Hindu Law


Concept of Marriage - Sacramental or Contractual?

Historical Perspective - Manu, ardhangini, marriage is an essential sanskara, man is incomplete without wife. Once performed, it cannot be dissolved.
Modern Perspective - Civil contract. Can be dissolved. Cannot force to live together. Equality of sexes. Can't be done without consent.
Why is it Sacramental? Why is it Contractual?
As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even voidable only on that ground. In the case of Venkatacharyalu vs Rangacharyalu 1980, it was held that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage. The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable.
Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without "saptapadi" is void.
In the case of Dr. A N Mukherji vs State 1969, a person could not be convicted of bigamy because he performed 3 marriages without doing necessary ceremonies.
Marriage is no more permanent since divorce is available by mutual consent.
Marriage is no more eternal since widow remarriage is permissible.
Even now bachelors are not eligible to perform several religious ceremonies. Only married couples are allowed. Thus, it still retains its sacramental property. Marriage is no more holy because a marriage can be done without all the ceremonies such as vivah homam. Only saptapadi is required.
No-fault  divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up of a marriage is very difficult.

Conclusion: It is has a unique blend of sacramental and contractual characteristics.

Essential conditions of a valid Hindu marriage. Is there a provision for punishment for violating the conditions?

Section 5
  1. Section 5 (1) Must not have a spouse alive.
    Kanwal Ram vs H. P. - Essential ceremonies are a must for committing the offence of second marriage.
    Priya vs Suresh - Mere admission by the parties is not enough. Proof of essential ceremonies is required.
  2. Section 5 (2) neither party is
    1. incapable of giving consent due to unsoundness of mind.
    2. though capable of giving consent, is unfit for marriage and procreation of children due to mental disorder.
      Alka vs Abhinash - MP HC held that "and" must be read as "or".
    3. suffers from recurrent attacks of insanity.
      Balakrishna vs Lalitha - "Incurable" is not a requirement. Only recurrent attacks, irrespective of whether curable or incurable, provided enough ground.
  3. Boy is over 21 and girl is over 18.
    Rabindra vs Sita - Marriage in contravention of this clause is, nevertheless, valid.
  4. parties are not within degrees of prohibited relationship.
  5. parties are not sapindas
Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and 495 (bigamy with concealment - 10 Yrs + fine)  of IPC will apply for bigamy.
Section 18(a): 15 days + 1000/- for contravention of 5(3)
Section 18(b) : 30 days + 1000/- for contravention of 5(4) and 5(5)

What is the difference between Void and Voidable marriage? What are the consequences of a Void marriage?

Void Voidable
Defined by section 11 Defined by section 12
Grounds -
  1. Performed in contravention of 5(i), 5(iv), or 5(v)
  2. Ceremonies in section 7 not performed.
  3. In contravention of section 15 - Divorce not granted yet or time to appeal has not elapsed.
  1. Unable to consummate - Impotence (not same as incapacity to conceive or impregnate)
    Samar vs Snigdha - Full and complete penetration (vera copula) is an essential ingredient of ordinary intercourse though degree of satisfaction is immaterial.
    Kanthy vs Harry - Unduly large male organ amounts to physical abnormality and thus impotence.
    Laxmi vs Babulal - Absence of vagina, even though an artificial vagina was created, was held impotence.
    Jagdeesh vs Seela - Husband lived with wife for 3 days and nights immediately after marriage but could not consummate. Held that it was because of incapacity, nervousness, or hysteria. Thus, was impotent.
    Shewanti vs. Bharua 1971 - Wife was sterile and suffering from non-menses, though she was capable of normal sexual intercourse. Held not impotent because capacity to bear children is not impotence. Impotence only refers to sexual intercourse.
  2. In contravention of 5(ii) - Mentally unsound. Alka vs Abhilash, Balakrishna vs Lalitha (see above)
  3. Consent obtained by force or fraud. 
  4. Force - Rice vs Rice - threatened with pistol.
    Fraud - Rama vs Mohinder 1996 - Did not tell that she had a child with cesarean.
    Fraud - Purbi vs Basudev 1969 - Husband's pre-marriage boasting about high prospects in life is not fraud.
    Fraud - Som Dutt vs Raj Kumar 1986 - Wife concealed her age. She was 7 yrs elder.

  5. Girl was pregnant by some other person
  6. Mahendra vs Sushila 1965 -Girl's admission to pre-marriage pregnancy when husband had no access to her.
Marriage does not exist at all. Marriage is fully valid until it is declared void by the court.
No consequences of marriage - right in property, conjugal rights, maintenance. Full consequences while marriage lasts.
No decree of court is necessary. Decree can be obtained by either person.
Court decree is necessary. Marriage can be avoided only on the petition of one spouse. If one person does not petition for annulment, marriage will remain valid. If one person dies, the marriage will remain valid for ever.
If someone calls the wife a concubine, it will not amount to defamation. Decree is given retroactively.

Effects of a void marriage
Section 16 - Children of void (sec 11) or annulled voidable (sec 12) marriage, though termed legitimate under section 16, do not get any right in the joint family of parents. They have right in personal self earned property of parents.
Spouses cannot claim any matrimonial reliefs.
Illustration - A and B are brothers. W is B's wife but marriage is void. A dies without any children. B can claim all of A's property.
In the case of Sudarsan vs State 1988, it was held that this legitimacy is conferred only in cases when marriage is void on account of sec 11 and not if a marriage is void due to another reason such as lack of proper ceremonies.

Explain Judicial separation. What is the difference between Judicial Separation and Divorce? On what grounds can a decree of Judicial Separation be passed?
Judicial separation is a state of marriage authorized by the court where a husband and wife do not live like a married couple.  In many situations it becomes impossible for either spouse to live with the other person. At the same time, they either do not want a divorce or do not have enough ground for divorce. In such a situations, court may grant a decree of judicial separation.

Judicial Separation Divorce
Section 10 - Marriage still exists therefore cannot do adultery etc. Section 13 - Marriage ends. Can remarry  subject to sec 15.
Not obligatory for the petitioner to cohabit with the partner. Cannot be undone.
Can be rescinded by petition of either party if court is satisfied.

Grounds for Judicial separation are same as given in section 13(1), which are applicable for divorce.  A wife has the grounds given in section 13(2) as well. These are  given below under Divorce.

Section 13 (1) At fault Grounds

Adultery -  Voluntary intercourse with third person. Does not include rape.
Vira Reddy vs Kistamma 1969 - One single act of adultery is enough for divorce or judicial separation.
Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required.
Sanjukta vs Laxmi 1981 - Circumstantial evidence is sufficient.
Legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early law, intention was considered an essential element of cruelty but in modern law it is not so. The intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or nagging have also been considered as cruelty.

There is no precise definition of cruelty because the term is so wide. Several situations and cases over past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held that any conduct that poses a danger to life, limb, or health - physical or mental, or causes reasonable apprehension of such danger, is cruelty. 
Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her husband because it caused reasonable apprehension of danger. However, now it is not required. The clause merely says, "if the respondent has treated the petitioner with cruelty". In the case of GVN Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the act has caused a reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct constituting cruelty. It further held that social status of the parties, their education must be considered while determining whether the act constitutes cruelty or not.  Thus, what amounts to cruelty in one case may not amount to cruelty in another.

Intention to be cruel is not material
Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963 Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. This was cruelty without intention.
Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband tried to strangulate wife's brother and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia cannot be a defense against the plea of cruelty.

Cruelty need not only be against the petitioner
In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife.

The act or omission need not only be of the respondent
Since most women have to live in husband's joint family, they have to put up with their actions also. In the case of Shyam Sundar vs Santa Devi 1962, the wife was ill treated by the in-laws and husband stood their idly without caring for wife. This was held as cruelty.
However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband's stand of neutrality regarding wife and mother and his inaction about his mother's nagging of his wife was not considered cruelty because it is normal wear and tear of a married life.

Cruelty of Child
Generally, cruelty by child towards one parent does not amount to cruelty. However, in the case of Savitri vs Mulchand 1987 Delhi, mother and son acted in concert and the son tortured the father by squeezing his testicles to force him to do what they wanted him to do, was considered cruelty against the wife.

Types of cruelty - Physical and Mental

Physical Cruelty
Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge police complaint even though injury was not serious. It was held that serious injury is not required.

Mental Cruelty
In Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it cannot reasonably be expected to live together. This has to be judged on the circumstances of the case.

In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the husband and quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held to be mental cruelty against the wife.

In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery were held to be mental cruelty.

Yashodabai vs Krishnamurthi 1992 - Mere domestic quarrels with mother in law is not cruelty.

Shobha vs Madhukar 1988 SC - Constant demand for dowry is cruelty.

In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.


3 Types - Actual Desertion, Constructive Desertion, Willful neglect.

Actual Desertion - factum of desertion, animus deserdendi, Without reasonable cause, without consent, 2 yrs must have passed.

Lachman vs Meena - 1964 - Wife was from rich family. She was required to live in joint family of husband. She went back to parents. Kept making fake promises of return but never did. Held desertion.
Jagannath vs Krishna  - Wife became brahma kumari and refused to perform marital obligations. Held desertion.
Bipinchandra vs Prabhavati SC 1957 - Husband went to England. Husband's friend came to house in India. Husband came back. Alleged affair, which was refuted by wife. Wife went to her parents for attending marriage. Prevented her from coming back. Held no desertion by wife.
Sunil Kumar vs Usha 1994 - Wife left due to unpalatable atmosphere of torture in husband's house. Held not desertion.

Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter.
Jyotishchandra vs Meera 1970 -  Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband.

willful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion.
Balihar vs Dhir Das 1979 - Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is willful neglect.

Reasonable Cause
1. If there is a ground for matrimonial relief. ( ground for void, voidable marriage or grounds for maintenance under sec 18 of HAMA).
2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but still weighty and grave.
3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that spouse.
Chandra vs Saroj 1975 - Forcing a brahmin wife to eat meat.
Without Consent
Bhagwati vs Sadhu Ram 1961 - Wife was living separately under a maintenance agreement. Held not desertion.

Other Grounds

Section 13 (ii) : ceased to be a Hindu.

Section 13 (iii) unsound mind. - includes mental disorders such a incomplete development of brain or psychopathic disorder or schizophrenia
Section 13 (iv) virulent and and incurable Leprosy
Section 13 (v) communicable venereal disease
Section 13 (vi)  renounced the world
Section 13 (vii)  presumed dead - not heard of in 7 years.

Section 13 (1-A) Breakdown Theory
(i) no cohabitation for 1 yr after passing the decree of judicial separation.
(ii) no cohabitation for 1 yr after passing the decree of restitution of conjugal rights.
Effected by provisions in section 23.

Section 13(2) Additional grounds for wife
(i) Another wife of the husband is alive.
(ii) Rape, Sodomy, Bestiality.
(iii) Wife was awarded maintenance under section 15 of HAM 1956 or under section 125 of CrPC and no cohabitation has occurred for 1 yr after the award.
(iv) If wife was under 15 at the time of marriage and if she repudiates the marriage before 18.

Section 13-A Alternate relief in divorce proceedings - If the judge feels that sufficient grounds do not exist for divorce, he can grant judicial separation.

Section 13-B Divorce by mutual consent


Q. Who are "dependents"  for the purpose of maintenance under Hindu Adoption and Maintenance Act, 1956? What do you understand by maintenance? In what cases a wife can claim separate residence without forfeiting her right to maintenance from husband?

Historical Perspective
Joint family system has been a main feature of the Hindu society since vedic ages. In a joint family, it is the duty of the able male members to earn money and provide for the needs of other members such as women, children, and aged or infirm parents.
In Manusmriti, it has been said that wife, children, and old parents must be cared for even by doing a hundred misdeeds.

HAMA 1956 codifies a lot of principles governing the maintenance of dependents of a Hindu male. Under this act, the obligation can be divided into two categories - personal obligation and obligation tied to the property.

Dependents based on personal obligation
Personal obligation means that a Hindu is personally liable, irrespective of the property that he has inherited or his earnings, to provide for certain relations who are dependent on him. These relations have been specified in the following sections of HAMA 1956.

Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled to claim maintenance by her husband during her lifetime.  Sec 18(2) says that a wife is entitled to live separately without forfeiting her right to claim maintenance in certain situations. 18(3) that a wife shall not be entitled to separate residence and maintenance of she is unchaste or ceases to be a Hindu.
In the case of Jayanti vs Alamelu, 1904 Madras HC held that the obligation to maintain one's wife is one's personal obligation and it exists independent of any property, personal or ancestral.

Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate, and aged or infirm parents. 20(2) says that a child, legitimate or illegitimate, can claim maintenance from father or mother, until the child is a minor. 20(3) says that the right to claim maintenance of aged or infirm parents and unmarried daughter extends in so far as they are not able to maintain themselves through their other sources of income.
In this case, a childless step-mother is also considered a parent.

Dependents based on obligation tied to property
A person has obligation to support certain relations of another person whose property has devolved on him. In this case, this obligation is not personal but only up to the extent that it can be maintained from the devolved property. 

Section 21 specifies these relations of the deceased who must be supported by the person who receives the deceased property.
  1. father
  2. mother
  3. widow, so long as she does not remarry
  4. son, predeceased son's son, or predeceased son's predeceased son's son until the age of majority. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of grandson, and from his father or mother, or father's father or father's mother, in the case of great grandson.
  5. daughter or predeceased son's daughter, or predeceased son's predeceased son's daughter until she gets married. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of granddaughter, and from his father or mother, or father's father or father's mother, in the case of great granddaughter.
  6. widowed daughter, if she is not getting enough maintenance from her husband's, children's, or father in law's estate.
  7. widow of predeceased son, or widow of predeceased son's son, so long as she does not remarry and if the widow is not getting enough maintenance from her husband's, children's or her father or mother's estate in the case of son's widow. 
  8. illegitimate son, until the age of majority
  9. illegitimate daughter, until she is married.
Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. Thus, this obligation is to be fulfilled only from the inherited property and so it is not a personal obligation. 22(2) says that where a dependent has not received any share, by testamentary or intestate succession, he shall be entitled to maintenance from those who take the estate. 22(3) says that the liability of each heir is in proportion to the estate obtained by him. 22(4) says that a person who himself is a dependent cannot be forced to pay any amount of maintenance if the amount causes his share to reduce below what is required to maintain himself.

Maintenance means the right of dependents to obtain food, clothing, shelter, medical care, education, and reasonable marriage expenses for marriage of a girl,  from the provider of the family or the inheritor of an estate. The basic concept of maintenance originated from the existence of joint families where every member of the family including legal relations as well as concubines, illegitimate children, and even slaves were taken care of by the family. However, maintenance does not mean unreasonable expectations or demands.

In the case of Ekradeshwari vs Homeshwar in 1929, Privy Council had enunciated certain principles in governing the amount of maintenance. It said that maintenance depends on a complete analysis of the situation, the amount of free estate, the past life of the married parties and the family, the requirements of the claimants, and a consideration regarding future changes.

How much maintenance
Section 23(1) says that courts will have complete discretion upon whether and how much to maintenance should be given. While deciding this, the courts shall consider the guidelines given in sections 23(2) and 23(3).
Section 23(2) says that that while deciding the maintenance for wife, children, and aged or infirm parents, the courts will consider:
  1. the position and status of the parties.
  2. the reasonable wants of the claimants.
  3. If a claimant has a separate residence, is it really needed.
  4. the value of the estate and the income derived from it or claimant's own earning or any other source of income.
  5. the number of claimants.
Section 23(3) says that while determining the maintenance for all other dependents the courts shall consider the following points:
  1. the net value of the estate after paying all his debts.
  2. the provisions, if any, made in the will in favor of the claimants.
  3. the degree of the relationship between the two.
  4. the reasonable wants of the dependent.
  5. the past relations between the deceased and the claimants.
  6. claimant's own earnings or other sources of income.
  7. the number of dependents claiming under this act.
Discretion of Court
    In the case of Mutyala vs Mutyala 1962 AP HC held that amount of maintenance cannot be a matter of mathematical certainty.
Position and Status of parties
    In the case of  Kiran Bala vs Bankim 1967 Calcutta HC observed the living standard of the wife, and her reasonable wants in determining the maintenance amount.
Reasonable wants
    In the case of  Kiran Bala vs Bankim 1967 Calcutta HC observed that the husband had a second wife and so the fact that the claimant is living separately will not go against her in determining the amount.
    In the case of Krishna vs Daimati 1966 Orrisa HC held that when a minor child lives with the mother, the necessities of the child constitute reasonable demands of the mother.
Separate earning of the claimant
    Whether the claimant has separate earning on income is a question of fact and not a question of presumption. It cannot be, for example, presumed that a college educated girl can maintain herself.
    In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM from her father. This was not considered to be her income but only a bounty that she may or may not get. However, income from inherited property is counted as the claimant’s earning. 
Arrears of Maintenance
    In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of maintenance is a recurring right and non-payment of maintenance prima facie constitutes proof of wrongful withholding.

Wife's right to separate residence without forfeiting the right to maintenance

Section 18(2) says that a wife can live separately and still claim maintenance from husband in the following situations.
  1. Desertion: It the husband is guilty of deserting the wife without her consent, against wife's wishes, and without any reasonable cause, the wife is entitled to separate residence. In the case of Meera vs Sukumar 1994 Mad, it was held that willful neglect of the husband constitutes desertion.
  2. Cruelty: If husband through his actions creates sufficient apprehension in the mind of the wife that living with the husband is injurious to her then that is cruelty. In the case of Ram Devi vs Raja Ram 1963 Allahbad, if the husband treats the wife with contempt, resents her presence and makes her feel unwanted, this is cruelty.
  3. If the husband is suffering from a virulent form of leprosy.
  4. If the husband has another wife living. In the case of Kalawati vs Ratan 1960 Allahbad, is has been held that it is not necessary that the second wife is living with the husband but only that she is alive.
  5. If the husband keeps a concubine or habitually resides with one. In the case of Rajathi vs Ganesan 1999 SC, it was held that keeping or living with a concubine are extreme forms of adultery.
  6. If the husband has ceased to be a Hindu by converting to another religion.
  7. For any other reasonable cause. In the case of Kesharbai vs Haribhan 1974 Mah, it was held that any cause due to which husband's request of restitution of conjugal rights can be denied could be a good cause for claiming a separate residence as well as maintenance. In the case of Laxmi vs Maheshwar 1985 Orrisa, it was held that if the husband fails to obey the order of restitution of conjugal rights, he is liable to pay maintenance and separate residence. In the case of Sobha vs Bhim 1975 Orrisa, mere drinking habit is not a sufficient cause for separate residence. 
Section  18(3) says that a wife is not eligible for separate residence and maintenance if she is unchaste or has ceased to be a Hindu.
In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere cohabitation does not by itself terminate the order of maintenance passed under 18(2). It depends on whether the cause of such an order still exists.


Q. Discuss the sources of Hindu Law.

Hindu Law
From  thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Application of Hindu Law
A precise definition of Hinduism does not exist. Hence, it is impossible to define a fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law.
  1. Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and actions are enough for becoming a Hindu.
  2. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC,  the son of Hindu father and Christian mother was held to be a Christian.
  3. Persons who are not Muslim, Christian, Jew, or Parsee by religion.
  4. Persons who are not governed by any other religious law will be governed by Hindu Law.
Origins of Hindu Law
It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas.

Sources of Hindu Law
Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories:

A. Shruti
Shruti means "what is heard".  It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas -  rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas.  Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of women from inheritance, and partition but these are not very clearcut laws.  
During the vedic period, the society was divided into varns and life was divided into ashramas.  The concept of karma came into existence during this time. A person will get rewarded as per his karma. He can attain salvation through "knowledge". During this period the varna system became quite strong. Since vedas had a divine origin, the society was governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people.

The vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-smriti sutras and gathas were composed. However, not much is known about them today. It is believed that various rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence.

B. Smruti
Smrit means "what is remembered".  With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and the incorporation of local culture and customs became important. It is believed that many smrutis were composed in this period and some were reduced into writing, however, not all are known. The smrutis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras).

The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the shakhas to which they belong.
Some of the important sages whose dharmasutras are known are :  Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.
They explain the duties of men in various relationship. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs.

Gautama - He belonged to Sam veda school and deals exclusively with legal and religious matter. He talks about inheritance, partition, and stridhan.

Baudhayan -  He belonged to the Krishna Yajurved school and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter.

Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage.

Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.

Dharmashastras were mostly in metrical verses and were based of Dharmasutras.  However, they were a lot more systematic and clear. They dealt with the subject matter in three parts
  • Aachara : This includes the theories of religious observances,
  • Vyavahar : This includes the civil law.
  • Prayaschitta : This deals with penance and expiation.
While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with Vyavahar. Out of may dharmashastras, three are most important.

This is the earliest and most important of all. It is not only defined the way of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the the first human. This was probably done to increase its importance due to divine origin. Manusmriti compiles all the laws that were scattered in pre-smriti sutras and gathas.
He was a brahman protagonist and was particularly harsh on women and sudras.  He holds local customs to be most important. He directs the king to obey the customs but tries to cloak the king with divinity. He gives importance to the principle of 'danda' which forces everybody to follow the law.
Manusmriti was composed in 200 BC.

There have been several commentaries on this smruti. The main ones are:  Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's Manutika.

Yajnavalkya Smriti
Though written after Manusmruti, this is a very important smruti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as position of women and sudras. He was more liberal than Manu.
This was composed in around 0 BC.

Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa.

Narada Smriti
Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs.

This was composed in 200 AD.

C. Commentaries and Digest: 
After 200 AD, most the of work was done only on the existing material given in Smrutis. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smruitis. As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area.
Mitakshara literally means 'New Word' and is paramount source of law in all of  India. It is also considered important in Bengal and orissa where it relents only where it differs from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in smritis.

The basic objective of these texts was to gather the scattered material available in preceeding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD.

D. Customs
Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types:
  1. Local Customs - These are the customs that are followed in a given geographical area.  In the case of Subbane vs Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law.
  2. Family Customs - These are the customs that are followed by a family from a long time.  These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law.
  3. Caste and Community Customs - These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry brother's widow among the Jats is also of this type.
  4. Guild Customs - These are the customs that are followed by traders.
Requirements for a valid custom
  1. Ancient : Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be a ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu.
    In the case of Rajothi vs Selliah, a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature.
  2. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, a custom may be 400 yrs old but once abandoned, it cannot be revived. 
  3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is.
  4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values.
  5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid.
    In the case of Chitty vs. Chitty 1894, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral.  In the case of Gopikrishna vs. Mst Jagoo 1936 a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral.
  6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, adoption of girl child by nautch girls has been held invalid. In the case of Mathur vs Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy.
  7. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash vs Parmeshwari, it was held that law mean statutory law.
Proof of Custom
The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to notice of the court repeated, no further proof is required.
existence of a custom can also be proved through documentary evidence such as in Riwaz-i-am. Several treaties exist that detail customary laws of Punjab.

Usage and Custom
The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.

Modern Sources
Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of equity and justice, these concepts existed even in dharamashastras albeit in a different form. Narada and Katyayana have mentioned the importance of dharma (righteousness) in delivering justice. However, we did not have a practice of recording the cases and judgments delivered. So it was not possible to apply stare decisis. This process started from the British rule.

The following are the modern sources of Hindu law:

1. Equity, Justice, and Good conscience
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience.  In a situation where no rule is given, a sense of 'reasonableness' must prevail. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on 'Nyaya'.
This principle has been followed by the privy council while deciding cases.

2. Precedent
The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state.

3. Legislation
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.
Also, most of the Hindu laws have now been codified as mentioned in the beginning.

Critical Comments
In the past, due to the vast size of the country, various kinds of customs prevailed. Further, due to lack of effective communication, there were several contradictions among the practices and the judgment delivered. Thus, the country went on the way to being divided. Instead of becoming the law of the land (lex-loci), Hindu Law became the law of a person. However, this can only be an excuse for the past. Today, because of media and communication, judgement delivered in one place is felt in another. A practice or custom followed in a village can be repugnant to people in cities. We must take advantage of this situation and put the country on the course of a unified law. Instead of being a country of personal laws, we should true have a single law of the land. Time is ripe for implementing article 44. This will ensure the future unity and integrity of our country.


Q. Define the term "Guardian" under Hindu Minority and Guardianship Act 1956. What are the powers and liabilities of a guardian? How and when can a testamentary guardian be removed?

In Hindu dharmashastras, not much has been said about guardianship. Due to the concept of joint families, a child without parents was usually cared for by the head of the joint family. Further, it was well accepted that the king is the guardian of all the orphans. Thus, no specific laws were required regarding guardianship. During British period, guardianship was primarily based on the extension of paternal authority. Thus, after parents, elder brothers,paternal uncles, and then maternal relations used to look after the interests of the minor. The British also introduced the concept of testamentary guardians in India.

The concept of guardianship has changed from paternal power to the idea of protection in modern times and the HMG Act 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.

A person below the age of 18 yrs is considered to be a minor as per Section 4 of HMGA 1956. Such a person is not capable of taking care of himself or of handling his affairs and thus requires help, support, and most importantly, protection, which is usually provided by the parents. However, in many unfortunate cases, parents are not available and in those cases other relatives or persons come to the rescue. Thus, parents and other people who look after a minor are called as guardians in general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:

Definition as per Section 4 of HMG 1956
Guardian means a person having the care of a person of a minor or of his property or of both the person and his property. This includes:
  • natural guardian
  • guardian appointed by the will of a natural guardian (testamentary guardian)
  • a guardian appointed or declared by court
  • a person empowered to act as such by the order of Court of Wards.
This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor without authority of law, can also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not have right to sell or deal with minor's property if he is merely a de factor guardian as per section 11.

Natural Guardian (Sec 6)

Section 6 of HMG Act 1956 defines only three natural guardians:
  • For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs of age will be with the mother.
  • For an illegitimate boy or a girl, the mother, and after mother, the father.
  • For a married woman, the husband.
It further states that no person shall be entitled to be a natural guardian of a minor if
  • he ceases to be a Hindu or
  • he renounces the world completely by becoming a sanyasi.
Here, by father and mother, natural father and mother are meant. Step father or step mother do not have any right to guardianship unless appointed by court.

As per section 7, natural guardianship of an adopted son passes on to his adoptive father and after adoptive father, to adoptive mother.

Position of Father
Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a guardian after his death even if the mother was alive. This is not the case now. Further, as held in the case of Lalita vs. Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the welfare of the child. In the case of Githa Hariharan vs RBI AIR 1999 SC held the mother to be the natural guardian in spite of the father being alive and further held that the word "after" means "in the absence" rather than "after the life" of the father. Thus, if a father is incapable of protecting the interests of a minor due to any reason, he can be removed from guardianship.

Position of Mother
The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the mother has right to custody of a minor less than 5 yrs of age. This does not mean that mother does not have the right to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was held that a mother's right to guardianship is not lost upon conversion to another religion if she is able to provide proper care to the minor. Further, in Kumar vs Chethana AIR 2004, SC has held that the mother's right to guardianship is not lost automatically after her remarriage.  In all such cases, welfare of the child has to be considered above all including the convenience and pleasure of the parents.

Position of Husband
In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the guardianship of a minor wife belongs to the husband. However, due to section 13, a court may revert the guardianship to the father or mother depending on the best interests of the minor.

Powers of a natural guardian (Sec 8)
Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:
  • A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minors estate. But the guardian, in no case, shall bind the minor by a personal covenant.
  • The guardian cannot, without prior permission from the court,
    • mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange, or otherwise.
    • lease the immovable property for a term more than 5 years or where the lease ends one year after the minor attains majority.
  • Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor.
  • The court shall not give permission for sale of immovable property unless it is necessary or clearly in the benefit of the minor.
These powers also include the following
  • right in education
  • right to determine religion
  • right to custody
  • right to control movement
  • right to chastisement
In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held that the meaning of "necessity" and "advantage" of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required.

Custody of a minor
Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be considered, though his wishes may be disregarded in his best interest.

That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal grandfather is considered to be in favor of the father. In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and grand father by SC in case of Poonam vs Krishanlal AIR 1989.
In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long time demanded the guardianship. His claim was rejected.
In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with friends and may beget children from others, was not considered appropriate for custody in the minor's interest.

Power over minor's property
In general, a guardian may do all acts that are in the interest of the minor. A third party may deal safely with the guardian in this respect. However, this excludes fraudulent, speculative, and unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate the minor's property if it is necessary as determined by SC in Hanuman Prasad vs Babooee Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts permission before alienating the minor's interest in the minor's property.  Also, a guardian does not have any right over the joint family interest of a minor.
In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of minor's immovable property without courts permission is voidable and not void ab-initio. It further held that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction.

In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the consideration.

Liabilities of a guardian
  • Since the legal position of a guardian is fiduciary, he is personally liable for breach of trust.
  • he is not entitled to any compensation unless explicitly specified in a will.
  • A guardian cannot take possession of minor's properties adversely.
  • must manage the affairs prudently.
  • liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardian's liability comes to an end.

Rights of a guardian
A guardian has a right to
  • represent the minor in litigations.
  • get compensation for legal expenses from minor's property.
  • sue the minor after he attains majority to recover expenses.
  • refer matters to arbitration if it is in the best interest of the minor.
  • have exclusive possession of minor's property.
Removal of a guardian
Court has the power to remove any guardian in accordance to section 13.
  • ceases to be a Hindu.
  • becomes hermit or ascetic.
  • court can remove if it finds that it is not in the best interest of the child.
Testamentary Guardian (Sec 9)

A person who becomes a guardian due to the will of a natural guardian is called a testamentary guardian. Section 9 defines a testamentary guardian and his powers.
  • For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person to act as the guardian of the child after the death of the father.  However, if the mother is alive, she will automatically become the natural guardian and after her death, if she has not named any guardian, the person appointed by the father will become the guardian.
  • A widow mother who is a natural guardian, or a mother who is a natural guardian because the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a guardian after her death.
  • For an illegitimate child, the power of appointing a testamentary guardian lies only with the mother.

A testamentary guardian assumes all powers of a natural guardian subject to limitations described in this act and to the limitations contained in the will. A testamentary guardian is not liable personally for the expenses and he can ask the guardian of the property of the minor to meet the expenses through the property.
The rights of the guardian appointed by will cease upon the marriage of the girl.

Guardianship by Affinity
In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC.  Madras HC also did not hold this view and held that the welfare of the child is to be considered first before anything else.

De Facto Guardian
Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the minor merely on the ground of his being the de facto guardian. There is controversy regarding the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable (Ashwini Kr vs Fulkumari, Cal HC 1983), while some HC have held that both are voidable (Sriramulu' case 1949). It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor's property, or to make reference to arbitration.

Welfare of the minor is of paramount importance (Sec 13)
  • While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the minor.
  • No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the guardianship in marriage if the court believes that it is not in the interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the court may appoint a guardian as per the best interests of the minor.


Q. Discuss the nature and meaning of will. What are the essentials of a valid muslim will? Who can make a will? What are the formalities necessary for a valid will? What restrictions are imposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and sunni laws regarding will.

Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925,  Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs.

Essentials of a valid Muslim will
  1. Competency of the testator (who can make the will)
    Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will made by a person while of sound mind, who later becomes of unsound mind, becomes invalid.
    In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose.
    Will of a person committing suicide -
    Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid.
  2. Competency of the legatee
    Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the legatee must give his express or implied consent to accepting the legacy.
    An institution can be a legatee.
    A non-muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam.
    In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a legatee otherwise not.
    Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation.
    Bequest for a charitable object is valid.
  3. Validity of the subject of will - To be able to will a property, it must be -
    1. capable of being transferred.
    2. in existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest cannot be made of any thing that is to be performed or produced in future.
    3. in the ownership of the testator.
    A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void.  However, a bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law.
  4. Extent of power of will - The testamentary power of a muslim is limited in two ways - 
    Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vs Ghulam Hussain 1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Whether a person is a heir or not is determined at the time of testator's death.
    Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other heirs is required. In Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the property was bequested to one heir and other were not given anything, the bequest was void in its entirety.
    Limitations as regard to the amount - The general principle is that a muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person.
Differences between Shia and Sunni Law on Will
Sunni Law Shia Law
Bequest to an heir without consent of other heirs is invalid. Bequest up to 1/3 of the property is valid even without consent. 
Bequest to unborn child is valid if the child is born within 6 months of making the will.
Valid if the child is born within 10 months of making the will.
Legatee who causes death even by accident is incapable of receiving.
Legatee who causes death by accident is capable.
For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator. Heir's consent may be obtained before or after death.
Will of a person committing suicide is valid. Valid only if the will is made before the person does any act towards committing suicide.
Recognizes rateable distribution.
Does not recognize rateable distribution.
If the legatee dies before testator, the legacy lapses and goes back to the testator. The legacy lapses only if the legatee dies without heirs otherwise, it goes to legatee's heirs.
Legatee must accept the legacy after the death of the testator. Legatee can accept the legacy even before the death of the testator.

Differences between Will and Gift
Gift Will
It is an immediate transfer of right or interest. It is a transfer after death. 
Delivery of possession is necessary.
Delivery of possession is not necessary.
Subject of gift must exist at the time of making gift. Subject of will must exist at the time of death of the testator.
Right of donor is unrestricted. It is limited up to 1/3rd of the property.
Cannot be revoked.
Can be revoked by making another will.