Theme: Family & Marriage

When can you file for a Hindu Divorce?

You can only file a divorce case if you have a reason recognized by Hindu law. These reasons can vary from ill-treatment by your spouse to your spouse suffering from a mental disorder.

In India, the law provides for specific reasons under which you can file for a divorce.

Ill-Treatment

  • When your spouse has been cruel towards you.
  • When your spouse has had sexual intercourse with another person.
  • When your spouse has left you.

Illness

  • When your spouse is suffering from a venereal disease that can be spread to you.
  • When your spouse has a mental disorder.

Absence of Spouse

  • When your spouse has withdrawn from you.
  • When your spouse has been presumed to be dead for 7 years or more.
  • When your spouse has renounced the world by entering any religious order.
  • When you and your spouse have not gotten back together for more than a year, even after a decree for judicial separation was passed by the Court.
  • Even after the Court has passed an order asking you or your spouse to resume your marital obligations, it hasn’t been done for over one year.

Conversion

  • When your spouse has converted to another religion.

Remarriage under Muslim Marriage Law

For Men

  • If your wife dies or you have divorced her (validly) you can immediately remarry another woman.
  • If you want to remarry your wife after divorcing her you have to follow certain procedures.

For Women

  • If your husband has died or you are no longer married to him through valid procedures of divorce and you want to marry another man then you have to follow certain conditions:

Iddat

  • The wife cannot remarry immediately but has to wait for a certain period known as ‘iddat’.
  • It is the period during which a Muslim woman cannot marry another man or have sexual intercourse with anyone.
  • When your husband dies, you will have to observe an iddat period of four months and ten days from the date of your husband’s death.
  • When you divorce your husband (and he doesn’t die) 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.

If you are pregnant during this iddat period, then after your child has been born your iddat period will begin.

 

 

Help and Support

If you require any help, support or you want to raise an issue regarding the adoption, you can contact the following authorities: 

Child Adoption Resource Authority (CARA)

CARA primarily deals with non-religious adoption(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) of orphan, abandoned and surrendered children through its associated /recognised adoption agencies.

  • Helpline of CARA: 1800-11-1311.You may call this number between 9:00 AM to 5:30 PM between Monday to Friday. 
  • Email Address of CARA: carahdesk.wdc@nic.in 

 

Role of Courts

The Courts play a very important role during the adoption procedure. Given below are some of the important roles played by the Court:

 

Adoption Order (Non-Religious Law)(( Sections 12 and 17, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) the Court receives the application from the SAA (Specialized Adoption Agency) with the relevant documents of the child so that the Court can assess whether an adoption order can be granted. The application would include:

  • Details of the SAA and co-applicants (if there are any) like Child Care Institutions
  • Details of the prospective adoptive parent(s) such as name, child adoption resource information and guidance system registration number
  • Details of the child that is going to be adopted
  • The fact that the child has been declared legally free for adoption
  • The fact that the adoptive parents have signed a Pre-adoption foster care affidavit allowing social workers of the SAA, DCPU (District Child Protection Unit) to make home visits
  • Copy of the decision of the Adoption Committee 

Read a format of the application here to understand what other details are included in the application. By passing this adoption order, the Court would be granting permission to the parents to be the adoptive parents of the child. Before passing the adoption order, the Court has a duty to keep in mind:(( Section 61, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

  • That the adoption is for the welfare of the child
  • That the wishes of the child are taken into consideration, based on age and understanding of the situation
  • That the adoptive parents have not agreed to or received any payment or reward for the adoption
  • That the adoption proceedings in Court  should be in – camera proceedings.

 

Permission to Adopt (Hindu Law)

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) the guardian requires the Court’s permission to adopt a child, or give him up for adoption, in the following 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. 

 

Appeal (Non-Religious Law and Hindu Law)

Under the non-religious law on adoption, if you are not satisfied by the orders given by the relevant authorities while adopting a child or if you adoption application has been rejected, you may appeal to the Children’s Court, within 30 days of the relevant order.(( Section 101(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) However, even if more than 30 days have passed, you can attempt to appeal, and it will be entertained if the Court believes you have sufficient reason for not being able to appeal within the stipulated 30 days. If you are not satisfied with the order given by the Court, you may file an appeal to the High Court of your state.(( Section 101(5), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

Decree of Nullity

A decree of nullity is a judicial decree determining in effect that the marriage in question never existed. It is different from a divorce which acknowledges that there was a marriage and it is ending. The decree of nullity declares that the marriage is and has always been null and void as there are many conditions under which marriage in India can be considered as an invalid marriage. A party has to present a petition before Court against the other party, setting in detail the reason for the annulment.

Conditions for Annulment

These are the conditions for annulment of a marriage:

  • If either party was married to another person at the time of marriage
  • If either party was suffering from a serious mental illness
  • If either party was below the minimum age (18 for women and 21 for men)
  • If your spouse was a close relative (within the prohibited degrees of relationship)
  • If either party is impotent at the time of marriage and when the case is presented to the Court
  • If either party refuses to consummate the marriage
  • If, at the time of marriage, the woman was pregnant by some person other than the spouse. In these cases, the Court has to make sure that the allegations are true
  • If the consent of either party was obtained by fraud or coercion

If these conditions are met, a marriage can be annulled.

Batil and Fasid Marriages

Under Muslim personal laws, marriages in violation of rules are known as Batil marriages. Those marriages which are in violation of conditions of affinity, fosterage, etc. are examples of Batil marriages (for example, marrying your mother’s sister). Batil is another way of saying that your marriage is void. A marriage can be annulled if it is void and it means that the marriage is not legally binding.

In certain circumstances, your marriage may be considered as Fasid or irregular. The prohibitions are temporary or a result of accidental circumstances – it is generally possible to rectify irregular marriages (for example, a marriage with no witnesses).

Filing an Annulment

To end a marriage through annulment, a petition must be presented to the District Court which has jurisdiction. The Court should have judicial authority over the area:

  • Where the marriage was solemnized
  • Where either of the spouses resides at the time of filing for annulment
  • Where the spouses last resided together
  • If the wife is the petitioner, then the place where she resides

The petition should have all the facts and reliefs required and should only be submitted after it has been made certain that everything written in it is true. The Court has a duty to make sure that the proceedings go smoothly, and attempt to make sure that there is a chance of reconciliation between the parties. This means that the spouses have to try to resume their marital relationship. An appeal can also be filed after the Court passes a decree or order, and this will be enforced and has to be obeyed.