Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you cannot give up your child for adoption, but as a parent or a guardian you have the option to surrender your child.(( Section 35(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) Surrendering means you give up your child for physical, emotional or social factors beyond your control. This would end your legal relationship with the child and you will not have to bear the responsibilities and privileges that are borne out of that relation once the Child Welfare Committee (CWC) acknowledges that you have surrendered the child.(( Schedule I, Adoption Regulations, 2017.)) Thereafter, the CWC will decide what to do with the surrendered child, and may declare him/her as legally free for adoption.
Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) the following persons(( Section 9, Hindu Adoption and Maintenance Act, 1956.)) may give up a child in adoption:
- The biological mother or father of the child, as long as the person wishing to give a child for adoption has the consent of the other biological parent. For example, if you, as the biological mother of Rama wants to give her up for adoption, you must have Rama’s biological father’s consent. This does not apply if the other parent is of unsound mind or has renounced the world or is no longer a Hindu.
- A guardian caring for a child may give him/her up for adoption under certain conditions, with the Court’s permission.
Biological/Adoptive parents who are Hindu, Buddhist, Jain or Sikh and are aged or infirmed can seek maintenance from their grown children under the Hindu Adoptions and Maintenance Act if they are unable to support themselves from their own earnings or property. In addition, even when the son or daughter is no more, parents can still claim maintenance from the wealth and properties of the deceased.
The marriage procedure differs according to the person performing the marriage. The law does not give details of the procedure in cases where the marriage is conducted as per the rules of a particular denomination of the Church. However, when the marriage is performed by an official appointed by the Act, like a Marriage Registrar or a certified Minister of Religion, it will be performed according to the Christian Marriage law, with the relevant procedure.
Types of Procedures:
To read more on the procedures, see our explainers on:
For a marriage to be legally recognized as a Muslim marriage, the following conditions must be met:(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.251.))
Age
A couple can get married if they have attained puberty (usually 15 years).
Mental State
A person with mental illness can get married if their guardian has given consent to the marriage. ‘Consent’ or agreeing to get married is an important part of a Muslim marriage. Even though it is assumed that a person with mental illnesses does not have the ability to get married, the law allows such marriages if the guardian agrees to it.
Minor
A boy or girl who has not attained puberty (minor) is not competent to enter into a contract for marriage but the guardian may contract their marriage for them after they attain puberty.(( Shoukat Hussain and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].))
There are a few essential steps that need to be followed to make the marriage valid(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.331.)):
Proposal and Acceptance
There has to be a proposal made by or on behalf of one person and it has to be accepted by the other for a valid marriage.
Consent
Consent is a very important criteria for a marriage and the criteria for consent changes according to the different schools of law.
Witnesses
Witnesses are those people who are present at the marriage and can state that it took place. They are an important requirement for a valid muslim marriage.
Prohibited Relationship
Some relationships within a family and extended family are prohibited, meaning, one cannot marry these people as such relationships are prohibited under custom. There are strict prohibitions in muslim law which have to be followed.
Both you and your spouse can file a case to the Family Court. There are separate courts known as family courts which deal with divorce cases. You can approach a family court in the following areas:
Your Place of Marriage
Either you and your spouse can file for divorce in the Court of the area where your marriage ceremony took place, i.e, where your marriage was solemnized.
For example, if you and your spouse got married in Mumbai, then you can file a case at the Family Court in Mumbai.
Your Spouse’s Residence
You can file a case in the Court of the area where your spouse resides. For example, if you are filing a case against your wife who lives in New Delhi, then you can file a case in the Family Court in Delhi.
Your Last Place of Residence Together
Either you and your spouse can file for divorce in the Court of the area where you both last lived together. For example, if you and your spouse last lived together in Delhi, then either of you have the option of approaching the Family Court in New Delhi.
Your Place of Residence
Wife
If you are filing a divorce case against your husband, then you can go to the Court in the area where you are residing.
For example, if you are living in Bengaluru, you can file a case against your husband in the Family Court of Bengaluru even if your husband is not living there.
Both
If your spouse has gone abroad you can file it in your place of residence.
However, please consult your lawyer while filing the case in Court.
Mubara’at
Both you and your spouse can end the marriage and divorce each other if you both do not want to continue in the marriage and end all marital obligations.
What is essential in this form of divorce is that both you and your spouse should consent to ending the marriage. This form of divorce is known as Mubara’at.
The word ‘mubara’at’ means ‘freeing one another mutually’. Mutual divorce takes place in the form of ‘Mubara’at’ when:
- Both husband and wife consent to ending the marriage
- You (husband) have to say ‘talaq’ once
- This form of talaq cannot be revoked.
This form of divorce happens after coming to a mutual decision to end the marriage.
If you and your spouse decide to end the marriage, this means that certain duties have to be followed such as:
- Your wife has to follow the period of iddat after the divorce.
- Both your wife and children can get maintenance during this period.
If you did divorce your wife using this method, then you cannot remarry her again unless certain conditions are followed.
Where a child marriage has taken place, the person who was a child at the time of marriage has an option to cancel the marriage. You can cancel a child marriage in the following manner:
Where do you file the case?
A petition should be filed in the District Court to get the marriage annulled.
Who files the case?
If the person filing the case is a minor (below 18 years of age) then their petition has to be filed through a guardian or any other person who is interested in the child’s well being. This person will have to file the case along with the Child Marriage Prohibition Officer, who is responsible for preventing child marriages.
When can you file the case?
It is important to note that there is a time limit to file this petition. It can only be filed within two years after the child attains majority. For girls, such a petition to strike down their marriage can only be filed till they turn 20 years old and for boys till they turn 23 years old.
What does the Court do?
When such a child marriage is cancelled, the District Court will order both the parties to return all the money, valuables, ornaments and all other gifts received during the wedding to the other side. If they are unable to return the gifts, an amount equal to the value of the gifts must be returned.
Registration of marriages in Hindu Law is given under Section 8 of the Hindu Marriage Act. This allows the State Government to make rules regarding registration.
The State Government may make rules about how the marriage details should be entered in the Hindu Marriage Register. The State Government can also make marriage registration compulsory in the State if it thinks this is necessary. In this case, any person violating the rule by not making an entry in the marriage register can be punished with a fine of up to Rupees twenty-five.
However, even if the entry has not been made, it does not mean that your marriage is invalid. If you take a look at the table given, you can see that each state has its own rules for Hindu marriages:
Declaring a child legally free for adoption allows such children to be put up for adoption under the non-religious law,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) which terminates the legal relationship that the child has with their biological parents.(( Schedule I, Adoption Regulations, 2017.))
The Child Welfare Committee (CWC) takes the decision to declare a child free for adoption, after it conducts inquiries, which includes:
- A report by the probation officer/social worker,
- Consent of the child (if they are old enough),
- The required declaration submitted by the District Child Protection Unit and the Child Care Institution or Specialized Adoption Agency, etc.(( Schedule I, Adoption Regulations, 2017.))
The following categories of children may be declared as legally free for adoption:
- Orphans:(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015)) Children without parents (biological or adoptive) or legal guardian, or whose legal guardian is not capable or willing to take care of the child.
- Abandoned children: Children deserted by the parents (biological or adoptive) or guardians, and who are declared as abandoned children by the Child Welfare Committee.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.))
- Surrendered children – Children who are given up by the parent/guardian, and declared as surrendered children by the Child Welfare Committee.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.))
- A child of mentally retarded parents.(( Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.))
- An unwanted child of a survivor of sexual assault.(( Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.))
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