Category Archives: Family Law

Family Arrangement – Object of

In Kale v. Director of Consolidation, (1976) 3 SCC 119, it was held as under:
“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have spes successionis so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. Rajni Sanghi v. Western India State Motors Ltd., (2015) 16 SCC 631.

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HUF – Manager has a distinct role from Karta

While there can be no doubt that a Hindu Widow is not a coparcener in the HUF of her husband and, therefore, cannot act as a karta of the HUF after the death of her husband, the two expressions i.e. karta and manager may be understood to be not synonymous and the expression “manager” may be understood as denoting a role distinct from that of karta. Hypothetically, we may not take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or where the sole male coparcener is a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the karta in her capacity as his legal guardian. Such a situation has been found to be consistent with the law by the Calcutta High Court in Sushila Devi Rampuria v. ITO, (1960) 38 ITR 316 rendered in the context of the provisions of the Income Tax Act and while determining the liability of such an HUF to assessment under the Act.
A similar proposition of law is also to be found in Dhujram v. Chandansingh, 1974 MPLJ 554 though, again, in a littled different context. The High court had expressed the view that the word “manager” would be consistent with the law if understood with reference to the mother as the natural guardian and not as the karta of the HUF. Shreya Vidyarthi v. Ashok Vidyarthi, (2015) 16 SCC 46.

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Custody of Child – Welfare Priciple

The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

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Impossibility of – Consummation of Marriage

In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279, the Hon’ble Apex Court held as under:
“A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, he will have to establish that his wife, was impotent at the time of marriage and continued to be so until the institution of the proceedings.”Smt. Sulekha v. Ashok Kumar, 2016 (119) ALR 555.

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‘Mother’ and ‘Stepmother’ – Status of

In Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479, it was held as under:

“The expressions ‘mother’ and ‘stepmother’ have not been defined either in the Criminal Procedure Code or in the General Clauses Act, 1897. These expressions have also not been defined by the Hindu Law or the Hindu Adoptions and Maintenance Act, 1956 or by any other law. All that the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides is that the expression ‘parent’ includes a childless stepmother. On a conspectus view of dictionary meaning of the two expressions – ‘mother’ and ‘stepmother’ in various dictionaries, it clearly emerges that there is inherent distinction between the status of a ‘mother’ and ‘stepmother’ and they are two distinct and separate entities and both could not be assigned the same meaning. The expression ‘mother’ clearly means only the natural mother who has given birth to the child and not the one who is the wife of one’s father by another marriage.

A stepmother is one who is taken as a wife by the father of the child other than the one from whom he is born or who has given birth to him. This clearly goes to show that the woman who gives birth to a child and another woman who is taken by the father as his ‘other’ wife are two distinct and separate entities in the eyes of law and who in common parlance are known and recognized as real ‘mother’ and ‘stepmother’. That being so, another woman who is taken as a wife by the father of the child cannot be given the status of a mother to the child born from another woman as there is no blood relation between the two”. Ajay Singh Maurya v. State of Uttarakhand, 2016 (150) FLR 920.

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Family Settlement – Essentials of

To put binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions:
(1) The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
(3) The family arrangement may be oral even in which case no registration is necessary.
(4) It is well settled that registration would be necessary only if the terms of the family arrangements are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable.
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.
(6) Even if bona fide dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement. Smt. Rama Devi v. Mahendra Pal, 2016 (114) ALR 852.

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Hindu Succession (Amendment) Act, 2005 – Effect on Prior Partitions

The legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus no other interpretation is possible in view of the express language of the statute. The proviso keeping dispensations or alienations or partitions prior to 20.12.2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20.12.2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.
Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given.
Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of the words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of Statutes are useful servants but difficult masters. Objects of interpretation is to discover the intention of the legislature.
The proviso to Section 6(1) and sub-section (5) of Section 6 of the Hindu Succession Act clearly intend to exclude the transactions referred to therein which may have taken place prior to 20.12.2004 on which date the bill was introduced. Explanation cannot permit reopening of partitions which were valid when affected. Object of giving finality to transactions prior to 20.12.2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the Statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way.
The rights under the amendment are applicable to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20.12.2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. Prakash v. Phulavati, (2016) 2 SCC 36.

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