Theme: Family & Marriage

Who are the witnesses required during a Muslim marriage?

The marriage has to take place in the presence of:

  • Two male witnesses or 
  • One male and two female witnesses. 

 

These witnesses must be Muslims, adults and of sound mind. The Sunni School of Muslim law specifically requires two witnesses to present while the Shia School of Law does not require the presence of a witness in any matter regarding marriage.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.332.)) 

Cheating by Spouse and Hindu Marriage Law

You can file for a divorce if your spouse has cheated on you, i.e. when they have had voluntary sexual intercourse with another person. This is also referred to as adultery.

To get a divorce, you will have to prove that voluntary sexual intercourse took place between your spouse and another person.

Till recently, cheating was a crime. It is no longer a crime. However, you can still file for divorce on the grounds that your spouse has cheated on you.

Children Born Out of Child Marriages

Irrespective of whether the child marriage has been cancelled or not, as per the law, a child born out of such a marriage would be considered a legitimate child under the law. 

 

Custody of Children

 

As for the custody of such children, the district court will decide who would receive custody of the children only while hearing the petition for cancelling the marriage. 

 

The court will take the following into account while granting custody:

 

  • The welfare and the best interest of the child will be given paramount consideration by the court while deciding their custody.
  • The court may even allow the other party access to such children if it thinks it would be in the best interest of the child to do so. 
  • The District Courts can direct the husband, or in cases of minors, their parents or guardians, to pay an amount as maintenance to the girl. 

 

Prohibited Relationships under Hindu Marriage Law

If the spouses are within the degrees of prohibited relationship, then their marriage will not be a valid marriage. The following are the kinds of prohibited marriages:

  • If one spouse is a lineal ascendant of the other. A lineal ascendant includes a father, mother, grandfather and grandmother, but also great grandfather and great grandmother and so on.
  • If one spouse is the wife or husband of a lineal ascendant or descendant of the other. A lineal descendant will include not only children and grandchildren but also great grandchildren and their children as well.
  • If the two spouses are brother and sister, uncle and niece, aunt and nephew, or first cousins.
  • If one spouse is the
    • Ex spouse or widow(er) of your sibling or
    • Ex spouse or widow(er) of your father’s or mother’s sibling or
    • Ex spouse or widow(er) of your grandfather’s or grandmother’s sibling.

In some cases, despite a relationship being prohibited by law, a person’s custom might still permit a marriage with another person. In this case, they can get married because their custom allows them to do so

Effects of Adoption

The following are the effects of adoption, regardless of which law you have adopted under:(( Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015; Sections 12, 13 and 15, Hindu Adoption and Maintenance Act, 1956.)) 

  • Child of Adoptive Parent: The child becomes the child of the adoptive parent(s), and the adoptive parent(s) become the parents of the child as if the child had been born to them, for all purposes.
  • Familial Connections of the Child: The child’s connections with the family of birth are broken off and replaced by the ties created by the adoption in the adoptive family. However, under the Hindu law on adoption, the adopted child still cannot marry any person whom the child was prohibited from marrying while in the family of birth.
  • Property Rights of the Child: Any property owned by the adopted child before the adoption shall continue to remain the child’s property, along with the obligations attached to the property (including the obligation to maintain relatives in the biological family.)

Additionally, under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) from the date on which the adoption order of a child becomes effective:(( Sections 12, 13 and 15, Hindu Adoption and Maintenance Act, 1956.)) 

  • Property Rights of the Child: The adopted child cannot claim ownership and deprive property which a person had before the child was adopted.  An adoption also cannot stop the adoptive father/mother from disposing of their property by transferring it during their lifetime or bestowing it by will.

Cancelling a Valid Adoption: A valid adoption cannot be cancelled by the adoptive parent or any other person. Once adopted, a child cannot reject the adoption and return to the family of birth.

Temporary maintenance for Senior Citizens

You can make an application to the court to order your children or relatives to pay you temporary maintenance (on a monthly basis). The court has to decide whether you can get temporary maintenance within 90 days of informing your children or relatives of your application. In special circumstances, they can delay this for some more time (i.e. 30 days).

This is not the final maintenance you can expect to get. The court may decide not to give you maintenance at all, or may decide to increase or decrease the amount of maintenance in the final order.

What is the procedure for a marriage by a Licensed Minister of Religion?

A marriage performed by a licensed Minister of Religion is divided into 4 stages: 

Stage 1: Issuing of Preliminary Notice 

In case two persons wish to be married by a licensed Minister of Religion, one of them must give a notice in person to the Minister, stating their intention to be married. The notice should mention the following:

  • The name and surname, and the profession or condition, of each of the persons intending marriage.
  • The current address of each of them.
  • The time during which each has been present in the said address. In case a person has been staying there for more than a month, they only need to state the same.
  • The place of marriage – either a church or a private dwelling.1

Given below is a sample notice:

Sample notice of marriage

 

 

The Minister will then paste the notice at a conspicuous or public place in the church.2 If the marriage is taking place at a private dwelling, the notice will be forwarded to the Marriage Registrar of that district, and the notice will be pasted in a conspicuous place of the Registrar’s office.(( Section 14, Indian Christian Marriage Act, 1872.)) In situations where the Minister refuses to perform a marriage, the notice will be either forwarded to another Minister, or returned to the persons who wish to get married.(( Section 15, Indian Christian Marriage Act, 1872.))

Stage 2: Issuing of certificate of receipt of notice

After at least four days of receiving the notice,(( Section 17, Indian Christian Marriage Act, 1872.)) one of the persons intending marriage must make a declaration to the Minister, stating that no legal problems exist in the marriage. In case one of the parties is a minor, they need to state that the necessary steps have been taken.(( Section 18, Indian Christian Marriage Act, 1872.)) To know more about the special procedures of marriage of a minor, read our explainer on Marriages of Minors under Christian Law.

Stage 3: Performance of Marriage

After such a declaration has been made, the Minister will issue a certificate and the Minister must conduct the marriage within two months of the couple getting the certificate.(( Section 17, 24-26, Indian Christian Marriage Act, 1872.)) Two witnesses must attend the marriage, apart from the Minister.(( Section 25, Indian Christian Marriage Act, 1872.)) In case two months have passed from receipt of the certificate, the entire process must restart with a fresh notice.(( Section 26, Indian Christian Marriage Act, 1872.))

Stage 4: Registration of Marriage

After the marriage is performed, the details of the marriage shall be entered in a register by the Minister.(( Part IV, Indian Christian Marriage Act, 1872. )) The entry will be signed by the Minister, parties to the marriage, and two witnesses who had attended the ceremony.(( Section 33, Indian Christian Marriage Act, 1872.))

A certified copy of an entry in the marriage register, signed by the person under whose custody the register is kept, will be legal evidence that the persons mentioned in the entry have been married according to the law.(( Section 80, Indian Christian Marriage Act, 1872.))

  1. Section 12, Indian Christian Marriage Act, 1872. [↩]
  2. Section 13, Indian Christian Marriage Act, 1872. [↩]

What is a valid marriage?

The validity of a marriage can be checked through the nikahnama, which is considered integral to a religiously-valid Islamic marriage. The Qazi will maintain the nikahnama. If there is no nikahnama then the Qazi himself can be the witness.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.332.))

 

The nikah can also be done though phone or the internet.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.333.))  It will be valid in cases where the parties make a proposal and acceptance before their witnesses and an advocate who is present. The witnesses and the parties must be familiar with the person appointed as the advocate and should know their name, father’s name and residential address which is also mentioned at the time of the proposal and the acceptance.

 

Hindu Divorce if Spouse has left you

If your spouse has left you then you can file for a divorce. This is known as desertion.

Immediate Effect of Desertion

Desertion can happen if your spouse has left you with immediate effect with an intention to never come back to stay with you as your spouse, without you agreeing to this arrangement.

This will only be understood by the Courts on a case by case basis. It is important to note that if your spouse has temporarily or in the heat of the moment left you, without actually intending to abandon you, this will not amount to desertion.

For example, if you had a fight with your husband and he leaves the house in anger then it does not mean that he has deserted you.

Causing Desertion

However, it is important that you have not created such a circumstance that any reasonable person would find so difficult to bear with that would have had to desert you. If you have created such a circumstance then the courts may not consider your case for desertion.

Other Ways of Desertion

Apart from a single act of leaving you, desertion can happen over a period of time through a course of conduct or through repeated behavioural patterns.

If your spouse has slowly withdrawn from you and your social circles (for example: stopped all interaction with you and your family though he/she may live with you) and has stopped behaving as any spouse does in a marriage (for example: refusing to financially contribute to a household since and contribute in any other way to the household) it can be understood as desertion. In such a case the spouse doesn’t have to physically leave you. Depending on the circumstances of each case, the Court can consider the desertion to begin when such behaviour started.

The Court will look at all the facts and circumstances to understand each specific case to decide on granting a divorce.

Time Period for Desertion

In order to claim desertion as a reason for divorce:

  • Your spouse should have deserted or abandoned you for two years.
  • This two year period must be continuous.

For example, Karan left his wife, Vijji, in January 2016, but changed his mind and came back to be with his wife in July 2017. Vijji cannot go to Court to file for a divorce for this reason as the two year period was not continuous.