Theme: Family & Marriage

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.