If you are stuck in such a situation, here is what to do.

A query was raised by Ms. Anjali Verma, a follower of the Hindu faith, who is married to Mr. Zafar Siddiqui, a follower of the Muslim faith, under the Special Marriage Act. Ms. Verma has not converted and continues to practice Hinduism. They have children who are being raised as agnostic, without adherence to any specific religion. Ms. Verma is exploring the possibility of forming a Hindu Undivided Family (HUF) with her children, positioning herself as the Karta (manager) of the family unit for financial and succession planning.

Advice in such cases

The formation of a Hindu Undivided Family (HUF) in the context of an inter-faith marriage presents significant legal complexities. Understanding these nuances is key to navigating the situation.

• Nature of an HUF: An HUF is a unique legal entity recognized under Hindu Law and the Income Tax Act. It is not created by contract but by status. It requires a family of individuals who are all Hindus, lineally descended from a common ancestor.
• The Primary Hurdle: The fundamental requirement for an HUF is that all its members must be Hindu. In this scenario, Ms. Verma is Hindu, but her husband is not and thus cannot be a member. The children’s status as “agnostic” is the most critical issue. For them to be coparceners (members with a birthright in the HUF property), they must be legally considered Hindus. Generally, children of a Hindu mother and non-Hindu father can be considered Hindu if they are brought up in the Hindu faith. The declaration that they are “agnostic” severely weakens the claim that a “Hindu” family unit exists.
• Can a Woman be Karta?: Yes. Following the Hindu Succession (Amendment) Act, 2005, and landmark judgments by various High Courts and the Supreme Court, a daughter is a coparcener by birth and the eldest female coparcener can be the Karta of an HUF. However, this right can only be exercised if a valid HUF can be formed in the first place.
• Natal Family HUF: Ms. Verma, as a daughter, is a coparcener in her father’s HUF (if one exists). She has rights in that HUF, including the right to seek partition. The assets she receives upon such a partition could potentially form the corpus for a new HUF, but only if she has other Hindu family members (like her children, if they were raised Hindu) to form it with.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

This situation is governed primarily by personal and tax laws, not criminal statutes. Therefore, the new criminal codes like the Bharatiya Nyaya Sanhita (BNS) or Bharatiya Nagarik Suraksha Sanhita (BNSS) are not applicable here.

• The Hindu Succession Act, 1956: This Act, particularly the 2005 amendment, governs the principles of coparcenary and succession in an HUF. It grants daughters equal rights as sons, making it possible for a woman to be a Karta.
• The Income Tax Act, 1961: This Act provides the legal framework for the taxation of an HUF as a separate entity. The Income Tax Department would be the primary authority to scrutinize and accept or reject the status of the HUF.
• The Special Marriage Act, 1954: While this Act governs the marriage itself, it has implications for succession. Succession for individuals married under this Act is governed by the Indian Succession Act, not personal law, unless the marriage is between two Hindus.

If you are the complainant

If you are Ms. Verma and wish to proceed with attempting to form an HUF, you would be the one making the claim or declaration. The term “complainant” is not strictly applicable as this is not a criminal dispute.

• Gather Documentation: Collect all relevant documents, including your birth certificate, marriage certificate, and the birth certificates of your children.
• Establish Religious Upbringing: The most crucial step would be to provide evidence that your children, despite being called “agnostic,” have been brought up with Hindu customs and traditions. This could include photographs of religious ceremonies, school records mentioning their religion (if applicable), or affidavits. Without this, the claim for an HUF is likely to fail.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

In this context, you would be the “victim” if your application to form an HUF is rejected by authorities, such as the Income Tax Department, or challenged by another party. The “victim” status arises from the denial of a legal or financial status you believe you are entitled to.

• Challenge the Rejection: If the Income Tax Officer (ITO) refuses to recognize the HUF, you have the right to appeal this decision before the Commissioner of Income Tax (Appeals), the Income Tax Appellate Tribunal (ITAT), and subsequently the High Court.
• Legal Representation: These appellate procedures are quasi-judicial and judicial in nature and require strong legal arguments and representation.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

The police have absolutely no role in matters concerning the formation or recognition of a Hindu Undivided Family. This is a purely civil matter that falls under the jurisdiction of personal law boards, revenue authorities (like the Income Tax Department), and the civil courts. Approaching the police would be futile as they lack the authority to intervene or offer any resolution.

FAQs people normally have

• Can an HUF be formed by a single person?
  No. An HUF requires at least two members who are Hindu. A single individual cannot constitute a family.
• What is the biggest challenge in this specific case?
  The primary obstacle is the non-Hindu status of the children. Since they are being raised as agnostic, they likely do not meet the legal definition of “Hindu” required to be members of an HUF. Without Hindu members besides Ms. Verma herself, an HUF cannot be formed.
• Can my non-Hindu spouse be a part of my HUF?
  No. A non-Hindu spouse cannot be a member or a coparcener of an HUF. The entity is exclusively for Hindus.

What evidence is required?

To establish an HUF, especially in a contentious case like this, you would need:

• HUF Deed: A formal document, usually a declaration or deed, stating the formation of the HUF, naming the Karta and coparceners, and detailing the initial corpus (property) of the HUF.
• Proof of Status: Evidence that all proposed members are Hindu. For the children, this would mean providing proof of their Hindu upbringing, such as records of Hindu rites of passage (e.g., *Namkaran*, *Mundan*), affidavits, or declarations.
• PAN Card: An application for a separate Permanent Account Number (PAN) for the HUF is required.
• Bank Account: A bank account opened in the name of the HUF.

How long will the investigation take?

This is not a criminal investigation. It is a process of legal formation and recognition. The timeline is as follows:

• Formation: Creating an HUF deed and applying for a PAN can be done within a few weeks.
• Scrutiny: The HUF’s validity may be scrutinized by the Income Tax Department during the first assessment of its tax return. This can take several months.
• Litigation: If the HUF’s status is challenged and goes into appeal, the process can take several years to move through the appellate bodies and courts.

Advocate Sudhir Rao, Supreme Court of India