Family Law Research Paper
Family Law Research Paper
Family Law Research Paper
Family law, in particular when it comes to Hindu customs and traditions that are
explicitly observed in Indian society, has various facets managed in a different
perspective of life, which through societal and legal advancements picked up a
jurisprudential degree and legal requirement in the realm of training. The extensive
network of legal authorizations altered many aspects of Hindu traditions either
consciously or unconsciously which helped to advance society significantly. The
legal system, which could handle all of the challenges faced by the populace
through religious society, changed many viewpoints in order to eliminate the unfair
and cruel situation. The Mitakshara and Dayabhaga schools of thought, which
differ in their decision with regard to property heritage and development, are
schools that the Hindu traditions ended its sources like discourses and procedures.
The Mitakshara School largely opposed women's rights over the property. Despite
the fact that some rebuilding programmes for women were also beneficial for the
underprivileged and excluded classes, the institutions and changes put in place for
their benefit created unfair conditions for other groups.
The Doctrine of Pious Obligation" forces children to take on risk in order to pay
back their father's debts; this study discusses how this doctrinal practise changed
from the Vedic era to the present, when women were made beneficiaries of
property inheritance through another statement but were still subject to the
obligation to pay back their father's debts through a devout commitment principle.
This reveals how continual adjustments that ignored this principle due to their
evaluation implications caused a one-sided situation among the guys.
INTRODUCTION
Family Law, which affects a significant portion of an individual's life, requires a
strong commitment from the people as a whole. India has an odd collection of
individual laws, which it owes to its early history, when models and the majority of
substantive law existed. The uniqueness of Indian family law remains fundamental
for every member of the nation's general population and has a consistency in
application, while the particular laws play a fundamental role in speaking to the
network of the general population. It includes a wide range of interpersonal
relationships, including marriage, wedding arrangements, youth authenticity, care,
guardianship, intestate succession, and testamentary movement, among other
topics that influence a significant portion of Indian law. According to that theory,
Hinduism, which is currently only practiced in India, is noteworthy because it
marks the moment when post-Vedic traditions and rituals received official
recognition through incorporation into "Hindu Law." In this way, traditionally
inferred Hindu law through its traditions, content, standards, and regulations
developed into an individual law that shapes the practices of one particular
network. Differentiated laws managing marriage, legacy, separate, reception,
progression, upkeep, and authority were also clearly managed in Hindu law.
Smiritis Vedic portrayal, which was derived from the systems of eminent people of
the Vedic era and was dependent on conventional organisations and traditions,
moved towards becoming days of yore as increasing legal implementation changed
into modern standard laws with both substantive and procedural structures. As
older people emphasized the significance of the many different aspects of life, the
tenets and standards were divided into two schools, Mitakshara and Dayabhaga.
These schools of Hindu law rose with the advancement of the time of editorials
and summaries, which is one of the sources of Hindu law.
With such barriers to women's rights, the judiciary has not been able to innovate.
The challenge may be apparent, for instance, in the interpretation of the
constitution's "Equal Protection Clause. Before the Hindu Woman's Right to
Property Act of 1937, women's property rights have developed over time. The idea
of stridhan, or "women's property," dates back to the Vedic era but has undergone
major change as a result of commentaries and judicial decisions made by British
courts. Generally speaking, a woman's stridhana refers to a type of property over
which she has complete authority and over which she is the source of her ancestors'
ancestry. To put it another way, although there may be exceptions depending on
the various schools of Hindu law, such property passes to her heirs. The first sort of
stridhan recognized by British courts is "gifts from kindred," or from male
members of her birth family. Property "acquired in lieu of maintenance" and
"property gained by adverse possession" make up the second and third types,
respectively. A woman's portion in the partition is not stridhana, and she would not
be the property's sole owner. The Hindu Women's Right to Property Act, 1937
gave legal form to the second category of women's property, which is that in which
she has a restricted or limited stake. Such a "women's estate" had as its main
characteristic that it only offered a little amount of disposal authority. It will be
observed that reforms, namely those pertaining to daughters' and women's property
rights, take one of two main trajectories. The first is a revision of the personal law
as it currently stands, which would grant women the same rights as men and
change the law's previous discriminatory provision that bestows property onto
males by virtue of birth. This strategy is vulnerable to the usual critique that it
pretends to preserve customary personal laws while changing their core ideas,
which are largely aimed at granting exclusively men property rights. The second
strategy is more direct and entails the outright repeal of any customary personal
laws that discriminate against women on the grounds that they cannot be
successfully changed. Both strategies have been tried in India, with varying
degrees of success and effects on women's rights. The second, more direct strategy
was tried in Kerala in 1976 with the Kerala Joint Family System (Abolition) Act,
which repealed both Mitakshara and Marumakattayam Law and did so by
following the general recommendations of the Hindu Law Committee (Rau
Committee). The Act itself has effects that have been shown to have both favorable
and unfavorable effects on women's rights. As was previously stated, the Acts
declare the daughter to be a complete coparcener, making her a member of her
birth family. Marriage to another family does not change this status. In other
words, she has a position of law that has never before existed since she belongs to
two families—her own and her husband's. Artificial conceptions of "family" that
don't exist in real life or that go against basic legal construction principles have
previously been overturned by the Supreme Court. In the case of Kunhikoman v.
State of Kerala, a definition of family that includes "husband, wife, unmarried
children, or such of them as they exist" was declared unconstitutional and fictitious
since neither they nor any other recognized family structure existed in real practise.
Both Hindu legal theory and practise do not recognise women as Kartas under
ancient Hindu law. This exclusion is justified by the argument that "only a
coparcener can be a Karta," and as women cannot be coparceners, they also cannot
be Kartas, according to the Supreme Court's ruling. Yet, the modifications aim to
establish the exact opposite situation by making a daughter a karta and formally
enabling her to become a karta of the joint family. In the setting of codified law,
and particularly in the context of women, the notion of pious obligation has
presented challenges. According to a ruling, the widow is not subject to the same
"moral responsibility" to repay the debts of decedent relatives as applies to male
coparceners. In Keshav Nandan Sahay v. Bank of Bihar, the court determined
that the boys were responsible for their late father's pre-partition obligations related
to various bank loans, but the widow was not. The judge believed that the widow
should be given a portion as her own person and not just as her husband's proxy in
the division of property between the coparcener and his sons. Even though it was
before the new amendments were enacted, the High Court of Karnataka, where
they are in effect, adopted the same position. A woman who is not a person entitled
to a portion in the Mitakshara coparcenary by birth is not bound by the theory of
pious obligation, the court reasoned in Padminibai v. Arvind Purandhar
Murabatte.
We'll start by focusing on the distinction related to "birth." Given that "birth" may
need to be strictly defined in accordance with the meaning of the provision, it
appears that there is an understandable distinction between a daughter who is
"natural born" and one who was "adopted." S.12 of the Hindu Adoption and
Maintenance Act, 1956, which eliminates the adoptive child's legal ties to his
biological family as of the adoption date and exclusively aligns him with his
adopted family, lends more credence to this claim. Without getting into the
specifics of his reasoning, it may be contested that one shouldn't automatically
assume that the legislature's position must always be followed if doing so produces
absurdities or obvious injustices. In order to ensure some higher ideals that were
either intended by the legislature or opposed to the opinion of the legislature itself,
judicial review of a number of legislative actions has been pursued. The use of
marital status to exclude daughters who were married before the Act's inception
from its application is the second dubious difference. It has been suggested that the
social reality that the daughter receives dowry at the time of marriage, which
would comprise her part, may have been the basis for this differentiation. It is
argued that this argument for the distinction would be against public policy,
particularly in light of the numerous legislative restrictions on the practice of
dowry. The use of marital status as a basis for discrimination has been ruled
unlawful in other factual contexts, however this distinction in the context of the
amendment has not yet been decided. In the case of Savita Samvedi v. Union of
India, limitations were imposed on a railway employee's ability to designate a
married daughter for benefits that the railway was providing to its workers.
According to railway regulations, a married daughter was only qualified if there
was no son or if the son was unable to care for his parents. This distinction was
found to be unlawful by the court because it was tainted by the twin vices of
gender discrimination against sons and daughters as well as against daughters
individually.
With the change, daughters will have the same rights and obligations as if they
were sons, according to Section 6 of the Hindu Succession Act, 1956. The pious
obligation has been eliminated as a result of the amendment Act of 2005, but
daughters will still be responsible for paying the deceased father's debt in the same
way that sons were before the amendment Act's implementation, protecting the
creditors' rights if the debt was incurred before the amendment's implementation.
But, if the father passed away without repaying the creditors' obligations, the
creditors can no longer take legal action against any of the father's heirs. But, if the
successor is required to specifically commit himself to fulfilling the duty, the
provision will no longer be necessary and will no longer be in effect. After the
implementation of this modification, creditors' rights are still protected from any
heirs born after the passage of the aforementioned Act. If the daughter specifically
agrees to repay her father's debt, she may do so in accordance with the
requirements of the revised Section 6 of the Hindu Succession Act.
CONCLUSION
Although the traditional customs of the past had a clear bias against women's rights
in relation to property rights, subsequent contemporary ideas changed this
prejudice via the reformation and rebuilding of the customs through court orders
and rulings. Regarding property inheritance, women were also given rights through
the process of revising Hindu law, which also led to the law's direct derecognition
of pious obligation doctrine, which specifically does not hold daughters to be duty
bearers, following the reform. As a result of the amendment's retroactive
application, sons now have a positive obligation to repay their debts, which, by
excluding women from the obligation, creates a prejudice against sons. In light of
the fact that women are guaranteed succession and inheritance as well as the fact
that the concept of pious obligation is based on the interest over coparcenary right,
this article advocates that women be explicitly subject to the doctrine of pious
obligation as well.
BIBLIOGRAPHY
Agrawal, K.B., 2010.Family Law in India, Kluwer Law International.
Anon, 2013a. Difference between the Ancient Doctrine of Pious Obligation and the Modern
Doctrine.
World’s Largest Collection of Essays! Published by Experts Available
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Anon, 2013b. Pious Obligation of a Hindu Son to pay his Father’s Debts.
World’s Largest Collection of Essays! Published by Experts Available at:
http://www.shareyouressays.com/knowledge/pious-obligation-of-a-hindu-son-to-pay-hisfathers-
debts/117184
https://www.academia.edu/24128027/Pious_obligation_of_Daughters_ the_Modern_Perspective
https://blog.ipleaders.in/what-happens-when-a-person-cannot-pay-his-debts-and-becomes-
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http://www.legalservicesindia.com/article/696/Pious-obligation-of-Daughters-the-Modern-
Perspective.htm