The notion of Avyavaharika debts concerns debts that are regarded ethically or legally unjust, immoral, or inequitable, releasing descendants from the obligation to repay them.
According to Sir Henry Mayne, these debts fall into various categories, including those arising from alcohol, gambling, unpaid fines, idle promises, suretyship, and commercial debts.
It includes duties that the court finds unfair or unjust, in addition to illegal or immoral debts.
Textual definitions and judicial interpretations, such as in S.M. Jakati v.S.M. Bokar (A.I.R. 1959 S.C. 282), shed light on the nature and scope of Avyavaharika debts, emphasising debts arising from activities such as gambling, promises made under the improper influences, and losses incurred due to intoxication.
Evolution Of Legal Standpoint on Sons’ Liability For Avyavaharika Debts
Traditionally, the Doctrine of Pious Obligation held sons responsible for their ancestors’ Vyavaharika (legal debts) but exempted them from Avyavaharika debts.
In Luhar Amrit Lal Nagj v. Doshi Jayantilal Jethalal 1960 AIR 964, the petitioner’s relatives challenged the legitimacy of a debt after the petitioner died. Despite earlier verdicts in their favour, the High Court requested proof of the debt’s immorality (Avyavaharika), which they could not provide, resulting in the Supreme Court dismissing their claim. In judicial processes, the burden of proof of establishing the nature of debt is emphasised.
However, post the 2005 amendment to the Hindu Succession Act, courts have shifted their stance, no longer recognizing the pious obligation that obligated sons, grandsons, or great-grandsons to repay these debts.
This shift of abolition represents a significant legal evolution, departing from the traditional understanding of familial obligations concerning the repayment of Avyavaharika debts.
This has also contributed to the elimination of gender inequality in society.
The eradication of the theory of pious obligation is a progressive approach towards establishing gender equality and social justice in Indian culture.
Done By: V. Madhumitha, 5th year B.A, LL.B(Hons.)
SRM University, Kattangulathur
For Origin Law Labs
