirs in class II of the Schedule. –

The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

12. Order of succession among agnates and cognates.-

The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:

Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2.- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.

Rule 3.- Where neither heirs is entitled to be preferred to the other under

Rule 1 or Rule 2 they take simultaneously.

COMMENTS

Succession among agnates and cognates

The number of cognates is larger than the number of agnates as the agnate traces his relationship to the propositus wholly through males, while a cognate is not required to trace his or her relationship with the propositus wholly through males. Held that after the failure of class I and class II heirs, the respondents being agnates should inherit instead of cognates; Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149.

13. Computation of degrees.-

(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.

(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

(3) Every generation constitutes a degree either ascending or descending.

14. Property of a female Hindu to be her absolute Property.-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or note, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

COMMENTS

Absolute ownership of property

(i) Property given to widow in lieu of her maintenance, after coming into force of Hindu Succession Act, ripens into full estate and widow becomes absolute owner in view of section 14(1) of the Act; Santosh v. Saraswathibai, AIR 2006 Kant 85.

(ii) The respondent had a limited widow’s estate in the scheduled properties which was given to her in lier of her maintenance and the same ripened into an absolute estate in view of the provisions of section 14 (1) of the Act. Thus, the Act made her an absolute owner; Yemanappa Dudappa Marve v. Yelubai, AIR 2003 Karn 396.

(iii) Any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after coming into force of the Act in view of the operation of section 14(1); Chaudhary v. Ajudhia, AIR 2003 NOC 126 (HP).

(iv) The testator had given the property to Sarjabai only for a limited period, hence she would not be its absolute owner under sub-section (1) of section 14. The property would, in fact, be governed by sub-section (2) of section 14 as the court should give effect to the intention of the testator; Bhura v. Kashiram, AIR 1994 SC 1202.

(v) Sub-section (2) of section 14 must be read as a proviso or exception to sub-section (1) of section 14 and its operation must be confined to cases where property is acquired for the first time as a grant without any pre-existing right. If the female had an existing interest in the property, the interposition of any instrument will not affect the operation of sub-section (1) of section 14 and the property will be held by the female as her absolute property; M. Shamugha Udayar v. Sivanandam, AIR 1994 Mad 123.

(vi) When some property is allotted to the widow in lieu of her claim for maintenance, she becomes its absolute owner; V. Tulsamma v. Sesha Reddy, AIR 1977 SC 1944.

(vii) The right of the alliance is co-extensive with that of the widow; Jagat Singh v. Teja Singh, AIR 1970 P&H 309 (FB).

Extent

(i) The words “any property possessed by a female Hindu” include actual as well as constructive possession. Even when the property is in the possession of a trespasser, she is in its constructive possession; Mangal v. Ratno, AIR 1967 SC 1786.

(ii) The word ‘possessed’ is used in the broad sense and in the context means the state of owning or having in ones hand or power; Gurumalappuru v. Setra, AIR 1959 SC 577.

Scope

(i) The expression “female Hindu” in the heading of section 14 of the Act as well as the expression “any property possessed by a female Hindu” have to be given a wider interpretation in consonance with the wishes and desires of the framers of the Constitution. The expression ‘female Hindu’ would take in “daughter” also. Therefore, limited interest of daughter in property would get enlarged to full right after the commencement of the Act; Jose v. Ramakrishnan Nair Radhakrishnan, AIR 2004 Ker 16.

(ii) If no property is given in lieu of maintenance and only a sum of money is given, then section 14 does not apply; Sulabha v. Abhimanyu, AIR 1983 Ori 71.

15. General rules of succession in the case of female Hindus.-

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.

(b) secondly, upon the heirs of the husband.

(c) thirdly, upon the heirs of the father, and

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding 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 father-in-law 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 husband.

COMMENTS

Extent

(i) When a female inherits property from her brother, inheritance to it is governed by section 15(1) of the Act 1956; Balasaheb v. Jaimala, AIR 1978 Bom 44.

(ii) Son and daughter include son and daughter by natural birth legitimate or illegitimate; Gurbachan v. Khichar Singh, AIR 1971 Punj 240.

Succession on death of Hindu female

(i) The object of section 15(2) is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property, one has no option but to hold that son or daughter (including the children of any pre-deceased son or daughter) of such a Hindu female will mean the son or daughter begotten by the Hindu female from the husband whose property she had inherited, and not the son or daughter whom she had begotten from a husband other than the one, whose property she had inherited. If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of section 15(2) will be defeated; Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

(ii) Hindu female inherited property from her deceased husband. If the property is allowed to be inherited by a son or daughter, whom the deceased female had begotten not through her husband, whose property it was, but from some other husband then, section 15(2)(b) will become meaningless and redundant; Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

(iii) The intent of the Legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under clause (b) of sub-section (2) of section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and later acquired the full right, in any way, would not alter the rules of succession given in sub-section (2) of section15; Bhagat Ram (D) by L.Rs. v. Teja Singh (D) by L.Rs., AIR 2002 SC 1.

(iv) The mother became an absolute owner of the property which she inherited from her husband after his death in 1950 but after the Hindu Succession Act, 1956 came in force, before 1956 her interest being limited. Hence, it has been held that the property after the death of the mother shall be inherited by her son and daughter under section 15(1)(a) and not under any other provision of law; Debahari Kumbhar v. Sribatsa Patra, AIR 1994 Ori 86.

16. Order of succession and manner of distribution among heirs of a female Hindu. –

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely:-

Rule 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 including 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’ death, the children of such son or daughter shall take between them the share which such son or daughter would 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) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the 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.

17. Special provisions respecting persons governed by marumakkattayam and aliyyasantana laws.-

The provisions of sections, 8,10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if-

(i) for such clauses (c) and (d) of section 8, the following had been substituted, namely :- ” (c) thirdly, the there is no heirs of any of the two classes, then upon his relatives, whether agnates or cognates”.

(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:-

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother.

(b) secondly, upon the father and the husband.

(c) secondly, upon the father and the husband.

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the husband”.

(iii) clause (a) of sub-section (2) of section 15 had been omitted.

(iv) section 23 had been omitted

18. Full blood preferred to half blood.-

Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.

19. Mode of succession of two or more heirs.-

If two or more heirs succeed together to the property of an intestate, they shall take the property:-

(a) save as otherwise expressly provided in this Act, per capita and not per stripes, and

(b) as tenants-in common and not as joint tenants.

20. Right of child in womb.-

A child who was in the womb at the time of the death of an intestate and who is subsequently born alive have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such as case with effect from the date of the death of the intestate.

21. Presumption in cases of simultaneous deaths.-

Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

22. Preferential right to acquire property in certain cases. –

(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class 1 of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.- In this section, ‘court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.

23. Special provision respecting dwelling houses. –

1[23. Special provision respecting dwelling houses. —[ Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), sec. 4 (w.e.f. 9-9-2005) .]]

Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]

Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

——-

1. Section 23, before repeal by Act 39 of 2005, stood as under:

“23. Special provision respecting dwelling houses. —Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.”

24. Certain widows re-marrying may not inherit as widows.-

1[24. Certain widows re-marrying may not inherit as widows. —[ Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), sec. 5 (w.e.f. 9-9-2005) .]]

——-

1. Section 24, before repeal by Act 39 of 2005, stood as under:

“24. Certain widows re-marrying may not inherit as widows. —Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.”

25. Murderer disqualified.-

A person who commits murder or abets the commission of murder shall be disqualified from

26. Convert’s descendants disqualified.-

Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.

27. Succession when heir disqualified.-

If any person is disqualified from succeeding to any property on the ground of any disease, defect r deformity, as save as provided in this Act, on any other ground whatsoever.

28. Disease, defect, etc. not to disqualify. –

No person shall be disqualified form succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.

29. Failure of heirs.-

If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

State Amendments

Chapter IIA

Andhra Pradesh:

After Chapter II, insert the following Chapter, namely:—

“Chapter IIA

Succession by survivorship

29A. Equal rights to daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act—

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 having at the time of her death an interest in a Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship.

Explanation I .—For the purposes of this section the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death irrespective of whether she was entitled to claim partition or not.

Explanation II .—Nothing contained in the proviso this section shall be construed as enabling a person who before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made toit in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation. —In his section ‘court’ means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Andhra Pradesh Gazette, specify in this behalf.”

[Vide Andhra Pradesh Act 13 of 1986, sec. 2 (w.r.e.f. 5-9-1985).]

Maharashtra:

After Chapter II, insert the following Chapter, namely:—

“CHAPTER IIA

SUCCESSION BY SURVIVORSHIP

29A. Equal rights of daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act—

(i) in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in a joint Hindu family referred to in clause (i), the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

(v) nothing in clause (ii) shall apply to a partition which has been effected before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994, having, at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.—For the purposes of this section, the interest of a female Hindu in Mitakshara coparcener property shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

Explanation II.—Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994 an interest in any immovable property of any intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, then, the heir who offers the highest consideration for the transfer shall be preferred.

Explanation .—In this section “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.”

[Vide Maharashtra Act 39 of 1994, sec. 2 (w.e.f. 22-6-1994).]

Tamil Nadu:

After Chapter II, insert the following Chapter, namely:—

“Chapter IIA

Succession by survivorship

29A. Equal rights to daughter in coparcenary property.— Notwithstanding anything contained in section 6 of this Act,—

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in thesame manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition:

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

29B. Interest to devolve by survivorship on death.— When a female Hindu dies after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, having at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of section 29A, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.— For the purposes of this section, the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.

Explanation II.— Noting contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

29C. Preferential right to acquire property in certain cases.— (1) Where, after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29A or section 29B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of, or incidental to, the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.— In this section “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other court which the s tate Government may, by notification in the Tamil Nadu Government Gazette, specify in this behalf.

[Vide Tamil Nadu Act 1 of 1990 sec. 2 (w.r.e.f. 25-3-1989).]

Chapter III – Testamentary Succession

30. Testamentary succession.-

1[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so 2[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this 3[section.]

4[***]

———-

1. The brackets and figure “(1)” omitted by Act 58 of 1960, sec. 3 and Sch. II (w.e.f. 26-12-1960).

2. Subs. by Act 39 of 2005, sec. 6, for “disposed of by him” (w.e.f. 9-9-2005).

3. Subs. by Act 56 of 1974, sec. 3 and Sch. II, for “sub-section”.

4. Sub-section (2) omitted by Act 78 of 1956, sec. 29 (w.e.f. 21-12-1956).

Chapter IV – Repeals

31. Repeals.-

Rep. By Repealing and Amending Act, 1960 (58 of 1960) Section 2 and Sch.1

THE SCHEDULE

HEIRS IN CLASS AND CLASS II

Son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, duaghter of a pre-deceased daughter, widow of a pre-deceased son, 1son of pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son.

Class II

1. Father

2. (1) Son’s daughter’s son (2) son’s daughter’s daughter, (3) brother,(4) sister.

III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter , (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.

IV. (1) Brother’s son (2) Sister’s son, (3) brother’s daughter (4) Sister’s daughter.

V. Father’s father. Father’s mother.

VI. Father’s widow, brother’s widow.

VII Father’s brother, father’s sister.

VIII Mother’s father, mother’s sister.

IX Mother’s brother, mother’s sister.

Explanation.- In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

—————–

1. Added by Act 39 of 2005, sec. 7 (w.e.f. 9-9-2005).

Bydeb

The Special Marriage Act, 1954

Chapter I Preliminary

1. Short title, extent and commencement

[Act No. 43 of 1954]1

[9th October, 1954]

An Act to provide a special form marriage in certain cases, for the registration of such and certain other marriages and for divorce.

Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:-

——————–

1. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963 and Pondicherry by Reg. 7 of 1963.

(1) This Act may be called the Special Marriage Act, 1954.

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are 1[in the State’s, of Jammu and Kashmir].

(3) It shall come into force on such 2date, as the Central Government may, by notification in the Official Gazette, appoint.

——————–

1. Subs. For word “outside the said territories” by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Became enforceable on 1-1-1955, vide S.R.O. 3606, dated 17th December, 1954.

2. Definitions

In this Act, unless the context otherwise requires,-

1[* * *]

(b) “Degrees of prohibited relationship”-a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

Explanation I. -Relationship includes, –

(a) Relationship by half or uterine blood as well as by full blood;

(b) Illegitimate blood relationship as well as legitimate;

(c) Relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed accordingly.

Explanation II. –”Full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III.-”Uterine blood” two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV.-In explanations II and III, “ancestor” includes the father and ancestress” the mother;

2[(c) [* * *]

(d) “District” in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of Section 3;

3[(e) “District court” means, in any area for which there is a city civil court, that court, and in any other area, the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act;]

(f) “Prescribed” means prescribed by rules made under this Act;

4[(g) “State Government”, in relation to a Union territory, means the administrator thereof.]

——————–

1. Cl. (a) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Cl. (c) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

3. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted by the Adaption of Laws (No.3) Order, 1956.

3. Marriage Officers

(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

1[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.]

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

Chapter II Solemnization of Special Marriages

4. Conditions relating to solemnization of special marriages

Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

(a) Neither party has a spouse living;

1[(b) Neither party-

(i) Is incapable of giving a valid consent to it in consequence of unsoundness mind; or

(ii) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity 2[* * *]

(c) The male has completed the age of twenty-one years and the female the age of eighteen years;

3[(d) The parties are not within the degrees of prohibited relationship;

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, not withstanding that they are within the degrees of prohibited relationship; and ]

4[(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]

5[Explanation. -In this section, “customs”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family;

Provided that no such notification shall be issued in relation to the members of any tribe, community, group of family,-unless the State Government is satisfied-

(i) That such rule has been continuously and uniformly observed for a long time among those members;

(ii) That such rule is certain and not unreasonable or opposed to public policy; and

(iii) That such rule, if applicable only to a family. has not been discontinued by the family.]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. The words “or epilepsy” omitted by Act 39 of 1999, w.e.f. 29-12-1999.

3. Subs. by Act No. 32 of 1963, w.e.f. 22-9-1963.

4. Subs. by Act No. 33 of 1969, w.e.f. 31-9-1963.

5. Ins. by Act No. 32 of 1963, w.e.f. 22-9-1963.

5. Notice of intended marriage

When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least on of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

6. Marriage Notice Book and publication

(1) The marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at al reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

7. Objection to marriage

(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be ready over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.

8. Procedure on receipt of objection

(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court.

9. Powers of Marriage Officers in respect of inquiries

(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses; and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (Act XLV of 1860).

Explanation. – For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his office.

10. Procedure on receipt of objection by Marriage Officer abroad

Where an objection is made under Section 7 to a Marriage Officer 1[in the State of Jammu and Kashmir in respect of an intended marriage in the State], and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

11. Declaration by parties and witnesses

Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization

(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,- “I, (A), take thee (B), to be my lawful wife (or husband).

13. Certificate of marriage

(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

14. New notice when marriage not solemnized within three months

Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

Chapter III Registration of Marriages celebrated in other forms

15. Registration of marriages celebrated in other forms

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the 1Special Marriage Act, 1872, (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:

(a) A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) Neither party has at the time of registration more than one spouse living;

(c) Neither party is an idiot or a lunatic at the time of registration;

(d) The parties have completed the age of twenty-one years at the time of registration;

(e) The parties are not within the degrees of prohibited relationship;

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

——————–

1. Rep. by this Act.

16. Procedure for registration

Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned is section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

17. Appeals from orders under section 16

Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.

18. Effect of registration of marriage under this Chapter

Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under the Chapter, the marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (Whose names shall also be entered n the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

Chapter IV Consequences of Marriage under this Act

19. Effect of marriage on member of undivided family

The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

20. Rights and disabilities not affected by Act

Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (XXI of 1850) applies.

21. Succession to property of parties married under Act

Not-withstanding any restrictions contained in the Indian Succession Act, 1925 (XXXIX of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.

21 A. Special provision in certain cases

1Special provision in certain cases. Where the marriage is solemnized under this Act of any person who professes the Hindu Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, Section 19 and Section 21 shall not apply and so much of Section 20 as creates a disability shall also not apply.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

Chapter V Restitution of Conjugal rights and judicial separation

22. Restitution of conjugal rights

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for 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 legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

1[Explanation. -Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife, –

(a) On any of the grounds specified 1[in sub-section (1)] 2[and sub-section (IA) of Section 27] on which a petition for divorce might have been presented; or

(b) On the ground of failure to comply with a decree for 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 legal ground why the application should not be granted, and decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party 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.

——————–

1. Subs. by Act No. 29 of 1970, w.e.f. 12-6-1970.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Chapter VI Nullity of marriage and divorce

24. Void marriages

(1) Any marriage solemnized under this Act shall be null and void 1[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if-

(i) Any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or

(ii) The respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the district court has become filial.

——————–

1. Substituted for words “and may be so declared” by Act No. 68 of 1876, w.e.f. 27-5-1976.

25. Voidable marriage

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if –

(i) the marriage has not been consummated owning to the willful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the India Contract Act, 1872 (IX of 1872):

Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion have ceased or, as the case may be fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

26. Legitimacy of children of void and voidable marriages

1Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 24, and child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents].

——————–

1. Substituted by Act No. 68 of 1976, w.e.f. 27-5-1976.

27. Divorce

2[(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband, or the wife on the ground that the respondent-

1[(a) Has, after the solemnization of the marriage. had voluntary sexual intercourse with any person other than his or her spouse-, or

(b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) If undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

3[* * *]

(d) Has since the solemnization of the marriage treated the petitioner with cruelty; or

1[(e) Has been incurably of unsound mind, or hits been suffering continuously or intermittently from mental disorder of such a kind and to such all extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. -In this clause, –

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(ii) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) Has been suffering from venereal disease in a communicable form; or]

(g) Has 5[* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or,

(h) Has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[* * *]

7[Explanation.- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.]

5[* * * * *]

8[* * * * *]

7[(lA) A wife may also present a petition for divorce to the district court on the ground, –

(i) That her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 [5 of 1898]), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards]

9[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground-

(i) That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or up wards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Section 27 renumbered as sub-section (1) by Act 29 of 1970, w.e.f. 12-8-1970.

3. Proviso omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

4. Certain words omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

5. Word “or” omitted by Act 29 of 1970, w.e.f. 12-8-1970.

6. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

7. Clause (i) and (i) omitted by Act No. 29 of 1970, w.e.f. 12-8-1970.

8. Ins. by Act No. 29 of 1970, w.e.f. 12-8-1970.

27 A. Alternate relief in divorce proceedings

1Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of Section 27, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

28. Divorce by mutual consent

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be present to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) 1[On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

——————–

1. Subs, by Act No. 68 of 1976, w.e.f. 27-5-1976.

29. Restriction on petitions for divorce during first three years after marriage

(1) No petition for divorce shall be presented to the district court 1[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:

Provided that the district court may, upon application being made to it, allow a petition to be presented 1[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a 2 decree, do so subject to the condition that the decree shall not have effect until after the 2[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the 3[expiration of the said one year] upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the 4[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 2[said one year].

——————–

1. Substituted for word “before three years have passed” by Act 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for word “expiry of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

3. Substituted for word “expiration of the said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted for word “expiration of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

5. Substituted for word “said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

30. Remarriage of divorced persons

Where a marriage has been dissolved by the decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, 1[* * *] either party to the marriage may marry again.

——————–

1. Omitted words “and one year has elapsed thereafter but not sooner” by Act 68 of 1976, w.e.f. 27-5-1976.

Chapter VII Jurisdiction and Procedure

31. Court to which petition should be made

1[(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction-

(i) The marriage was solemnized; or

(ii) The respondent, at the time of the presentation of the petition resides; or

(iii) The parties to the marriage last resided together; or

2[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard to him if he were alive.]

(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

2. Inserted vide Marriage Laws (Amdt.) Act, 2003.

32. Contents and verification of petitions

(1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

33. Proceedings to be in camera and may not be printed or published

1[Proceedings to be in camera and may not be printed or published. (1) Every proceeding under this Act shall be conducted in (camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints on publishes any matter in contravention of the provisions contained in sub-section (1) he shall be punishable with fine which may extend to one thousand rupees.]

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

34. Duty of court in passing decrees

(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that, –

(a) Any of the grounds for granting relief exists; and

(b) 1[Where the petition is founded on the ground specified in clauses (a) of subsection (1) of Section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein,] or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) When divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and

(d) The petition is not presented or prosecuted in collusion with the respondent; and

(e) There has not been any unnecessary or improper delay in instituting the proceedings; and

(f) There is no other legal ground why the relief-should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties;

2[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]

2[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceeding for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

35. Relief for respondent in divorce and other proceedings

1[Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he, or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

36. Alimony pendente lite

Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the court to be reasonable.

1[Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during the proceeding under Ch. V or Ch. VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

37. Permanent alimony and maintenance

(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at ail-y, time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability 1[the conduct of the parties and other circumstances of the case], it may seem to the court to be just.

(2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it ,ay seem to the court to be just.

(3) If the district court is satisfied that the wife is whose favour an order likes been made under this section has re-married or is not leading a chaste life, 2[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.]

——————–

1. Substituted for words “and the conduct of the parties” by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for words “it shall rescind the order” by Act No. 68 of 1976, w.e.f. 27-5-1976.

38. Custody of Children

In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such ;Interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all of such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.

1[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Ch. V or Ch. VI, shall, as far as possible be disposed of within sixty days form the date of service of notice on the respomdent.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

39. Appeals from decrees and orders

(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of subsection (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction and such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under Section 37 or Section 38 shall, subject to any provisions of subsection (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of 1[ninety] days from the date of the decree or order.

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1. Substituted for “thirty” vide the Marriage Laws (Amdt.) Act, 2003.

39 A. Enforcement of decrees and orders

1[Enforcement of decrees and orders. All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]

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1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

40. Application of Act V of 1908

Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (Act V of 1908).

40 A. Power to transfer petitions in certain cases

1[Power to transfer petitions in certain cases. (1) Where-

(a) A petition under this Act has been presented to the district court having party to the marriage praying for a decree for judicial separation jurisdiction by a under Section 23 or for a decree of divorce under Section 27, and

(b) Another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under Section 23, or for decree of divorce under Section 27 on any ground whether in the same district court or in a different district court, in the same State or in a different State, the petition shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,-

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by the district court;

(b) If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent, under the Code of Civil Procedure, 1908 (5 of 1909) to transfer any suit or proceeding from the district court in which the later petition has been, presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

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1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

40 B. Special provision relating to trial and disposal of petition under the Act

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusions, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

40 C. Documentary evidence

Notwithstanding anything contained in any attachment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

41. Power of High Court to make rules regulating procedure

(1) The High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (Act V of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapter V,VI and VII.

(2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for,-

(a) the imp leading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so;

(b) the awarding of damages against any such co-respondent;

(c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto;

(d) the form and contents of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions; and

(e) any other matter for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869 (IV of 1869).

Chapter VIII Miscellaneous

42. Saving

Nothing contained in this Act shall effect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

43. Penalty on married person marrying again under this Act

Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself to others to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (Act XLV of 1860), as the case may be, and the marriage so solemnized shall be void.

44. Punishment of bigamy

Every person whose marriage is solemnized under this Act and who, during the life time of his or her wife or husband contracts any other marriage shall be subjected to the penalties provided in section 494 and section 495 of the Indian Penal Code (Act XLV of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.

45. Penalty for signing false declaration or certificate

Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code (Act XLV of 1860).

46. Penalty for wrongful action of Marriage Officer

Any Marriage Officer who knowingly and willfully solemnizes a marriage under this Act –

(1) without publishing a notice regarding such marriage as required by section 5, or

(2) within thirty days of the publication of the notice of such marriage, or

(3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

47. Marriage Certificate Book to be open to inspection

(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.

(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.

48. Transmission of copies of entries in marriage records

Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and, in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.

49. Correction of errors

(1) Any marriage Officer who discovers any error in the form of substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married or, in case of their death or absence, n the presence of two other credible witnesses, correct the error by entry in the margin without any alternative of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority the Marriage Officer shall make and send in like manner a separate certificate of the original erroneous entry and of the marginal correction therein made.

50. Power to make rules

(1) The Central Government, in the case of 1[* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, makes rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matter’s, namely:

(a) The duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction:

(b) The manner in which a Marriage Officer may hold inquiries under this Act and the procedure therefor;

(c) The form and manner in which any books required by or under this Act shall be maintained;

(d) The fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(e) The manner in which public notice shall be given under Section 16;

(f) The form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of Section 48;

(g) Any other matter which may be or requires to be prescribed.

2[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making ally modification in the rule or both Houses agree that the rule should not be made, the rules shall thereafter have effect only in such modified form or be of no effect, as the else may be; so, however, that any such modification or annulment shall be without prejudice to the validity or anything previously done under that, rule.

(4) Every rule made by the State Government under this Act shall be laid as soon as it is made, before the State Legislature.]

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1. Omitted words “diplomatic and consular and other” by Act 33 of 1969, w.e.f. 31-8-1969.

2. Inserted by Act No. 20 of 1983, w.e.f. 15-3-1984.

51. Repeals and savings

(1) The Special Marriage Act 1872 (III of 1872), and any law corresponding to the Special Marriage Act, 1872, in force in an Part B State immediately before the commencement of this Act are hereby repealed.

(2) Notwithstanding such repeal,-

(a) all marriages duly solemnized under the Special Marriage Act, 1872 (III of 1872), or any such corresponding law shall be deemed to have been solemnized under this Act;

(b) all suits and proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any court, shall be dealt with the decided by such court, so far as may be, as if they had been originally instituted therein under this Act.

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act.1897 (X of 1897), which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.

THE FIRST SCHEDULE

See section 2 (b)

“Degrees of Prohibited relationship”

PART I

1. Mother

2. Father’s widow (step-mother)

3. Mother’s mother

4. Mother’s father’s widow (step grand-mother)

5. Mother’s mother’s mother

6. Mother’s mother’s father’s widow (step great grand-mother)

7. Mother’s father’s mother

8. Mother’s father’s father’s widow (step great grand-mother)

9. Father’s mother

10. Father’s father’s widow (step grand-mother)

11. Father’s mother’s mother

12. Father’s mother’s father’s widow (step great grand-mother)

13. Father’s father’s mother

14. Father’s father’s father’s widow (step great grand mother)

15. Daughter

16. Son’s widow

17. Daughter’s daughter

18. Daughter’s son’s widow

19. Son’s daughter

20. Son’s son’s widow

21. Daughter’s daughter’s daughter

22. Daughter’s daughter’s son’s widow

23. Daughter’s son’s daughter

24. Daughter’s son’s son’s widow

25. Son’s daughter’s daughter

26. Son’s daughter’s son’s widow

27. Son’s son’s daughter

28. Son’s son’s son’s widow

29. Sister

30. Sister’sdaughter

31. Brother’s daughter

32. Mother’s sister

33. Father’s sister

34. Father’s brother’s daughter

35. Father’s sister’s daughter

36. Mother’s sister’s daughter

37. Mother’s brother’s daughter

Explanation.—For the Purposes of this Part, the expression “widow” includes a divorced wife.

PART II

1. Father

2. Mother’s husband (step-father)

3. Father’s fathter

4. Father’s mother’s husband (step grand-father)

5. Father’s father’s father

6. Father’s father’s mother’s husband (step great grand-father)

7. Father’s mother’s father

8. Father’s mother’s mother’s husband (Step great grand-father)

9. Mother’s father

10. Mother’s mother’s husband (step grand-father)

11. Mother’s father’s father

12. Mother’s father’s mother’s husband (step great grand-father)

13. Mother’s mother’s father

14. Mother’s mother’s mother’s husband (step great grand-father)

15. Son

16. Daughter’s husband

17. Son’s son

18. Son’s daughter’s husband

19. Daughter’s son

20. Daughter’s daughter’s husband

21. Son’s son’s son

22. Son’s son’s daughter’s husband

23. Son’s daughter’s son

24. Son’s daughter’s daughter’s husband

25. Daughter’s son’s son

26. Daughter’s son’s daughter’s husband

27. Daughter’s daughter’s son

28. Daughter’s daughter’s daughter’s husband

29. Brother

30. Brother’s son

31. Sister’s son

32. Mother’s brother

33. Father’s brother

34. Father’s brother’s son

35. Father’s sister’s son.

36. Mother’s sister’s son

37. Mother’s brother’s son

Explanation.—For the purpose of this Part, the expression “husband” includes a divorced husband.

THE SECOND SCHEDULE

(See section 5)

NOTICE OF INTENDED MARRIAGE

To

Marriage Officer for the ………………….District.

We hereby give you notice that a marriage under Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

NameConditionOccupationAgeDwelling placePermanent Dwelling place if present dwelling place not permanentLength of residence
ABUnmarried/ Widower/ Divorcee
CDUnmarried/ Widow /Divorcee

Witness our hands this…………………….. day of ………………… 19……..

(Sd.) A.B

(Sd.) C.D.

THE THIRD SCHEDULE

(See section 11)

DECLARATION TO BE MADE BY THE BRIDEGROOM

I, A.B., hereby declare as follows:-

1.I am at the present time unmarried (or a widower or a divorcee, as the case may be).

2.I have completed…………………years of age.

3.I am not related to C.D. (the bride) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement, I either know or believe it to be false or do not believe it to true.I am liable to imprisonment and also to fine.

(S.d), A.B. (the Bridegroom)

DECLARATION TO BE MADE BY HE BRIDE

I, C.D., hereby declare as follows;-

1.I am at the present time unmarried (or a widow or a divorcee, as the case may be).

2.I have completed……………………………………..years of age.

3.I am not related to A.B. (the Bridegroom) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.

(S.d) C.D. (the Bride)

Signed in our presence by the above-named A.B. and C.D. so far as we are aware there is no lawful impediment to the marriage.

(Sd.) GH.Three witnesses
(Sd.) I.J.
(Sd.) K.L.

Countersigned E.F., Marriage Officer.,

Dated the……………………..day of………………….19……………….

THE FOURTH SCHEDULE

(See Section 13)

CERTIFICATE OF MARRIAGE

I, E.F.hereby certify that on the day of 19 A.B.and C.D.* { * Herein give particulars of the parties} before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations of required by section 11 and that a marriage under this Act was the solemnized between them in my presence

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

(Sd.) GH.Three witnesses
(Sd.) I.J.
(Sd.) K.L.

THE FIFTH SCHEDULE

(See section 16)

CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS

I. E.F., hereby certify that A.B. and C.D. * appeared before me this……………….day of…….19……….and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declared that a ceremony of marriage has been performed between them and [hat they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act, the said ‘ marriage has, this day……………….day of………….19 …………….been registered under this Act, having effect as from.

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

(Sd.) GH.Three witnesses
(Sd.) I.J.
(Sd.) K.L.

Dated the………………………day of……….19…………………………..

* Herein give particulars of the parties.

Bydeb

The Dissolution of Muslim Marriages Act, 1939

An Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married woman on her marriage tie.

Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage; it is hereby enacted as follows:

1. Short title and extent.

(1) This Act may be called the Dissolution of Muslim Marriages Act, 1939.

(2) It extends to all the provinces and the Capital of the Federation.

2. Grounds for decree for dissolution of marriage.

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;

(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consumated;

(viii) that the husband treats her with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute of leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran,

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,

Provided that:

(a) no decree passed on ground (i) shall take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and

(b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground.

3. Notice to be served on heirs of the husband when the husband’s whereabouts are not known.

In a suit to which clause (i) of section 2 applies:

(a) the names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.

(b) notice of the suit shall be served on such persons, and

(c) such persons shall have the right to be heard in the suit:

Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.

4. Effect of conversion to another faith.

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

5. Right to dower not be affected.

Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage

6. (Repeal of section 5 of Act, XXVI of 1937)

Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.