Theme: Family & Marriage

Voidable Marriage under Hindu Marriage Law

A Hindu marriage becomes voidable in the following situations:

  • One of the spouses is impotent.
  • If the conditions for marriage have not been fulfilled. Before 1978, a guardian had to give consent on behalf of the child getting married. The reason this practice was not followed after 1978 is due to the implementation of the Child Marriage Restraint (Amendment) Act, 1978.
  • At the time of marriage, the woman was pregnant by some person other than the spouse.
  • In cases where the consent was obtained by fraud or force.

If one of these conditions are fulfilled, you can go to Court to annul your marriage.

Procedure for Adoption by Overseas Citizen of India (OCI) or a Foreigner Living in India (Non-Religious Law)

Follow the steps given below to adopt a child if you are an Overseas Citizen of India (OCI) or a foreigner who is a habitual resident of India:(( Regulation 20, Adoption Regulations, 2017.)) 

 

Step 1: You should determine if you can adopt. You may adopt a child through this means only if you are an OCI or a foreign citizen who is a habitual resident of India (i.e. you live in India regularly). 

 

Step 2: You should register online on the website of Central Adoption Resource Authority (CARA) here. It will redirect you to Child Adoption Resource Information and Guidance System (CARINGS) where you will have to fill out your application.

 

Step 3: Along with your application, you should submit the required documents, which are:

  • Your photograph
  • PAN Card
  • Your proof of birth (in case of a married couple, the spouse’s proof of birth too)
  • Proof of residence (Aadhar card/ voter card/ passport/current electricity bill/telephone bill) 
  • Proof of income of last year (salary slip/income certificate issued by the government/income tax return) 
  • Certificate from a medical practitioner certifying that you do not suffer from any chronic, contagious or fatal disease and they are fit to adopt (in case of a married couple, the spouse’s Medical Certificate too) 
  • Marriage certificate/Divorce Decree/ Declaration from the Court or affidavit pertaining to divorce under personal law/Death certificate of spouse, if applicable.

 

Step 4: A home study will be conducted by the Specialised Adoption Agency (SAA), and depending on this, your application to adopt may be accepted  or rejected. The result will be uploaded on the CARINGS website.

 

Step 5:  If your application is accepted, on the basis of your seniority, three children will be referred to you by the SAA through the CARINGS. You may reserve one child for possible adoption within 48 hours, and a meeting will be fixed for matching you to the child and assessing suitability. This process will be completed within twenty days, and if you do not accept the child, your name will be moved to the bottom of the seniority list. 

 

Step 6: The SAA will follow-up on the adoption, and create a follow-up report every six months for two years. In case of any issues, counselling will be provided, and if there is an issue after adopting the child, the child  may be taken back and declared as legally free for adoption again for other prospective adoptive parents.

How can minors marry under Christian Law?

Under Christian law, a minor is defined as someone below the age of 21 years, and is not a widow or widower. In case one of the parties intending marriage is a minor, they would require the consent of their father to get married. If the father of the party is not alive, then the consent must be given by their guardian, and if there exists no guardian, by the mother.(( Section 19, Indian Christian Marriage Act, 1872.)) In case none of them are resident in India at the time, no such consent will be needed.(( Section 19, Indian Christian Marriage Act, 1872.))

However, the Prohibition of Child Marriage Act makes every marriage involving a child (below 18 years), voidable at the option of the child.(( Section 3(1), Prohibition of Child Marriage Act, 2006.)) According to the law, the child can, if they opt to, file a petition to annul the marriage, within two years of attaining the age of majority.(( Section 3(3), Prohibition of Child Marriage Act, 2006.)) To learn more on child marriages, read our explainer on ‘Child Marriage’. 

 

Procedure when marriage is performed by a licensed Minister of Religion

Given below is the general procedure followed by the Minister if a minor wants to get married under the law:

  • When a Minister receives a notice for marriage where one of the parties is a minor, they must forward the notice to the Marriage Registrar of the district.(( Section 15, Indian Christian Marriage Act, 1872.))
  • The notice will then be forwarded to the other Marriage Registrars of that district, and will be pasted on a conspicuous place in their offices.(( Section 16, Indian Christian Marriage Act, 1872.))
  • In case a person who has the authority to give consent refuses to do so, they can inform their objection towards the marriage to the concerned Minister, in writing.(( Section 20, Indian Christian Marriage Act, 1872.)) In such a case, no certificate of marriage will be issued by the Minister, unless a satisfactory enquiry has been made by the Minister into the facts.(( Section 21, Indian Christian Marriage Act, 1872.)) Such an objection must be made before the issuance of the certificate of receipt of notice.(( Section 20, Indian Christian Marriage Act, 1872.))
  • In case no objection is raised, the Minister can still wait for 14 days from the date of receiving the notice, before granting a certificate.(( Section 22, Indian Christian Marriage Act, 1872.))
  • Once a certificate is issued, the remaining procedures for performance of the marriage and registration remain the same.

Procedure when marriage is performed by or in the presence of a Marriage Registrar

Given below is the general procedure followed by a Marriage Registrar if a minor wants to get married under the law

  • When a Registrar receives a notice for marriage where one of the parties is a minor, they must forward the notice to the other Marriage Registrars of that district, and the copies of the notice will be pasted on a conspicuous place in their offices.(( Section 39, Indian Christian Marriage Act, 1872.))
  • In case a person who has the authority to give consent refuses to do so, they can inform their objection towards the marriage to the concerned Registrar, in writing.(( Sections 19 & 44, Indian Christian Marriage Act, 1872.)) In such a case, no certificate of marriage will be issued by the Registrar, unless a satisfactory enquiry has been made by the Registrar.(( Section 45, Indian Christian Marriage Act, 1872.)) Such an objection must be made before the issuance of the certificate of receipt of notice.(( Section 44, Indian Christian Marriage Act, 1872.))
  • In case the person withholding the consent is of unsound mind, or if that person (not being the father) withholds consent unjustly, the parties can approach the Court. Parties who reside in the towns of Mumbai, Chennai, and Kolkata can directly approach their respective High Courts, while others can approach the District Court for the same.(( Section 45, Indian Christian Marriage Act, 1872.))
  • Moreover, if the Registrar themself has doubts regarding the authority of the person withholding consent, the Registrar can also approach the Court.(( Section 48, Indian Christian Marriage Act, 1872.))
  • In case no objection is raised, the Registrar can still wait for 14 days from the date of receiving the notice, before granting a certificate.(( Section 41, Indian Christian Marriage Act, 1872.))
  • Once the certificate is issued, the procedure for performance of the marriage and registration remains the same.

Conversion of religion from Hinduism

Conversion 

You can file for divorce if your spouse has undergone conversion to another religion and has ceased to be a Hindu.

File a Case

It is very important to note that since your spouse has converted to another religion it does not automatically end your marriage to them. You must still file for divorce.

Even if your spouse has converted to another religion the divorce proceedings will happen under the Hindu law and not the religion your spouse converted to. This is because your marriage to your spouse happened under Hindu law.

Marrying before Filing for a Divorce

Till the divorce has been finalized by the Court your marriage will continue to exist with your spouse. Your spouse cannot marry before this and such marriage will not be a valid marriage in law.

Punishment

If your spouse marries again without getting a divorce from you then you can charge them with the offence of bigamy which is punishable with up to 7 years jail time and a fine.

Muslim Divorce if Husband Is Impotent

Under Muslim law, you can file for divorce if you find out that your husband is impotent or even if you knew throughout your marriage that your husband was impotent. In this situation your husband can do either of the following:

  • Accept in front of the Court that he is indeed impotent.
  • Deny the impotency allegation in Court and prove that he is free from any physical defect of impotency.
  • File an application to the Court to give him one year to medically fix the problem. If after a year, he is not impotent, then the Court cannot grant a divorce in your favor.

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. 

 

Sapindas and Hindu Marriage

Sapinda relationships are prohibited under Hindu marriage law.  A sapinda is someone who is:

  • within or has a common ancestor relative within three generations above you on your mother’s side of the family
  • within or has a common ancestor relative within five generations above you on your father’s side of the family.

A sapinda can be someone from your father’s side or mother’s side hence, you are not eligible for a hindu marriage if you marry someone who is a Sapinda.

However, in some cases, despite a sapinda 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.

Jail time up to one month or a fine up to Rs. 1000 or both is the punishment but there are exceptions. 

Procedure for Adoption by Resident Indians (Non-Religious Law)

As a resident Indian, you may opt for in-country adoption i.e., adoption within India. Your application for adoption will go through various stages, as mentioned below:(( Regulations 9, 10, 11, 12 and 13, Adoption Regulations, 2017.))

 

Step 1: You may apply for adopting a child by registering on the website of Central Adoption Resource Authority (CARA), here. It will redirect you to Child Adoption Resource Information and Guidance System (CARINGS) where you can fill your application details such as  your personal details, employment details, etc. 

 

Step 2: After registration, you will be required to submit relevant documents as part of your application. Please see here to understand which documents you will have to submit. After you fill out the application, you will be given an acknowledgement slip.

 

Step 3: Once you have filled the application with the relevant details and documents, you can track the status of your application with the registration number provided to you on the acknowledgement slip.

 

Step 4: A home study will be conducted by CARA or Specialized Adoption Agency (SAA), to determine whether you are eligible to adopt a child.

 

Step 5: Your application may be accepted or rejected. In case your application is rejected, the reasons will be posted on CARINGS, and you may appeal against that decision to the Children’s Court. Please see here for the procedure for appeal. 

 

Step 6: If your application is accepted, on the basis of your seniority, three children will be referred to you by the SAA through the CARINGS. You can choose one child for possible adoption within 48 hours, and a meeting will be fixed to assess suitability. This process will be completed within twenty days, and if you do not accept the child you have chosen, your name will be moved to the bottom of the seniority list. 

 

Step 7: Within ten days of your selection of a child, you will have to take the child in pre-adoption foster care, which makes you the child’s foster parents. This happens while the adoption approval order is pending from the Court. You should sign this undertaking before taking the child in. 

 

Step 8: The SAA (or other relevant authority) will file an application with the relevant Court to obtain an adoption order. If the SAA is not available in your town, the relevant authority will do this. The Court proceedings will be held in-camera, and your application will be disposed of within two months from when you filed the adoption application. Thereafter, the SAA will obtain the birth certificate of the child within three working days with your name. 

 

Step 9: The SAA which conducted the home study will prepare the post-adoption follow-up report every six months for two years after the adoption. In case of any issues, counselling will be provided, and if there is an issue after adopting the child, the child  may be taken back and declared as legally free for adoption again for other prospective adoptive parents.

 

For more information on the procedure, please see here. 

When and where can a Christian Marriage be performed?

Time of Marriage

A Christian marriage can only be performed between 6 AM and 7 PM.(( Section 10, Indian Christian Marriage Act, 1872.)) However, priests from the Church of England, Church of Rome, and the Church of Scotland can perform a marriage beyond these hours, as long as it is according to the rules and customs of their Church. Moreover, priests from the Church of England and Church of Rome would require a license from the bishops of their respective churches, in order to perform a marriage beyond these hours.

Place of Marriage

A Christian marriage can be performed either in a church,(( Section 13, Indian Christian Marriage Act, 1872.)) or in a private dwelling,(( Section 14, Indian Christian Marriage Act, 1872.)) or in the presence of a marriage registrar.(( Section 38, Indian Christian Marriage Act, 1872.)) However, if the marriage is being performed by a priest from the Church of England, it shall only be performed in a church.(( Section 11, Indian Christian Marriage Act, 1872.)) However, this mandate is relaxed in case there are no churches within a five-mile radius, or if the priest has obtained a special license for the purpose from the Bishop of the Church.

Proof of Divorce under Hindu Marriage Law

The proof that your divorce has happened is the Court’s final order known as ‘decree of divorce’. This is in the form of an order, which is a document that enforces your divorce.

A decree of divorce is final when either of the two happens:

  • The spouse who is unhappy with the decision of the Court has already appealed the decree of divorce within 90 days, and the Court has dismissed that appeal.
  • There is no right to appeal.

Please consult a lawyer for more information on this.