Generally speaking, a debt is said to be “avyavaharika” when it is “repugnant to good morals”. In considering this question, “one principle is firmly established, namely, that the son would not be liable for a debt incurred by the father in circumstances which would render the father liable to a criminal prosecution; but he would be liable for money for which the father has to account in a purely civil capacity”. (Per Beaumont C.J. in 41 Bom. L.R. 589. F.B.)
The word avyavaharika does not cover merely those debts which are illegal or immoral, but also all debts which the Court regards as inequitable or unjust to make the son liable. The term avyavaharika has been translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrook translated the term as “a debt for a cause repugnant to good morals”, and this definition was approved by the Privy Council in S.M. Jakati v. S.M. Bokar (A.I.R. 1959 S.C. 282), as being the nearest approach to the true conception of the term used in the Smritis.
According to Hindu texts, the sons are not compellable to pay debts incurred for: (i) losses at play, (ii) alcoholic drinks, (iii) promises without consideration, (iv) promises made out of lust or under the influence of wrath; (v) suretyship or (vi) fines or bribes.
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Instances of Avyavaharika Debts:
ADVERTISEMENTS:
If the liability of the father arises directly from a criminal act, the debt is avyavaharika, and the son is not liable to pay it. Thus instances of such debts would be debts incurred —
(i) For the payment of damages awarded against him for malicious prosecution: Sunder Lai v. Raghunandan, 3 Pat. 250; Raghunandan Sahu v. Badri Teli, I.L.R. (1938) All. 330;
(ii) To pay a fine imposed as a result of a criminal trial: Brij Nath v. Laskhmi Narayan, 8 Luck. 35;
ADVERTISEMENTS:
(iii) For bribing a woman to persuade her to take one of his sons in adoption: Sitaram v. Harihar, 35 Bom. 169.
Debts held not to be avyavaharika:
Under the Hindu law, prior to 1975, it was the pious duty of the son to pay, out of ancestral property, the debts of his father incurred on account of trade liabilities, even though the trade may have been started by the father.
Where the father carried on large import business, and accepted bills of exchange received through different banks, and mortgaged the joint family property on behalf of himself and his minor sons, it was held that, though the father might have acted recklessly or imprudently in the management of the business, the debts which he had incurred in accepting the bills in respect of the goods he had ordered, were neither illegal nor immoral, and that the debts were antecedent and were dissociated in point of fact as well as time from the mortgage. The sons were, therefore, bound by the mortgage.
It may be noted that it is not every impropriety or every lapse from right conduct that makes a debt avyavaharika. It is only when the father’s conduct is “utterly repugnant to good morals, or grossly unjust or flagrantly dishonest” that the debt becomes avyavaharika, and the sons can claim immunity from it. Thus, where the father’s act which gives rise to a debt is a mere tort or breach of contract, the debt is not avyavaharika, and the sons are not immune from it.
ADVERTISEMENTS:
With regard to the pious obligation of the son to pay the debts of his father, a distinction is drawn between the liability of the son to pay the father’s debts in respect of money which was misappropriated by the father, and money for which the father was liable on account of a breach of a civil duty.
The distinguishing line has to be drawn between a criminal offence and a breach of a civil duty. If the debt is incurred by the father on account of the breach of a civil duty and the taking of money is not in itself a criminal offence, the son would be liable to pay the said debt, though the father may be subsequently liable to be prosecuted for criminal misappropriation.