Questions

Family Law [Marriage, Divorce and Adoption]

What laws govern marriage in India?

Special personal laws based on the person’s religion govern laws concerning marriage and divorce for such persons. However, a couple may choose to opt out of this system by registering their marriage under the Special Marriage Act which is a secular legislation.

What is the minimum age requirement for people to get married in India?

According to Section 5 (iii) of the Hindu Marriage Act, the bridegroom (boy) has to complete 21 years of age and the bride (girl) 18 years of age. The Prohibition of Child Marriage Act, 2006 prohibits marriage of a male who has not completed 21 years of age and a female who has not completed 18 years of age.

Is the consent of parents legally required for a valid marriage?

The consent of parents is not necessary for a legally valid marriage. It is the consent of the marrying parties that is necessary and such consent needs to be free and voluntary. Hence, no one can be forced or misled into a marriage.

What happens in the cases of child marriages? Can the bride and groom later avoid it?

If a child below the legal age is married off by her parents, upon becoming an adult. The child must file a petition before the court to declare the marriage null and void, within two years of reaching the legal age of consent – the girl can file a petition till she becomes 20 years of age and a boy till he turns 23 years of age.

Can a person marry twice?

No, for all religions except Muslims, a man or a woman may marry only once. If they marry a second time, it is known as bigamy. Only a Muslim man may have four wives.

What are the consequences of a bigamous marriage?

Any second marriage is void if at the date of such marriage either party had a husband or wife living. It is also punishable under section 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine.

Hindu Marriage

7. Who can marry under Hindu Marriage Act, 1956?

Any person who is a Hindu by religion, including a Veerashaiva Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj or any person who is a Buddhist, Jaina or Sikh by religion, and any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion can marry under the Hindu Marriage Act, 1956. [It is to be noted that a Muslim, Christian, Parsi or Jew cannot marry under the Hindu Marriage Act]

Can people of different castes (but both Hindus) marry under this Act?

Yes, they can. No specific requirements are required to be fulfilled if the marriage is an inter-caste marriage.

What are the conditions to be fulfilled for a valid Hindu marriage?

The following conditions need to be fulfilled for a Hindu marriage to be valid:

Neither of the two parties can be married to someone else at the time of the marriage.

Both parties need to be people who are able to valid consent and hence their consent can be invalidated if they are proven to be of unsound mind, suffering from mental disease which render them unfit for marriage or procreation of children, subject to frequent attacks of insanity or epilepsy.

The bridegroom needs to have completed 21 years of age and the bride should be 18 years old at the time of the marriage.

The parties are not within the prohibited degrees of relationship unless their customs allow them to do so. (See Q. 11)

The parties are not sapindas of each other- unless the customs permits it. [A sapinda in simple terms refers to people who belong to the same pinda or group. Under the Hindu Marriage Act, the sapinda relationship extends to being within five generations in the line of ascent on the father’s side, and within three generations in the line of ascent on the mother’s side.]

What do you need to prove a legally valid Hindu marriage?

In case one party claims the marriage never took place, the contesting party needs to prove to the court that they were indeed married. Sometimes, couples may ‘hold out to the world’ that they were married and have been staying as a married couple for a long duration of time.In such cases, the courts presume that a marriage had taken place. However, one needs to prove that the essential ceremonies of a marriage took place. The performance of essential ceremonies is a necessary component to proving the validity of a marriage. Hence, every party to a marriage should keep photos or videos recording such essential ceremonies. Documentary evidence like wedding cards, bookings of weddings halls also help. The presence of witnesses who would be willing to attest to being an onlooker of the wedding ceremony would also be admitted in a court.

What are the degrees of a prohibited relationship?

Section 3(g) of the Hindu Marriage Act, 1956 defines “degrees of prohibited relationship”. Two persons are said to be within the “degrees of prohibited relationship”–

if one is a lineal ascendant of the other; or

if one was the wife or husband of a lineal ascendant or descendant of the other; or

if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’ s or grandmother’s brother of the other; or

if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation – relationship includes-

relationship by half or uterine blood as well as by full blood;

illegitimate blood relationship as well as legitimate;

Relationship by adoption as well as by blood.

MUSLIM MARRIAGES

What are the essential requirements of a Muslim marriage?

For a valid Muslim marriage, the following conditions must be satisfied-

The parties must have the capacity to marry– Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. A person is presumed to have attained the age of puberty on the completion of 15 years. However, under the Prohibition of Child Marriage Act, 2006, the marriage of a girl below the age of 18 and the boy below the age of 21 carries criminal sanction for those conducting the marriage.

There must be a clear proposal and acceptance in the same meeting- The proposal and acceptance must both be expressed at one meeting. Any religious ceremony is also not essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage void but make it voidable.

Under the Shia law witnesses are not necessary at the time of marriage. The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into writing, the document is called ‘Nikah nama or Kabin-nama.

Free consent– Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent a Muslim marriage is void.d) No Legal disability

 

What marriages are prohibited under Muslim Law?

Aside from those marriages which take place without the consent of both parties, certain sets of relationships are prohibited under Muslim Law. Generally, relationships by consanguinity or marrying certain blood relations is prohibited. It must be noted that different schools including shia and sunni schools have the same rule. Since the prohibition is considered to be from the male’s side, see below for a list of people prohibited from marrying a male:

(a) His mother or his grandmother how high soever,

(b) His daughter or granddaughter how low sover,

(c) His sister, full, consanguine or uterine,

(d) His niece or great-niece how low soever, and

(e) His aunt or great-aunt both on father’s side and mother’s side how high soever.

Those relationships arising out of an existing marriage or relationships by affinity, are also prohibited. Examples include one’s wife’s mother or grandmother how high soever, one’s father’s wife or father’s father’s wife how high soever, one’s wife’s daughter or granddaughter how low soever, and one’s son’s wife or son’s son’s wife how low soever.

All schools including the Sunnis and the Shias agree that relationships by fosterage are prohibited, but they differ in detail.

Additionally, women recently divorced must wait until the end of the iddat period before they can remarry.

How many times can a Muslim marry?

Under Muslim law, a woman cannot marry second time so long as the first marriage subsists and the husband is alive. A Muslim man however can marry more than one wife with a restriction of maximum four wives. He is not punished under the IPC for bigamy.

When can Muslims remarry after a divorce?

A Muslim man can marry immediately after a divorce. A Muslim woman however has to wait for the iddat period of 3 months/ 3 menstrual cycles before remarrying. If she is pregnant, then she needs to wait till the full term of the pregnancy.

CHRISTIAN MARRIAGES

Who can marry under the Indian Christian Marriage Act?

Under Section 4 of the Act, marriages between persons, one or both of whom is or are a Christian or Christians, can be solemnized in accordance with the provisions of the Act.

What are the essentials for a valid Christian marriage?

The parties to the marriage must be Christian as defined under section 3 of the Act or at least one of them must be a Christian and the marriage must have been solemnised in accordance with the provisions of section 5 of the Act by a person duly authorised to do so. If a party to a marriage is a minor, the consent of father if living, or if the father is dead, the consent of the guardian of the person of such minor or if there is no guardian, then that of the mother, is essential before marriage. A marriage of minor without such consent is not valid.

Also, the age of the man intending to be married shall not be under twenty-one years, and the age of the woman intending to be married shall not be under eighteen years. Moreover, neither of the persons intending to be married should be married to anyone else at the time of the marriage. Two witnesses need to be present in the presence of a person licensed to conduct the marriage. If all these conditions are fulfilled then the parties shall be given a marriage certificate which can subsequently be used to prove the validity of the marriage.

What is the procedure to be followed to get married under the Indian Christian Marriage Act?

The procedure begins with one of the parties giving written notice to the minister of religion, stating intention to marry, full name, address and profession of both parties, the time each has lived at address (the 30-day residency requirement must be met), and the church in which the marriage is to be solemnized.

Following this, a notice is put up in the church for at least four days. A declaration is then made in person by one of the parties stating that there is no lawful reason why the marriage cannot go ahead,

A certificate is issued by the minister and the marriage may be solemnized. The marriage needs to take place within two months of the certificate being issued; otherwise the whole process must be repeated. During the ceremony the marriage is registered in a register book and also on a certificate signed by the minister, the couple and tw0 witnesses. A copy of the certificate is then sent on by the minister to the registrar of births, deaths and marriages.

Following solemnization and registration, the marriage is complete and considered legally valid.

If a couple wishes to marry under the Christian Marriage Act with a marriage registrar rather than a religious minister present the procedure differs slightly. The notice declaring intent to marry must be sent to the marriage registrar of the relevant district instead of the minister of religion. An oath before the marriage registrar must be taken by one of the persons intending to marry. A certificate is then issued to the couple permitting the marriage to be solemnized.

SPECIAL MARRIAGES ACT

18. The bride and groom belong to two different religions. How should they get married legally?

The bride and the groom can solemnise their marriage under the Special Marriages Act. People of same religion may also marry under Special Marriage Act.

19. Who can marry under Special Marriages Act?

According to section 4 of the Act, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely-

neither party has a spouse living;

neither party-

is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

iii)has been subject to recurrent attacks of insanity or epilepsy.

the male has completed the age of twenty-one years and the female the age of eighteen years;

the parties are not within the degrees of prohibited relationship Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.

How does one solemnise one’s marriage under SMA?

Special Marriage Act, 1954 allows for the solemnisation of marriages. SDMs, ADMs and Deputy Commissioners have been authorised as marriage officers who can solemnise marriages under SMA. In order to solemnise a marriage under SMA, both parties are required to be present and submit documents of issuance of a notice of the intended marriage. A copy of this notice would be put up in the office of the ADM and anyone can file an objection to such a marriage within 30 days of the notice being issued. If no objection is received, then the ADM solemnises the marriage after the aforementioned 30 days have passed. The parties need to bring in 3 witnesses on the date of the solemnisation of the marriage after having submitted their names atleast a day in advance.

How does one register one’s marriage under the SMA?

The Parties to the marriage have to apply to the Registrar in whose jurisdiction the marriage is solemnised or to the Registrar in whose jurisdiction either party to the marriage has been residing at least for six months immediately preceding the date of marriage A couple has to filed a ‘Notice of Intended Marriage’ with the Registrar in that jurisdiction Then, they both file an affidavit. A copy of the notice is put up on the public notice board at the Registrar’s office for 30 days. Anybody objecting to their marriage on the grounds specified in the Act (prohibited relationships, underage, insanity, and a living spouse) can file an objection within the 30-day time period. If there is no objection or if an objection is overruled, the Registrar solemnizes the marriage on a chosen date in the presence of three witnesses. Both the parties have to appear before the Registrar along with witnesses within one month from the date of marriage. There is a provision for the condonation of delay up to 5 years, by the Registrar, and thereafter by the District Registrar concerned.

What is the benefit of registering one’s marriage under SMA?

Registration under SMA provides proof of the marriage, which is not otherwise easily available under Hindu and Muslim law.

What are the ‘prohibited degrees of a relationship’ under SMA?

According to Section 2(b) of the SMA defines “Degrees of prohibited relationship” a man and any of the persons mentioned in Part I of the First Schedule, and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship.

My partner and I want to get married secretly, but we are afraid that the Registrar will send a notice to our houses announcing our wedding. What to do?

He cannot do that, and you may inform him of that. The Delhi High Court in 2009 ordered the marriage officers to refrain from dispatching letters or notices to the parents as it is a breach of the right to privacy of the couples.

PART – I

Mother

Father’s widow (step-mother)

Mother’s mother

Mother’s father’s widow (step grandmother)

Mother’s mother’s mother

Mother’s mother’s father’s widow (step-great-grandmother)

Mother’s father’s mother

Mother’s father’s father’s widow (step-great-grandmother)

Father’s mother

Father’s father’s widow (step-grandmother)

Father’s mother’s mother

Father’s mother’s father’s widow (step-great-grandmother)

Father’s father’s mother

Father’s father’s father’s widow (step-great-grandmother)

Daughter

Son’s widow

Daughter’s daughter

Daughter’s son’s widow

Son’s daughter

Son’s son’s widow

Daughter’s daughter’s daughter

Daughter’s daughter’s son’s widow

Daughter’s son’s daughter

Daughter’s son’s son’s widow

Son’s daughter’s daughter

Son’s daughter’s son’s widow

Son’s son’s daughter

Son’s son’s son’s widow

Sister

Sister’s daughter

Brother’s daughter

Mother’s sister

Father’s sister

Father’s brother’s daughter

Father’s sister’s daughter

Mother’s sister’s-daughter

Mother’s brother’s daughter

Explanation- For the purposes of this Part, the expression “widow” includes a divorced wife.

PART II

Father

Mother’s husband (step-father)

Father’s father

Father’s mother’s husband (step-grandmother)

Father’s father’s father

Father’s father’s mother’s husband (step-great-grandfather)

Father’s mother’s father

Father’s mother’s mother’s husband (step-great-grandfather)

Mother’s father

Mother’s mother’s husband (step-grandfather)

Mother’s father’s father

Mother’s father’s mother’s husband (step-great-grandfather)

Mother’s mother’s father

Mother’s mother’s mother’s husband(step-great-grandfather)

Son

Daughter’s husband

Son’s son

Son’s daughter’s husband

Daughter’s son

Daughter’s daughter’s husband

Son’s son’s son

Son’s son’s daughter’s husband

Son’s daughter’s son

Son’s daughter’s daughter’s husband

Daughter’s son’s son

Daughter’s son’s daughter’s husband

Daughter’s daughter’s son

Daughter’s daughter’s daughter’s husband

Brother

Brother’s son

Sister’s son

Mother’s brother

Father’s brother

Father’s brother’s son

Father’s sister’s son

Mother’s sister’s son

Mother’s brother’s son

Explanation- for the purposes of this Part, the expression “husband’ includes a divorced husband.

DIVORCE

HINDU LAW

After what period of time can persons seek a divorce under the Hindu law?

Under Section 14 of the Hindu Marriage Act 1956, no petition for divorce can be filed within one year of the marriage. But in case the petitioner’s case is of exceptional hardship High Court is in empowered to grant leave to file the case before the expiry of one year.

What are the grounds of divorce under Hindu Law?

Divorce under the said Act can be obtained only on the grounds specified under Section 12, whereby a person can seek divorce on the following grounds:

If the other party after the marriage had voluntary sexual intercourse with another person.

If the other party after marriage has treated the complainant with cruelty.

If the other party has deserted the complainant for a continuous period of not less than two years.

If the other party has ceased to be Hindu by converting to another religion.

If the other party has been incurably of unsound mind or has been suffering from mental disorder of such a nature that the complainant cannot be reasonably expected to live with her/him.

If the other party has been suffering from an incurable form of leprosy.

If the other party has been suffering from venereal disease in a communicable form.

If the other party has renounced the world.

If the other party has not been heard of being alive for a period of over 7 years.

Divorce can also be obtained by mutual consent by Husband and Wife in accordance with Section 13 B of the Hindu Marriage Act, 1956.

In addition to the grounds listed above, a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-

i) If the husband has indulged in rape, bestiality and sodomy.

ii) If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.

iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order has been passed against the husband awarding maintenance to the wife.

iv) her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage before attaining the age of eighteen years but after the age of fifteen.

How long after a divorce can persons get remarried?

Section 15 of the Hindu Marriage Act, 1956 provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.

What are the grounds for the annulment of a marriage?

A Hindu marriage can be declared null and void under s.12 of the Hindu Marriage Act, 1955 on the following grounds:

if the parties have not consummated their marriage because either of the spouses is impotent.

if either of the parties are incapable of entering into the marriage legally

if one of the spouse’s consent to the marriage was obtained through force or by fraud.

if the wife was pregnant with another man’s child at the time of the marriage and the husband did not have prior knowledge of this.

What is the difference between the annulment of a marriage and a divorce under Hindu Law?

When a marriage is declared null and void, it is as if the parties were never married. The marriage would be deemed to have not existed at all and neither of the parties would have any obligations that arise out of a marriage. However, in case of a divorce, the relationship of marriage is terminated at the time of the divorce but the marriage was valid till the time of the divorce.

This is why after a divorce one still needs to pay maintenance to one’s spouse and children. Even if a marriage is annulled, however, any children born of the marriage are treated as being legitimate and can inherit from their parents.

What is a judicial separation under Hindu Law?

A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. Either party to the marriage may

present a petition on any of the grounds stated in the provisions for divorce section 13 of the Hindu Marriage Act, 1956 praying for a decree of judicial separation. A judicially separated spouse does not include a spouse merely living separately, and who has not obtained a decree for judicial separation. In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce.

What is divorce by mutual consent?

In case both parties want a divorce or consent to a divorce, then Section 13-B of the Hindu Marriage Act provides that the parties can seek divorce by mutual consent by filing a petition before the court. The provisions of the said Section require that the husband and wife should be living separately for a period of more than one year and they are not able to live together any further. “Living Separately” has been now defined by the Supreme Court as “not living as husband and wife and not performing marital obligations”, even if the husband and wife are living under the same roof. The terms of the settlement (essentially agreement regarding child custody, division of assets, maintenance etc.) are passed by the court as a consent decree.

Filing for divorce under mutual consent is often deemed as the simplest and most hassle-free method of filing divorce by family law practitioners. If you are contemplating divorce, it is suggested that you convince your husband or wife to grant you consent so that you may proceed with this type of proceeding which is settled in six months rather than a long-drawn, emotionally draining battle. Even if is a mutual consent divorce, it is recommended that parties have separate lawyers to draw up the terms of the agreement.

What is the procedure for getting a divorce by mutual consent?

A joint petition has to be filed in this regard and after the filing of the same the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce cannot be granted. Before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence.

What is the procedure for getting a contested divorce?

In a case where the divorce is contested, the party who is initiating the divorce has to file it using one of the fault grounds mentioned under the Hindu Marriage Act. After this a petition citing the reasons for wanting a divorce will be filed in court. The contesting party will be asked to appear before the court and to reply to the divorce petition filed by the other spouse. Once the matter goes to trial, the party which filed the divorce petition has to prove its argument by producing evidence. After being satisfied of the grounds of divorce being met, the court passes an order of divorce.

MUSLIM LAW

How can you obtain a divorce under Muslim law?

This depends on the gender of the person as the procedure for men and women is different. The process also differs based on whether Sunni or Shia law applies.

The procedure for men is talaq; divorce is also available under mutual consent under the khula and muba’arat forms. Women do not have divorce rights under Islam except under talaq e tawfid (delegated divorce) and the Dissolution of Muslim Marriages Act.

Talaq may be revocable or irrevocable. In the irrevocable forms (triple talaq or a single written declaration) remarriage between the same parties is not possible until certain conditions are met. (See Q. 34).

What is a triple talaq and what effect does it have on a Muslim marriage?

The pronouncement of talaq thrice in the presence of the wife is a legal and most common form of divorce under Sharia. While it is not an ideal form of divorce, it has gained prevalence in India. The intent of the parties is immaterial- even if it is done in an inebriated condition or in sleep, it would be held valid. Such a pronouncement ends the marriage between the two spouses.

Unlike other forms of talaq, a couple cannot remarry immediately after the man has pronounced triple talaq. If the couple wishes to remarry, the wife must first undergo the period of iddat for three months, marry another man, obtain a divorce from him, and undergo a second period of iddat for another three months before she can remarry her first husband.

What is a khula form of divorce?

A Muslim woman can obtain a divorce from her husband through a Khula form of divorce. It is the permission a husband gives his wife to end the marriage in return for a payment which is more or less equivalent to the mahr given to her in the beginning of the marriage.

What is iddat?

Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband, so as to avoid confusion of the parentage of the child. The period of Iddat is prescribed as under:

In case termination marriage by divorce- three lunar months or three menstrual courses

In case of widow- 4 months and 10 days

In case the woman is pregnant – till the delivery.

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void.

What are the grounds for divorce for a Muslim woman?

Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

i) The husband’s whereabouts are unknown for a period of four years.

ii) The husband has failed to provide maintenance to the wife for at least two years.

The husband has been under imprisonment for seven or more years.

The husband is unable to meet the marital obligations.

If the girl is married before fifteen and decides to end the relationship before she turns eighteen.

The husband indulges in acts of cruelty.

In addition to this, if at the beginning of the marriage the husband has agreed to grant his wife the right to divorce under the talaq e tawfid form under certain conditions (e.g. remarrying without her consent), those grounds shall also be valid.

SPECIAL MARRIAGE ACT

After what period of time can persons seek a divorce under the Hindu law?

One year. However, if there is a case of exceptional hardship, the court is empowered to grant leave.

What are the grounds for a divorce under SMA?

Under Section 27 of the SMA, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or

has since the solemnization of the marriage treated the petitioner with cruelty; or

(v) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

A wife may also present a petitioner for divorce to the District Court on the ground-

that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or

under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order has been passed against the husband awarding maintenance to the wife.

Additionally, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-

that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

CHRISTIANS

What are the grounds for a divorce under the Divorce Act?

The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869.

Adultery

Conversion to another religion

One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.

Not been seen or heard alive for a period of seven or more years.

Wilful refusal to consummate the marriage and the marriage has therefore not been consummated

Deserting the partner for a period of at least two years prior to the filing of a suit

Failure in observing the restitution of conjugal rights for at least two years.

cruelty and giving rise to mental anxiety that can be injurious to health and life.

Mutual consent

Wife can also file a divorce based on the grounds of rape, sodomy and bestiality.

How do you obtain a divorce by mutual consent under Christian law?

1) a petition must be presented to the District Court stating that the parties have been unable to live together and wish to divorce by mutual consent.

2) the parties must have lived separately for a period of at least two years before the filing of the suit.

3) After a period of six months, but before 18 months since the filing of the suit, the Court will hear the matter and conduct an inquiry. If it is satisfied, it will pronounce the decree for divorce.

What are the grounds for annulling a marriage solemnized under Christian law?

1) The other party must have been impotent both at the time of marriage and at the time of the filing of the suit.

2) The parties must have been unable to marry because they were within the prohibited degrees of relationship.

3) One of the parties must have been a lunatic or an idiot at the time of marriage.

4) That the former husband or wife of either party was living at the time of marriage and the marriage was in force when the second marriage was solemnized.

What are the grounds for obtaining a judicial separation under Christian law?

Adultery, cruelty or desertion for a period of two years or more are grounds to obtain a judicial separation under the law.

What is the difference between judicial separation, divorce, and annulment?

Under an annulment, it was as if the marriage had never existed. The parties have no rights and obligations towards each other.

Under divorce, the marriage was deemed to exist, but stands dissolved. The parties may continue to have maintenance/alimony rights and obligations towards their children.

Under a judicial separation, the marriage continues to exist – parties are not free to remarry, and obligations continue. However, conjugal rights – the right to compel the other party to live with you – are suspended.

Adoption

Who is allowed to adopt a child under Indian laws?

The following people can adopt under Indian laws:

An Indian citizen, whether residing in India or not

An Overseas Citizen of India or a Person of Indian Origin (PIO).

Foreign citizens living in a country where the Hague Convention applies

You can adopt a child irrespective of whether you are married or not. However, na single male is only permitted to adopt a male child.

What are the conditions to be fulfilled by a prospective adoptive parent (PAP)?

Two years of stable relationship in case PAPs are married

To adopt children in the age group of 0 to 4 years, the maximum composite age of the PAPs should be 90 years wherein the individual age of the PAPs should not be less than 25 years and more than 45 years.

To adopt children in the age group of 4 to 8 years,, the maximum composite age of the PAPs should be 100 years wherein the individual age of the PAPs should not be less than 25 years and more than 50 years.

To adopt children in the age group of 8 to 18 years, the maximum composite age of the PAPs should be 110 years and the individual age of the PAPs should not be more than 55 years.

A single PAP desiring to adopt should not be less than 30 and more than 50. The maximum age shall be 40 years to adopt children in the age group of 0-3 years and 50 years for adopting children above 3 years.

PAPs should be a minimum of 25 years older than the prospective adoptive child.

PAPs should have adequate financial resources to provide a good upbringing to the child;

PAPs should have good health and should not be suffering from any contagious or terminal disease or any such mental or physical condition which may prevent them from taking care of the child;

A second adoption is permissible only when the legal adoption of the first child has been finalised;

Single male is not permitted to adopt a girl child.

Adoption will be denied to all couples having four or more children.

Who is eligible to be adopted?

The child must be legally free for adoption. Siblings/twins/triplets cannot be separated except in exceptional cases. Two unrelated children cannot be proposed to a foreign family at a time. A child may as far as possible be placed in adoption before it reaches the age of 6. The consent of the child above 5 years should be taken for the adoption. Age difference of the adoptive parents and child should be 25 years or more.

Who is eligible to adopt?

Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or married couple are not permitted to adopt more than one child of the same sex. The sex of biological children is also considered relevant for this purpose.

Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the ‘guardian’ of the child until she reaches 18 years of age.

There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. Recently, the Supreme Court has held that even if Muslim law does not permit adoption, Muslims may adopt under the Juvenile Justice Act, 2000. If adoption is under this Act, then even non-Hindu adoptive parents acquire the status of parent and not just guardian. However, this Act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and procedures in the country of their residence. This must be carried out within two years of the individual becoming a child’s guardian.

43. What is the adoption procedure?

For Indian Residents

1. Register online in Child Adoption Resource Information and Guidance System by filling up the application form and uploading the relevant documents.

2. The home study report shall be prepared by a specialized adoption agency or social worker in the state. It shall be valid for adoption for a period of two years.

3. If they have been approved, the prospective parents can view the photographs, child study report and medical examination report for up to six children.

4. One child must be reserved within a period of 48 hours. If this is done so, the specialised adoption agency shall organise a meeting of the prospective adoptive parents with the child.

5. If the parents accept the child, they shall take her into pre-adoptive foster care within ten days.

6. Adoption petition will be filed in court and shall be disposed of within two months.

7. Registration of the adoption need is not necessary. Once the adoption comes through, the specialized adoption agency shall obtain a birth certificate within ten days and forward the same to the adoptive parents.

For inter-country adoptions

1. Approach the authorized adoption agency in your country. If there is none, approach the Indian diplomatic missions.

2. The process of home study report shall be in accordance with the country’s guidelines.

3. The prospective parents can view the photographs, child study report and medical examination report for two children. One must be reserved within 96 hours.

4. The referred child must be accepted within 30 days. If the parents wish to see the child, this may happen after their adoption application is accepted by CARA.

5. An NOC is required from CARA.

6. Adoption petition will be filed in court and shall be disposed of within two months.

7. Registration of the adoption need is not necessary. Once the adoption comes through, the specialized adoption agency shall obtain a birth certificate within ten days and forward the same to the adoptive parents.

OCIs and foreign citizens residing in India follow a similar registration process as for resident Indians. The legal procedure for adoption is also the same. However, they are only allowed to view the profiles of two children at a time. If they move out of the country within two years of the adoption, however, they must inform CARA.

An adoption is not complete until it has been determined, through follow-up visits, that the child is not facing any adjustment problems in her new home. Four follow-up visits are carried out over a span of two years.

44. Can I adopt if I already have a child?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows you to only adopt a child of the opposite gender to the one you already have. There are no such diktats under the other two adoption laws, namely the Guardians and Wards Act, 1890 (GAWA) and the Juvenile Justice Act (JJA 2015), which has enabled many Indians to adopt a child of the same gender. Your child, if old enough, will be asked to express her views on the adoption, in writing.

45. Is there a minimum income needed to for adopting a child?

There is no longer any prescribed minimum income for adopting a child. The social worker, however, accounts for the financial capabilities of the prospective adoptive parents in preparing the Home Study Report.

46. Are there any expenses involved in adopting a child in India?

The HAMA prohibits payments made or demanded in consideration or reward for adoption to the birth parents, agency or relinquishing guardians. If there are any payments made, it amounts to trafficking in children, and may result in imprisonment or a fine or both.

CARA, which handles adoptions under the JJ Act, has a fixed fee structure for adoption. Charges outside the stipulated headings are not legal. There is no registration fee now that the process has moved online. Adoption expenses depend on the category the adoptive parent(s) fall(s) into:

1. Indian Citizens/ Indian citizen married to foreign national who are residing in India

– Home Study Report (inclusive of travel expenses): Rs. 6000

– Child Care Corpus, reparation of Child Study Report(CSR) & Medical Examination Report(MER), child care and maintenance, legal expenses and other administrative costs: Rs. 40,000

– Post-adoption follow-up visits and counselling (4 times within a period of two years): Rs. 2,000 per visit inclusive of travel expenses

2. NRI/OCI/Foreign PAPs residing in a foreign country

– Home Study Report: as per norms of the receiving country

– Child Care Corpus, reparation of Child Study Report(CSR) & Medical Examination Report(MER), child care and maintenance, legal expenses and other administrative costs: US $5,000

– Post-adoption follow-up visits and counselling (4 times within a period of two years): as per norms of the receiving country

3. OCI/Foreign PAPs residing in India.

– Home Study Report: US $300 inclusive of travel expenses

– Child Care Corpus, reparation of Child Study Report(CSR) & Medical Examination Report(MER), child care and maintenance, legal expenses and post-adoption follow-up visits and counselling (4 times within a period of two years): US $ 4700

47. My husband and I have been married for a year now, can we adopt a child?

No, under Ministry guidelines prospective parents are required to have been married for at least two years before they are eligible to adopt.

48. My partner and I are in a live-in relationship, can we adopt a child?

Couples in a live-in a relationship are not eligible to adopt a child.

49. What is the order of priority for foreigners wanting to adopt a child from India?

Non Resident Indian (NRI);

Overseas Citizen of India (OCI), Persons of Indian Origin (PIO) and foreign nationals residing in India;

Foreign Nationals residing abroad. However, if the foreign partner is married to an Indian citizen, the couple shall be treated at par with NRIs.

50. In what cases/conditions can I surrender my child to adoption agencies?

This question is redundant now. There are no specific cases/conditions for surrendering of a child to adoption agencies. As long as procedure followed under Guideline 7, CARA Guidelines 2015 is followed. Succinctly, the procedure involves:

Execution of surrender deed as provided in Schedule 4 of the Guidelines in the presence of two members of CWC.

In case of surrender by married couple, both parents must sign the deed.

If a child born out of wedlock has to be surrendered, only the mother’s signature can authorize the same.

No one apart from the parents can surrender. A child whose parents’ whereabouts aren’t available would be treated as abandoned.

The entire process is confidential.

51. Can I adopt a child from a state other than the one I am residing in?

Yes, one can do so.

Can I adopt again if I have already adopted once before?

Yes, another child can be adopted as long as the requisite procedure is followed.

Can I adopt my relative’s child?

Yes, one is eligible to adopt a relative’s child, so long as the other criteria for adoptive parents are fulfilled and the child is below the age of 6. Post this age, such an adoption is allowed only in exceptional circumstances.

54. What procedures should I follow for adopting a relative’s child?

Firstly you need to obtain the consent of the biological parents for adopting the child, then enter into an adoption deed, you can take a lawyers assistance for this. This Adoption Deed has to be registered. If you are an NRI or a PIO wanting to adopt a child from your relatives in India, you need to move an application to CARA, which will then assess your eligibility and issue an NOC in the proposed case.

55. Do I need a court order even if I adopt my relatives child?

It is not mandatory to obtain a court order if you adopt a relatives child, however you will need a Court Order in order to obtain a Passport or a Visa for the child. Therefore it is always advisable that you have a Court Order. A court order is mandatory in case you are an NRI or a PIO wanting to adopt a child from your relatives in India

56. Can a parent ask for a specific child?

An adoptive parent is allowed to ask for a child, as per her preferences. For example a parent may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features, health condition, etc. However, greater the specifications, the more difficult it is to find a child who conforms to them. This restricts the pool of children available for adoption.

Depending on the adoptive parent’s desired details, children are scrutinised to find a suitable match. Six children profiles that meet the requisite criteria are shared with the adoptive parents.

57. Does the law forbid me from putting up my child for adoption due to my inability to maintain?

A parent can surrender his/her child due to physical, emotional and social factors beyond their control by executing a surrender deed as encapsulated in Schedule 4 of the CARA Guidelines governing Adoption of Children, 2015.

58. What if I want to adopt a child from other country and bring him/her to India to stay along with me, what procedures apply?

The relevant procedure varies, and it depends on the requirements of the country that you are adopting from.

 

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