Theme: Family & Marriage

Invalid/Void Hindu Marriage

Void marriages, are invalid from the beginning. These do not require annulment. Under Hindu Marriage Act, Section 11 states certain situations where the marriage is void.  The following are the situations:

  • One of the parties has a spouse living at the time of marriage. For example, if Seema was already married to Rajesh during her marriage with Rahul.
  • If the parties are within the degrees of prohibited relationship. Customs allow spouses to marry within prohibited relationships in some societies.
  • Parties are Sapindas of each other, except in cases where certain customs allow it. A sapinda relationship can be either paternal or maternal.

Ending a marriage under Hindu Marriage Law

The law on marriage recognizes emotional and marital needs; this includes many legal obligations such as owning property, taking care of your children, etc. When you end your marriage, the marital relationship comes to an end. Some legal obligations may continue to exist.

Marital Relationship

The law understands a marital relationship to include:

  • Emotional Support
  • Sexual Relationship
  • Children and Domestic Responsibilities
  • Financial Support

Legal Obligations

You and your spouse have certain legal obligations throughout your marriage. Some of these obligations may continue even after a divorce takes place.

Examples of these legal obligations are:

Alimony or Maintenance

  • The Court may sometimes ask you to pay money to your spouse and this is a legal obligation you will have to incur after divorce. This is known as maintenance.

Parental Responsibility

  • The Court may decide who will have custody of your children and how to take care of them financially.

Marriage of Children

A child marriage is a marriage between the parties where: 

  • Both people marrying are minors, or 
  • One of them is a child/minor. 

 

For a woman, age of marriage is 18 years.  

For a man, age of marriage is 21 years.

 

Under Muslim personal law, the age of marriage is puberty (15 years of age).  So, if you are below 18 years/21 years respectively and you get married, your marriage is not illegal.  However, you can choose to cancel the marriage under the child marriage law.

Legal Hindu Marriage

For a marriage to be legally recognized as a Hindu marriage, the following conditions must be met:

  • The couple should be seen as Hindus by law.
  • The husband is over 21 and the wife over 18 years of age when the wedding took place.
  • Both husband and wife are of sound mind.
  • Neither husband nor wife can be married at the time of marrying each other.
  • Husband and wife are not in a prohibited relationship.
  • Husband and wife are not sapindas of one another.

If any of these conditions are not met, then the law may not recognize your Hindu marriage as being legal, and in some cases, you might face punishment.

What is Adoption?

Adoption is(( Section 2(2), Juvenile Justice (Care and Protection of Children) Act, 2015; Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015.)) the process through which a prospective adoptive parent(s) lawfully assumes the responsibility of a child, including all the rights, privileges and responsibilities that have already been given to the child. After the legal formalities of adoption are done, the child is permanently separated from their biological parents and is assumed to be the child(( Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015)) of the adoptive parents.

In India, the laws on adoption are based on the religion of the parents and the child. You can choose which law applies to you from the options given below.

If you are a Hindu, Buddhist, Jain and Sikh

If you are a Hindu, Buddhist, Jain or Sikh (referred to collectively as Hindu) then you have the option of adopting under the Hindu adoption law known as the Hindu Adoptions and Maintenance Act, 1956 (HAMA). It provides for adoption of Hindu children(( Section 2(1), Hindu Adoption and Maintenance Act, 1956.)). You cannot adopt under this law if you are a Muslim, Christian, Parsi or Jew, or from Scheduled Tribes(( Section 2(2), Hindu Adoption and Maintenance Act, 1956.)).  If you want to adopt under the Hindu law, read more here.

All other religions

If you do not want to or cannot adopt under a religious law, then you have the option of adopting under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which is a general adoption law under which any person of any religion(( Section 56 (1),  Juvenile Justice (Care and Protection of Children) Act, 2015.)) can adopt, including Hindus, Scheduled Tribes, etc. Read more to understand how the process of adoption works under this law.

See the table given below if you want to understand which law you should adopt under: 

Hindu Adoption and Maintenance Act, 1956 (HAMA)

(Hindu Law)

 Juvenile Justice (Care and Protection of Children) Act, 2015

(Non-Religious Law)
Adoptive Parents can only be Hindu, Buddhist, Jain or Sikh. You cannot adopt under this law if you are a Muslim, Christian, Parsi or Jew or from Scheduled Tribes. Adoptive Parents can be of any religion, caste or tribe.
Only Hindu children can be adopted Any child of any religion can be adopted
Children up to 15 years can be adopted Children up to 18 years can be adopted
Procedure to adopt is not given in detail. Usually a deed is executed to adopt the child. The procedure for adoption is different for different categories depending on who you are:

 

Children taking care of Parents

Indian law requires all persons to maintain and support their parents – biological, step-parents as well as adoptive depending on the circumstances. The Maintenance and Welfare Of Parents And Senior Citizens Act, 2007 is a special law under which a senior citizen (above 60 years) can apply to a tribunal for maintenance from their adult children or legal heirs. You can apply for maintenance if you are unable to take care of yourself. 

Who can you complain to regarding a grievance under the law?

In case a person has given the notice to have their marriage performed by or in the presence of a Marriage Registrar, and the Registrar has refused to issue a certificate of marriage, one can approach the Court. Those residing in the towns of Mumbai, Kolkata, and Chennai can directly approach their respective High Courts, while those not residing there can approach the District Court.(( Section 46. Indian Christian Marriage Act, 1872.)) 

Complaints regarding minor marriages

The Marriage Registrar must wait for 14 days from the date of receiving the notice in order to issue a certificate of receipt of notice, when one party is a minor (below the age of 21 for Christian Marriages). However, in case one cannot wait for 14 days in order to get the certificate, they can file a petition in their respective High Court, to get the certificate of receipt of notice within 14 days of the notice. However, this option is available only to the residents of Kolkata, Mumbai, and Chennai.(( Section 43, Indian Christian Marriage Act, 1872.))

Who can get married under Christian Law?

Any two persons, where one or both participants are Christians, can get married under Christian law.(( Indian Christian Marriage Act, 1872, Section 4.))

In the eyes of law, any person who truly believes in the Christian faith will be a Christian.(( Indian Christian Marriage Act, 1872, Section 3.))

Whether or not they have been baptised into the faith need not determine their status as a Christian. Rather, the law looks at the genuineness of the person’s faith in the religion, to determine whether they are a Christian or not.(( Maha Ram v. Emperor AIR 1918 All 168, K.J.B. David v. Nilamoin Devi, AIR 1953 Ori 10.))

Minimum Age for Marriage

While the law does not prescribe a minimum age for getting married, the law provides for a special procedure for the marriage of minors. For the purposes of Christian Marriage, a minor is anyone below the age of 21, and someone who is not a widow/widower.(( Section 3, Indian Christian Marriage Act, 1872.))

However, the Prohibition of Child Marriage Act makes every marriage involving a child (below 18 years), illegal but voidable at the option of the child.(( Section 3(1), Prohibition of Child Marriage Act, 2006.))

In situations where the minor is between 18 to 21 years old, they would require the consent of either their father, guardian, or mother to get married under the law.1 To know more about the special procedures of marriage of a minor, read our explainer on Marriages of Minors under Christian Law.

Prohibited Marriages under Christian Law

Certain personal laws may absolutely prohibit a person from marrying a certain person, such as marriage between siblings.(( Canon 1092, Code of Canon Law.)) The Christian Marriage law does not allow for such prohibited marriages and such marriages are considered to be invalid under this law.(( Section 88, Indian Christian Marriage Act, 1872.)) However, a person still has the option to marry under the Special Marriage Act, and the impediment of personal laws won’t be applicable for such a marriage. To learn more on special or inter-religious marriages, read our explainer on Inter-Religious Marriage.

  1. Sections 19 & 44, Indian Christian Marriage Act, 1872. [↩]

What are the schools of Muslim law?

There are various schools of Muslim law. The law on Muslim marriages comes from the interpretation of the Quran by scholars. Thus, most Muslim marriages are guided by customs derived from interpretations followed through generations. The laws and customs that apply to each person following Islam differ based on the sect of the person. Further, different branches of customs have emerged within sects. These branches have specific laws known as “Schools of Law”.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.28.)) 

 

In India,(( Consultation Paper on Reform of Family Law, Law Commission, available at https://lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf.)) parts of Muslim personal law were written down in 1937 as the Muslim Personal Law (Shariat) Application Act, 1937 as well as the Dissolution of Muslim Marriages Act,1939. These two laws in many ways have led the reforms in family laws. However, Muslim marriages are guided by the Islamic religious precepts. In Islam, there are two sects- Sunni and Shia. Each sect practices different schools of law. This means that depending on the sect, the marriage procedure differs for a bride and a groom.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.28.))

Ending a Muslim Marriage

Divorce in Islam is governed by the Quran and other customary practices. These principles have been recognized by the law and this is what people are bound by. Since the origin of all this law is the Quran and many non-codified customs followed by people, the laws on marriage and divorce are not linear and clear. However, there are basic principles of what will constitute a valid divorce for Muslims across sects.

Marriage is a contract under Muslim law, which may be in a written form or an oral form. A married Muslim couple under the law has to fulfill certain marital obligations such as living together and having sexual relations. Apart from marital obligations, they also have certain legal obligations to fulfill, such as: 

  • Dividing the property (land, flats, investments and insurance) of the husband and wife.
  • Giving maintenance to the wife.
  • Right to dower/mehr of the wife.

When a Muslim marriage ends, it means that the contract you have with your husband or wife has also ended. This, in turn, stops marital obligations between your spouse and you but does not necessarily stop all the legal obligations.

There are two ways by which, a marriage can end:

Death of a Spouse

Death of either your husband or your wife ends the marriage. Since the nature of the marriage is of a contract, it is as if death has resulted in the spouse exiting the contract.

Divorce

Divorce for Muslims can happen without involving the Court. However, if required, you can involve the court in the case of a dispute during a divorce. During a divorce, either you or your spouse can initiate the divorce.

Marriage can end in either of the following ways:

  • When the husband chooses to end it.
  • When the wife chooses to end it.
  • When both husband and wife end it together.

In most cases, it is the man who has more options than the woman to say that he no longer wishes to be part of the marriage without approaching the court. The woman has only one way of doing this. However, she has other recourses through the Court.