Theme: Courts

Power of the Court to Stop Child Marriage

When the Court receives credible information that a child marriage has been arranged or is about to take place, it can issue an order prohibiting the persons from conducting and organizing such marriages. 

 

The accused person can apply to the Court to either revoke this order or even alter it. The Court can even do this on its own motion. 

 

Any child marriage that takes place after the order has been issued will not be a valid marriage. 

 

Circumstances of Court Intervention

The Court can intervene: 

  • On its own, or
  • On the basis of a complaint filed by a Child Marriage Prohibition Officer or any Non Governmental Organization (NGO), or
  • In some cases, such as on days of Akshaya Tritiya which is an auspicious time for marriages, the Court can also act as the Child Marriage Prohibition Officer and have all the powers of this Prohibition Officer to prevent child marriages from taking place, or 
  • Any person who has personal knowledge about a child marriage which may take place. 

Notice Issued by Court

Before passing this order the Court must issue a notice to the person accused under this law to give an opportunity to defend themselves.

 

However, in urgent cases, the Court has the power to issue an interim order (before the final order)  stopping the marriage, without giving notice to the person(s) accused.

 

Punishment 

If a temporary order has been issued against you and you do not follow it, you will be punished with jail time of up to two years and/or fine up to one lakh rupees. 

 

Is there a right to appeal against a contempt of court decision?

Yes, a person punished for the offence of contempt of court (both civil and criminal contempt) has the right to appeal in the following ways:

Punishment Passed By? Who can you appeal to? Time Limit
Single Bench of the High Court  Bench of 2 or more Judges of the same High Court 30 days1 
Bench of more than one Judge of the High Court Supreme Court 60 days.(( Section 19(4)(b), Contempt of Courts Act, 1971.))
Judicial Commissioner of a Union Territory Supreme Court 60 days.(( Section 19(4)(b), Contempt of Courts Act, 1971.)) 

The law only allows a person to appeal against the decision once. If the appeal fails, no further remedy is present under the Contempt of Courts Act, 1971.  However, the Constitution of India allows an appeal against any judgment of any court, including the High Court. This is done through a unique form of a petition, known as the ‘Special Leave Petition’.((  Article 136, Constitution of India, 1950.))  The Supreme Court has the option to decide whether or not to hear an appeal arising out of the Special Leave Petition.(( Article 136, Constitution of India, 1950.)) 

  1. Section 19(4)(a),  Contempt of Courts Act, 1971. [↩]

Who is a Marriage Officer?

A marriage officer is a person appointed by the State Government after notification in the Official Gazette. The main duty of a marriage officer is to facilitate the registration and provide the certificate of marriage to the parties.(( Section 3, The Special Marriage Act, 1954.))

Child-Friendly Court Process

Portfolio Keyphrase: Child friendly court process

Tags: Abuse, Violence, Crime, Children, Explainer, Court, Police

[Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.]

There are Special Courts set up to deal with child sexual abuse because of the sensitivity of the issue. Unlike normal Courts, these Courts are supposed to follow a special procedure to make sure that the child feels safe and comfortable.

If a child is the victim of sexual assault, the Special Court must ensure some child-friendly procedures for the child:

Ensuring the presence of familiar people through the legal process

The Court will allow the child’s family member/relative/friend or guardian to be present with them during the trial(( Section 33(4), The Protection of Children from Sexual Offences Act, 2012.)).

Ensuring that the legal process is not strenuous for the child

The Court will:

  • Allow frequent breaks for the child during the trial(( Section 33(3), The Protection of Children from Sexual Offences Act, 2012.)).
  • Not call the child to the Court repeatedly to testify(( Section 33(5), The Protection of Children from Sexual Offences Act, 2012.)).
  • In special circumstances, the child need not come to Court and make statements. The Court will ask an officer of the Court to examine the child at their home. The Court can take the help of a qualified translator or interpreter or special educator when recording the child’s evidence.(( Section 19 and 38(1)(2), The Protection of Children from Sexual Offences Act, 2012.))
  • Try and ensure that the evidence is recorded within 30 days and the trial is completed within one year(( Section 36, The Protection of Children from Sexual Offences Act, 2012.)).

Protecting the child from the accused and the public

  • The Court  must ensure that the child is not exposed to the accused in any way during the trial. However, the accused can hear the child’s statement. Some examples of how Courts do this include one-sided mirrors, curtains or through a video call(( Section 36, The Protection of Children from Sexual Offences Act, 2012.)).
  • The Court must have private court proceedings so that the media cannot report about the happenings in Court(( Section 37, The Protection of Children from Sexual Offences Act, 2012.)).

Questioning of a Child

Due to the sensitivity of the issue and for the  protection of the child, the lawyer of the accused is required to conduct the court process in a certain manner.

  • The lawyer cannot question the child directly. The lawyer will present the questions to the Special Court which will then question the child(( Section 33(2), The Protection of Children from Sexual Offences Act, 2012.)).

The lawyer cannot question the character of the child, for example,  by saying that the child has a history of lying to their parents(( Section 33(6), The Protection of Children from Sexual Offences Act, 2012.)).

Role of Courts

The Courts play a very important role during the adoption procedure. Given below are some of the important roles played by the Court:

 

Adoption Order (Non-Religious Law)(( Sections 12 and 17, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) the Court receives the application from the SAA (Specialized Adoption Agency) with the relevant documents of the child so that the Court can assess whether an adoption order can be granted. The application would include:

  • Details of the SAA and co-applicants (if there are any) like Child Care Institutions
  • Details of the prospective adoptive parent(s) such as name, child adoption resource information and guidance system registration number
  • Details of the child that is going to be adopted
  • The fact that the child has been declared legally free for adoption
  • The fact that the adoptive parents have signed a Pre-adoption foster care affidavit allowing social workers of the SAA, DCPU (District Child Protection Unit) to make home visits
  • Copy of the decision of the Adoption Committee 

Read a format of the application here to understand what other details are included in the application. By passing this adoption order, the Court would be granting permission to the parents to be the adoptive parents of the child. Before passing the adoption order, the Court has a duty to keep in mind:(( Section 61, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

  • That the adoption is for the welfare of the child
  • That the wishes of the child are taken into consideration, based on age and understanding of the situation
  • That the adoptive parents have not agreed to or received any payment or reward for the adoption
  • That the adoption proceedings in Court  should be in – camera proceedings.

 

Permission to Adopt (Hindu Law)

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) the guardian requires the Court’s permission to adopt a child, or give him up for adoption, in the following cases:(( Section 9(4), Hindu Adoption and Maintenance Act, 1956.)) 

  • where both the father and mother are dead; 
  • where both the father and mother have completely and finally renounced the world; 
  • where both the father and mother have abandoned the child; 
  • where both the father and mother have been declared to be of unsound mind by the court concerned; 
  • where the parentage of the child is not known. 

 

Appeal (Non-Religious Law and Hindu Law)

Under the non-religious law on adoption, if you are not satisfied by the orders given by the relevant authorities while adopting a child or if you adoption application has been rejected, you may appeal to the Children’s Court, within 30 days of the relevant order.(( Section 101(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) However, even if more than 30 days have passed, you can attempt to appeal, and it will be entertained if the Court believes you have sufficient reason for not being able to appeal within the stipulated 30 days. If you are not satisfied with the order given by the Court, you may file an appeal to the High Court of your state.(( Section 101(5), Juvenile Justice (Care and Protection of Children) Act, 2015.))