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Article Published in the Express Magazine Dated
June 15, 2003
General Attorney : Rajiv K. Luthra
My sister is married to a Hindu man, however
her husband is carrying on an affair with a
Christian divorcee. What legal action can we take
against the boy? Can her husband marry the woman
without divorcing my sister? How do we get back
the dowry?
Anonymous
Your brother-in-law cannot marry the Christian
lady without first divorcing your sister. A
Christian and a Hindu may get married either under
the Indian Christian Marriages Act, 1872 or under
the Special Marriage Act, 1954. Under the
Christian Marriages Act a marriage shall be
certified only if the conditions mentioned under
the section are satisfied, including that neither
of the persons intending to marry shall have a
husband or wife still living. Even under the
Special Marriages Act, a marriage may be
solemnized only upon the satisfaction of certain
conditions at the time of marriage, one such
condition being that neither party has a spouse
living at the time of marriage.
Even if the Christian woman were to convert to
Hinduism, she would not be able to marry your
brother-in-law without first divorcing your
sister, since section 5 read with section 11 of
the Hindu Marriage Act, 1955, makes void any
marriage between persons one of whom has a spouse
living at the time of the marriage.If your
brother-in-law remarries, without divorcing your
sister and during her lifetime, he is liable to be
prosecuted for bigamy under sections 494 and 495
of the Indian Penal Code, 1860 (“IPC”).You may be
informed that both giving as well as taking dowry
is an offence under the Dowry Prohibition Act,
1961 and as per section 3 thereof, any person who
gives or takes dowry or abets the giving and
taking of such dowry can be imprisoned for the
offence. Hence, if any legal action were taken to
get back the dowry amount, the person who gave the
dowry in the first place would also be liable for
conviction. However, your sister continues to
remain the absolute owner of her stridhan.
Stridhan constitutes gifts given to the bride (interalia,
by the mother, father, brother or ‘in-laws’ of the
bride) whether before, during or after marriage
and ‘which gifts’ are specifically meant for her
use. It will be open to her to recover the same
through the legal process. If her husband or any
other member of his family who are in possession
of such property, dishonestly misappropriate or
refuse to return the same, they may be liable to
punishment for the offence of criminal breach of
trust under sections 405 and 406 IPC.
My father bought a house with his own funds in
Delhi, and for tax purposes put it into the "HUF
hotchpotch". We understand that only our mother
and brothers are entitled to the HUF property
after his death. Is this the correct position? We
think this contradicts the fact that Class 1 heirs
include sisters, who should also be entitled to a
share under the Hindu Succession Act. Does the Act
apply to Sikhs?
H.S. Johar
Hindu Law is governed by two main schools of law,
the Dayabhaga and the Mitakshara schools. Your
query is answered on the presumption that you are
governed under Mitakshara school of law. The Hindu
joint family constituting a coparcenary includes a
common male ancestor, with his lineal descendants
in the male line. Females are not coparceners.
According to Section 6 of the Hindu Succession
Act, 1956 (“Act”), when a male Hindu dies having
at the time of his death an interest in a
Mitakshara coparcenary property, his interest in
the property devolves by survivorship upon the
surviving members of the coparcenary and not in
accordance with the Act. However, the section has
a proviso according to which, if the deceased has
left behind a surviving female relative specified
in Class I (which interalia shall also include his
widow, daughter), then his interest in the
Mitakshara coparcenary property shall devolve
either by testamentary or intestate succession, as
the case may be, under the Act and not by
survivorship. Therefore, whilst your brothers and
father are coparceners in the property, if any
coparcener dies, then the individual interest of
that coparcener shall devolve upon the surviving
coparceners only. However, if the deceased
coparcener has any female relative specified in
the category of Class I heirs, then his
‘individual interest’ in the coparcenary property
shall devolve upon all his legal heirs; or if he
has made a Will, then in accordance with such
Will.
It maybe mentioned that some States (like
Maharashtra, Tamil Nadu and Andhra Pradesh) have
introduced amendments to the Act, by virtue of
which the daughter is considered a coparcener and
has similar rights as conferred upon any male
heir.
The Act applies to any person who is a Hindu,
Buddhist, Jain or Sikh by religion.
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