Family Law II: Maintenance, Dower and Stridhan; Adoption, Guardianship and Acknowledgement; Succession and Inheritance; Will, Gift and Wakf; and the Uniform Civil Code

This chapter takes Unit VII's items 6 to 10: maintenance, dower and stridhan; adoption, guardianship and acknowledgement; succession and inheritance; will, gift and wakf; and the Uniform Civil Code. The law is stated as statutes and courts state it. Maintenance under the criminal procedure code, formerly section 125 of the Code of Criminal Procedure 1973, is now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Hindu Succession Act 1956 is taught with its 2005 amendment and the Supreme Court's decision in Vineeta Sharma (2020). The Uniform Civil Code is described factually: Article 44, the case law, and the Uttarakhand Uniform Civil Code Act 2024, in force from 27 January 2025.

1. Maintenance, dower and stridhan

Sources of maintenance
Source of the rightContent
BNSS s.144 (formerly CrPC s.125)A secular, summary remedy available to a wife unable to maintain herself (including a divorced wife who has not remarried), children and parents, against a person with sufficient means who neglects or refuses to maintain them; it applies irrespective of religion
Hindu Marriage Act 1955, ss.24 and 25Maintenance pendente lite and costs to either spouse without independent income; permanent alimony on a decree
Hindu Adoptions and Maintenance Act 1956, ss.18 to 20A Hindu wife's right to maintenance and to live separately on specified grounds without forfeiting it (s.18); maintenance of children and aged or infirm parents (s.20)
Muslim Women (Protection of Rights on Divorce) Act 1986Passed after Mohd. Ahmed Khan v Shah Bano Begum (1985); read in Danial Latifi v Union of India (2001) to require a reasonable and fair provision for the divorced wife's future, to be made within the iddat period; in Mohd. Abdul Samad v State of Telangana (2024) the Supreme Court held that a divorced Muslim woman may also claim under the secular provision
Maintenance and Welfare of Parents and Senior Citizens Act 2007Tribunals may order children or relatives to maintain parents and senior citizens

In Rajnesh v Neha (2020) the Supreme Court laid down guidelines to prevent overlapping awards under different statutes, requiring parties to file affidavits of assets and liabilities and holding that maintenance runs from the date of application. Dower (mahr) is a sum or property the wife is entitled to receive from the husband in consideration of the marriage. It may be specified (fixed by agreement) or proper (fixed by the court by reference to her family's custom), and prompt (payable on demand) or deferred (payable on dissolution by death or divorce). Unpaid dower is a debt, and a widow in lawful possession of her husband's property may retain it until her dower is paid. Stridhan is property a Hindu woman receives before, at or after marriage by way of gift; in Pratibha Rani v Suraj Kumar (1985) the Supreme Court held that it remains her absolute property and that a husband or in-laws holding it do so as trustees, so that its dishonest retention can amount to criminal breach of trust. Section 14 of the Hindu Succession Act 1956 turned a Hindu woman's limited estate into absolute ownership.

⚠️ The secular maintenance provision has a new number
Shah Bano (1985) and the cases that followed were decided under CrPC s.125. From 1 July 2024 the provision is BNSS s.144, substantially unchanged. The principle of those cases, that the remedy is available to women of every community, carries over; the section number does not.

2. Adoption, guardianship and acknowledgement

Adoption, guardianship and acknowledgement
ProvisionRule
Capacity to adopt, HAMA ss.7 and 8A Hindu male of sound mind who is not a minor may adopt, with his wife's consent if she is living; a Hindu female of sound mind who is not a minor may adopt, and since the 2010 amendment a married woman may do so with her husband's consent
Conditions, HAMA s.11No son may be adopted by one who has a living Hindu son, grandson or great-grandson, and no daughter by one who has a living Hindu daughter or son's daughter; an age gap of at least twenty-one years is required where the adopter and the adoptee are of opposite sexes; the child must actually be given and taken
Effect, HAMA s.12The adopted child is deemed the child of the adoptive parents for all purposes from the date of adoption, and ties with the birth family are severed, save for the bar on marriage within prohibited degrees
Juvenile Justice Act 2015A secular adoption law open to persons of any religion, administered with the Central Adoption Resource Authority; in Shabnam Hashmi v Union of India (2014) the Supreme Court held that any person may adopt under it, though the right to adopt is not a fundamental right
GuardianshipThe Hindu Minority and Guardianship Act 1956 names the father, and after him the mother, as natural guardian (s.6), but the welfare of the minor is paramount (s.13); in Githa Hariharan v Reserve Bank of India (1999) "after" was read to mean "in the absence of", so the mother can act while the father is alive; the Guardians and Wards Act 1890 applies generally
Acknowledgement of paternityMuslim law does not recognise adoption, but a man may acknowledge a child as his legitimate child (iqrar), where paternity is uncertain, the ages permit the relationship, and the child is not known to be the offspring of another; the acknowledgement raises a presumption of a valid marriage (Habibur Rahman Chowdhury v Altaf Ali Chowdhury, 1921, Privy Council)
🎯 Why Githa Hariharan matters
Read literally, section 6 made the mother a natural guardian only after the father's death, which would have offended Articles 14 and 15. By reading "after" as "in the absence of", including where the father is indifferent or away, the Court kept the statute valid while giving mothers equal authority, a technique of reading down rather than striking down.

3. Succession and inheritance

The Hindu Succession (Amendment) Act 2005, in force from 9 September 2005, substituted section 6 of the Hindu Succession Act 1956 so that in a Mitakshara joint family the daughter of a coparcener becomes a coparcener by birth in her own right, with the same rights and liabilities as a son. In Vineeta Sharma v Rakesh Sharma (2020) a three-judge bench held that the daughter's right arises by birth, so it does not depend on the father being alive on 9 September 2005; it overruled Prakash v Phulavati (2015) and partly overruled Danamma v Amar (2018). Partitions effected before 20 December 2004 by a registered deed or court decree are protected. The 2005 amendment also omitted section 23, which had restricted a female heir's right to claim partition of a dwelling house.

Intestate succession
LawScheme of intestate succession
Hindu male (HSA s.8)Class I heirs take first and simultaneously, among them the widow, sons, daughters and mother, and the children of predeceased sons and daughters; then Class II heirs in order; then agnates; then cognates
Hindu female (HSA ss.14 to 16)Her property is absolute (s.14); on intestacy it goes first to her sons, daughters and husband; property inherited from her parents reverts, if she has no issue, to her father's heirs, and property from her husband or father-in-law to her husband's heirs (s.15(2))
Muslim lawUncodified; under Hanafi law, sharers (Quranic heirs with fixed shares) take first, then residuaries (agnates), then distant kindred; a son generally takes twice the share of a daughter; there is no right by birth, and property devolves only on death
Christians and ParsisThe Indian Succession Act 1925, which also governs wills generally and marriages under the Special Marriage Act
⚠️ The father need not have been alive in 2005
Before Vineeta Sharma, Phulavati (2015) had held that the daughter benefited only if both father and daughter were living on 9 September 2005. Vineeta Sharma rejected that reading: coparcenary is by birth, so a daughter born before or after 2005 is a coparcener whatever the date of her father's death, subject to the protection of earlier registered or decreed partitions.

4. Will, gift and wakf

Will, gift and wakf
TransactionHindu, Christian and general lawMuslim law
WillGoverned by the Indian Succession Act 1925; must be signed by the testator and attested by two witnesses (s.63), except privileged wills of soldiers in actual warfare; a Hindu may bequeath all his separate property and his interest in coparcenary propertyWasiyat may be oral or written; a Muslim may bequeath no more than one-third of the net estate without the heirs' consent, and under Hanafi law not to an heir without the consent of the other heirs
GiftTransfer of Property Act 1882, s.122: a voluntary transfer without consideration, accepted during the donor's lifetime; a gift of immovable property requires a registered instrument attested by two witnesses (s.123)Hiba requires declaration by the donor, acceptance by the donee and delivery of possession; writing and registration are not required, and section 129 of the Transfer of Property Act saves Muslim law
WakfNot applicableThe permanent dedication of property by a Muslim for a purpose recognised as pious, religious or charitable; the property vests in God, and a mutawalli manages it; regulated by the Waqf Act 1995, amended in 2025 and renamed the Unified Waqf Management, Empowerment, Efficiency and Development Act, whose validity has been challenged before the Supreme Court
ℹ️ Hiba-bil-iwaz
A gift for a return (hiba-bil-iwaz) is in substance a sale: once the return is paid, delivery of possession is not essential. It differs from hiba-ba-shart-ul-iwaz, a gift with a stipulation for a return, which needs delivery of possession until the return is made.

5. The Uniform Civil Code

Article 44, a directive principle, provides that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. The Supreme Court has referred to it in several cases: Mohd. Ahmed Khan v Shah Bano Begum (1985) regretted that it had remained a dead letter; Sarla Mudgal v Union of India (1995) called for it in the context of bigamy by conversion; John Vallamattom v Union of India (2003) struck down a provision of the Indian Succession Act and referred to Article 44; and Jose Paulo Coutinho v Maria Luiza Valentina Pereira (2019) described Goa, whose civil code of Portuguese origin applies to all its residents, as an example. The 21st Law Commission, in a consultation paper of 2018, took the view that a uniform civil code was neither necessary nor desirable at that stage and recommended reform within each personal law; the 22nd Law Commission invited public views afresh in 2023.

The Uttarakhand Uniform Civil Code Act 2024, passed by the State legislature in February 2024 and in force from 27 January 2025, is the first such statute enacted by a State after independence. It applies to residents of Uttarakhand, and to its residents living outside the State, but excludes members of the Scheduled Tribes. It makes registration of marriages compulsory, prohibits a marriage while a spouse is living, prescribes common grounds of divorce, gives sons and daughters equal rights of intestate succession, and requires live-in relationships to be registered.

🧠 Article 44 is a directive, not a mandate enforceable in court
Because Article 37 makes directive principles unenforceable, no court can compel Parliament or a State to enact a uniform civil code; the Supreme Court has made observations but has not issued such a direction. A question asking for the constitutional basis of the Uttarakhand Act points to the State's power over the Concurrent List subjects of marriage, divorce, succession and related matters (Entry 5 of List III).

Key takeaways

  • Secular maintenance is BNSS s.144 (formerly CrPC s.125); Shah Bano (1985), Danial Latifi (2001) and Abdul Samad (2024) secure it for divorced Muslim women; Rajnesh v Neha (2020) prevents overlapping awards.
  • Dower is specified or proper, prompt or deferred, and unpaid dower is a debt; stridhan is the woman's absolute property (Pratibha Rani, 1985).
  • HAMA 1956 governs Hindu adoption (ss.7–12); the Juvenile Justice Act 2015 is open to all (Shabnam Hashmi, 2014); Githa Hariharan (1999) reads "after" as "in the absence of"; Muslim law recognises acknowledgement, not adoption.
  • Daughters are coparceners by birth under the 2005 amendment, and Vineeta Sharma (2020) held the father need not have been alive on 9 September 2005; a Muslim may bequeath only one-third without the heirs' consent.
  • Article 44 is a directive; the Uttarakhand Uniform Civil Code Act 2024, in force from 27 January 2025, excludes Scheduled Tribes and requires registration of marriages and live-in relationships.

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. The secular maintenance provision formerly in section 125 of the Code of Criminal Procedure 1973 is now found in:

    1. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023
    2. Section 24 of the Hindu Marriage Act 1955
    3. Section 18 of the Hindu Adoptions and Maintenance Act 1956
    4. Section 125 of the Bharatiya Nyaya Sanhita, 2023
    Show answer

    Answer: A — Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023

    Maintenance of wives, children and parents moved from CrPC s.125 to BNSS s.144 on 1 July 2024. The BNS is the substantive penal code and contains no maintenance provision; HAMA s.18 and HMA s.24 are personal-law remedies that exist alongside it.

  2. In Vineeta Sharma v Rakesh Sharma (2020), the Supreme Court held that a daughter's right as coparcener under the amended section 6 of the Hindu Succession Act:

    1. Arises only if both father and daughter were alive on 9 September 2005
    2. Is limited to a share in the father's self-acquired property
    3. Arises by birth and does not depend on the father being alive on 9 September 2005
    4. Applies only to daughters born after 2005
    Show answer

    Answer: C — Arises by birth and does not depend on the father being alive on 9 September 2005

    Vineeta Sharma held coparcenary to be by birth, overruling Prakash v Phulavati (2015), which had required both to be living on the commencement date. It applies to daughters born before or after 2005 and concerns coparcenary property, not self-acquired property.

  3. Assertion (A): A Muslim cannot, without the consent of his heirs, bequeath more than one-third of his net estate. Reason (R): Under Muslim law a gift (hiba) requires writing and registration to be valid. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: C — A is true, but R is false

    A is true: the one-third limit protects the heirs. R is false: a hiba needs declaration, acceptance and delivery of possession, not writing or registration, and section 129 of the Transfer of Property Act saves this rule of Muslim law.

  4. In Githa Hariharan v Reserve Bank of India (1999), the word "after" in section 6 of the Hindu Minority and Guardianship Act 1956 was read to mean:

    1. With the consent of
    2. Subject to the order of a court
    3. After the death of
    4. In the absence of
    Show answer

    Answer: D — In the absence of

    The Court read "after the father" as "in the absence of the father", so that the mother can act as natural guardian while the father is alive but absent or indifferent. Reading it as "after the death of" would have discriminated against mothers.

  5. Which of the following are features of the Uttarakhand Uniform Civil Code Act 2024? Select all that apply.

    1. Registration of live-in relationships
    2. Application to members of the Scheduled Tribes
    3. Compulsory registration of marriages
    4. It came into force on 27 January 2025
    Show answer

    Answer: A — Registration of live-in relationships; C — Compulsory registration of marriages; D — It came into force on 27 January 2025

    The Act requires registration of marriages and of live-in relationships and came into force on 27 January 2025. It expressly excludes members of the Scheduled Tribes from its application.

  6. Which case held that stridhan remains the absolute property of the wife and that a husband holding it is in the position of a trustee?

    1. Shabnam Hashmi v Union of India (2014)
    2. Pratibha Rani v Suraj Kumar (1985)
    3. Rajnesh v Neha (2020)
    4. Danial Latifi v Union of India (2001)
    Show answer

    Answer: B — Pratibha Rani v Suraj Kumar (1985)

    Pratibha Rani held that dishonest retention of stridhan can be criminal breach of trust. Rajnesh concerns maintenance procedure, Danial Latifi maintenance of divorced Muslim women, and Shabnam Hashmi adoption under the Juvenile Justice Act.

  7. Which of the following statements about adoption under the Hindu Adoptions and Maintenance Act 1956 are correct? Select all that apply.

    1. A person with a living Hindu son may adopt another son
    2. Where adopter and adoptee are of opposite sexes, an age gap of at least twenty-one years is required
    3. An adopted child retains full rights of inheritance in the birth family
    4. A married man needs his living wife's consent to adopt
    Show answer

    Answer: B — Where adopter and adoptee are of opposite sexes, an age gap of at least twenty-one years is required; D — A married man needs his living wife's consent to adopt

    Section 7 requires the wife's consent and section 11 the twenty-one-year gap. Under section 12 the adopted child's ties with the birth family are severed, and section 11 bars adopting a son where a Hindu son, grandson or great-grandson is living.

  8. Assertion (A): Article 44 of the Constitution can be enforced by a writ of mandamus directing the legislature to enact a uniform civil code. Reason (R): Article 44 is a directive principle of State policy in Part IV of the Constitution. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: D — A is false, but R is true

    A is false: Article 37 makes directive principles unenforceable by any court, so no mandamus lies to compel legislation; the Supreme Court has only made observations in Shah Bano, Sarla Mudgal and later cases. R is true: Article 44 sits in Part IV.

  9. Under the Transfer of Property Act 1882, a gift of immovable property must be effected by:

    1. An order of a civil court
    2. A registered instrument signed by the donor and attested by at least two witnesses
    3. An unregistered deed attested by one witness
    4. Oral declaration and delivery of possession only
    Show answer

    Answer: B — A registered instrument signed by the donor and attested by at least two witnesses

    Section 123 requires a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Oral declaration with delivery of possession is the Muslim hiba, which section 129 saves from these formalities.

  10. Which Article of the Constitution directs the State to endeavour to secure a uniform civil code? Type the Article number.

    Numerical answer — type the value.

    Show answer

    Answer: 44

    Article 44, in Part IV, directs the State to endeavour to secure for citizens a uniform civil code throughout the territory of India; as a directive principle it is not enforceable by any court.