Theme: Family & Marriage

Punishment for Abandoning and Neglecting Senior Citizen

If you leave a senior citizen at some place with the intention of abandoning them and not taking care of them, you can be punished with jail time of up to three months and/or a fine of up to Rupees five thousand. The police can make an arrest without the permission of a court. However, this is a bailable crime. If you are able to pay the bail bond, you will be released.

Who can perform a Christian Marriage?

The following persons can perform a Christian Marriage under the law:

  1. Any person who has received the ordination from their church to be a priest/minister.(( Section 5(1), Indian Christian Marriage Act, 1872.))
  2. Any clergyman of the Church of Scotland.(( Section 5(2), Indian Christian Marriage Act, 1872.))
  3. Any Minister of Religion licensed under the Indian Christian Marriage law to perform marriages.(( Section 5(3), Indian Christian Marriage Act, 1872.))
  4. A Marriage Registrar appointed under the Indian Christian Marriage Act. The marriage has to take place by the Registrar or in their presence.(( Section 5(4), Indian Christian Marriage Act, 1872.))
  5. By any person licensed under the Indian Christian Marriage Act to grant certificates of marriage.(( Section 5(5), Indian Christian Marriage Act, 1872.))

Any marriage performed by a priest, minister or any clergyman of the Church of Scotland will be performed according to the rules, rites, ceremonies, and customs of that particular denomination of church. However, the procedure for marriages will be according to the Indian Christian Marriage Act if conducted by a Minister of Religion, Marriage Registrar or by any person licensed to give certificates under this law. The procedures also differ based on the person performing the marriage. Read more on the procedures here.

Is Muslim marriage a contract?

Marriage is a contract under Muslim law.(( Hasina Bano v. Alam Noor A.I.R 2007 Raj 49.)) The contract can be entered into by fulfilling the following conditions:

  • Both the bride and groom must give free consent for the marriage.
  • The couple getting married should be of sound mind and should have attained puberty (usually 15 years).(( Shoukat Hussian and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].)) 
  • A guardian like a parent or sibling can consent on behalf of a minor or someone not of sound mind.

One Spouse wants a divorce under Hindu Marriage Law

Sometimes in a marriage, you may want a divorce (while your spouse doesn’t) due to certain circumstances. If these circumstances are recognized by the law (cruelty, mental illness) you can apply to the Court to hear you.

Your spouse can deny these reasons and tell the Court why he or she does not want the divorce.

Under the law, you can file for divorce only after one year of marriage.

One Year Period

If you want to file a divorce against your spouse, then under the law you have to wait for a period of one year from the date of the marriage to file for a divorce.

For example, if Jitendra and Vahida got married on the 9th of January, 2018, Jitendra has to wait till at least 9th of January, 2019 if he wants to file a divorce against Vahida.

Exceptions to the One Year Period

Although the law gives a waiting period of one year, there are certain reasons by which the parties can go to Court before this time limit, such as:

  • Exceptional hardship to one of the spouses. For example, if your husband or wife is physically abusing you every day, then you can go to Court to file for a divorce.
  • Exceptional depravity to one of the spouses. For example, if your husband or your wife is asking you to do humiliating sexual acts.

Wife Wants Divorce for Muslim Marriage

Given below are the provisions for divorce to a marriage under Muslim law, when initiated by the wife. 

Khula

Khula is divorce initiated by the wife. If you want to divorce your husband, you can go to either the court directly or to a Mufti. The Court or the Mufti will ask the husband to be present. And in the presence of the husband the court or mufti will ask the husband if he accepts the offer. Once the husband accepts the offer, the divorce is complete.

Talaq-e-tafwid

Your husband has the power to delegate or transfer his right to divorce, to you or any third person through the contract of marriage (kabi-nama) at the time of the marriage. This agreement lists down important points for such transfer of right.

It usually stipulates the amount of mehr you have to forgo to exercise your right to ask for a divorce.

Conducting a Child Marriage

Conducting child marriages is also a crime: 

 

  • Conducting the Marriage: Anyone who performs or helps in performing a child marriage will be committing a crime. 

 

  • Parents/Guardians conducting marriage: If a parent, guardian or any person responsible for a child in any capacity, promotes child marriage or participates in conducting a child marriage, then they will be committing a crime. Attending or participating in a child marriage is also a crime. 

 

Anyone who is convicted of committing these crimes will be punished with rigorous imprisonment for two years along with a fine of one lakh rupees. 

 

All offences under this law are cognizable and non-bailable, which means that the police can arrest you without a warrant and bail will not be granted to you as a matter of right. 

 

Minimum Age for Hindu Marriage

The minimum age for a marriage under Hindu law is:

  • the groom must have been over 21 years of age and
  • the bride must have been over 18 years of age

The punishment for not adhering to this requirement is simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees.

If either one of the parties is not of marriageable age, the marriage is considered a child marriage and is a voidable marriage.

Who can Adopt?

Adoption under Non-Religious Law

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you(( Regulation 5, Adoption Regulations, 2017.)) must meet the following conditions to be considered as a prospective adoptive parent:

Health 

  • You must be physically fit i.e. you have no life threatening medical condition
  • You must be financially sound, mentally and emotionally stable, and highly motivated to adopt a child for providing a good upbringing.

Marital Status

  • Single Adoptive Parent: It does not matter if you are married or if you already have children i.e. a single/divorced/married person with a child can adopt a child. If you want to adopt a girl child, you must be a woman, as a single female can adopt both male and female children. However, as a single father, you cannot adopt a girl child. 
  • Married Adoptive Parent: In case of a married couple, both spouses must consent to the adoption. In case of a married couple, a married couple must have had at least two years of stable marital relationship.

Existing Children

Couples with three or more children shall not be considered for adoption except in case of children with special needs, children who are hard to place (who are not getting any referrals from a long time), and relative adoption and adoption by step-parent.

Age

The minimum age difference between the child and either of the prospective adoptive parents must be at least 25 years.

  • The combined age of prospective adoptive parents shall be counted for deciding their eligibility to apply for adoption of children from different age groups, except in cases of relative adoption and adoption by step-parent. See table below to understand whether you are eligible to adopt a child from different age groups. 
Age of the child Maximum combined age of the adoptive parents (couple) Maximum age of single adoptive parent
Upto 4 years 90 years 45 years
Above 4 and upto 8 years 100 years 50 years
Above 8 and upto 18 years 110 years 55 years

Adoption under the Hindu Law

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) you must meet the following conditions to be considered as a prospective adoptive parent.

As a male or female Hindu, you can adopt a male or female Hindu child. A male Hindu adopting a female child must be at least 21 years older to her. Similarly, a female Hindu adopting a male child must be at least 21 years older to him For adopting under the HAMA, you should meet the following criteria:(( Sections 7 and 8, Hindu Adoption and Maintenance Act, 1956.)) 

Age

  • You must be a major person (above the age of 18) and of sound mind.

Marital Status

  • Married Adoptive Parent: If married, you should have the consent of your living wife/wives, or husband, unless your spouse is of unsound mind or has renounced the world or is not a Hindu anymore. In case of one wife, she will be considered as an adoptive mother, and in case of multiple wives, the senior-most wife will be considered as the adoptive mother while the others will be step-mothers. 
  • Single Adoptive Parent: If unmarried or widowed, you may adopt a child, and any man/woman you marry subsequently will be considered the step-father/step-mother. 

Existing Children

  • If you are adopting a girl, you must not have a living Hindu daughter or granddaughter (biologically or by adoption), and if you are adopting a boy, you must not have a living Hindu son, grandson or great-grandson (biologically or by adoption).

Amount of Maintenance for Parents

There is no standard amount of money awarded as maintenance for parents. It is decided on a case-by-case basis. The amount due to you will be decided by the court taking into account a number of factors, such as:

  • Status and standard of living of the child or legal heir
  • Your needs and requirements (reasonably calculated)
  • Whether you are living separately from your child or legal heir
  • Income, wealth and value of the child or legal heir’s properties.
  • Income, wealth and value of your properties.
  • Number of persons who have to receive maintenance.

The judge will decide the duration of the maintenance to be paid, but in most cases the duration will be for your lifetime.

What are Irregular Christian Marriages?

Irregular marriages are those marriages where certain conditions are not followed. Usually, such marriages are considered to be invalid from the start; however, the law states that in case there are irregularities, the marriage will not be invalidated, rather it will be rectified.(( Section 77, Indian Christian Marriage Act, 1872.)) Given below are some of the reasons for which a marriage may be irregular. Some of these errors may happen:

  • In any statement regarding the place of residence of the persons married
  • In any manner of consent given by a person whose consent to such marriage is required by law.
  • In the notice of the marriage.
  • In the certificate.
  • In the time and place at which the marriage took place. 
  • In the registration of the marriage.(( Section 77, Indian Christian Marriage Act, 1872.))

 

What is the proposal and acceptance requirement for Muslim marriage?

There should be a proposal of marriage made by or on behalf of one of the parties and the other party has to accept this proposal. Both the bride and groom have to say Ejab e Qubool (Qubool hai), which means “I agree”.

 

This has to be said out of their own will and explicitly during the ceremony. The proposal and the acceptance should be made at one meeting, meaning, a proposal made at one meeting and an acceptance made at another meeting will not constitute a valid marriage.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.331.))

Divorce by Mutual Consent under Hindu Marriage Law

If neither you nor your spouse want to continue the marriage, you have the option to apply for a divorce by mutual consent.

You and your spouse can go to Court if:

  • Both of you have been living separately for more than one year.
  • Both of you have not been able to live together.
  • Both of you have consented to end your marriage.

Under the law, you can file for this kind of divorce only after one year of marriage. After filing, the Courts will give you a minimum period of 6 months up to 18 months to reconcile with your spouse and withdraw your petition if you wish to do so – to reflect on whether or not both you and your spouse truly want to pursue the divorce.

For example, if Jitendra and Vahida got married on the 9th of January, 2018 and they want to divorce each other, they have to wait till the 9th of January, 2019. After filing the case on 9th of January 2019, the Courts will give them 6-18 months time to decide whether they want to pursue the divorce.

This minimum period of 6 months time limit is not a strict rule as Courts in India have waived the time limit in cases where:

  • There is no chance of you and your spouse reuniting.
  • All efforts of mediation and conciliation between you and your spouse have failed.
  • You and your spouse have settled all issues that normally arise in divorce proceedings, such as maintenance, custody of children etc.
  • If the waiting period after filing the case of 6 to 18 months, prolongs your agony and suffering.
  • When you have filed a case against your spouse for divorce, and then later both you and your spouse decide to mutually divorce each other.

Wife Approaches Court for Divorce for Muslim Marriage

The provision of going to Court to divorce a spouse, is only available for women. The law allows you to go to the Court to divorce your husband for the following reasons:

Absence of Husband

  • When your husband has been missing for over 4 years.
  • When your husband goes to jail for 7 years or more.
  • When your husband fails to pay maintenance for 2 years.

Illness or Incapacity

  • When your husband is impotent.
  • When your husband is suffering from insanity or an incurable venereal disease.
  • If your marriage took place before the age of 15 years.

Ill-treatment

All these grounds are subject to certain conditions which you should consult a lawyer to understand more.

Parental Responsibility of their Child’s Marriage

In most crimes, the responsibility to prove the guilt lies on the public prosecutor, an advocate for the State. However, under this law, if a child marriage has taken place, then it will be presumed that the parent or guardian responsible for the child failed to prevent the child marriage from taking place. 

 

It is important to note that women cannot be punished with imprisonment under this law, and can only be fined. 

Relationship Status and Hindu Marriage Law

At the time of marriage, you should not have a married spouse who has not divorced his previous spouse. If you are a divorcée you can enter into a marriage again only if your divorce is complete.

Neither party should have a spouse living at the time of the marriage. You can file a civil injunction to try to stop your spouse from getting married to someone else.

If your spouse is still alive, it is a crime to be married to another person. Your first spouse can file a criminal case against you. This is an act of bigamy. This is not an easy process because the first spouse will have to produce concrete proof –  even another child being born out of the second marriage is not enough.

If this is proven, you might go to jail for up to 10 years and also have to pay a fine.

Who can Give a Child in Adoption?

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you cannot give up your child for adoption, but as a parent or a guardian you have the option to surrender your child.(( Section 35(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) Surrendering means you give up your child for physical, emotional or social factors beyond your control. This would end your legal relationship with the child and you will not have to bear the responsibilities and privileges that are borne out of that relation once the Child Welfare Committee (CWC) acknowledges that you have surrendered the child.(( Schedule I, Adoption Regulations, 2017.)) Thereafter, the CWC will decide what to do with the surrendered child, and may declare him/her as legally free for adoption. 

 

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) the following persons(( Section 9, Hindu Adoption and Maintenance Act, 1956.)) may give up a child in adoption:

  • The biological mother or father of the child, as long as the person wishing to give a child for adoption has the consent of the other biological parent. For example, if you, as the biological mother of Rama wants to give her up for adoption, you must have Rama’s biological father’s consent. This does not apply if the other parent is of unsound mind or has renounced the world or is no longer a Hindu.
  • A guardian caring for a child may give him/her up for adoption under certain conditions, with the Court’s permission. 

 

Maintenance under Hindu Law

Biological/Adoptive parents who are Hindu, Buddhist, Jain or Sikh and are aged or infirmed can seek maintenance from their grown children under the Hindu Adoptions and Maintenance Act if they are unable to support themselves from their own earnings or property. In addition, even when the son or daughter is no more, parents can still claim maintenance from the wealth and properties of the deceased.

What are the different procedures to get married under Christian Law?

The marriage procedure differs according to the person performing the marriage. The law does not give details of the procedure in cases where the marriage is conducted as per the rules of a particular denomination of the Church. However, when the marriage is performed by an official appointed by the Act, like a Marriage Registrar or a certified Minister of Religion, it will be performed according to the Christian Marriage law, with the relevant procedure. 

Types of Procedures:

To read more on the procedures, see our explainers on:

What are the eligibility criteria for Muslim marriages?

For a marriage to be legally recognized as a Muslim marriage, the following conditions must be met:(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.251.)) 

Age 

A couple can get married if they have attained puberty (usually 15 years). 

Mental State 

A person with mental illness can get married if their guardian has given consent to the marriage. ‘Consent’ or agreeing to get married is an important part of a Muslim marriage. Even though it is assumed that a person with mental illnesses does not have the ability to get married, the law allows such marriages if the guardian agrees to it. 

Minor 

A boy or girl who has not attained puberty (minor) is not competent to enter into a contract for marriage but the guardian may contract their marriage for them after they attain puberty.(( Shoukat Hussain and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].))

What are the essential conditions of a Muslim marriage?

There are a few essential steps that need to be followed to make the marriage valid(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.331.)):

Proposal and Acceptance

There has to be a proposal made by or on behalf of one person and it has to be accepted by the other for a valid marriage.

Consent

Consent is a very important criteria for a marriage and the criteria for consent changes according to the different schools of law.

Witnesses

Witnesses are those people who are present at the marriage and can state that it took place. They are an important requirement for a valid muslim marriage.

Prohibited Relationship

Some relationships within a family and extended family are prohibited, meaning, one cannot marry these people as such relationships are prohibited under custom. There are strict prohibitions in muslim law which have to be followed.

Where can you file a divorce for a Hindu marriage?

Both you and your spouse can file a case to the Family Court. There are separate courts known as family courts which deal with divorce cases. You can approach a family court in the following areas:

Your Place of Marriage

Either you and your spouse can file for divorce in the Court of the area where your marriage ceremony took place, i.e, where your marriage was solemnized.

For example, if you and your spouse got married in Mumbai, then you can file a case at the Family Court in Mumbai.

Your Spouse’s Residence

You can file a case in the Court of the area where your spouse resides. For example, if you are filing a case against your wife who lives in New Delhi, then you can file a case in the Family Court in Delhi.

Your Last Place of Residence Together

Either you and your spouse can file for divorce in the Court of the area where you both last lived together. For example, if you and your spouse last lived together in Delhi, then either of you have the option of approaching the Family Court in New Delhi.

Your Place of Residence

Wife

If you are filing a divorce case against your husband, then you can go to the Court in the area where you are residing.

For example, if you are living in Bengaluru, you can file a case against your husband in the Family Court of Bengaluru even if your husband is not living there.

Both

If your spouse has gone abroad you can file it in your place of residence.

However, please consult your lawyer while filing the case in Court.

Mutual Divorce in Muslim Marriage

Mubara’at

Both you and your spouse can end the marriage and divorce each other if you both do not want to continue in the marriage and end all marital obligations.

What is essential in this form of divorce is that both you and your spouse should consent to ending the marriage. This form of divorce is known as Mubara’at.

The word ‘mubara’at’ means ‘freeing one another mutually’. Mutual divorce takes place in the form of ‘Mubara’at’ when:

  • Both husband and wife consent to ending the marriage
  • You (husband) have to say ‘talaq’ once
  • This form of talaq cannot be revoked.

This form of divorce happens after coming to a mutual decision to end the marriage.

If you and your spouse decide to end the marriage, this means that certain duties have to be followed such as:

  • Your wife has to follow the period of iddat after the divorce.
  • Both your wife and children can get maintenance during this period.

If you did divorce your wife using this method, then you cannot remarry her again unless certain conditions are followed.

Cancelling a Child Marriage

Where a child marriage has taken place, the person who was a child at the time of marriage has an option to cancel the marriage. You can cancel a child marriage in the following manner:

 

Where do you file the case?

A petition should be filed in the District Court to get the marriage annulled.

 

Who files the case?

If the person filing the case is a minor (below 18 years of age) then their petition has to be filed through a guardian or any other person who is interested in the child’s well being. This person will have to file the case along with the Child Marriage Prohibition Officer, who is responsible for preventing child marriages. 

 

When can you file the case?

It is important to note that there is a time limit to file this petition. It can only be filed within two years after the child attains majority. For girls, such a petition to strike down their marriage can only be filed till they turn 20 years old and for boys till they turn 23 years old.

 

What does the Court do?

When such a child marriage is cancelled, the District Court will order both the parties to return all the money, valuables, ornaments and all other gifts received during the wedding to the other side. If they are unable to return the gifts, an amount equal to the value of the gifts must be returned. 

Registration of Hindu Marriage

Registration of marriages in Hindu Law is given under Section 8 of the Hindu Marriage Act. This allows the State Government to make rules regarding registration.

The State Government may make rules about how the marriage details should be entered in the Hindu Marriage Register. The State Government can also make marriage registration compulsory in the State if it thinks this is necessary. In this case, any person violating the rule by not making an entry in the marriage register can be punished with a fine of up to Rupees twenty-five.

However, even if the entry has not been made, it does not mean that your marriage is invalid. If you take a look at the table given, you can see that each state has its own rules for Hindu marriages:

STATE LINK
   
Andhra Pradesh Andhra Pradesh Hindu Marriage Registration Rules, 1965
Jammu and Kashmir The Jammu and Kashmir Hindu Marriage Registration Rules,2012
Meghalaya The Meghalaya Hindu Marriage Rules, 2006
Mizoram Mizoram Compulsory Registration of Marriages Rules, 2007
Kerala Kerala Hindu Marriage Registration Rules, 1957
Madhya Pradesh The Madhya Pradesh Hindu Marriage Registration Rules,1984
Orissa The Orissa Hindu Marriages Registration Rules, 1960
Uttar Pradesh The Uttar Pradesh Hindu Marriage Registration Rules, 1973
Punjab Hindu Marriage (Punjab) Registration Rules, 1960

 

Children Legally Free for Adoption

Declaring a child legally free for adoption allows such children to be put up for adoption under the non-religious law,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) which terminates the legal relationship that the child has with their biological parents.(( Schedule I, Adoption Regulations, 2017.))  

The Child Welfare Committee (CWC) takes the decision to declare a child free for adoption, after it conducts inquiries, which includes:

  • A report by the probation officer/social worker,
  • Consent of the child (if they are old enough),
  • The required declaration submitted by the District Child Protection Unit and the Child Care Institution or Specialized Adoption Agency, etc.(( Schedule I, Adoption Regulations, 2017.)) 

The following categories of children may be declared as legally free for adoption:

  • Orphans:(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015)) Children without parents (biological or adoptive) or legal guardian, or whose legal guardian is not capable or willing to take care of the child.
  • Abandoned children: Children deserted by the parents (biological or adoptive) or guardians, and who are declared as abandoned children by the Child Welfare Committee.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • Surrendered children – Children who are given up by the parent/guardian, and declared as surrendered children by the Child Welfare Committee.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • A child of mentally retarded parents.(( Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.))  
  • An unwanted child of a survivor of sexual assault.(( Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.))