Theme: Family & Marriage

Can I file for divorce if my husband is mentally ill under Muslim law?

Yes, you can go to the Court to file divorce against your husband if your husband is suffering from mental illness. However, your husband should be suffering from mental illness for at least 2 years before you approach the Court. It is better to consult a lawyer to understand more.

I am a Muslim man and my wife filed a divorce case against me stating that I am impotent. This in fact is untrue. She has already obtained a decree from Court so what can I do?

If your wife has filed a case against you saying that you are impotent, and if this is untrue, you can deny these allegations by going to Court with the assistance of a lawyer. Even if you are impotent, under the law, you have every right to file an application asking for time (one year) to prove to the Court that you have ceased to be impotent.

Can I annul my marriage under Muslim law?

Under Muslim personal laws, if a marriage is conducted by violating certain rules and customs, then they are known as Batil marriages. These kind of marriages can be annulled by going to Court. If you do annul such a marriage, then it would be as if the marriage never took place.

Can I divorce my wife by saying talaq, talaq, talaq at once under Muslim law?

No you cannot divorce your wife this way.

In 2017, Courts viewed talaq al- ba’in or triple talaq as a form of divorce which is no longer valid and one which cannot be practiced by husbands in India.

In this type of divorce, you can divorce your wife with three pronouncements of divorce at the same sitting. The effect of Triple Talaq is that the marriage comes to an immediate end once it is pronounced.

This form of divorce, left no room for the husband to change his mind nor did it give the woman any say in the way her own marriage ends.

For example, Arshaf says “Talaq, Talaq, Talaq” while looking at his wife one afternoon. Instantly, the marriage and marital obligations comes to an end. There would only be certain legal obligations between them which would remain, such as the husband or wife cannot inherit money or property from each other.

As of today, such divorces are illegal under the law and even if you do it, you would not be divorced from your wife.

What is talaq under Muslim law?

Talaq is divorce under Islam. Each School of Muslim law has a different approach to ending a marriage.

For example, the practice followed by the Ithna Ashari School is that they have to orally say the word talaq in front of two Muslim males who would be witnesses to the divorce and they have to say a certain set of words to end the marriage.

Can a parent file a maintenance application against more than one child or relative?

Yes, you can. As a parent, you can file your maintenance application against all your children. All of them have a duty to maintain you. As a senior citizen (without children), you can file your maintenance application against any or all relatives who possess or will inherit your property. If there is more than one such relative, each relative is supposed to pay maintenance in proportion to the property that they will inherit from you.

Can the amount of maintenance given to a parent or senior citizen, change at a later time depending on the situation?

Yes. The amount of maintenance can be altered/increased by approaching the court, if there are changes in your requirements like increase in cost of medical treatment. However, do remember that the amount can also be decreased depending on whether you now have an additional source of income or your requirements have decreased. It can also be canceled – for example, if you have converted to another religion and are no longer a Hindu, the judge may cancel payments as you are no longer eligible to receive maintenance under Hindu law.

I do not have sons. So, can I claim maintenance from my daughter?

Yes. Both sons and daughters bear the duty to maintain parents equally. Even married daughters have a duty to maintain their parents. However, the court will order her to pay only from her own money and assets. The married daughter’s husband has no duty to support his wife’s parents.

What are the main authorities that regulate adoption in India?

The following authorities do adoption work in India:

  • Central Adoption Resource Authority – It  is the central authority in charge of monitoring and regulating adoptions in India, receiving applications for inter-country adoptions, maintaining a database of children to be adopted, etc. Each state has a subset of this authority known as the State Adoption Resource Agency which works for the promotion, facilitation, monitoring and regulation of adoption in the states. 
  • Child Welfare Committee – It takes cognizance of the children brought before it, conducts enquiry and declares them free for adoption, etc. 
  • District Child Protection Unit – It aims to identify orphan, abandoned and surrendered children in the district and get them declared legally free for adoption by Child Welfare Committee, tracking the progress of children legally free for adoption, etc. 
  • Specialized Adoption Agencies – It is responsible for the care, protection and well-being of every child in its charge, and works for their needs. 

 

The following authorities are in-charge of inter-country adoptions (adoption of children who are foreigners or foreigners adopting Indian children):

  • Authorised Foreign Adoption Agency – It registers the prospective adoptive parents interested to adopt children from India and completes their Home Study Report, provides orientations to the parents about the child’s culture, etc.
  • Indian Diplomatic Missions – It registers the adoption applications of Non-Resident Indian Prospective Adoptive Parents or Overseas Citizens of India in the Child Adoption Resource Information and Guidance System, and processes them, etc. 

Can same sex couples adopt in India?

Although LGBTQ+ persons can adopt in India, same sex couples cannot. If you are a same sex couple, you may adopt a child separately and raise him/her together, but both you and your spouse cannot be legal parents of that child in India.

How is it decided who gets to adopt a child first, if multiple people have applied for adoption?

The decision is taken on the basis of seniority of prospective adoptive parents. Seniority is calculated from the date of successful registration, including submission of documents.(( Regulation 41, Adoption Regulations, 2017.)) For example, if Mini registered on 1st May, 2019, and Sita registered on 28th May, 2019, Mini is senior to Sita in terms of eligibility to adopt a child.

What is a home study report?

A home study is a report, valid for 3 years, conducted by the Specialised Adoption Agency (SAA) closest to your residence to determine your eligibility and suitability to adopt a child, and it includes details like social and economic status, family background, description of home and atmosphere therein and health status.(( Regulation 2(11), Adoption Regulations, 2017.)) This report will be completed within 30 days of your registration, and posted on the Child Adoption Resource Information and Guidance System (CARINGS). Please see here for more information. 

What is the difference between adoption and guardianship?

Adoption is different from guardianship. A guardian is a person who cares for a child or for his property till the child becomes an adult (turns 18 years old), but it does not create lasting  legal or familial ties like adoption. For example, Aman’s parents are not alive anymore so his uncle may apply for guardianship. As Aman’s guardian, his uncle has the legal responsibility of his upbringing, property, major financial decisions etc. 

There are two main legislations on guardianship:

If you belong to any religious community except Hindu, you can refer to the Guardians and Wards Act, 1890.

Adoptive parent provide the child nothing with care

If anyone who has charge of or control over a child assaults, abandons, abuses, exposes or deliberately neglects the child, causing the child unnecessary mental or physical suffering, that person can be punished be punished with imprisonment for up to three years and/or a fine of Rupees one lakh.(( Section 75, Juvenile Justice (Care and Protection of Children) Act, 2015.))

Also, for any general adoption by a parent in India, a Specialised Adoption Agency (SAA) has to prepare a post-adoption follow-up report every six months for two years after the child has been placed with the adoptive parents.(( Regulation 13(1), Adoption Regulations, 2017.)) In case the child is having any adjustment problems with the adoptive parents, the SAA has to arrange counseling for such adoptive parents and adoptees.(( Regulation 13(5), Adoption Regulations, 2017.))

If a child is not able to adjust with the adoptive family, an application can be filed by the SAA in the Court which gave the adoption order, asking the Court to invalidate the adoption.(( Regulation 13(7), Adoption Regulations, 2017.)) If the adoption is terminated by the Court, the child can again be put up for adoption by other prospective parents.(( Regulation 13(8), Adoption Regulations, 2017.))

If the child is a Hindu and has been validly adopted by a Hindu parent under the Hindu Adoptions and Maintenance Act, the adoption cannot be cancelled by the adoptive father or mother or any other person, and the adopted child cannot give up the adopted status and return to the family of birth.(( Section 15, Hindu Adoptions and Maintenance Act, 1956.))

Guide on Registration of Inter-religious Marriages

How can the guide help you?

The Nyaaya Guide on Inter-religious Marriages outlines the process involved if you wish to enter into an inter-religious or inter-faith civil marriage. Under the Special Marriage Act, 1954, two people belonging to different religions can get married without converting to another religion. This guide summarizes the legal and procedural aspects of entering into an inter-religious (special) marriage,  including giving notice of the marriage, performing the marriage, and obtaining the marriage certificate.

What are the laws being discussed in the guide?

The Nyaaya Guide on Inter-religious Marriages  explains the Special Marriage Act, 1954. This Guide only covers the general law based on the Special Marriage Act, and you might have to refer to state-specific Special Marriage rules and procedures for more detailed information suited to your situation.

PROCEDURAL INFORMATION

Things to Remember Before Applying

Who can get married under the Special Marriage law? 

Irrespective of religion, any two people can marry under the Special Marriage Act as long as certain conditions1 are fulfilled. However, the Act only provides for a marriage between a man and a woman, and has not yet expanded its scope to cover same-sex couples and transgender people.

Recently, the Delhi High Court took up a petition which seeks that the Special Marriage Act (SMA) should apply to all couples regardless of gender identity and sexual orientation. The Court asked the Central government to respond to the petition, filed by members of the lesbian, gay, bisexual and transgender (LGBT) community and activists Abhijit Iyer Mitra, Gopi Shankar M., Giti Thadani and G. Oorvasi. 

Who is eligible to marry under the Special Marriage law? 

  • If you want to get married under this law, then at the time of the marriage you should be:
    • Single or Divorced. You should not be married to another person who is currently alive.
    • Capable of giving consent to the marriage with a sound mind.
    • Fit for marriage. This means you should not be suffering from any mental disorder that prevents you from having children.
    • Of marriageable age. At least twenty-one years of age (if you are a man), or eighteen years of age (if you are a woman).
    • In a relationship which is not prohibited by law. For instance, you cannot marry your own brother, sister, aunt etc. You can see the list of prohibited relationships here.((First Schedule, Special Marriage Act, 1954.)) 
In some cases, despite your relationship being prohibited  by law, your custom might still permit a marriage with another person. In this case, you can get married because your custom allows you to do so.

Where do you go to register an Inter-Religious (Special) Marriage?

To register a special marriage, you should go to the Marriage Officer’s office, found in every district.

STEPS FOR AN INTER-RELIGIOUS (SPECIAL) MARRIAGE

1. Giving Notice of the Marriage

If you want to get married under the Special Marriage Act, you need to give a written notice of the marriage. The notice should be sent to the Marriage Officer of the district where you or the person you want to marry have been living. You should have been living in the district you are giving notice in for at least thirty days before notifying the Officer.

You have to submit documents for registering the marriage. While the required documents vary according to the State/Union Territory, here is a general list of documents you might require:

  • Multiple copies of the signed Marriage Application Form
  • Age Proof (Birth Certificate, Passport, etc.)
  • Address Proof (Ration Card, Passport, Voter ID Card, etc.)
  • Photo Identity Proof (PAN Card, Voter ID Card, etc.)
  • Passport-size photographs of the bride and bridegroom

The marriage must be performed within three months from the date of giving notice to the Marriage Officer, or the notice becomes invalid. After that, no Marriage Officer will conduct the marriage until you give a new notice.((Section 14, Special Marriage Act, 1954.)) 

2. Publication of the Notice

The Marriage Officer will keep the notice with their office records and enter a true copy in the Marriage Notice Book, which can be inspected by any person at all reasonable times, free of cost.((Section 6(1), Special Marriage Act, 1954.)) The Officer will also publish the notice by attaching a copy of the notice in a clearly visible place in their office.((Section 6(2), Special Marriage Act, 1954.)) 

At the time of applying for marriage, if you are not  permanently residing within the district, the Marriage Officer will transfer a copy of the notice to the Marriage Officer of the district where you are permanently residing, and that Marriage Officer will attach a copy of the notice in a clearly visible place in their office.((Section 6(3), Special Marriage Act, 1954.)) 

3. Objecting to the Marriage

After a Marriage Officer publishes the marriage notice, any person can object to the intended marriage if it violates any of the conditions for a valid marriage under the Special Marriage Act. The  objection must be made within thirty days of the notice publication.((Section 7(1), Special Marriage Act, 1954.)) 

Objection and Inquiry

If a person makes an objection, the Marriage Officer will record the nature of the objection in the Marriage Notice Book, and read it over and explain it to the person making the objection. The person objecting or someone on their behalf must sign the record.((Section 7(3), Special Marriage Act, 1954.)) 

If an objection  is made, the Marriage Officer will not perform the marriage until they have inquired into the objection and are convinced that the marriage can be conducted and registered. The Officer should inquire and make their decision within thirty days of the objection.((Section 8(1), Special Marriage Act, 1954.)) 

While inquiring into the objection, the Marriage Officer has judicial powers like a civil court for summoning and examining witnesses, asking for documents, etc. The Officer can summon any person within the district to give required evidence.((Section 9(1), Special Marriage Act, 1954.))  

If the Officer believes that the objection is unreasonable and not in good faith, they may impose compensation costs of up to Rupees one thousand on the objecting person, and give the compensation to the couple getting married.((Section 9(2), Special Marriage Act, 1954.)) 

4. Upholding Objection

If the Marriage Officer upholds the objection and refuses to perform the marriage, you can appeal to the concerned district court i.e., the court having judicial authority in the district where the Marriage Officer has their office. You should make the appeal within thirty days of the Officer’s refusal. The district court will take the final decision on the appeal, and the Officer will obey the decision of the court.(( Section 8(2), Special Marriage Act, 1954.)) 

If the marriage is not performed within three months of the court’s decision, the marriage notice becomes invalid, and no Marriage Officer will conduct the marriage and you will have to give a new notice.((Section 14, Special Marriage Act, 1954.)) 

Examples of objections that have been upheld

  • Bride is below eighteen years of age
  • Bridegroom is already married

5. Performing the Marriage

Before the marriage is performed, you, the person you are marrying, as well as three witnesses, should sign a declaration(( Section 11, Special Marriage Act, 1954.)) in front of the Marriage Officer. The Officer will also sign the declaration.

You can perform the  marriage at the office of the Marriage Officer. You can also choose to get married at any other place within a reasonable distance from the office. However, for this, you have to pay additional fees.2 

You can conduct the marriage in any form or religious practice that you wish to follow. For instance, it can be a Hindu religious ceremony or a wedding in a church. However, any special marriage is only complete if you and the person you are marrying say the following statement in front of the Officer and three witnesses:

 “I, (A), take (B), to be my lawful wife (or husband)”. 

This statement can be made in any language you understand.(( Section 12(2), Special Marriage Act, 1954.)) 

6. The Marriage Certificate

After the marriage has been conducted, the Marriage Officer will enter a certificate in the Marriage Certificate Book.

You, the person you are marrying as well as  three witnesses must sign the marriage certificate.3 After the Officer enters the  certificate in the Book, this certificate becomes conclusive evidence of the marriage.

The marriage certificate is legal proof of a marriage under the Special Marriage Act, 1954. It confirms that the marriage is valid and has been completed with all formalities under the law.

RESOURCES

Help and Support

Given below are specific State/Union Territory registration websites and related online services for Special Marriages.

State/Union Territory Special Marriage Registration resources
Andaman and Nicobar https://southandaman.nic.in/service/marriage-registration/

https://northmiddle.andaman.nic.in/service/marriage-registration/

https://nicobars.andaman.nic.in/service/marriage-registration/   
Andhra Pradesh http://registration.ap.gov.in/ 
Arunachal Pradesh https://eservice.arunachal.gov.in/resources/homePage/12/services.html 
Assam https://igr.assam.gov.in/ 
Bihar https://www.biharregd.gov.in/ 
Chandigarh http://chdservices.gov.in/

http://chdservices.gov.in/forms/How_do_I%20Do_It_Marriage_ChandigarhAdministration.pdf 
Chhattisgarh https://cgstate.gov.in/obtain-marriage-certificate

https://edistrict.cgstate.gov.in/PACE/instructionPageHome.do?serviceId=3&OWASP_CSRFTOKEN=BMQC-SJHA-6K68-KMRB-W5OF-GOCX-BOL0-PU0K 
Delhi  http://health.delhigovt.nic.in/wps/wcm/connect/DoIT/delhi+govt/community/marriage+certificate+and+registration 
Gujarat https://enagar.gujarat.gov.in/DIGIGOV/ 
Haryana https://saralharyana.gov.in/getServiceDesc.html?serviceId=8220010&state=6&tempId=2448&templStatus=243&backButtonUrl=&grievDefined=0 
Himachal Pradesh http://edistrict.hp.gov.in/ 
Jharkhand https://jharsewa.jharkhand.gov.in/ 
Karnataka https://karunadu.karnataka.gov.in/karigr/Pages/marriage-registration.aspx 
Kerala http://keralaregistration.gov.in/pearlpublic/

https://cr.lsgkerala.gov.in/Content.php?id=D  
Madhya Pradesh https://www.mpenagarpalika.gov.in/irj/portal/anonymous/CitizenServices/MarriageRegistration/qlMarriageRegistration 
Maharashtra https://mregigr.maharashtra.gov.in/autonoticepublic 
Manipur https://www.eservicesmanipur.gov.in/eda/ 
Meghalaya https://megedistrict.gov.in/ 
Nagaland https://kohima.nic.in/service/marriage-certificate/ 
Odisha https://www.ulbodisha.gov.in/or/emun/marriage-dashboard  
Puducherry http://itestweb.in/pdy30/marriage-registration 
Punjab http://edistrict.punjab.gov.in/EDA/Landing.aspx 

https://punjab.gov.in/wp-content/uploads/2020/05/Issuance-of-Marriageability-Certificate.pdf 
Rajasthan https://pehchan.raj.nic.in/pehchan2/MainPage.aspx 
Tamil Nadu https://tnreginet.gov.in/portal/ 
Telangana https://registration.telangana.gov.in/marriageRegistration.htm 
Tripura https://edistrict.tripura.gov.in/# 
Uttar Pradesh https://igrsup.gov.in/igrsup/defaultAction.action 
West Bengal https://rgmwb.gov.in/MARREG_Portal/MARREG_Home.aspx 

Checklists

  1. Check whether you are eligible to marry under the Special Marriage Act, 1954.
  2. Notify the district Marriage Officer about the intended marriage. 
  3. Submit the marriage application form, along with required documents and fees.
  4. Check whether anyone has objected to the marriage. 
  5. Ensure that you have three witnesses to the marriage.
  6. Sign the marriage declaration and ensure that you make the statement: “I, (A), take (B), to be my lawful wife (or husband)” in front of the Marriage Officer.
  7. Get a copy of the Marriage Certificate from the Marriage Officer.

Source of Information

  • Legislation

Special Marriage Act, 1954

  • Legal news articles

Plea to recognise same-sex marriages, Bar and Bench, accessed at https://www.barandbench.com/news/litigation/delhi-high-court-grants-last-opportunity-centre-respond-recognise-same-sex-marriages

  • Nyaaya Daily

5 things you didn’t know about Inter-religious Marriages, accessed at https://nyaaya.org/nyaayadaily/5-things-you-didnt-know-about-inter-religious-marriages/  

GLOSSARY TERMS

  • Marriage Officer – A person appointed by the State Government after notification in the Official Gazette. The main duty of a Marriage Officer is to facilitate the marriage registration and provide the certificate of marriage.
  1. Section 4, Special Marriage Act, 1954. [↩]
  2. Section 12(1), Special Marriage Act, 1954. [↩]
  3. Section 13(1), Special Marriage Act, 1954. [↩]

Ending a marriage under Hindu Marriage Law

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

Marital Relationship

The law understands a marital relationship to include:

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

Legal Obligations

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

Examples of these legal obligations are:

Alimony or Maintenance

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

Parental Responsibility

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

Marriage of Children

A child marriage is a marriage between the parties where: 

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

For a woman, age of marriage is 18 years.  

For a man, age of marriage is 21 years.

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

Legal Hindu Marriage

For a marriage to be legally recognized as a Hindu marriage, the following conditions must be met:1

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

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

  1. Section 5, The Hindu Marriage Act, 1955. [↩]