Unit 4:-  Codified Law II

              4.1 Nullity of Marriage: Void and Voidable Marriages

              4.2 Permanent Maintenance and Alimony 

              4.3 Other Provisions under HMA 

              4.4 Testamentary and Intestate Succession 

 

Unit 4: Codified Law II (Marriage & Succession)

4.1 Nullity of Marriage: Void and Voidable Marriages

Introduction & Definition

Not all marriages are valid. Some are flawed from the beginning. The law categorizes these flawed marriages into two types:

1. Void Marriage: It is void ab initio (invalid from the very start). In the eyes of the law, it never existed.
2. Voidable Marriage: It is valid until one party challenges it in court. If challenged, it is annulled; if not, it remains valid.

Statutory Provisions

• Section 11: Void Marriages.
• Section 12: Voidable Marriages.
• Section 16: Legitimacy of children of void and voidable marriages.

Essential Ingredients

Grounds for Void Marriage (Section 11):

A marriage is void if it violates any of the following conditions of Section 5:

• Bigamy: The party has a living spouse.
• Prohibited Relationship: Parties are within prohibited degrees (e.g., brother-sister).
• Sapinda Relationship: Parties are blood relatives (e.g., cousins) without customary permission.

Grounds for Voidable Marriage (Section 12):

A marriage can be annulled if:

• Impotency: The respondent was impotent at the time of marriage and continues to be so.
• Unsoundness of Mind: (As per Section 5(ii)).
• Consent by Fraud/Force: Consent was obtained by coercion or fraud regarding the nature of the ceremony or the person.
• Pregnancy: The respondent (wife) was pregnant by some other person at the time of marriage (and the husband did not know).

Comparison Table: Void vs. Voidable Marriage

Feature	Void Marriage (Sec 11)	Voidable Marriage (Sec 12)
Legal Status	Invalid from the start (Nullity).	Valid until annulled by a decree.
Decree	Not strictly necessary (can be ignored).	Necessary to end the marriage.
Who can sue?	Either party (or even third parties in some contexts).	Only the aggrieved party (spouse).
Effect on Status	Wife does not get the status of ‘wife’.	Wife has status of ‘wife’ until annulment.
Maintenance	Generally no maintenance (except in rare cases).	Maintenance can be claimed.
Limitation	No time limit to challenge.	Must be challenged within 1 year (for fraud/pregnancy).

Landmark Case Laws

1. M.M. Malhotra v. Union of India (2005)

• Judgment: The Supreme Court held that a void marriage is no marriage in the eyes of law. No decree of nullity is required to establish its invalidity.

2. Yuvraj Digvijay Singh v. Yuvrajni Pratap Kumari (1970)

• Issue: Impotency vs. Barrenness.
• Judgment: The SC clarified that “Impotency” means the practical impossibility of performing the sexual act (consummation). It is different from sterility (inability to produce children). A marriage cannot be annulled for sterility, only for impotency.

3. Lila Gupta v. Laxmi Narain (1978)

• Judgment: A marriage contracted in contravention of the “waiting period” (Section 15) is not void, but merely irregular. The law aims to preserve marriages, not destroy them on technicalities.

4.2 Permanent Maintenance and Alimony

Introduction & Definition

Marriage imposes a financial responsibility. Under Hindu Law, the right to maintenance is not gender-specific; even a husband can claim maintenance from a wealthy wife.

• Interim Maintenance (Section 24): Money for legal expenses and support during the court case.
• Permanent Alimony (Section 25): Financial support granted at the time of passing the final decree (Divorce/Nullity) or any time subsequent thereto.

Statutory Provisions

• Section 24: Maintenance pendente lite and expenses of proceedings.
• Section 25: Permanent alimony and maintenance.

Essential Ingredients (Section 25)

1. Application: Either the husband or the wife can apply.
2. Quantum: The court considers:
   • The respondent’s own income and property.
   • The applicant’s income and property.
   • The conduct of the parties.
3. Duration: Usually for the lifetime of the applicant.
4. Modification: Can be varied, modified, or rescinded if circumstances change (Sec 25(2)).
5. Cancellation: If the party receiving alimony remarries or has sex outside marriage (unchastity), the court shall cancel the order (Sec 25(3)).

Landmark Case Laws

1. Badshah v. Urmila Badshah Godse (2014)

• Issue: Can a second wife (void marriage) claim maintenance?
• Judgment: Yes. The SC held that if the husband duped the woman into believing he was single, he cannot later rely on his own wrong (Bigamy) to deny her maintenance.

2. Chand Dhawan v. Jawaharlal Dhawan (1993)

• Judgment: Section 25 applies only when a decree (divorce, nullity, restitution) is passed disrupting the marital status. If the petition is dismissed, no permanent alimony can be granted under this section.

4.4 Testamentary and Intestate Succession

Introduction & Definition

Succession is the transmission of property rights from one person to another upon death.

1. Testamentary Succession: When a person dies leaving a valid Will (Testament). The property devolves according to their wishes.
   • Governed by: The Indian Succession Act, 1925.
2. Intestate Succession: When a person dies without a Will. The property devolves according to the rules of law.
   • Governed by: The Hindu Succession Act, 1956 (HSA).

Key Terms

• Intestate: A person who dies without making a Will.
• Heir: A person entitled to inherit property after death.
• Class I Heirs: The primary heirs (Son, Daughter, Widow, Mother). They exclude everyone else.
• Agnates: Relatives connected wholly through males.
• Cognates: Relatives connected through at least one female.

4.5 Historical Perspective of Traditional Hindu Law

To understand the 1956 Act, you must understand the two ancient schools of thought that governed India for centuries.

1. Mitakshara School (All India except Bengal)

• Core Concept: Coparcenary by Birth (Janmaswatvavada).
• Right: A son acquires a right in the ancestral property the moment he is born.
• Mode of Devolution: Survivorship. When a coparcener dies, his share does not go to his heirs; it merges into the common pool and the shares of surviving coparceners increase.
• The Coparcenary: Limited to 4 generations (Father, Son, Grandson, Great-Grandson). Females were not coparceners.

2. Dayabhaga School (Bengal & Assam)

• Core Concept: Right after Death (Uparramswatvavada).
• Right: The son has no right by birth. He only gets a right when the father dies.
• Mode of Devolution: Succession. The property goes by inheritance (Will or Law), not by survivorship.
• Females: Had better rights compared to Mitakshara.

Significance of HSA, 1956

The Hindu Succession Act, 1956 codified these laws. It largely adopted the Dayabhaga principle (Succession) for self-acquired property but retained the Mitakshara principle (Survivorship) for ancestral Joint Family Property, until the 2005 Amendment changed everything.

4.6 Devolution of Interest in Coparcenary Property

Introduction & Definition

This is the most critical topic in Hindu Succession. It deals with Section 6 of the HSA, 1956.

Section 6 governs how a share in the Mitakshara Joint Family Property passes upon the death of a male Hindu.

The Evolution of Section 6

Phase 1: Before 2005 (The Old Law)

• If a male Hindu died, his interest in the Joint Family Property devolved by Survivorship upon the surviving members of the coparcenary (mostly males).
• Exception: If he left behind a female heir (Class I) or a male claiming through a female, his interest would devolve by Succession (Intestate/Testamentary), not survivorship.
• Discrimination: Daughters were not coparceners. They had no birthright in ancestral property.

Phase 2: The 2005 Amendment (The New Law)

• Equality: The Amendment Act, 2005 substituted Section 6.
• Daughter as Coparcener: The daughter of a coparcener becomes a coparcener by birth in her own right, in the same manner as the son.
• Rights: She has the same rights and liabilities as a son.
• Abolition of Survivorship: The rule of survivorship is effectively replaced by Testamentary or Intestate Succession.

Essential Ingredients (Present Section 6)

1. Coparcener by Birth: Daughter is now a coparcener by birth.
2. Same Rights: She can ask for partition of the ancestral home.
3. Liabilities: She is also liable for the debts of the joint family.
4. Retrospective? The daughter gets the right even if she was born before 2005, provided the property was not partitioned before Dec 20, 2004.

Landmark Case Laws (The Conflict & Solution)

1. Prakash v. Phulavati (2016)

• Judgment: The SC initially held that the 2005 Amendment is prospective. For a daughter to claim a share, both the father and the daughter must be alive on 9th Sept 2005 (date of amendment).

2. Vineeta Sharma v. Rakesh Sharma (2020) – [Most Important Case]

• Issue: Does the father have to be alive in 2005 for the daughter to become a coparcener?
• Judgment: The Supreme Court (3-Judge Bench) overruled Phulavati.
  • Ruling: The right is by birth. It does not matter if the father died before 2005.
  • Retroactive: The law applies retroactively. Daughters are coparceners with full rights, regardless of when the father died, provided the property remained joint.

Exam-Style Conclusion

The Hindu Succession Act, 1956, initially retained the patriarchal Mitakshara framework. However, the 2005 Amendment, solidified by the Vineeta Sharma (2020) judgment, completely dismantled gender discrimination. Today, a daughter stands on equal footing with a son, holding a birthright in ancestral property as a Coparcener.