Theme: Family & Marriage

Process Of Registration of Inter-Religious Marriage Under The Act

The process of registration for a Special Marriage is as follows:

Give notice to the Marriage Officer

  • When a marriage is to be performed under this law, the parties getting married shall give notice(( Section 5, The Special Marriage Act, 1954.)) in writing to the Marriage Officer of the district in which at least one of them has lived for at least thirty days immediately before the date of the notice. Upon receiving an application signed by both the marrying parties for the registration of their marriage, the Marriage Officer shall give public notice and allow thirty days for objections, and hear any objection received within that period.
  • The Marriage Officer will keep all such notices with the records of their office and will also enter a true copy of every such notice in a Marriage Notice Book,(( Section 6, The Special Marriage Act, 1954.))  which must be open for inspection at all reasonable times, without fee, by any person.
  • The Marriage Officer shall publish every such notice by attaching a copy to some noticeable place in their office. Where either of the marrying parties is not permanently living within the district of the Marriage Officer, the Officer shall also pass on a copy to the Marriage Officer of the district where they are permanently living, and that Marriage Officer shall attach a copy to some noticeable place in their office.

Sign a declaration for marriage

  • Before the marriage is performed the parties and three witnesses will sign a declaration(( Section 11, The Special Marriage Act, 1954.)) in the presence of the Marriage Officer, and the declaration will also be signed by the Marriage Officer. The declaration is in the form specified in the Third Schedule of the Act.

Performance of Marriage and Marriage Certificate

  • When the marriage has been performed(( Section 12, The Special Marriage Act, 1954.)) and all the conditions are fulfilled, the Marriage Officer will enter the details in a certificate in the Marriage Certificate Book. This certificate will be signed by the parties getting married and the three witnesses. The Certificate will then be unquestionable evidence that a legal marriage has been performed and that all formalities regarding the signatures of witnesses have been followed.

 

Adoption by OCI or Non-Resident Indian (NRI) or a Foreigner Living Abroad (Non-Religious Law)

Follow the steps given below to adopt a child if you are an Overseas Citizen of India (OCI), Non-Resident Indian (NRI) or foreigner living abroad:(( Regulations 15, 16, 17, 18 and 19, Adoption Regulations, 2017.))

Step 1: 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 Authorised 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. See here for a list of foreign adoption agencies. They will guide you on the home study that will be conducted and the registration process.

Step 2: You should submit the required documents. Please ask the authority you have approached for more details on this. 

Step 3: Two children will be referred to you for adoption, and you may reserve one child within 96 hours, and the profile of the other child will be withdrawn. If you fail to do this, both the profiles will be withdrawn. After reserving the child, you must accept the child and sign the Child Study Report and Medical Examination Report of the child within thirty days from the date of reservation. Failure to do this will lead to your profile being moved to the bottom of the seniority list, and the child’s profile will be withdrawn. You may also visit the child in person, and have the medical report reviewed by a medical practitioner. 

Step 4: A No Objection Certificate (NOC) will be issued in favor of the adoption by the relevant authority, and posted on Child Adoption Resource Information and Guidance System (CARINGS). 

Step 5: If you get an NOC , you may take the child in pre-adoption foster care temporarily while the Court order is pending. In order to do so, you will have to provide the following undertaking in this format. You will be given permanent custody of the child after:

  • The passport and visa are issued to the child
  • The Court order is passed. 

Step 6: The relevant authority will file an application with the relevant Court. 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. 

Step 7: You must come to India and take the child within two months from the date of the adoption order. Thereafter, the following will be done:

  • A Conformity Certificate will be issued by the relevant authority within three working days of the availability of the adoption order by the Court
  • The authority will inform the relevant authorities, such as immigration authorities, etc. of the confirmed adoption. 
  • The authority will aid in getting an Indian passport, birth certificate and OCI Card (if applicable) for the child. 

Step 8: The relevant authority shall conduct follow-ups to assess the progress of the adoption, on a quarterly basis during the first year and every six months in the second year. In case of any issues, counselling will be provided, and if there is disruption or dissolution of the adoption, the child may be taken back and declared as legally free for adoption.

Please see here for more information on the procedure. 

Maintenance or Alimony in Hindu Marriages

You can get a specific amount of money based on a Court order from your spouse. This can happen only if you do not have any sufficient means of income to sustain yourself or your children. This amount is called maintenance or alimony.

The Hindu divorce law on maintenance is gender-neutral. This means that an application for temporary or permanent maintenance can be filed either by the husband or wife.

Temporary Maintenance

During the course of the divorce proceedings, if you do not have independent income to support yourself and/or your children or to pay the necessary legal costs of the case, you can apply to the Court to direct your spouse to pay you a sum of money as maintenance. The Court will set a reasonable amount, which has to be paid monthly, as temporary maintenance after considering the income and paying capacity of the other spouse.

Permanent Maintenance or Alimony

Along with your divorce case, you can make an application to the Court for permanent maintenance to be paid by your spouse either monthly, periodically or in lump sum.

The Court can order such amount to be paid as maintenance keeping in mind the lifestyle that you enjoyed in your matrimonial home and considering the income and paying capacity of your spouse.

This amount can even be modified at a later date if either of your circumstances have changed. For instance, an increase in educational expenses for children, an increase in salary or standard of living of the paying spouse, etc. could result in an increase in the maintenance amount.

If you are getting maintenance monthly or periodically, then you will get it only till you remarry. It can even be revoked if you do not remain chaste (in case of a wife) or have sexual relations with another woman (in case of a husband).

It is important to note that permanent alimony cannot be granted to you if the main petition requesting a divorce, judicial separation, etc. under Hindu law has been dismissed or withdrawn.

Maintenance for Woman under Muslim Marriage Law

Under Muslim Marriage law, maintenance is paid by your husband to you and your children after the divorce has taken place. You do not have to pay maintenance to your husband as under Muslim law, only a man has to pay and take care of the woman after the divorce.

You can go to the Court to ask your husband to pay you maintenance. Courts determine the sum of maintenance based on the financial capacities of the husband.

Maintenance for Wife

In Muslim law, you have a right to get maintenance from your husband till:

  • Your Iddat period for divorce is over.
  • After your iddat period until you remarry.
  • You can also ask for more maintenance if the amount you are receiving is insufficient based on circumstances.

You cannot get maintenance from your husband if he has died. However, you have options of getting maintenance from:

  • Any relatives who may inherit your wealth and property.
  • Your children.
  • Your parents.
  • State Wakf Board.

Along with your maintenance, you are entitled to get the mehr amount mentioned in your nikahnama. This mehr is given either on divorce or on death of your husband.

Solemnizing an Inter-Religious Marriage

There is no specific form or essential ceremony for a marriage under Special Marriage Act, but there are two possibilities:(( Section 12 and 15, The Special Marriage Act, 1954.))

When you and your spouse do not want religious ceremonies

  • The parties can choose not to perform any religious ceremony and merely register their marriage before the Marriage Officer. You can decide how to perform the marriage but you and your spouse have to say the following to each other: ‘I, [your name] take thee [your spouse’s name] to be my lawful wife/husband.’ This has to be done in front of the Marriage Officer and three witnesses.

When you and your spouse want religious ceremonies for your wedding

  • You can perform any religious ceremony (according to the personal law) and then register your marriage under the Special Marriage Act. There is one condition: you and your spouse should have been living as husband and wife from the date of the ceremony until the date of registration.

 

Procedure for Hindu Adoption

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) there is no set procedure on adopting a child. You do not have to follow any guidelines, but you may have to execute an adoption deed. For more details on procedure and the format of the deed, you should consult a lawyer. 

If you are a guardian

A guardian requires the Court’s permission to adopt a child, or give him up for adoption, in certain 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.

Temporary Separation in Hindu Marriages

Apart from divorce, which has a certain finality to it, you and your spouse can even opt for a decree of judicial separation to better understand if you want a divorce.

Through this measure, the Court orders that you have been officially separated temporarily.

Judicial Separation does not have the same legal effect as divorce. This is because your marriage continues to exist. You cannot remarry legally during judicial separation.

You can apply for a decree of judicial separation for the same reasons as that of divorce. But it will not have the same effect as it does for a divorce. You will continue to be a married couple that lives separately.

After the order for judicial separation has been passed, you and your spouse can exercise one of the two following options:

Option I: Cancelling the Order of Judicial Separation You can approach the Court to cancel this order. You are able to reconcile with your spouse and get back together and live as a married couple after cancelling this order.

Option II: Get a Divorce After one year of receiving the order for judicial separation, if you and your spouse believe that there is no possibility of reconciliation you can file for divorce.

During this period you are entitled to alimony from your spouse. Please read this for more information. Further, the Courts will decide on the question of custody of children.

Remarrying Your Divorced Wife in Muslim Marriage Law

If your husband wants to remarry you after a divorce then also you have to observe a period of iddat, which is different from the iddat time period if your husband dies. In a situation where your husband wants to marry you again after divorcing you, then he has to wait till the following happens:

  • You have to follow the iddat period.
  • After the iddat period is over, you have to marry another man.
  • You and the other man have to live together and consummate the marriage. As per the law, your marriage is considered to be consummated when you have sexual intercourse with your husband.
  • The other man has to divorce you.
  • You have to follow the iddat period after a divorce.
  • After the iddat period is over, you can remarry your husband again.

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.))

Punishments Under Adoption Law

You may be punished if you do the following, regardless of the law under which you have adopted a child:

Illegally taking a child to a foreign country

  • If you take or send a child to a foreign country, or arrange for transferring the child to a person in a foreign country, without a valid order from the Court,(( Section 56(5), Juvenile Justice (Care and Protection of Children) Act, 2015.)) then you can be punished with jail time of up to 3 years and/or a fine of Rs. 1 lakh. 

Abandoning/Neglecting/Abusing the Child

  • If you, as the caretaker/parent of a child under 12 years of age, abandon the child intentionally in any place to wholly abandon the child, you will be punished with jail time of up to 7 years and/or a fine.(( Section 317, Indian Penal Code, 1860.)) 
  • If you, as the caretaker/parent of a child, assault, abandon, abuse, expose or willfully neglect the child(( Section 75, Juvenile Justice (Care and Protection of Children) Act, 2015.)) or cause this to occur, in a manner likely to cause him/her child unnecessary mental or physical suffering, you will be punished with jail time of up to 3 years and/or a fine of Rs. 1 lakh.  If such cruelty makes the child physically incapacitated or mentally ill or renders him/her mentally unfit to perform regular tasks or risks his life, you can be punished with jail time between 3 and 10 years and a fine of Rs. 5 lakhs. 

 

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you will be punished if you:

  • Give/receive any orphan, abandoned or surrendered child, for the purpose of adoption without following the provisions of the JJ Act.(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) The punishment  for this is jail time up to 3 years and/or a fine of Rs. 1 lakh.  Where the offence is committed by a recognized adoption agency, in addition to the above punishment, the registration of the agency and its recognition shall also be withdrawn for at least one year.

 

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) you will be punished if you:

Receive/give a payment or other reward in return for an adoption.(( Section 17, Hindu Adoption and Maintenance Act, 1956.)) For this, the punishment is jail time of up to 6 months and/or a fine, after authorization from the State Government.