This  article has been written by Ms.Arushi, a B.A.LL.B.(2022-27) student of Lloyd School of Law, Greater Noida, U.P.

Introduction 

Personal laws are the laws that are applicable to a particular religion in common and those laws which govern the religion. These can be the custom or the legislation that has been followed for a long period of time and these are the laws from where these religions have also derived their basis and the law on these have developed and evolved. These laws have been established keeping in mind the various beliefs and sentiments of the people. It refers to a set of laws where an individual is governed in respect of matters relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. Four major personal law legislation were passed in 1955-56 and these laws form the first point of reference for modern Hindu law: 

Hindu Marriage Act (1955),

 Hindu Succession Act (1956),

 Hindu Minority and Guardianship Act (1956), and 

Hindu Adoptions and Maintenance Act (1956).

Hindu Marriage Act,1955

The Act applies to all forms of Hinduism to a person who is a Vira Shaiva, a Lingayat or a follower of the Brahmo, Prarthana or AryaSamam and also recognises offshoots of the Hindu religion as specified in Article 44 of the Indian Constitution. These include Jains and Buddhists. The Act also applies to anyone who is a permanent resident in the India who is not Muslim, Jew, Christian, or Parsi by religion.

Conditions for marriage

Section 5 of The Hindu Marriage Act specifies certain conditions for a valid marriage-

• Both parties should not have a spouse living at the time of marriage.
• The bridegroom must be at least 21 years old, and the bride must be at least 18 years old. However, the bride and groom can marry before these ages with the consent of their parents or guardians.
• Both parties should be mentally sound and capable of giving valid consent to marriage.
• Sapinda Relationship – The bride and groom should not be within the prohibited degrees of relationship unless the custom or usage governing each of them permits of a marriage between the two.
• Prohibited Degrees of Relationship – The act specifies certain degrees of prohibited relationships, and marriages between individuals within these degrees are void.
• Prohibited Degrees of Sapinda Relationships – The act also prohibits marriages between persons who are sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Void Marriages-

The grounds for a void marriage under the Act include –

• If either party has a spouse living at the time of marriage, the subsequent marriage is void.
• If either party is incapable of giving valid consent due to unsoundness of mind or mental disorder, the marriage is void.
• If the parties are within the prohibited degrees of sapinda relationships, the marriage is void unless the custom or usage governing each of them permits such a marriage.
• If the parties are within the prohibited degrees of relationships, the marriage is void.

Voidable Marriage

 Grounds for voidable marriages include:

• Impotency: If either party is unable to consummate the marriage or is incapable of doing so.
• Unsoundness of mind: If either party suffers from a mental disorder that makes them unfit for marriage.
• Consent obtained by force or fraud: If consent for the marriage was obtained through coercion, threat, or fraudulent means.
• Pregnancy by someone other than the spouse: If, at the time of marriage, the wife is pregnant by someone other than the husband, and the husband was unaware of this fact.

Ceremonies

Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either the bride or the groom. These rites and ceremonies include the Saptapadi and Kreva.

Divorce

 Husband and wife both can file for divorce. A marriage can be dissolved on the following grounds-

1. Adultry- if the respondent has had voluntary sexual intercourse with other man or women after marriage.
2. Cruelty – 
3. Desertion
4. Conversion to another religion 
5. Unsound mind
6. If the partner dignosed with incurable disease.
7. Presumption of death
8. No resumption of cohabitation after a decree of judicial separation for a period of atleast one year.

Wife may also seek divorce on the grounds-

In case of marriages that took place before the Hindu Marriage Act 1955 was enacted, the husband was already married and that any other wife of the husband was alive at the time of the marriage ceremony.

The husband, after marriage, has been found guilty of rape, sodomy or bestiality.

Co-habitation has not been resumed within a yearafter an order for maintenance under Section 125 of the Criminal Procedure Code or alternatively, under the Hindu Adoptions & Maintenance Act 1956.

The wife was under-age when she married and she repudiates the marriage before attaining the age of 18 years.

Maintainance-

Under the Hindu Marriage Act, 1955, maintenance refers to financial support provided by one spouse to the other during and after legal proceedings. Section 24 of the Act allows either spouse to seek maintenance pendente lite (during the pendency of the case) if they lack independent income to support themselves.

Additionally, Section 25 empowers the court to order permanent alimony or maintenance after the conclusion of the legal proceedings. The court considers factors like the financial position of both spouses, their needs, and other circumstances.

It’s important to consult with a legal professional for advice tailored to your specific situation, as family law can vary based on individual cases and jurisdictions.

Hindu Succession Act,1956

The Hindu Succession Act of 1956 applies to Hindus, including Buddhists, Jains, and Sikhs. It governs the distribution of property among heirs and defines rules of inheritance. Amendments in 2005 brought about significant changes, ensuring equal rights for daughters in ancestral property. It doesn’t apply to Muslims, Christians, Parsis, or other religious communities with separate personal laws. 

Features of the Act-

• It talks about intestate succession- when a person dies without making a will then his property will be distributed to person according to the act.
• Hindu male succession- if a Hindu male dies without making a will then his property is distributed according to Hindu Succession Act.
• Hindu female succession- if a hindu female dies without making a will then her property is distributed 
• according to Hindu Succession Act.
• Disqualification- when the heir is disqualifed for the property
• Women is absolute owner of her property

In the case of males-

Section 8 talks about when a hindu male dies without making a will then his property will devolve upon following heirs-

• Class I heirs or prefrential heris (16 categories)
• Class II heirs(9 categories)
• Agnates( related to male)
• Cognates( related to females)
• Government ( acc. To sec.29)

Section 9 – class I heirs take shares simultaneously and to exclusion of all the other heirs.

Section 10 talks about 4 rules of demolution of shares-

Rule1 – if there are more than one widows then they will all together take 1 share

Rule 2 – surviving sons daughters and mother of intestate each shall take one share.

Rule 3 – heirs in branch of pre deceased son or daughter of intestate shall take 1 share i.e. only that share which their parent would have got, if they were alive

Rule 4 – distribution of shares in rule 3

Branch of predeceased son-

Widows or widows – together 1 person

Surviving sons daughters – each 1 portion 

Branch of pre deceased son – 1 portion 

Branch of pre deceased daughter-

Husband get no shares

Surviving sons, daughters get one portion each 

Class II heirs has 9 categories. According to section 9 heirs in 1st entry will be preferred over heirs in 2nd entry and so on.

According to section 12 of the Act- distribution of property among heirs of class II will be specified in anyone entry shall take equally.

In case of female-

Section 14- property of hindu female to be her absolute property. Any property posessed by Hindu female whether acquired before or after commencement of this Act shall be her absolute property. It abolishes womens estate and converts it to her absolute estate.

Section 15 – general rules of succession. It divides property of a Hindu female into 3 categories.

Section 15(1) – property obtained from other sources. Eg. Self acquired, will, through succession from other relatives.

Section 15(2)(a)- property inherited from parents on succession.

Section 15(2)(b)- property inherited from husband or father in law by succession.

Amendment

The Hindu Succession Amendment Act, 2005 amended Section 4, Section 6, Section 23, Section 24 and Section 30 of the Hindu Succession Act, 1956. It revised rules on coparcenary property, giving daughters of the deceased equal rights with sons, and subjecting them to the same liabilities and disabilities. The amendment essentially furthers equal rights between Hindu males and females in society through legislation.

Hindu Minority and Guardianship Act,1956

The modern laws on minority and guardianship are regulated by the Hindu Minority and Guardianship Act, 1956. The father is the natural guardian of the child and after his death, the mother will take the responsibility of the guardianship of the child.

Section 4(a) defines minor. A minor is a person who has not completed the age of 18 years. 

Section 4(b) defines guardian. A guardian means a person who has completed the age of 18 and he is taking proper care of a minor and his property and as well as his own. 

Types of Guardian-

There are 3 types of guardian-

1. Natural guardian- In Hindu Minority and Guardianship Act, a natural guardian is typically the father, followed by the mother. The father is considered the primary natural guardian of a Hindu minor. However, if the father is not alive or is unfit, the mother becomes the natural guardian. If both parents are absent or incapable, the guardianship may pass to other relatives in the order specified by the law. 
2. Testamentary guardian- Under the Hindu Minority and Guardianship Act, a testamentary guardian is someone appointed by a Hindu parent through a will to take care of their minor child in the event of their death. This legal provision allows parents to designate a person they trust to be the guardian and ensure the well-being of their child in case they are no longer able to fulfill that role. It’s a measure to provide for the best interests and care of the minor in accordance with Hindu personal laws.
3. A Guardian appointed by the court- Under the Hindu Minority and Guardianship Act, a court-appointed guardian is typically appointed for a minor in cases where the natural guardian is unable or unwilling to act. The court considers the welfare of the minor as the paramount consideration when appointing such a guardian. This ensures that the minor’s best interests are protected in situations where the natural guardianship is insufficient or compromised.

Hindu Adoption and Maintenace Act-

The Act of establishing a legal relationship between a child and a parent other than the child’s biological parent, thereby entrusting the designated adult with responsibility for raising the child.

 According to Manusmiriti Adoption has been described as ‘taking someone’s else’s son and raising him as one’s own’. 

Conditions for a valid adoption

Persons adopting to have capacity and right to take in adoption. Under section 7 of the tact requirements are given for a male to adopt a child and under section 8 of the act requirements are given for a female to adopt a child.The requirements are-

1. Sound mind 
2. Attained a age of majority
3. Consent of Husband or wife living

The capacity of a Hindu male to adopt–

Section 7 of the Act states that a male Hindu who is willing to adopt a child must fulfil the following conditions-

1. Attained the age of majority
2. Be of sound mind.
3. Must have a wife who is alive and her consent is absolutely necessary. 
4. It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
5. If a person has multiple wives, the consent of all the wives is necessary for adoption.

The capacity of a Hindu female to adopt-

Section 8 of the act states that a Hindu Female willing to adopt a child must: 

Have attained the age of minority

Be of sound mind

Be either a widow

Divorced

Unmarried in order to adopt.

Effects of adoption–

As per the Act, an adopted child will be considered the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. From the date of adoption, all the relations of the child in the family of his or her birth will be considered to be severed and replaced by those created by the adoption in the adoptive family. He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act,1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family. Any property which entrusted to the adopted child before the adoption will 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. The adopted child will not divest any person of any estate which vested in him or her before the adoption.

References-

https://blog.ipleaders.in/hindu-law/

https://www.outlookindia.com/national/explained-what-are-personal-laws-how-is-it-different-from-special-marriage-act–news-279747

https://blog.ipleaders.in/hindu-marriage-act-1955/

https://www.netlawman.co.in/ia/hindu-marriage-act-1955

https://blog.ipleaders.in/the-hindu-succession-act-1956/

https://www.centurylawfirm.in/blog/hindu-succession-act/

https://blog.ipleaders.in/overview-of-the-hindu-minority-and-guardianship-act-1956/

https://blog.ipleaders.in/hindu-adoption-maintenance/