Theme: Family & Marriage

Cruel Behavior and Muslim Marriage Law

There are provisions on cruel behavior under the Muslim marriage law. Cruelty is any conduct or behavior which causes harassment in the mind of the spouse. Under the Muslim law, cruelty is specifically understood as when your husband:

  • Habitually assaults you or physically abuses you.
  • Has sexual intercourse with other women.
  • Forces you to lead an immoral life.
  • Disposes of your property and prevents you from exercising your legal rights over it.
  • Obstructs you from practicing your religion.
  • In a scenario where he has more than one wife and does not treat you equally as compared to the other wives.

Child Marriage Prohibition Officers

Child Marriage Prohibition Officers (CPMO) are appointed by the State governments to curb issues of child marriages in each State. These officers are responsible for reporting and preventing child marriages. 

 

The duties of the CPMO are decided and assigned by the State Government. They broadly include:

 

  • Prevention of Child Marriage by preventing performance of child marriage by taking such action as he deems fit.
  • Collection of Evidence for prosecuting persons charged under this law. 
  • Advising and counselling people of a locality against indulging in any child marriages in any way.
  • Spreading Awareness of the problems that arise out of child marriages, such as maternal mortality, malnutrition, domestic violence, etc.
  • Sensitizing the community on the issue of child marriage.
  • Reporting periodical returns and statistics to the State Government on the frequency and occurrence of child marriage. 

 

In order to effectively carry out their duties, the State Government can even confer upon the CPMO some powers of a police officer with certain conditions and limitations. This has to be done by way of a notification in the Official Gazette. 

 

To read more about the functioning of the CPMO, please refer to this Government Handbook that explains their duties in detail. (page 19-22)

What is a ‘Special Marriage’ or Inter-Religious Marriage?

Civil marriages, also commonly called ‘Special Marriages’ or ‘Inter-religious marriages’ do not depend on the religion of the couple. Instead, the marriage happens under the Special Marriage Act where a couple practicing a different faith or religion have the right to get married in India.(( The Special Marriage Act, 1954.))

To get married under this law, you need to figure out if you and your spouse are legally eligible to get married. For example, you need to be over a certain age to be able to get married and you cannot have another living spouse from whom you have not been divorced.

 

Procedure for Adoption by Relative (Non-Religious Law)

As a relative of a child, following the non-religious law to adopt, you can adopt both within India and also do inter-country adoptions.

Adoption within India (In-Country Adoption)

Follow the steps given below for adopting a child through in-country relative adoption i.e. adoption within India.(( Regulation 51, Adoption Regulations, 2017.)) 

Step 1: You should determine if you can adopt the child. You must be related to the child in any of the following ways:(( Section 2(52), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

  • You must be his/her paternal uncle or aunt,
  • You must be his/her maternal uncle or aunt, 
  • You must be his/her paternal grandparent, 
  • You must be his/her maternal grandparent.

You must also be(( Ministry of Women and Child Development, Central Adoption Resource Authority, Relative Adoption (In-country), http://164.100.158.243/carings/family/famhome.aspx.)) either a Resident Indian or Non-Resident Indian (NRI) or an Overseas Citizen of India (OCI) residing in India for at least one year.

Step 2: You must register on the website of Central Adoption Resource Authority (CARA), here. It will redirect you to Child Adoption Resource Information and Guidance System (CARINGS). You should submit the required documents,(( Schedule VI, Adoption Regulations, 2017.)) which are:

  • Proof of residence 
  • Consent of the child, if the child is aged more than 5 years
  • Consent of the biological parents in this format , or permission from the Child Welfare Committee (CWC) to the legal guardian of the child to surrender the child and give him/her up for adoption in this format 
  • Adoption order from court, as described in step 3. 
  • Affidavit in support of you and your spouse’s relationship, and your financial and social status in this format

Step 3: Thereafter, you must file an adoption application with the relevant Court, in this format. Once obtained, you must upload it on Child Adoption Resource Information and Guidance System (CARINGS).

For more information on the procedure, please see here.

Adoption across Countries (Inter-Country Adoption)

Follow the steps given below for adopting a child through inter-country relative adoption.(( Regulation 53, Adoption Regulations, 2017.)) 

Step 1: You should determine if you can adopt a child. You may adopt a relative’s child if you are a Non-Resident Indian or an Overseas Citizen of India. 

Step 2: You should approach the relevant authority i.e. the Authorized Foreign Adoption Agency or the Central Authority in your country of residence. In case there is no Authorized Foreign Adoption Agency or Central Authority in your country of residence, then you should approach the relevant Government department or Indian diplomatic mission (in cases of Indian citizens) in that country. They will guide you on the home study that will be conducted and once that is done, the registration process.

Step 3: You should submit the required documents.  Please ask the authority you have approached for more details on this. 

Step 4: Once your documents have been submitted, the authority will forward your application to the District Child Protection Unit (DCPU) for a family background report ( this might be chargeable). See here for more details on the report. This report will be forwarded to the receiving country and the relevant authority. 

Step  5: You should file an application for adoption to Court in the district where the child resides in this format, with a consent form from the biological parents and all the other documents, which are:

  • Consent of the child, if the child is more than 5 years old
  • Permission of the receiving country
  • Your relationship with the child (family tree)
  • Recent family photographs of you, the child and the biological parents
  • Consent of the biological parents in this format or permission from the Child Welfare Committee (CWC) to the legal guardian of the child to surrender the child and give him/her up for adoption in this format 
  • Family background report 

Thereafter, you should furnish a certified copy of the adoption order to the DCPU. 

Step 6: The relevant authority will provide a No Objection Certificate (NOC) in favor of the adoption within ten days of receiving the adoption order from the DCPU. 

For more information, please see here. 

Reconciliation during divorce proceedings under Hindu Marriage Law

In all family law cases, Courts encourage an attempt for reconciliation between the spouses.

Consequence of Reconciliation

After reconciliation happens, either:

  • You and your spouse can get back together and continue your marital relationship, or
  • You and your spouse can decide to end the marriage peacefully and divorce each other.

There are three kinds of reconciliation methods in India:

Mediation

  • Mediation is a process of resolving conflicts by identifying their causes and then making a strategy to address them. This is done by a mediator who is a person either appointed by the Court during the divorce proceedings or is assigned from a Mediation Centre which is located near the Court.

Conciliation

  • In Conciliation, a person known as the conciliator is appointed.  His role is to persuade the parties to arrive at a solution suggested by him during the course of the discussions.

Counsellor in Family Courts

  • A counsellor is a person whose job is to provide advice, help, or encouragement to solve problems during divorce and other family matters. A counsellor is a person appointed by a Family Court to find out:
  • The reason why or if you and your spouse are incompatible for each other.
  • Whether the incompatibility can be fixed by any psychological or psychiatric assistance from doctors.
  • Whether you and your spouse are under the influence of anybody else to divorce each other.
  • Whether you and your spouse are taking free and independent decisions regarding the divorce.

 

Iddat After Divorce in Muslim Marriages

The Iddat period after divorce in a Muslim marriage is a period of time where the wife is not allowed to marry anyone else or have sexual intercourse with anyone. Only women have to follow the Iddat period under the Muslim Law.

If you have been divorced by your husband then the Iddat period is:

  • Three months from the date your husband says the word ‘talaq’.
  • If you are pregnant during this iddat period, then until the date of delivery.

Your husband can always change his mind during the iddat period and take back his talaq, after which, you will be a married couple again.

Conditions To Be Fulfilled For A Valid Inter-Religious Marriage

The following are the conditions you have to keep in mind at the time of marriage:(( Section 4, The Special Marriage Act, 1954.))

  • Neither party has a living spouse.
  • Neither party:
    • is incapable of giving valid consent to the marriage in consequence of unsoundness of mind.
    • though capable of giving valid consent, has been suffering from mental disorder of such a kind that they are unfit for marriage and unfit to have children.
    • has been subject to recurrent attacks of insanity or epilepsy.
  • The male is at least twenty-one years of age and the female is at least eighteen years of age.
  • The parties are not within the degrees of prohibited relationship.

Marriages governed by customs

In cases where customs are involved for a person belonging to a tribe, community, group, or family, the State Government can make rules governing them and the solemnization of marriage. This is not needed in cases where:

  • Such customs have been continuously observed for a long time among the members.
  • Customs or rules are not against public policy.
  • The customs or rules are applicable only to a family and the family is still continuing the practice.

In cases where the marriage is solemnized in the State of Jammu and Kashmir both parties should be citizens of India living in the territories to which the Act extends.

 

Procedure for Adoption by Step-Parent (Non-Religious Law)

As a step-parent of the child you want to adopt, you can follow the procedure given below.(( Regulation 52, Adoption Regulations, 2017.))

Step 1: You and your spouse (the biological parent of the child) must register 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: You must then upload the relevant documents, which are:1

  • Proof of residence of you and your spouse
  • Proof of the parties mentioned above being legally wedded. 
  • Death Certificate of the biological parent in case he/she is not alive. 
  • Attested photographs of the child to be adopted, the biological parent(s), spouse adopting the child and the witnesses. 
  • Form from Child Welfare Committee (CWC) granting you permission, as described in step 3. 
  • Adoption order from court, as described in step 4.

Step 3: You must be granted permission from the CWC to adopt the child. You must fill up this form, which also provides  your and your spouse’s consent.  In case children are being relinquished/surrendered by both spouses from their respective earlier marriages for adoption, separate consent forms shall be filled up.

Step 4: You along with your spouse must file an application in the Family/District/City Civil Court in this format. Thereafter, you should obtain a certified copy of the adoption order from the court and submit a copy of it online through CARINGS.

For more information, please see here. 

  1. Schedules XX and VI, Adoption Regulations, 2017. [↩]

Re-marriage after Divorce under Hindu Marriage Law

If you want to remarry, you have to wait for 90 days from the date of the Court’s final order, so that your spouse has time to ‘appeal’ against the Court’s decision.

Under the law, you can remarry right after getting the decree of divorce when:

  • The spouse who is unhappy with the decision of the Court has already appealed the decree of divorce, and the Court has dismissed that appeal.
  • There is no right of appeal against the decree of divorce.
  • Where you and your spouse have settled all issues regarding the divorce such as children, property etc. and both of you have decided not to file any more cases.

Please consult a lawyer for this.

Mehr/Dower in a Muslim Marriage

During a Muslim marriage ceremony, a sum of money or property will be decided to be paid to you by your husband, known as mehr or dower. Traditionally mehr is understood as an amount reserved for the wife for when she needs it the most, that is either after divorce or death of the husband.

Even if no specific amount is fixed at the time of the marriage, legally you have a right to mehr. It can either be paid in full at the time of marriage or in parts, i.e. half at the time of marriage and the rest upon divorce or death of your husband.

Once your divorce is final, and your iddat period has been completed, if you haven’t received your mehr amount from your husband then your husband has to give it to you.