Category Archive Family Law Guides

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Procedure of Court Marriage in India

Court Marriage in India is a very popular alternative for couples who want to keep their marriage affair simple and economical or with inter-religion/inter-caste background. It also acts as a sanctuary for couples going against the wishes of their family members. Unlike traditional marriage where numerous rituals and customs are followed, Court marriage is fairly a simple procedure, performed before a marriage registrar and few witnesses.

The Special Marriage Act, 1954 has laid down the concept of Court Marriage. It provides for marriage between couples belonging to different religion, caste or creed or nationality, by way of civil ceremony. It also solemnizes and registers a marriage, at the same time.
 

What are the conditions required to be fulfilled before proceeding with Court Marriage?

The Special Marriage Act, 1954 has laid down certain conditions that parties have to meet before mutually entering or signing the Civil Marriage Contract. These conditions are as follows: –

  • No party should have a subsisting valid marriage with any other person.
  • The age of the bride should be 18 years and the groom should be 21 years.
  • They should be of sound mind and able to give their valid consent for marriage.
  • They should not be unfit for marriage or procreation of children.
  • Both the parties should not, by any means, fall in the degrees of prohibited relationship as provided in Schedule I of the Act unless it is held valid in the customs or traditions of the religion of any of the two parties.
     

What are the procedures of Court Marriage?

Filing Application or Notice of Intended Marriage
The parties need to file a notice/application in writing in the prescribed format provided in Schedule II of the Special Marriage Act.
The notice has to be submitted to the Marriage Registrar of the district in which any one of the parties has resided for at least 30 days preceding from the date of serving the mentioned notice.
 

Publication of Notice

After the notice has been filled, The Marriage Officer of the district to whom the notice has been served shall publish the notice.
The notice shall be published at a conspicuous place in the office and one copy in the office of the district where (if) the other party permanently resides.
 

No objection to the Marriage

Any person can raise an objection to the marriage to the Marriage Officer of the district on the specified conditions as mentioned in Chapter II, Section 4 of the Act. If the Marriage Officer receives any objection within the 30 days from the date of publication of the notice, the marriage cannot be solemnized.
 

Remedy for the couple, if objection is filed

Either of the party to the marriage can file an appeal at the District Court within the local limits of the district under the jurisdiction of Marriage Officer within 30 days from the date of the refusal to solemnize the marriage.
 

Solemnization of the Marriage

If no objection is received before the expiry of 30 days, the marriage will be solemnized at the Specified Marriage Office. The parties to the marriage must be present at the office along with 3 witnesses at the Office on the given date of Registration/Solemnization.
 

Marriage Certificate

The Marriage Certificate is issued by the officer in the specified format which has to be signed by both the parties and 3 witnesses. It is the conclusive evidence of the Court Marriage.
 

What are the necessary documents required for Court Marriage?

  • Application Form for Marriage in prescribed format along with specified fees
  • Passport size Photos of Bride and Bridegroom
  • Residential proof of the parties to the marriage
  • Proof of Date of Birth of both the parties
  • Address Proof and PAN Card of all the 3 witnesses
  • Death Certificate/Divorcee (optional)- in case either of the parties had former marriage history
     

What are the documents required for ‘Registration of Marriage’?

  • Signed Application form for registration by both the parties
  • Passport sized photos of both & 1 marriage photograph
  • Proof of Date of Birth by the married parties
  • Proof of Residence as per the specified list of acceptable documents
  • Proof of Marriage – Certificate from a priest who solemnized the marriage
  • Proof of conversion, if any of the two parties is a convert (certificate from a priest)
  • Affidavit by both the parties declaring the truthfulness about their aforementioned particulars
  • Affirmation that both parties are not related to each other within the specified prohibited relationships
  • Copy of divorce decree/ death certificate of deceased former spouse, as applicable
     

Is a lawyer required for Court Marriage?

It is not mandatory but yes, a lawyer will be helpful in resolving any legal issues and guide you in filling or submitting the documents/formats involved in the procedure mentioned above. Also, if there is any apprehension of objection, hiring a family lawyer would be a wise move as one can help in filing appeals or fighting your case in the court on valid legal points.
 

What to do if other party is a foreign national?

If one party is of foreign national, then also marriage may be solemnized before the Marriage Registrar in India or Marriage Officer in a foreign country.
There are certain additional documents are needed:

  • Copy of Passport of both the parties to the marriage and their valid visa
  • Proof of stay in the concerned district in preceding 30 days or report from the concerned SHO
  • NOC or Marital Status Certificate from the concerned embassy or consulate in India by the party’s foreign partner, if any
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All you need to know about Child Adoption laws in India

Adopting a child is certainly a huge decision one can make. There are lot of considerations that are to be dwelled upon before making a move. It influences you emotionally and financially. There are questions not only w.r.t your capability as a possible new parent to the child, you also need to face numerous legal complexities that comes along with it.
 

What are the laws governing Adoption in India?

Adoption is a legal affiliation of a child and it forms the subject matter of personal law. There are three major legislations governing adoption process in India: The Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006.

The adoption under Hindu law is governed by Hindu Adoption and Maintenance Act of 1956. Muslims, Christians and Parsis have no adoption laws and have to approach court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. People of these faith, adopt under Guardians and Wards Act of 1890.
 

Which Statutory Body regulates the adoption process in India?

All adoptions in India are required to follow the procedure set out by the Central Adoption Resource Agency (CARA).
 

Who can place in for adoption?

The child’s biological parents have the right to relinquish their child to licensed adoption agencies. These agencies draw a paperwork to legally terminate the biological parents’ rights. They are given 60 days after the papers are signed to be as sure as possible before their rights are irrevocable terminated.

At the end of 60 days after the relinquishment, the child becomes a ward of the state and the process to find a more permanent solution is started.
 

Where do families who are willing to adopt go?

An aspiring adoptive family will need to approach a licensed agency. The list of licensed adoption agencies is available at the CARA website. Thereafter, they undergo a process of counselling so that they get a more real expectation of adoptive parenting and complete the paperwork required.
 

What is the procedure for adopting family?

Paperwork: For an aspiring adoptive parent, paperwork is the start of the legal process of adopting a child. It evaluates their strengths and address any weaknesses their application may have. People applying as single parents are required to show evidence of a support system for the child.

List of documents required for adoption are:

  • Marriage Certificate or an affidavit.
  • Birth certificate or any proof of age.
  • Income Certificate or tax returns papers
  • Bank references and property statement
  • Medical certificates of prospective adoptive parents (recommending them for adoption) and their children, if any.
  • Infertility report, if applicable, or a medical report of the couple’s prospects for having biological children.
  • Three reference letters recommending the couple as adoptive parents.
  • Letter stating alternate child care arrangements, in case the adoptive mother is working.
  • Photograph of the couple.
  • Adoption Decree of previous adopted children (if applicable)
  • Home Study Report prepared by a qualified social work from a social welfare agency, as well as an ‘undertaking’ by the social worker or agency that they would send follow-up report as per the requirements of the Indian Court.
  • For inter-country adoptions, the Home Study Report must be prepared by an agency that has been approved by the Government of India. Permission must be secured for the child’s entry into the foreign country.

 
Home Visit: A home study involves a visit to the prospective adoptive home to get an idea of the couple/person applying. It is undertaken by the social worker or a child adoption agency.
After the home study, the couple/person is listed on the agency’s waitlist. The time between completing the application and identifying the child for placement is influenced by how many adoptive families have been placed on the waitlist and how many children have been cleared for adoption.
 
Placing the child: The agency tries to match some feature of the child with the adoptive family in the interest of the child.
Once a child is identified, he/she is placed with the family under ‘foster care’, before the adoption deed is finalized. This part of the process can take some time given the court’s workload. Until the adoptive deed is final, the adoption is not legally final.
 
Birth Certificate: When the adoption deed is issued by the courts, the adoptive family can apply through the courts for a birth certificate. The birth certificate with the agency’s name as the parent is superseded by the new birth certificate issued. The new birth certificate mentions the adoptive parent(s) names as Father/Mother.
 

What are provisions w.r.t International Adoption?

Indian citizens, NRIs and non-Indians residing outside India can adopt a child from India. While these adoptions are also legalized under one of the three Acts mentioned above. The rules related to these adoptions can be different.
 
Assessing the capability of the applicant
A Child Welfare Agency licensed by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. This agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship of the foreigner’s application.
 
Additional documents that are required to be submitted
In addition to the list documents mentioned above a declaration of willingness shall also be submitted. This document will state that the foreigner is willing to be appointed as the child’s guardian.  He shall also furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child’s arrival in his country.
 
Court Procedure
The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located. The application will be filed by the Indian welfare agency or a person duly authorized by them in this regard.

The Court will issues notice to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) to scrutinize the guardianship application. These organizations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child’s best interests.

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How to get legal heir succession certificate

A succession certificate is issued by a civil court to the legal heirs of a deceased person. When a person dies intestate his estate has to be managed by someone to inherit and it can be done only by inheriting the authority by court process for which a succession certificate can be issued by a civil court to the legal heirs of a deceased. A succession certificate is necessary, but not always sufficient, to release the assets of the deceased. For these, a death certificate, letter of administration and no-objection certificates will be needed.
 

How to apply for a Succession Certificate?
 

Petition:

A duly signed and verified application must be made to the civil court or high court of competent jurisdiction.


Details:

Details like petitioner’s name, name of legal heirs of deceased, relationship of the petitioner with deceased, right of petitioner, residences of relatives and family of deceased and details of death along with the death certificate debts and securities for which the succession certificate has to be obtained have to mentioned in the petition.


Fee:

According to Schedule II of The Court Fees Act, 1870, certain amount is levied as court fee for this process. Stamp Duty may vary from state to state.


Process:

The court issues a newspaper notice for 45 days. Any person having problem with it can file objections. If the court doesn’t receive any objection, it issues succession certificate.

Documents required for obtaining Succession Certificate:

 (I) Death certificate
(ii) Pan Card of all the legal heirs
(iii) Ration card of all the legal heirs
(iv) Prescribed application form by affixing a court fee stamp

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Marriage between Hindu girl and Muslim boy

Inter cast Marriage | law House | www.lawhousekolkata.com
How to Marriage between a Hindu girl and a Muslim boyin India?

Marriage between a Hindu girl and a Muslim boy is governed under the Hindu law, Muslim Law and Special Marriage Act, 1954.

Who is Eligible to Get Married Under Muslim Law

In the event of Marriage between a Muslim girl and a Hindu boy under the Muslim law, The Hindu boy will need to convert to Islam for solemnization of the marriage, as the marriage between a Muslim and a non- Muslim is not recognized by Islam. Muslim law contains specific provisions for conversion.

A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract. Moreover, the consent to marriage must be free of coercion, fraud or undue influence.

It should be noted that Islam expressly forbids Muslims from people who aren’t Muslims, Christians or Jews. So while a marriage according to Hindu law would be a perfectly valid marriage under Special Marriage Act, but it would not be considered under the Muslim religious code and would be deemed to be an adulterous (and sinful) relationship.
 

Who is Eligible to Get Married Under the Hindu law

Hindu law does not contain any specific provisions for conversion, but the both parties (bride & bridegroom) must be Hindus in order to get married under Hindu Marriage Act.
To ascertain the “religion” of the marriage, the customs and ceremonies performed therein may be considered. A saptapadi (“seven steps”) are crucial for a Hindu marriage. 

The Muslim girl could convert to Hinduism and solemnize the marriage according to Hindu rites, which will bring it within the purview of the Hindu Marriage Act.

A marriage between two Hindus may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

  • No party should be already married, i.e. neither party should have a spouse living at the time of marriage. Thus, this Act prohibits polygamy.
  • At the time of marriage, neither party should be incapable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, should not be suffering from a mental disorder to an extent which makes him/her unfit for marriage and procreation of children. He/she should not be subject to recurring attacks of insanity either.
  • The parties should not be underage. The bridegroom should be a minimum of 21 years of age, and the bride should be at least 18 years old.
  • The parties should not be sapindas or within the degrees of prohibited relationship, unless any custom governing them allows marriage between such relations. 

According to Section 11 of the Act, a marriage can even be declared null and void if either party presents a petition and if any of the following are contravened:

  1. Either of the parties is already married and has a spouse living at the time of marriage.
  2. Either party is underage, i.e. groom below 21 years of age and bride below 18 years.
  3. The parties are sapindas or within the degrees of prohibited relationship.

According to Section 12, a marriage, although valid can later be annulled on any of the following grounds:

  1. If either party is impotent and therefore unable to consummate the marriage.
  2. When at the time of marriage, either party is not capable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, has been suffering from mental disorder to an extent which makes him/her unfit for marriage and procreation of children, or is subject to recurring attacks of insanity.
  3. If the consent was obtained forcefully, or fraudulently.
  4. If the bride was pregnant by another man other than the groom at the time of marriage.

Section 7 of the Act states that a Hindu marriage can be duly performed in accordance with ceremonies and customs of either the bride or the groom. These ceremonies also include the Saptapadi i.e. taking of seven steps jointly before the sacred fire.

It has been stated that if Saptapadi is included in the rites and ceremonies, then the marriage becomes complete and binding when the seventh step is taken.


Who is Eligible to Get Married under the Special Marriage Act?

The Special Marriage Act does not recognize every marriage; there must be some conditions fulfilled before a marriage is recognized by the Act e.g. the marriage is a civil contract, involving no form of rites or ceremonies, both parties must not be involved in any other existing valid marriage.

Similarly, the parties should not be mentally inc

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 capable of giving the 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
  • has been subject to recurrent attacks of insanity
  • the male has completed the age of 21 years and 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 degree of prohibited relationship; and
  • Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are the citizen of India domiciled in the territories to which this Act extends.
Inter cast Marriage | law House | www.lawhousekolkata.com
How to Marriage between a Hindu girl and a Muslim boyin India?
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Marriage between a Hindu boy and a Muslim girl

Inter cast Marriage | law House | www.lawhousekolkata.com
How to Marriage between a Hindu boy and a Muslim girl in India?

Marriage between a Hindu boy and a Muslim girl is governed under the Hindu law, Muslim Law and the Special Marriage Act, 1954. The Personal laws have bearing on issues relating to maintenance, divorce, succession, adoption etc.
 

Who is Eligible to Get Married Under Muslim Law

In the event of Marriage between a Muslim girl and a Hindu boy under the Muslim law, The Hindu boy will need to convert to Islam for solemnization of the marriage, as the marriage between a Muslim and a non- Muslim is not recognized by Islam. Muslim law contains specific provisions for conversion.

A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract. Moreover, the consent to marriage must be free of coercion, fraud or undue influence.
 

Who is Eligible to Get Married Under the Hindu law

Hindu law does not contain any specific provisions for conversion, but the both parties (bride & bridegroom) must be Hindus in order to get married under Hindu Marriage Act.
To ascertain the “religion” of the marriage, the customs and ceremonies performed therein may be considered. A saptapadi (“seven steps”) are crucial for a Hindu marriage.

The Muslim girl could convert to Hinduism and solemnise the marriage according to Hindu rites, which will bring it within the purview of the Hindu Marriage Act.

A marriage between two Hindus may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

  • No party should be already married, i.e. neither party should have a spouse living at the time of marriage. Thus, this Act prohibits polygamy.
  • At the time of marriage, neither party should be incapable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, should not be suffering from a mental disorder to an extent which makes him/her unfit for marriage and procreation of children. He/she should not be subject to recurring attacks of insanity either.
  • The parties should not be underage. The bridegroom should be a minimum of 21 years of age, and the bride should be at least 18 years old.
  • The parties should not be sapindas or within the degrees of prohibited relationship, unless any custom governing them allows marriage between such relations. 

According to Section 11 of the Act, a marriage can even be declared null and void if either party presents a petition and if any of the following are contravened:

  1. Either of the parties is already married and has a spouse living at the time of marriage.
  2. Either party is underage, i.e. groom below 21 years of age and bride below 18 years.
  3. The parties are sapindas or within the degrees of prohibited relationship.

According to Section 12, a marriage, although valid can later be annulled on any of the following grounds:

  1. If either party is impotent and therefore unable to consummate the marriage.
  2. When at the time of marriage, either party is not capable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, has been suffering from mental disorder to an extent which makes him/her unfit for marriage and procreation of children, or is subject to recurring attacks of insanity.
  3. If the consent was obtained forcefully, or fraudulently.
  4. If the bride was pregnant by another man other than the groom at the time of marriage.

Section 7 of the Act states that a Hindu marriage can be duly performed in accordance with ceremonies and customs of either the bride or the groom. These ceremonies also include the Saptapadi i.e. taking of seven steps jointly before the sacred fire.

It has been stated that if Saptapadi is included in the rites and ceremonies, then the marriage becomes complete and binding when the seventh step is taken.


Who is Eligible to Get Married under the Special Marriage Act?

The Special Marriage Act does not recognize every marriage; there must be some conditions fulfilled before a marriage is recognized by the Act e.g. the marriage is a civil contract, involving no form of rites or ceremonies, both parties must not be involved in any other existing valid marriage.

Similarly, the parties should not be mentally inc

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 capable of giving the 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
  • has been subject to recurrent attacks of insanity
  • the male has completed the age of 21 years and 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 degree of prohibited relationship; and
  • Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are the citizen of India domiciled in the territories to which this Act extends.
Inter cast Marriage | law House | www.lawhousekolkata.com
How to Marriage between a Hindu boy and a Muslim girl in India?
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Can married daughter be a part of HUF?

What is a Hindu Undivided Family (HUF)?

Hindu Undivided Family (HUF) also known as a Joint Hindu Family under the Hindu Law is a family, comprising of all persons lineally descended from a common ancestor and living under a common roof and joint in estate, food and worship. There are two schools of law governing HUF in India: Mitakshara and Dayabhaga, with West Bengal being the only state that follows Dayabhaga School of law.
 

Can a married daughter be a part of HUF?

Yes, a married daughter is considered a part of HUF. Prior to 2005 amendment in the Hindu Succession Act, 1956, the daughter, on her marriage, ceases to be a member of her father’s HUF and becomes a member of her husband’s HUF. However, after the amendment the daughter married or unmarried, is now considered as co-parcener like a son.

However, in her matrimonial house, she is treated as a member and not as a co-parcener of her Husband’s HUF. Thus in event of partition of her Husband’s HUF, she has one share in such property.
 

What is the right of married women in a HUF property?

The 2005 Amendment Act conferred rights on female members to become co-parceners. This means that women now have equal rights in the family property. However, the amendment is governed by the Mithakshara law of inheritance and not applicable to the Dayabhaga law of inheritance.

Women are now entitled to demand the partition of a HUF to get their share of the property. The partition can be in full or partial.  If the daughter is married at the time of partition, the assets so received will be treated as her own personal assets.
 

Can a married female member demand partition of her father’s HUF as well as her husband’s HUF?

After 2005 Amendment in the Hindu Succession Act, 1956, A daughter continues to be a coparcener of her father’s family, having all the rights and privileges as of a coparcener, she can demand partition of her father’s HUF property. 

However, as far as her husband’s HUF is concerned, she is a mere member of the family and not a coparcener and as such cannot demand partition of her husband’s HUF property. But would be entitled to a share in case of partition between her husband & her sons or between her sons.
 

What is the status of the married daughter prior to the 2005 amendment?

The amendment would equally apply to a daughter born before 1-9-05 and she becomes co-parcener not from the date of her birth but only from 1-9-05.

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Abortion Laws in India

Abortion is intentional termination of a human pregnancy, majorly performed during the first 20 weeks of pregnancy. India is a country with extreme social baggage augmented by the evils of the society like poverty and illiteracy. Abortion has been legal in India under definite provisions since the adoption of the Medical Termination of Pregnancy (MTP) Act in 1971. With this, India became one of the first few nations to legalize abortion.

The main aim of legalizing abortion through the Act is to provide every woman with eminent health care while terminating a pregnancy, to promote accessibility and affordability of safe termination services.
Here is everything you need to know about the abortion laws of India
 

When can an abortion be performed?

Under Section- 3 of the Act

As a health measure by the permission and approval of the Doctor concerned

  1. When there is a danger to the life or risk to the physical or mental health of the woman.
  2. When there is a risk to the life of the woman is greater during pregnancy than if it got terminated.
  3. When the termination is important to avoid serious permanent injury to the mental or physical health of the woman.
  4. When the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman.
  5. When there is considerable risk that the child might be born with physical or mental abnormalities resulting in serious deformity.
  6. When it’s necessary to save the life of the woman or to avoid permanent injury to her health.

On humanitarian grounds

When pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.
 

On eugenic grounds

Where there is a substantial risk that the child if born, would suffer from deformities and diseases.
 

Supreme Court’s take on allowing abortion

The Apex Court in 2017 allowed a teen rape survivor to terminate her 24-week pregnancy, in fact, the Court regretted the loss of valuable time that would have been safer for the survivor while undergoing the termination if it was done earlier.

The Apex Court in 2016 permitted a woman to terminate a 24-week-old fetus, going against the acceptable 20-week time-frame. The Court said that continuing with a fetus having multiple severe abnormalities would be life-threatening for both the fetus and the mother and therefore, to avoid complications to the mother, abortion was allowed.

However, the above-mentioned judgments do not necessarily mean that termination of pregnancy is permitted in every situation, in fact, it all depends on the facts of the case.
 

When can’t an abortion be performed?

Under Section- 3 of the Act

A minor cannot get the pregnancy terminated without the written consent of her legal guardian.

There can be no abortion without the consent of the woman.
 

Supreme Court’s take on not allowing abortion

In 2017, a pregnant woman had approached the Supreme Court to abort her 26-weeks old foetus on the ground that the baby suffered from ‘down syndrome’. However, the request was denied by the Court declaring that we have a life in our hands and thus, killing the fetus is not the option.
 

Where can an abortion be performed?

Under Section- 4 of the Act it has been specifically mentioned that termination of pregnancy shall not be carried out at any place other than-
a hospital established or maintained by the Government or a place approved by the Government or a District Level Committee constituted by the Government with the Chief Medical Officer or District Health Officer.
 

Is the consent of the husband required for abortion?

In a recent judgment of the Supreme Court where the husband was trying to seek relief from Court after his wife aborted their child without his consent. Accordingly, the Court stated that mere consent to matrimonial sex by the wife does not imply that she has given consent to conceive a child as well. Therefore, it is the complete free will of the woman to conceive or terminate the pregnancy. The man can’t force her to give birth to his child. Moreover, the Court further added by saying that a woman is not a machine in which raw material is placed and finished products come out. The woman needs to be mentally prepared so as to conceive and give birth to a child and become a mother. Unwanted/ unplanned pregnancy will only affect the physical and mental health of the pregnant woman.

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Rights in live-in relationships

This law-guide is for couples in love desiring to live-in together before marriage and the obligations and responsibilities that follow in such a relationship.

What is a Live-in relationship?

The Apex Court very clearly in a landmark judgment Indra Sarma vs. V.K.V. Sarma explained live-in relationships in 5 clear-cut ways

  1. An unmarried adult male and an unmarried adult female living together is the most fundamental kind of relationship.
  2. A mutually entered domestic cohabitation between a married man with an unmarried adult woman. 
  3. A mutually entered domestic cohabitation between an unmarried adult man with a married woman.

The above 2 relationships fall under adultery i.e. voluntary sexual intercourse of a married person other than with spouse and is punishable under Section- 497 of the Indian Penal Code (IPC) with imprisonment up to 5 years.

  1. A mutually entered domestic cohabitation between an unmarried adult female and a married male without knowing the marital status of the partner is also punishable under IPC.
  2. A mutually entered domestic cohabitation between 2 homosexuals, which cannot result in marriage as no marital laws are established for homosexuality in India as of now.

Is live-in legal?

The Supreme Court in multiple judgments has declared that when a couple has been living and staying together like husband and wife for a few years and even had children, the legal system would consider that the couple was married and therefore, marital laws would be applicable.

In a different case, the Supreme Court opined that if a couple is in love and aspire to live together then it is part of their right to life and not a “sin” thereby legalizing live-in relationships.

How are the women protected?

Protecting the women partners was possibly the most important responsibility of the Court before legalizing live-in relationships and therefore, the ambit of several laws was increased. For instance,


Maintenance to the woman partner

Under the Indian law, the maintenance right is only available to wives under all personal family/ divorce laws. And since no religion recognizes, accepts nor grants any remedy to women in live-in relationships, the Indian Courts have expanded the ambit of maintenance to women-partners under Section- 125 of the Criminal Procedure Code (CrPC).

Domestic Violence


The Domestic Violence Act was executed to provide protection to women against all kinds of abusive marital relationships including verbal, physical, economic and mental abuse. But, under Section- 2 (f), it applies to both married and unmarried couples i.e. to every couple in any relationship in the nature of marriage.
 
Therefore, keeping in mind all this, the Supreme Court in multiple cases has included live-in relationships to be brought within the purview of the law present.

 Are the children protected?


Status of legitimacy and inheritance rights of children

Under Section- 16 of the Hindu Marriage Act, children have been provided with inheritance rights where it has been clearly given the legal status of legitimacy to illegitimate children i.e. born out of a marriage for inheritance. Thus, children born in a live-in relationship have been granted inheritance rights. Inheritance rights have also been made available under both self-purchased and ancestral properties.

Maintenance and custody rights of children

The stand on the children’s right of maintenance who are born outside marriage differs in different personal marriage laws. For example, the father has the responsibility to support the child under the Hindu Law, while the father has been excused from the same responsibility under the Muslim Law.
Nonetheless, children who cannot claim maintenance under personal laws can still claim the same under Section- 125 of the CrPC since it provides maintenance right to both wives and children.

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Looking to adopt a child? Everything you need to know before adopting

Adoption is a legal process that assists a person to become a parent of a child, even if the intending parent and the child are not related by blood.
The process of adoption of a child is joyous for the parents as well as the child. However, the process of adoption and making a decision is long and tedious. The prospective parents may face legal hassles as well. This article would run you through the law and procedure for adoption in India.

Laws governing adoption in India:

There are 3 main legislations in India, under which one can adopt –

A.   For Hindus / Buddhists / Jains / Sikhs

The first legislation which regulates adoptions in India is the Hindu Adoption and Maintenance Act, 1956 (HAMA). The law stipulates only direct and private adoption, thus the adopted child has to be actually handed over to the adoptive parents.
 
Who can adopt?
 
·      Under the Act, only Hindus, Buddhists, Jains, and Sikhs can adopt. Both the parties, i.e. the child as well as the parents have to be Hindus, Buddhists, Jains, or Sikhs.
·      Any male wishing to adopt has to be above the age of 18 years and of sound mind. If he is married, he has to take consent of his wife.
·      Females above the age of 18 and of a sound mind, can also adopt, if she is single, unmarried, divorced or widow.
 
Who can be adopted?

·      The age of the child being adopted must be below 15 years.
·      The child must be a Hindu, Jain, Sikh or Buddhist.
·      The child must be unmarried.
·      The child must not have been already adopted.
 
Other Conditions that need to be fulfilled:

·      A person who already has a male child cannot adopt a male child.
·      A person who already has a female child cannot adopt a female child.  
·      An age difference of 21 years must be there between an adoptive father and a female child.
·      An age difference of 21 years must be there between an adoptive mother and a male child.
·      Two or more persons cannot simultaneously adopt the same child.
·      The adoption process should be free from any consideration being paid by either party.
 
When is the Court’s Permission required?

  • In case of death of both mother and father, or
  • In case both mother and father have renounced the world, or
  • In case both mother and father have abandoned the child, or
  • In case the Court has declared both mother and father of an unsound mind, or
  • In case the parentage of the child is not known.

Once all the above-said conditions are met, the adopted child will be considered the child of the adoptive mother/ father in all respects. This would be effective from the date of adoption. An adoption once made validly, cannot be canceled at a later stage. This is finalized with the registered deed for adoption.
 
B.   Secular Laws in India adoption in all religions 

In India, the Juvenile Justice Act, 2015, governs the adoption process by non-Hindus.
 

Who can adopt?

  • The act permits adoption by an NRI or a foreign citizen, by following the procedure provided in the Act
  • A male or female person, irrespective of marital status
  • A single female individual can adopt a child of any gender, whereas a single male cannot adopt a female child
  • A stable marital relationship of two years is necessary for a couple to adopt 

Who can be adopted?

·      As per the Juvenile Justice Act, a single person or a couple can adopt:

i)              an orphan child, or
ii)             a child who has been surrendered, or
iii)            a child who has been abandoned
 
The Juvenile Justice Act permits adoption irrespective of religion. Thus, a Muslim, Parsi, Christian, etc. can also adopt under this Act.
 
Other Conditions that need to be fulfilled:

  • The prospective adoptive parents (PAP) need to be capable for the upbringing of the child, in all spheres including physically, mentally and emotionally.
  • They should be financially capable to raise a child.
  • If a couple is parents to three children already, they would not be considered for adoption. The only exception being special cases of relative adoption, adoption by stepparent or special needs children.
  • The consent of both the partners is imperative if a couple is adopting.
  • Eligibility of adoptive parents with regards to their age as of the date of registration of adoption is stipulated as follows-
  1. For adopting a child of up to 4 years of age-

    a) The maximum composite age of a prospective couple should be 90 years.
    b)The maximum composite age of a single prospective parent should be 45 years. 
  2. For adopting a child of between 4-8 years of age-

    a)The maximum composite age of a prospective couple should be 100 years.
    b)The maximum composite age of a single prospective parent should be 50 years. 
  3. For adopting a child of between 8-18 years of age-

    a)The maximum composite age of a prospective couple should be 110 years.
    b)The maximum composite age of a single prospective parent should be 55 years.

 
A minimum age difference of 25 years needs to be there between a child and the adoptive parent. The exception to this being adoptions by relatives or by step-parent(s).
 
C.   Guardianship – Guardians and Wards Act, 1890 (GAWA)

  • The Act governs Guardian-and-ward relationship solely.
  • After attaining the age of majority, both parties relinquish any form of legal rights and responsibilities towards each other.
  • It is distinct from the adoption laws in India as it does not establish a parent-child relationship, rather establishes a Guardian-ward relationship.

 
Who can place a child for adoption?

  • A child can be placed for adoption by their biological parent(s), only to a licensed adoption agency. The role of these agencies includes initiation of legal paperwork for termination of the biological parents’ rights. The parents giving up the child are given a period of 60 days period before the termination becomes final.
  • A Child Welfare Committee may declare a child “Legally Free for Adoption” if he is found to be abandoned or whose caretakers cannot be traced.
  • The Juvenile Justice Board can place a child for adoption who is court-committed.

 
Procedure for adoption under the Guardians & Wards Act, 1890 (GAWA)
 
The Central Adoption Resource Authority (CARA) is the primary statutory body governing adoptions in India. The procedure covers both, in-country and inter-country adoptions.
 
1- Registration:

  • “Carings” is an online portal under CARA that gives a platform to prospective parents to adopt. The process can be initiated by first registering on their online portal (http://carings.nic.in/Parents/parentregshow.aspx ) or their website (http://cara.nic.in/), or through approaching the District Child Protection Officer (DCPO).
  • The prospective parents need to provide information in the form relating to the adoption preferences. The parents need to provide documents to establish their identity, which includes Birth Certificates, Marriage Certificates, Income Tax Returns, Medical Certificates etc.
  • Once all the formalities are completed, a registration number will be given to the PAP or Prospective Adoptive Parents.

 
2  Home Study:

  • To get veracity on the background of the adoptive parents, a home study is conducted by a social worker. This is done post the completion of the registration process. The purpose of the study is to ensure a conducive environment of the child and to verify the information submitted at the time of registration.
  • The PAP can also express their desire and readiness to adopt a child in a form given to them.
  • The expenses of such home study shall be borne by the PAP.
  • The report of the home study is then uploaded on the “Carings” system.

 
3. Matching the Child and Parent:

  • As soon as a child and a PAP are matched by the Carings system, the parents would be sent the required information about the child.
  • The PAP are given a time bracket of 48 hours to either accept or deny the child.
  • The PAP are given a maximum of 3 rounds of such referral system.
  • Once the PAP are satisfied with the child matched, they would have to visit the child care institution within a period of 2 weeks to initiate pre-adoption foster care after the necessary paperwork.
  • No parents are given the liberty to select a baby completely of their choice.

 
4. Procedure for Court Regulated Adoption:

  • If an adoption application has to adjudicated by the Court, the adoption agency will file an application before the court and receive a formal date to obtain the approval by the judge.
  • On the date provided by the Court, the PAP along with the child would have to appear before the judge. An assistance of a lawyer would be suggested here.
  • Once a formal order of the court is issued, the PAP becomes the legal parent of the child, and the adoptive agency would be required to provide a new birth certificate of the child.

 
5. Follow Up of Progress for Child Welfare:

  • To monitor the well-being of the child at his new home, a Specialised Adoption Agency (SAA), which prepares the home study report, will prepare a post adoption follow up report for a period of two years, from the date of pre-adoption foster placement.

 
Process for Inter-Country Adoption:

  • It is governed by the Juvenile Justice Act, 2015
  • CARA must issue a NOC for an inter-country adoption.
  • NOC is mandatory in cases of all inter-country adoptions, which is issued by CARA.
  • The Authorised Foreign Adoption Agency (AFAA) carries out the post adoption follow up for a period of two years. 


DO’s and DON’T’S for adoption in India

·     Any person wanting to adopt shall do so from a Specialised Adoption Agency, recognised by State Governments, and not from any unauthorised institution.
·     Utmost care and caution must be shown while uploading the documents. Incorrect documents can lead to cancellation of registration.
·     CARA guidelines shall be referred for any charges to be levied.
·     PAP should be wary of any middlemen and touts.

Bydeb

Women, know your rights before getting married: Rights of daughters-in-law in India

From the right to residence to the right to maintencance, daughters-in-law have various rights, however, the same are unknown to most!
Women face all sorts of problems in India, beginning with female infanticide, child abuse to dowry deaths as well as marital rapes. The major issue being illiteracy leaves the women unknown of their legal rights resulting in immense emotional and physical pain. Most of all, married women or daughters-in-law are the worst hit considering not much has been said about the legal rights that they are entitled to.

The laws in India may not be specific to address the issues of daughters-in-law; however, they do cover up for most of them. The Constitution of India, being one of the very few documents where gender equality has been taken care of so well, regards daughters-in-law to be at par in the race.

The Supreme Court, in a judgment involving abetment of suicide of a married woman by her husband, has quoted that “Daughter-in-law should be treated as a family member and not a housemaid, and she cannot be thrown out of her matrimonial home at any time”. The Court further added, “Respect of a bride in her matrimonial home glorifies the solemnity and sanctity of marriage, reflects the sensitivity of a civilized society and eventually epitomizes her aspirations dreamt of in nuptial bliss. But the manner in which sometimes the bride is treated in many a home by the husband, in-law and the relatives creates a feeling of emotional numbness in society.”

Here are the important rights every daughter-in-law or a married woman should know:

Right to Streedhan

As per Hindu law, Streedhan refers to whatever a woman receives (including all movable, immovable property, gifts etc.) during pre-marriage/marriage ceremonies (e.g. godh bharai, baraat, mooh dikhai) and during childbirth.
 
The ownership rights to Streedhan belong to the wife, even if it is placed in the custody of her husband or her in-laws. In case the mother in law possesses her daughter in law’s Streedhan and she dies without leaving a will, the daughter-in-law has a legal right on it, not the son or any other family member.
 
A woman has inalienable rights over Streedhan and she can claim it even after separation from her husband. A married woman does not lose her legal right to Streedhan due to mere separation from the husband. In case, the Streedhan is denied to a married woman, it would amount to domestic violence making the husband and in-laws liable to face criminal prosecution.

Right to live with dignity and self-respect

Not only does a married woman have the right to live her life with dignity and to have the same lifestyle that her husband has but also has the right to be free of mental and physical torture.
 
Not many know that the Domestic Violence Act allows a married woman the option to make the husband execute a “bond to keep the peace”, or a “bond of good behaviour” through the Executive, Magistrate who can order the husband and the in-laws to put a stop to domestic violence apart from the right to seek divorce on the basis of domestic violence by the husband or any of his family members. The husband can also be asked to deposit securities in the form of money or property that will be sacrificed if he continues to act violently. 

Right to a committed relationship

A married woman has the right to have a committed relationship meaning that her husband cannot be in a relationship with another woman unless a legal divorce is finalised. In addition, if the husband is in a relationship with another woman, a married woman can charge her husband of adultery, which also becomes a ground for divorce.

Read more on adultery and divorce laws here.

Right to marital home

The household that a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relative is called the marital home or the matrimonial home.
 
The Hindu Adoptions and Maintenance Act grants a Hindu wife the right to reside in her matrimonial home even if she does not own it, irrespective of whether it is an ancestral house, a joint family house, a self-acquired house or a rented house.
 
From time to time, courts have ruled that a woman only has a right to residence in marital home as long as the matrimonial relationship between her and her husband remains intact. Further, the Supreme Court has ruled that a married woman has no special right over the self-acquired property of the in-laws against their consent, as this property cannot be treated as a shared property.

Right to maintenance

A wife is entitled to claim decent living standards & basic comforts of life by her husband as per his living standards. The same is applicable for children born out of the wedlock.
 
Even if the relationship between husband and wife get sour, the husband is not stripped off his duty of providing basic maintenance to his wife and children, where maintenance includes provision for food, clothing, residence, education and medical attendance/treatment and in the case of an unmarried daughter also the reasonable expenses of an incident to her marriage.
 
Read more on maintenance rights of married women here.

Right to parental property

The changes made in the Hindu Succession Act allow every daughter, whether married or unmarried, to inherit the property of her father after his death. In addition, even if there is no Will left by the father, daughters have equal right of inheritance as sons to their father’s property. Daughters also have a share in the mother’s property.
 
Earlier daughters were excluded from being a coparcener. A coparcenary comprises the eldest member and three generations of a family. With the advent of the amendment, now women of the family can also be a coparcener.
 
Further, the Supreme Court has observed that a father is legally entitled to nominate the married daughter to own his cooperative society flat after his death, in exclusion of other family members. The right of others on account of inheritance or succession is a subservient right.
 

Though the above-mentioned rights are entitled to a daughter-in-law, a lot of issues are still not being addressed legally in India. In hope of a better future of our daughters-in-law, we are spreading the knowledge we have to reach out to the maximum!