Unit 6:- Codified Law IV

     6.1 Law relating to Hindu Adoption  

     6.2 Law relating to Maintenance under HAMA Act, 1956

     6.3 Law relating to Hindu Minority and Guardianship Under Hindu Law

     6.4 Family Courts: Composition, Powers and Functions of Family Courts 

 

Unit 6: Codified Law IV (Adoption, Maintenance, Guardianship & Family Courts)

6.1 Law Relating to Hindu Adoption

(The Hindu Adoptions and Maintenance Act, 1956 – HAMA)

Introduction & Definition

Historically, adoption (Dattaka) was a religious act to ensure a son (Putra) could perform funeral rites. The HAMA, 1956 secularized this. Now, adoption is not just for religious benefits but for the welfare of the child. It allows the adoption of both boys and girls and gives women the right to adopt.

Statutory Provisions

  • Section 6: Requisites of a valid adoption.
  • Section 7 & 8: Capacity of Male and Female to adopt.
  • Section 10: Who can be adopted.
  • Section 11: Other conditions (e.g., age difference).
  • Section 12: Effects of adoption.

Essential Ingredients (Valid Adoption – Section 6)

For an adoption to be valid, four conditions must be met:

  1. Capacity to Adopt:
    • Male (Sec 7): Sound mind, Major. Must have wife’s consent (mandatory unless she is disqualified/dead).
    • Female (Sec 8): Sound mind, Major, and either Unmarried, Divorced, or Widowed. (If husband is alive, she cannot adopt).
  2. Capacity to Give (Sec 9): Only the Father, Mother, or Guardian can give the child.
  3. Capacity of Child (Sec 10): The child must be a Hindu, single (never married), and under 15 years (unless custom permits).
  4. Other Conditions (Section 11):
    • No Same-Sex Child: If adopting a son, you must not have a living son (or grandson). If adopting a daughter, you must not have a living daughter.
    • Age Gap: If a male adopts a female (or vice-versa), there must be a 21-year age gap.
    • Datta Homam: Not mandatory; intent to transfer is enough.

Landmark Case Laws

  1. Ghisalal v. Dhapubai (2011)
  • Issue: Adoption without wife’s consent.
  • Judgment: The Supreme Court held that the consent of the wife is mandatory (proviso to Section 7). An adoption made by the husband without the wife’s consent is void.
  1. Lakshman Singh Kothari v. Rup Kanwar (1961)
  • Judgment: The SC held that while religious ceremonies are not essential, the actual giving and taking of the child (physical transfer) with the intent to transfer the child from one family to another is absolutely essential.

Exam-Style Conclusion

The HMA, 1956, democratized adoption, allowing females to adopt and normalizing the adoption of daughters. The strict conditions, especially the 21-year age gap rule (Sec 11), are designed to prevent sexual exploitation under the guise of adoption.

6.2 Law Relating to Maintenance under HAMA, 1956

Introduction & Definition

Maintenance (Bhrana-poshana) includes food, clothing, shelter, education, and medical treatment. Under Hindu Law, the obligation is:

  1. Personal: To maintain wife, children, and aged parents (regardless of property).
  2. Proprietary: To maintain other dependents (only if you inherit property).

Statutory Provisions

  • Section 18: Maintenance of Wife.
  • Section 19: Maintenance of Widowed Daughter-in-law.
  • Section 20: Maintenance of Children and Aged Parents.
  • Section 23: Amount of Maintenance (Factors).

Essential Ingredients

  1. Maintenance of Wife (Section 18):
  • Entitled to maintenance for life.
  • Separate Residence: Can live separately and claim maintenance if husband is guilty of desertion, cruelty, leprosy, or has another wife.
  • Disqualification: No maintenance if she is unchaste or converts to another religion.
  1. Children & Aged Parents (Section 20):
  • A Hindu is bound to maintain their children (legitimate/illegitimate) and aged/infirm parents.
  • Daughter: Entitled to maintenance until she gets married.
  1. Widowed Daughter-in-Law (Section 19):
  • If she cannot maintain herself, her Father-in-law is liable to maintain her (provided he has coparcenary property).

Landmark Case Laws

  1. Rajnesh v. Neha (2020)
  • Significance: The SC laid down guidelines to prevent delays in maintenance cases. Both parties must file an Affidavit of Disclosure of Assets. Maintenance is awarded from the date of application.
  1. Padmja Sharma v. Ratan Lal Sharma (2000)
  • Judgment: The SC held that under Section 20, both parents (if earning) share the obligation to maintain children. The father alone cannot be burdened if the mother is financially capable.

6.3 Hindu Minority and Guardianship

(The Hindu Minority and Guardianship Act, 1956)

Introduction & Definition

A “Minor” is a person under 18. The law appoints a “Guardian” to protect their person and property. Key Principle: The welfare of the minor is the paramount consideration (Parens Patriae).

Statutory Provisions

  • Section 6: Natural Guardians.
  • Section 8: Powers of Natural Guardian.
  • Section 13: Welfare of minor.

Essential Ingredients (Natural Guardians – Section 6)

  1. Boy / Unmarried Girl: Father, and after him, the Mother.
    • Note: Custody of a child < 5 years is with the Mother.
  2. Illegitimate Child: Mother, and after her, the Father.
  3. Married Girl: The Husband.

Powers (Section 8)

  • The Guardian can do all acts for the “benefit” of the minor.
  • Restriction: The Guardian CANNOT sell, mortgage, or gift the minor’s immovable property without Court permission. Any such sale is voidable.

Landmark Case Laws

  1. Githa Hariharan v. Reserve Bank of India (1999)
  • Issue: Section 6 says mother is guardian “after” the father. Is the mother not a guardian if the father is alive?
  • Judgment: The SC held that “after” means “in the absence of”. If the father is indifferent or incapable, the mother can act as the natural guardian even during his lifetime. This judgment removed gender bias.

6.4 Family Courts

(The Family Courts Act, 1984)

Introduction & Definition

Enacted to remove family disputes from the adversarial atmosphere of regular courts. Objective: To promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.

Statutory Provisions

  • Section 3: Establishment.
  • Section 7: Jurisdiction.
  • Section 9: Duty to attempt settlement.

Composition, Powers & Functions

  1. Composition: Established by State Govt in cities with >1 Million population. Judges are selected for their experience and commitment to social welfare.
  2. Jurisdiction (Section 7):
    • Covers all matrimonial matters: Nullity, Divorce, Restitution of Conjugal Rights.
    • Custody, Guardianship, and Maintenance.
  3. Functions/Procedure:
    • Conciliation: Section 9 makes it mandatory for the court to try and settle the dispute amicably first.
    • Counselors: Use of counselors and social welfare agencies is mandatory.
    • Informal: Lawyers are not allowed as a matter of right. Evidence rules are relaxed.

Landmark Case Laws

  1. K.A. Abdul Jaleel v. T.A. Shahida (2003)
  • Judgment: The SC held that Family Courts have jurisdiction to decide property disputes between divorced spouses, provided the dispute is related to their former marriage.

Exam-Style Conclusion

The Family Courts Act, 1984, shifts the focus from “winning a case” to “saving a family.” By prioritizing conciliation (Section 9) and using experts like counselors, it acts as a therapeutic forum rather than a purely legal one.

 

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