Family Law-1

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Family Law -1 Chander Prabhu Jain Notes
bballb (Vivekananda Institute of Professional Studies)
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Chanderprabhu Jain College of Higher Studies

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Paper Code : LLB 201
Subject : Family Law- I
The ancient human society was nomadic society. There was only perhaps a herd-
instinct type of marital relationship before the dawn of civilization .With the passage of
time, the nomadic human beings evolved into an agricultural society. Then, it was
essential to know or ascertain the paternity of the children. So as long as the sex
relationship remained unregulated .It was maternity alone which could be know,
paternity remained unregulated. It is logical to say that at some stage of human
development the necessity arouse for demarcating human possession and ownership
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of material belongings as a natural consequence of human and the males seized to the
idea of knowing there children. This was not possible if the proximity continues to be
the rule. If sex relationship could be made exclusive union of man and women only
then it was possible to define the paternity. Thus, it seems the man’s quest to know the
paternity of children lie the seed of institution of marriage.
The concept of marriage – a sort of man women relationship, a responsible union of

one to one in a society evolved a unique family system. It’s essential components were
living together, procreation of children and intercourse .Mutual obligations and
responsibility to care the off springs.
The traditional Hindu family was an institution of joint family system characterized by
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homogenous togetherness. That of parents, grandparents, sons, daughters, there

spouses and even there uncle and aunts. There was a distinct family identity with each
member knowing his or her roots. the institution of marriage gives respectability to
women, enhances their personal happiness and welfare, provides family support and
companionship. Conjugal fidelity was supremely practiced in a sacramental form.
Whereas, in muslim, parsi, jew marriage is considered as a contract more than a
sacramental bond. It is a contract made for continuing of generations, giving birth and
rearing the children.
Types of Marriage

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Polygyny
Polygyny is a form of marriage in which one man marries more than one woman at
a given time. It was in practice in most of the ancient civilizations. It prevailed
among the ancient Herbrews, Assyrians, Babylonians, Indians and others. At
present, it is widespread among primitive tribes but usually it is confined to the
wealthier class. It is in practice among the Eskimo tribes, Crow Indians, African
Negroes, the Nagas, Gonds and Baigas of India. However, it is permitted in the
Muslim community.
Types of Polygyny

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It is of two types namely:
➢ Sororal Polygyny: It is a type in which the wives are invariably the sisters. It is
often called ‘sororate’. The Latin word ‘Soror’ stands for sister. When several
sisters are simultaneously or potentially the spouses of the same man, the
practice is called the sororate.
➢ Non- Sororal Polygyny: As the term suggests, it is a type of marriage in which
the spouses are not related as sisters.
For social, economic, political and other reasons, both the types are practised
by some people.

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Causes of Polygyny
Sociologists and anthropologists have made several studies to find out the
causes of Polygyny. Some of the factors mentioned by them are:
➢ Enforced Celibacy: Men do not approach the women during the period of
pregnancy and while the child is being breastfed. Due to this long period of
celibacy, a second marriage was contracted.
➢ Earlier aging of the female: In the uncivilised tribes men remarried a number
of times because the women aged earlier.
➢ Women as badges of distinction: Among some tribal’s, a man’s social status is
often measured in the terms of number of wives. Greater the number greater he
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prestige.
➢ Taste of variety: Men go after several women for they have a taste for variety.
➢ Constancy of sex urge in man: Unlike the woman, man is susceptible to sex
stimulation throughout the year. Polygyny provides him an opportunity to enjoy
sex life throughout the year.
On account of the greater harmful effects of polygyny on family life,

polygyny has been declared illegal in the civilised societies. The Indian
government has declared polygyny an offence under Hindu Marriage Act,
1955.
Polyandry
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Polyandry is the form of marriage in which a woman marries more than one man at a
given time. It is practised among the Tibetans, Marquesan Islanders of Polynesia, the
Bahama of Africa, the tribal’s of Samoa and others. In India, the tribe’s such as Tiyan,
the Toda, the kota, the Khasa and Ladhaki Bota also practice polyandry. The Nairs of
Kerala were polyandrous previously. It is however relatively a rare type of marriage
and is generally an improvised adjustment to certain peculiar and extreme conditions.
Types of polyandry
Polyandry may take two forms namely:
➢ Fraternal Polyandry: In this form one wife is regarded as the wife of brothers

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who have sexual relations with her. It is also known as alelphic polyandry. The
children are treated as the offspring of the elder brother. This practice of being
mate, actual or potential, to one’s husband’s brother is called “levirate.” It is
prevalent among the Todas.
➢ Non-fraternal polyandry: In this type, the husbands need not have any close
relationship prior to marriage. The wife goes to spend some time with each
husband. So long as a woman lives with one of her husbands, the others have no
claims over her. Nair polyandry was one of these types. If a child I born out of
such relationship, then any husband is chosen its social parent by a special
ritual.
Causes of Polyandry
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No universal generalisations can be made with regards to the causes of

polyandry. Still factors which cause polyandry are:
➢ Lesser number of Women: According to Westermark, when the number of

women is lesser than the number of males in a society, polyandry is found, for
example among the Todas of Nilgiri that was the reason for this form of
marriage.
➢ Poverty: Polyandry has developed in areas where there was scarcity of natural
resources so that many men may support one woman and her children.
➢ Bride Price: When in a society, bride price is high on account of the lesser
number of women, polyandry develops.
➢ Backwardness: Generally, polyandry is found in such areas as are situate far
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away from the centres of culture and progress.

➢ Joint family: the spirit of joint family gets strengthened when several brothers
marry the same woman.
So, polyandry is generally considered an obstacle in the way of social

progress. It causes harm to married life and creates several other
psychological problems. It is on this account that polyandry has come to an
end in those societies also wherein it once prevailed.

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Monogamy
Monogamy is the form of marriage in which one man marries one woman at a
given time. This is the most widespread form of marriage found among the
primitives as well as the civilised people and is the leading form of marriage. It
produces the highest type of affection and sincere devotion. According to
Malinowski “Monogamy is, has been, and will remain the only true type of
marriage.” It is practised among the tribals such as the Kadars, the Santals,
theKhasis, the Canella, the Hopi, the Iroquois, the Andaman Islanders and few
others.

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Monogamy has a long history of its own. Westermarck is of the opinion that
monogamy is as old as humanity. Ancient Greek philosopher Aristotle had
recommended only monogamous marriage. Ancient Hindus regarded monogamy
as the most ideal form of marriage.
Advantages
Monogamy seems to be superior to other forms of marriage. It enjoys certain

merits over other forms and these merits are now well recognised. Some of them
are:
➢ Universally Practicable: Since there is one-to-one ratio in almost all the

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societies, only monogamy can provide marital opportunity and satisfaction to all
the individuals. No other forms can equally satisfy all. Economically Better
Suited: No man of ordinary income can think of practising polygyny. Only a
rich man can maintain a couple of wives and their children. Only monogamy
can adjust itself with poverty.
➢ Promotes better Understanding between Husband and Wife: Monogamy
produces the highest type of love and affection between husband and wife. It
contributes to family peace, solidarity and happiness. Vatsayana, remarked “At
best a man can only please one woman physically, mentally and spiritually.
Therefore, the man who enters into marriage relations with more than one
woman, voluntarily courts unhappiness and misery”
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➢ Contributes to stable Family and Sex life: Monogamous family is more stable
and long lasting. It is free from conflicts that are commonly found in
polyandrous and polygynous families. Herbert Spencer has said that monogamy
is more stable and the consequent family bond is stronger.
➢ Aged parents are not neglected: It is only in monogamy that old parents are
protected and looked after properly.
➢ Provides better Status for Women: Women are given only a very low position
in polygyny. Their rights are never recognised. They can be divorced at will.
But in monogamy, women enjoy better social status. In the modern societies
they enjoy almost equal social status with men.]Thus some cultures value
monogamy as an ideal form of family organization. However, many cultures
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prefer other forms of family organization. Anthropological data suggests a

majority of societies prefer polygamous marriage as a cultural ideal. There are
multipleforms of non monogamy that are used to organize families, as well
multiple forms of monogamy such as marriage, cohabitation and extended
families.
Rules of Marriage
Marriage as we know is a very important social institution. That is why no society

allows a couple quietly to pair off and start living as husband and wife. Marriage
brings a number of obligations and privileges affecting many people. Every society
has, therefore, developed a pattern for guiding marriages. So for marriage the most
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important step is the choice of mates. Though there are no standard laid down for
choosing a partner yet from time to time rules have been made to regulate the
selection of mates.
Exogamy
In every human society there are certain regulations which control the relation of
the sexes and the selection of a mate. Intercourse between close blood-relations as
brother and sister, father and daughter, and mother and son, is almost everywhere
condemned. But among very many tribes it is forbidden both on grounds of
consanguinity and because two individuals are members of the same social group.
This prohibition, based upon common membership of a social group, is the law of
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exogamy. If the group is a territorial unit, e.g., a village, the exogamy is local.
More commonly, membership of the group concerned is determined by kinship,
real or fictitious, as in the clan. Hence exogamy is often loosely used to indicate
clan exogamy.
That exogamy prevents the marriage of all near relatives is true only if
membership of the exogamous group is determined by descent reckoned through
both parents, but this is very rare. Normally descent is traced through only one
parent and it is therefore inevitable that certain close blood-relations will not
belong to the same group and will therefore be possible mates for each other. Thus
if a tribe is patrilineal a man can select wives from among his mother’s sisters, her
brother’s daughters and her brother’s son’s daughters, and, were exogamy the only
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marriage prohibition, even his mother would be available to him. On the other
hand, clan exogamy does prevent unions between people bearing no relationship to
each other, since membership of a clan is dependent upon fictive, not blood
relationship.
The rigidity with which the law of exogamy is observed varies considerably.
Among some people a breach of it is regarded as incest; among others, though
marriage is forbidden, extra-marital relations between clan members are tolerated;
while in some cases even marriage can be condoned.
McLennan, who first coined the word, regarded it as the outcome of female
infanticide which, by limiting the number of women available within the group,
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forced tribesmen to capture their wives from their neighbours, but increased
knowledge of the facts has made this theory untenable. Another suggestion is that
the horror of incest, supposedly innate, has extended to all those women whom,
under the classificatory system of relationship, a man addresses by the term for
“sister.” On another view the original form was local exogamy arising from a
natural distaste on the part of those who have been reared together to cohabit.
Others believe it originated with Totemism while the diffusionists consider that it
developed under special conditions in one place and spread thence throughout the
world.
Forms of Exogamy
Following are the forms of Exogamy found in India
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➢ Gotra Exogamy: Among the Hindus the prevailing practice is to marry outside
the ‘gotra’. People who marry within the ‘gotra’ have to repent and treat the
woman as a sister or mother. The offspring resulting from her is believed to be
heathen. This restriction has been imposed since people of same ‘gotra’ are
believed to have similar blood.
➢ Pravar Exogamy: Besides forbidding marriage within the gotra, the Brahmins
also forbid marriage between persons belonging to the same pravar. People who
utter the name of a common saint at religious functions are believed to be of the
same pravar. Thus, pravar is kind of religious and spiritual bond.
➢ Village Exogamy: Among many Indian tribes there is the recognised custom to
marry outside the village. This restriction is prevalent in the Munda and other
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tribes of Chhota Nagpur of Madhya Pradesh. Among some tribes of Baroda,

marriage is forbidden within the village since the residents of same village are
considered as relatives.
➢ Pinda Exogamy: In Hindu society, marriage within the panda is prohibited.
There is no one opinion as to who can be said to belong to the same pinda.
According to Brahaspati, offspring from five maternal, generations and seven
paternal generations are sapinda and they cannot inter-marry. The opinion of
Brahaspati is not universally accepted. In several parts of India the generations
of mother is not considered to be sapinda. Sapinda marriages take place in the
southern parts of India whereas it is not usually practiced in the northern parts.

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Today, there is a greater trend towards exogamous marriages. Exogamy is

appreciated as progressive and more scientific. Exogamy has brought people of
various castes, races, religious groups, tribals together. It can effectively reduce
social distance among peoples and encourage and support social solidarity and
communal unity.
Endogamy
Endogamy is the form of marriage in which one must marry within one’s own
caste or other group. This rule doesn’t permit marriage of close kin. Endogamous

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marriage is one which is confined within the group. As a matter of fact, endogamy
and exogamy are relative terms. That which is endogamous from one viewpoint is
exogamous from the other.
Forms of Endogamy
In India, following forms of endogamy are to be found:
➢ Divisional or Tribal Endogamy: This is the endogamy in which no individual

can marry outside his division or tribe.
➢ Caste Endogamy: In this endogamy, marriage is contracted within the caste.
➢ Class Endogamy: Class Endogamy is in which marriage can take place between

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people of one class or of particular status.

➢ Sub-Caste Endogamy: this is the endogamy in which choice for marriage is
restricted to the sub-caste.
➢ Race Endogamy: Race endogamy is that in which one can marry in the race.
People of the Veddah race never marry outside their race.
Advantages
➢ Preserves the group’s homogeneity.

➢ Protects its prestige and status.
➢ Maintains the numerical force of its group.
➢ Preserves the purity in the group.
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➢ Keeps women happier.

➢ Fosters the sense of unity within the group.
➢ Keeps property within the group.
Disadvantages
➢ Endogamy shatters the national unity, because the nation is divided into small
endogamous groups.
➢ The scope of choice of a life partner is limited due to which malpractices such
as unsuitable marriage, polygamy, dowry system, bride price etc. are fostered.
➢ It generates hatred and jealousy for other groups. This is the main cause at the
root of casteism in India.
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Thus, Endogamy as a rule of marriage has both its advantages and disadvantages.
But due to its disadvantages, endogamy is condemned. The modern civilised
people are more in favour of exogamy than endogamy.
Hindu Marriage
The institution of Hindu marriage occupies a prominent place in the social

institutions of the civilised world. Hindu marriage can be defined as religious
sacrament in which a man and woman are bound in permanent relationship for
physical, social and spiritual purposes of dharma, procreation and sexual pleasure.
Thus, Hindu marriage is not merely a social contract but a religious sacrament. It
results in more or less permanent relationship between a man and woman. Its aim
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is not merely physical pleasure but spiritual advancement. It is not merely an

individual function but has social importance. Its ideals are fulfilment of Dharma,
procreation and enjoyment of sexual pleasure. It exhibits an integral approach to
this social institution.
Aims of the Hindu Marriage
➢ Fulfilment of Dharma or religious duties: According to the Hindu scriptures

marriage is the basis of all religious activities. In the words of K.M. Kapadia
“marriage being thus primarily for the fulfilment of duties, the basic aim of
marriage was Dharma.”According to Mahabharata, “wife is very source of the
Purusharthas , not only of Dharma, Artha and Kama but even of Moksha. Those
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that have wives can fulfil their due obligations in this world; those that have
wives can be happy, and those that have wives can lead a full life.”
➢
➢ Procreation: In the Hindu family, the child is given a very important place.
According to Rigveda, the husband accepts the palm of the wife in order to get a
high breed progeny. According to Manu, the chief aim of marriage is
procreation.
➢ Sexual Pleasure: According to Manu, marriage is a asocial institution for the
regulation of proper relation between the sexes.The Hindu scriptures have
compared the sexual pleasure with the realization of divine bliss. According to
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Vatsyayan sexual pleasure is the chief aim of the marriage. A maiden who has
attained youth should herself get married without waiting for the assistance of
elders.
Forms of Hindu Marriage

➢ The Hindu scriptures admit the following eight forms of marriage:
➢ Brahma marriage: In this form of marriage the girl, decorated with clothes and
ornaments, is given in marriage to a learned and gentle bridegroom. This is the
prevalent form of marriage in Hindu society today.
➢ Prajapatya marriage: In this form of marriage the daughter is offered to the
bride-groom by blessing them with the enjoyment of marital bliss and the
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fulfilment of dharma.
➢ Aarsh marriage: In this form of marriage a rishi used to accept a girl in
marriage after giving a cow or bull and some clothes to the parents of the girl.
These articles were not the price of the bride but indicated the resolve of the
rishi to lead a house-hold life. According to P.K.Acharya the word aarsh has
been derived from the word rishi.
➢ Daiva Marriage: In this form of marriage the girl, decorated with ornaments
and clothes, was offered to the person who conducted the function of a Purohit
in yajna.
➢ Asura marriage: In this form of marriage the bride-groom gets the bride in
exchange of some money or articles given to the family members of the
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bride. Such form of marriage was conducted in the case of marriage of Pandu
with Madri.
➢ Gandharva marriage: This form is marriage is the result of mutual affection
and love of the bride and the bride-groom. An example of this type of marriage
is the marriage of the King Dushyanata with Shakuntala. In this form of
marriage the ceremonies can be performed after sexual relationship between the
bride and the bride-groom.InTaittariyaSamhita it has been pointed out that this
type of marriage has been so named because of its prevalence among the
Gandharvas.
➢ Rakshas marriage: This type of marriage was prevalent in the age when women
were considered to be the prize of the war. In this type of marriage the bride-
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groom takes away the bride from her house forcibly after killing and injuring
her relatives.
➢ Paisach marriage: This type of marriage has been called to be most degenerate.
In this type a man enters into sexual relationship with a sleeping, drunk or
unconscious woman. Such acts were regularised after the performance of
marriage ceremony which took place after physical relationship between the
man and woman.
About the present conditions of the above mentioned forms, Dr. D.N.
Majumdar has said, “Hindu society now recognises only two forms, the
Brahma, and the Asura, the higher castes preferring the former, the backward
castes the latter, though here and there among the higher castes the Asura
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practice has not died out. This view rightly describes the present position of
the traditional forms of Hindu marriage.
Conditions for a Hindu Marriage
A marriage may be solemnized between any two Hindus, if the following

conditions are fulfilled, namely
➢ Neither party has a spouse living at the time of the marriage;

➢ At the time of the marriage, neither party-
➢ Is incapable of giving a valid consent to it in consequence of unsoundness of
mind; or

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➢ 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 bridegroom has
completed the age of twenty-one years and the bride the age of eighteen years at
the time of the marriage;
➢ The parties are not within the degrees of prohibited relationship, unless the
custom or usage governing each of them permits of a marriage between the two;
➢ The parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two.
Hindu Marriage Act,1955

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This act applies to all members of Hindu society. It has made the following
important changes in the institution of Hindu marriage:
➢ Classification of Hindu marriage: According to this act, Hindu marriage can be

divided into three classes – void, voidable and valid
➢ Determination of the age for marriages: by the provisions of this act, the
minimum age limit for the boys and girls has been fixed at 18 and 15 years
respectively.
➢ Provision for monogamy: According to this act, a Hindu male or female can
enter into matrimony only if no spouse of either is alive at the time of the
marriage. Thus, Section 5 and Clause 1 of this Act provide for monogamy in
Hindu society.
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➢ Provision for the Guardianship of the Mother: According to this act, the
mother will be considered as the legal guardian of the minor son or daughter
after the father.
➢ Provision for Divorce: This act provides for divorce by wife or husband under
certain specific circumstances.
Special Marriage Act, 1954
Section 4 of the Special Marriage Act 1954 lays down conditions for solemnization
of special marriages. It states:

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Conditions relating to solemnization of special marriages. – A marriage between

any two persons may be solemnized under this Act, if at the time of 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 incapable of giving a valid consent, has been suffering from a 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 twenty-one years and the female the age of
eighteen years;
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➢ The parties are not within the degrees of prohibited relationship;

➢ 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.
Important Rites in the Hindu marriage
Among the Hindus there are certain rites which must be performed for marriage to
be complete. These rites and the importance attached to them have added to the
sanctity of the Hindu marriage. The main rites are:
➢ Vagdana (Oral Promise): In the presence of the people gathered for the
marriage the names, gotras and pravaras of the bride and the bridegroom are
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announced along with the announcement that they are ready for the
marriage. The ritual is known as “PanigrahanaSankalpa” or Vagdana.
➢ Homa: ‘Homa’ refers to the offering in the sacred fire. A number of

‘homas’ or fire rituals are observed in the marriage of which “LajaHoma” is
an important one. This ‘homa’ is symbolic of fecundity and prosperity. Fred
grains dipped in ghee are offered to fire [that is lord Agni] by the couple
with a prayer to the God requesting him to bless them with progeny and
prosperity.
➢ Kanyadaana: This is the most important ceremony connected with

marriage. It is the ceremony of giving away the bride as a gift to the
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bridegroom in presence of the sacred fire and in the presence of the people
gathered. The father of the bride gifts her away to the bridegroom with a
promise on his part that he would not transgress her “in the attainment of
piety, wealth and desire”. The same promise is repeated thrice and the
bridegroom affirms his promise thrice.
➢ Panigrahana(Holding the Hand of the Bride): This ritual refers to taking

the right hand of the bride with the words: “I seize thy hand for the sake of
happiness that you may live to old age with me…” With this the
bridegroom takes the responsibility of looking after the bride.

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➢ MangalayaDharana(Tying of the Tali or Mangalasutra): This involves

the act of tying the tali or mangalasutra(which is regarded as the sign of
longevity of the husband) round the neck of the bride by the bridegroom.
This ritual for which there is no reference in the Dharmashastras is more in
practice in South India than in North India.
➢ Saptapadi: This is the ritual in which the bride and the bridegroom go
‘seven-steps’ together. The husband makes the bride step forward in
northern direction seven steps with the words : “one step for sap, two for
juice, three for wealth, four for comfort, five for cattle, six for seasons,
friend be with seven steps united to me”. This ritual is important from the

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legal point of view, for the Hindu marriage is regarded legally complete
only after it is performed.
The rites cited above are performed by a Brahmin priest in the presence of the
sacred fire and are accompanied by the Vedic mantras. “They are necessary
for marriage to be complete, because when they or any of them are not
properly performed, the marriage may be legally questioned. Hindu marriage
is a sacrament. It is considered sacred because it is said to be complete only
on the performance of the sacred rites accompanied by the sacred formulae”.

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Modern Changes in the Hindu Marriage
Due to the influence of Western culture and English education the Hindu
marriage system has undergone considerable changes. Some of the important
ones are:
• Marriage is not held as compulsory: In the Hindu society formerly marriage

was considered to be absolutely compulsory for both male and female.
According to Hindu scriptures, a person who does not beget a son through
marriage cannot attain heaven. No man could perform ‘yajna’ without a wife.
Marriage therefore was necessary even for religious purposes. But, due to
influence of Western culture many males and females do not consider marriage
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to be necessary these days. Due to economic difficulties also some persons do

not enter into matrimony. The modern educated Hindu girl is not ready to accept
the slavery of male. The educated men and women do not believe in the ancient
religious values and therefore do not consider marriage to be
necessary. Breaking of the taboos of Sagotra and Sapravar marriage: Ancient
Hindu tradition forbids the marriage of persons belonging to same Gotra and
Pravar. This very much restricts the field of choice of mate. Therefore, at the
present the educated persons are gradually violating the restriction. It has been
also rejected by law.
• Opposition of Child Marriages: In medieval India the custom of child marriage
was very much in vogue. After the passing of Sarada Act child marriages have
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become illegal. Another factor leading to the restriction of child marriage in

Hindu society is the tremendous increase of women education. The boys do not
marry early because of late settlement in career.
• Permission of Inter-caste Marriage: Formerly, inter-caste marriage was
considered to be wrong in the Hindu society. It has now been legally permitted.
With the increase of co-education, women education and the democratic ideal of
equality and liberty, inter-caste marriages are now considered to be signs of
forwardness.
• Permission of Widow Remarriage: due to the untiring efforts of the social
reformers and educated persons widow remarriage is no more considered to be
wrong in Hindu society. Consequently, its incidence is now on the decrease.
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• Prohibition of Polygamy: Formerly, a man was allowed to marry several

women in order to get a son. With the increase of women education the ladies
are demanding equal rights in marriage. The Hindu Marriage Act of 1955 has
declared polygamy to be illegal. No one can marry a second time, while the
former spouse is alive.
• Provision for Divorce: The Hindu Marriage Act of 1955 has introduced a
significant change in the institution of Hindu marriage by permitting divorce
under certain specific circumstances.
Problems of Marriage
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Following are the main problems faced by the institution of Hindu marriage:
• Child marriage: The problem of child marriage was very serious in Hindu
society till the passing of Sarada Act. The reasons behind the child marriages in
Hindu society were religious conservatism, endogamy, sati-custom, the custom
of dowry and the joint family. The Hindu marriage act of 1955 has fixed the
valid age for marriage of the boys and girls at 18 and 15 respectively. These
legal steps could not work immediately because of the widespread conservatism
among Hindus, incompleteness of Prohibitive Act and the absence of female
education. With the removal of these difficulties in the way of restraint of child
marriages, this problem has appreciably diminished in Hindu society.
• Widow Remarriage: About the condition of widow remarriage in ancient India,
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A.S.Aletkar has written, “side by side with Niyoga, the widow remarriage also
prevailed in the Vedic society.”[57] The custom of widow remarriage, however,
disappeared gradually and it was considered to be wrong as early as 200 AD.
The restriction of widow remarriage resulted in the increase of immorality
among widows, sexual exploitation of child widows, increase of prostitutes and
the lowering of general status of women in the Hindu society. Then due to the
untiring efforts of IshwarchandraVidyasagar the Hindu Widows Remarriage Act
was passed in the year of 1856 which declared the legal validity of widow
remarriage and laid specific circumstances for its validity.
• Dowry: According to Max Radin, “ordinarily dowry is the property which a
man receives when he marries, either from his wife or her family.” The
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Websters New International Dictionary has defined dowry as, “the money,
goods or estate, which a woman brings to her husband in marriage.” In brief,
dowry is that money, property or valuables which the bride party has to give to
the bride-groom party in exchange of marriage. Some persons have pointed out
to some so-called advantages of the dowry system. They have maintained that it
helps in the establishment of the new house-hold of the newly married couple
and that the lure of dowry helps in marriage of ugly and uneducated girls. But
these advantages do not have a stand before the gross evils of dowry systems
such as murder of female children, increasing family disharmony, child
marriages to avoid dowry and finally in the hindrance of women education.
Recently, some sort of legal restriction on dowry was made by an act passed by
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the government. This however has not been sufficiently effective.
Divorce in India
The Hindu shastras regarded marriage a bond indissoluble in life. the wife
was to worship her husband as a god. To Hindu Law there was no such thing
as divorce. The custom of divorce existed only among the lower castes.
The term ‘divorce’ comes from the Latin word ‘divortium’ which means to
turn aside; to separate. Divorce is the legal cessation of a matrimonial bond.
All the personal laws in India provide for divorce under certain grounds and
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conditions. Though there are different Acts governing people belonging to

different religions, the grounds provided for divorce are more or less the
same, with minor variations though.
Divorce provisions and grounds under the laws are as follows:
Hindu Law
Section 13 of the Hindu Marriage Act 1955, which provides for divorce, is as
follows:

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(1.) Any marriage solemnized, whether before or after the commencement of

this Act, may on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party –
➢ has, after the solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse; or
➢ has, after the solemnization of marriage, treated the petitioner with cruelty; or
➢ has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
➢ has ceased to be a Hindu by conversion to another religion; or
➢ 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
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petitioner cannot be reasonably expected to live with the respondent.

➢ has been suffering from a virulent and incurable form of leprosy; or
➢ has been suffering from venereal disease in a communicable form; or
➢ has renounced the world by entering any religious order; or
➢ has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive.
(1A) either party to a marriage whether solemnized before or after the

commencement of this Act, may also present a petition for the dissolution of
the marriage by a decree of divorce on the ground-
➢ that there has been no resumption of cohabitation as between the parties to the
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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 in a proceeding to which
they were parties.
(2.) A wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground,-s
➢ In the case of any marriage solemnized before the commencement of this Act,
that the husband had married again before such commencement or that any
other wife of the husband married before such commencement was alive at the
time of the solemnization of the marriage of the petitioner. Provided that in
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either case the other wife is alive at the time of the presentation of the petition,
or
➢ that the husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality; or
➢ that in a suit under section 18 of the Hindu Adoption and Maintenance Act 1956
(78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure 1973(2 of 1974) (or under the corresponding section 488 of the Code
of Criminal Procedure Code 1898) (5 of 1898) a decree or order, as the case
may be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
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year or upwards;
➢ that her marriage(whether consummated or not) was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before the age of eighteen years.
Special Marriage Act, 1954
The divorce provision under the Special Marriage Act 1954, is contained in
Section 27, which is as follows:
(1.) Subject to the provisions of this Act and to the rules made thereunder, a
petition for divorce may be presented to the district court either by the
husband or thee wife on the ground that the respondent-
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➢ 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);
➢ has since the solemnization of the marriage treated the petitioner with cruelty; or
➢ 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.
➢ has been suffering from venereal disease in a communicable form; or
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➢ has been suffering from leprosy, the disease not having been contracted from the
petitioner; or
➢ has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
been alive;
(1-A) A wife may also present a petition for divorce to the district 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 section 18 of the Hindu Adoptions and Maintenance Act,
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1956(78 of 1956) or in a proceeding under section 125 of the Code of Criminal

Procedure 1973(2 of 1974) (or under the corresponding section 488 of the Code
of Criminal Procedure of 1898) (5 of 1898), a decree or order, as the case may
be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since passing of such decree
or order, cohabitation between the parties has not been resumed for one year or
upwards.
➢ Subject to the provisions of this Act and to the rules thereunder, either party to a
marriage, whether solemnized before or after the commencement of the Special
Marriage(Amendment) Act, 1970(29 0f 1970), may present a petition for
divorce to the district court on the ground-
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➢ 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 years or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.
Although it may be said that divorce has helped the women to develop the
feeling of independence in them and make them feel equal partner, yet it may
not be advocated that divorce should not be easily granted by the courts. It
cannot be denied that divorce causes instability of family. In view of its
serious repercussions on family life, divorce should not be within easy reach
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of these partners. Efforts should be made to bring reunion between husband

and wife. Divorce should be granted only when it has become unavoidable
and is in the interests of both the husband and wife and the society at
large.[65]
Conclusion
Marriage is considered to be an institution in India. It is a ‘sanskara’ or

purificatory ceremony obligatory for every Hindu. The Hindu religious
books have enjoined marriage as a duty because an unmarried man cannot
perform some of the most important religious ceremonies. There are various

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types of marriages that are followed in our country monogamy being

followed at large.
As the society has advanced the Hindu marriage has gone through various
changes. Even values attached to it have changed tremendously. Individuals
now are selecting their mates according to their own requirements. Many are
not getting into matrimonial alliances due to some problems.
The marriages in India are governed by Hindu Marriage Act and Special
Marriage Act which regulates the marriage. The provision of divorce has also
helped many people to come out of their marriage. Thus, as believed Hindu
marriage is no more indissoluble.
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MUSLIM MARRIAGE
In the pre-Islam Arabia, the laws were favorable towards males and
discriminatory against the women. Polygamy had to be accounted for in a
very few blood relationships like in marriage with one’s real mother or sister.
Marriages were of different kinds and divorce was simple and easy for the
man. With absolute rights vested in men and no checks led to men denying
the women their basic rights.
Islam brought with it a due status for women and regarded them as dignified
members of the society. ‘Nikah’ literally means ‘to tie up together’ and
referred to the Islamic marriage. It is a matrimonial contract as well as an
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institution that gives the women a particular and high status in the society.
Nikah was to ensure stability in a married life as it bound both the partners
together for an indefinite period and also required the woman to be honoured
with the mahr.
Islam allows limited polygamy, i.e. four wives at a time. This was allowed as
during the numerous wars during the Prophet’s time in Arabia, many Muslim
men lost their lives. Thus, the women outnumbered the men. The war-widows
and orphans became destitute as they had no standing in the society and lead
miserable lives. In order to prevent injustice, Quran allows limited polygamy
through the following Ayat: “marry of the women, who seem good to you,

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two or three or four, if you fear that you cannot do justice to so many, then
one.”
DEFINITION
Hedaya says that “Marriage implies a particular contract used for the purpose
of legalising children.
Justice Mahmood has defined the Muslim marriage as “a purely civil
contract”.
NATURE AND CONCEPT OF MARRIAGE

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The object of a Muslim marriage is to legalize children and to a large extent

to regulate and validate the sexual relations. Apart from being a civil contract,
it is also a social and religious institution.
LEGAL ASPECT
Legally speaking a Muslim marriage is a contract for it has a few elements of

a contract. The parties have to be competent and offer, acceptance and free
consent form an important part. Within a limit, the parties can decide the
terms of the marriage and in case of breach; there are provisions for the rights

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and obligations of the parties. It can be safely said that marriage is very
similar to a contract.
SOCIAL ASPECT
Marriage is a social institution and a social method to give an equal status to

women. The dower, which is essential for a Muslim marriage, provides a
security net for the woman in case of need.
RELIGIOUS ASPECT

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Marriage is the tradition of the prophet as well as present in the words of

Quran. Thus, a person who marries gets religious benefits and the abstainer
would have committed a sin. In ANIS BEGAM v MOHD. ISTAFA (1933)55
All, 743, it has been held to be a religious sacrament.
ESSENTIAL OF A VALID MARRIAGE
A marriage is a valid marriage or Sahih only if it is recognised by the courts

to be lawful.
COMPETENCE OF THE PARTIES

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a) Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim law is the
age of puberty and not 18 years of age. Though Hedaya says the minimum age of
puberty for a boy is 12 years and for a girl it is 9 years; it has been fixed at 15
years of age by the Privy Council in the year 1916. Thus, a boy or a girl of 15
years of age will be presumed to have attained the age of puberty unless the
contrary is proved.
Minor’s Marriage
Under Muslim law, a person under 15 years of age is presumed to be a minor and
has no capacity to give consent for marriage. Unless and until the guardian’s
consent is not obtained the marriage will be void. Guardians for marriage are
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different from guardians appointed by the court. The order of the priority is as
follows:
i) Father;
ii) Paternal Grandfather, how ever high;
iii) Brother or other male members of the father’s family;
iv) Mother;
v) Maternal uncle, aunt or other maternal relatives.
A remoter guardian for marriage can not get the minor married off with out
actually following the prescribed order and such a marriage will be void.
II) FORMALITIES IN THE MARRIAGE

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Under Muslim law, religious ceremonies are not essential for validating a
marriage. The only essential formalities are that of offer and acceptance.
Offer and Acceptance
Offer or Ijab signifies the willingness of a party to contract marriage with another. The
offer comes in form of a declaration from the boy or his guardian. This offer has to be
accepted by the girl or her guardian. This is referred to as acceptance or Qubool.
Though no specific form exists, the words must show the unequivocal intention of the
parties orthe guardians to marry the parties. It may be oral or written. When written
down, it is referred to ass the Kabinnamah.
It is essential that the offer and acceptance occur at the same sitting. Thus,
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simultaneous actions must become a joint whole. For example, the groom to be has to
send the offer through another. The bride must accept it in presence of others and then
the marriage will be a valid one.
Reciprocity is another important aspect. The acceptance has to be for the proposal
word to word, as it is and without any variations.
Conditional or Contingent Marriage is void even if the event that they are made
dependent upon does in fact occur.
Presence of Witnesses is not essential under the Shia law. Under the Sunni law, the
offer and acceptance needs to two competent witnesses. A Muslim male who is of
sound mind and has attained the age of puberty is a competent single witness. Two
sane Muslim females who have reached the age of puberty can also be treated as
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competent witnesses. Thus, two Muslim women along with a competent Muslim male
witness will be regarded as competent witnesses for the marriage. Four females will
not be regarded as competent witness. The term ‘witnesses’ does not refer to any one
specifically asked or invited for this purpose only.
Registration under Muslim law is not essential for the validity of the marriage. But
certain enactments provide for registration in the matters of marriage as well as
divorces. The acts do so because then there exists a proof of the marriage. But even
then the registration is optional only and not mandatory. It has also been held in a few
cases that if the community custom requires registration, even if it is in a different
format, the marriage has to be registered then. Under the Indian Christian Marriages
Act, 1872, the registration of marriage will be essential if the marriage is between a
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Muslim and a Christian.

IV) ABSENCE OF PROHIBITION
Prohibition refers to the impediments or restrictions placed on a person with respect to
another person or an action. The Muslim law provides that the marriage should not be a
marriage against Islam or have any other impediments to it. Absence of prohibition
refers to the freedom to marry a person for they do not stand in a particular relationship
to each other. For example, a father cannot marry his own daughter.
Absolute Prohibitions
They are mandatory and have to be followed or else the marriage will be void. If a
person is within the prohibited relationship of the other party, the marriage cannot take
place.
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Whether a person is within the prohibited relationship or not can be decided on the
following basis:
➢ Consanguinity is relationship by Blood.A Muslim cannot marry one’s own
descendant, however high or descendents of one’ father or mother no matter
how low. Similarly brothers and sisters of one’s ascendants howsoever high can
not be married to. However, there is no prohibition in the marriage of cousin
brothers or sisters.
➢ Affinity refers to relation by marriage. A Muslim can not marry the ascendant or
descendant of one’s spouse or the spouse of one’s ascendant or descendant.
➢ Fosterage refers to the relationship of nurture and feeding. A child is breast fed
during its infancy. If the person providing the feeds is someone other than the
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biological mother, the infant or child will still stand in a prohibited relationship
with her.
Relative Prohibitions
Where the compliance is not mandatory but non-compliance will be frowned upon.
Any marriage in violation will be only irregular and not void. As per Shia law, the
marriage will be either perfectly valid or void and not irregular.
a) Unlawful Conjunctions
A Muslim can not have two wives at the same time if the wives are related to each
other in a way that would have made their marriage void if they had been of opposite
sex. As per the Sunni law, a marriage against this condition is irregular. The Shia law
will treat violation as a void marriage. The only exception will be if the marriage is
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with the wife’s consent.

b) Marriage with the fifth wife
If a Muslim man has more than five wives, it is merely irregular with respect to the
fifth wife. If he divorces a wife or a wife dies, the irregularity will be removed with
respect to the fifth wife.
c) Marriage with a non-Muslim has been discussed early on in the chapter.
d) Marriage without witnesses is irregular as per Sunni law.
e) Marriage during Iddat is irregular as per the Sunni law and void as per the
Shia law.
Iddat refers to the period that a woman undergoes after divorce or the death of her
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husband. It literally means counting. This period is essential to ascertain whether the
wife/widow is pregnant or not. During this time, the woman leads a simple and chaste
life. The circumstances where she has to observe Iddat and how are as follows.
1) Dissolution of Marriage by divorce

If the marriage was a valid one and consummated, the duration of Iddat is three
monthly courses. The marriage could have been dissolved through Talaq, Ila, Zihar or
under the Dissolution of Muslim Marriage Act, 1939. If the woman is pregnant, the
period of Iddat extends till the delivery or abortion of the foetus. If the marriage has not
been consummated, the woman is not required to observe Iddat.

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2) Divorce of marriage by the death of the husband

If the marriage was a valid one, the period of Iddat extends up to 4 months and 10 days
irrespective of the fact whether the marriage was consummated or not. If the woman
was pregnant at the time, the period of Iddat is on till the delivery or the abortion or the
earlier specified period, which ever is longer.
3) Death if husband during divorce Iddat
If the husband dies during the divorce Iddat, the wife has to start a fresh Iddat of 4
months and 10 days from the date of death of the husband.
4) Commencement of Iddat
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The period of Iddat starts from the date of divorce or death and not from the date of the
wife receiving a notice of the same. Thus, if the wife gets the notice of such an even
after the specified period of Iddat has expired, she does not have to observe Iddat.
Under Shia law, Iddat need not be observed if the wife is past the childbearing age or if
she has not even attained puberty.
Valid Retirement refers to when a couple spends time together in private and there is
no moral, social or legal restriction in their intercourse. As per Sunni law, a valid
retirement raises the presumption of consummation of the marriage. Thus, Iddat will
have to be observed even if there was no actual consummation but a valid retirement
has been proved. Shia law does not recognise the concept of valid retirement.
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Husband is prohibited from remarrying during iddat if and only if he already has four
wives. Thus, he can not marry another woman till the iddat period is over. In case, such
a marriage does take place, it will be merely irregular and not void.
Miscellaneous Prohibitions
➢ Marriage during pilgrimage is void as per Shia law only.
➢ Rule of Equality refers to the society’s prohibition on marriagewherein the
husband and wife must be of the same standing and equal therefore. The
marriage in violation of this rule can be invalidated by the Qazi. The Shia law
does not recognise this rule.
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➢ Re-marriage between the divorced couple is allowed provided a procedure if

followed. The divorced wife has to marry another man fulfilling all the
requisites of a valid marriage. The marriage has to be consummated. Then the
present husband has to divorce her voluntarily and the wife has to observe Iddat.
Then she may marry her first or former husband. If the procedure is not
followed, the marriage will be merely irregular.
➢ Polyandry is not permitted and the second marriage will be void under Shia and
Sunni law.
KINDS OF MARRIAGE
❖ Valid Marriage or the Sahih Marriage
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Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the
parties are competent, the consent of the parties is free consent and the offer and
acceptance has been duly made.
Legal Effect of a Valid Marriage
➢ The co habitation of the parties becomes lawful and not immoral;
➢ The children born to a lawfully wedded couple are legitimate and can inherit
accordingly;
➢ For the couple itself, mutual rights of inheritance arise;
➢ The wife can claim dower and has a right to maintenance and simultaneously
the obligation to observe Iddat is bestowed upon her;
➢ Prohibited relations are created due to the marriage;
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➢ The legal identity or status of a Muslim woman does not blend in with her
husband’s identity after marriage; and
➢ The parties have rights to regulate the movements of each other but they can
notrefrain each other from maintaining a relationship with their respective
families or visits to then.
❖ Void Marriage or the Batil Marriage
It is an illegal union that exists not in law. Thus, a marriage in violation of absolute
prohibitions or polyandry is a void marriage. Shia law provides a few additional
grounds like marriage during a pilgrimage or marriage with a non-Muslim or a woman
observing Iddat.
Legal Effects of a Void Marriage
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No mutual rights or obligations are created for the parties in this union. The children
born to such a couple are deemed illegitimate and the wife has no rights to dower or
maintenance. The parties can actually marry any one they wish for this marriage does
not exist in law or in fact.
❖ Irregular Marriage or Fasid Marriage
An incomplete marriage where the deviation from procedure or a flaw can be removed,
it is called an irregular marriage. For example, the marriage with the fifth wife or with
a woman observing Iddat will be treated as an irregular marriage.
Legal Effects of an irregular Marriage
The cohabitation is lawful and the children are legitimate and can inherit the properties
of their parents. Mutual rights of inheritance do not arise. After consummation only,
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can the wife claim dower. The wife does not have to observe Iddat if the marriage is
not consummated.
❖ Temporary marriage or Muta Marriage
It is a unique form of marriage recognised only under the IthnaAsharia School. It is a
union for a particular time only with consideration as a pre-requisite. The roots can be
traced back to the early Arabia, where men had to travel long and far. To confer
legitimacy on the offspring produced during the travels, the Prophet allowed this Muta
or enjoyment marriage for some time. Later, he prohibited it absolutely.
It is essential that the parties must be competent to contract marriage because the
guardians cannot contract for a Muta marriage. The Muslim male can contract Muta
marriage with a Muslim, Kitabia or Parsi woman but the Muslim woman can contract
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the same only with Muslim men. Any number of Muta wives can be contracted with.
The formalities of free consent, offer and acceptance as well as absence of prohibition
have to be followed. The dower must be specified at the time of marriage otherwise the
marriage will be deemed void. The duration of the Muta marriage must be specified or
else it will be deemed as a permanent marriage.
Legal Effects of Temporary Marriage
The cohabitation between parties becomes lawful and consequently even the children
are legitimate children. There will be no mutual rights of inheritance between the
husband and wife. The husband has to pay the whole dower amount if he leaves
without finishing the duration of the marriage. If the wife were to leave before the
expiry of the specified time, the husband can deduct a proportionate amount from her
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dower.
Maintenance is not available to the wife as a right. There is no divorce in Muta

marriages. It ends on the prescribed time or departure of one of the parties. Iddat has to
be observed for two months if the marriage has been consummated, else it is not
needed. If the marriage dissolved due to death, 4 months and 10 days is the iddat
period.
Marriage Agreements are allowed under Muslim law. Even subsequent to the marriage,
a couple can enter into an agreement for regulation of their relationship. If the
guardians have made such agreements when the parties are not competent to do so, the
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agreement will be binding on them. Any agreement working against Islam is void. For
example a marriage agreement wherein the wife is not allowed to claim her dower or
the couple can stay separately without any reasonable cause would be illegal.
Marriage agreements are binding on the parties as long as they are legal. For example
an agreement wherein the husband cannot contract another marriage during the
subsistence of the first is a valid agreement. Similarly, an agreement stating that the
husband shall not stop the wife from receiving her relatives at his house at any time is
also valid.
Breach of a Marriage Agreement if the agreement was a valid one gives rise to rights
of refusal for restitution, dower related rights and in extreme scenarios, dissolution of
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the marriage.
RESTITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights refers to giving back the right to one party to stay with
the spouse. As a couple is entitled to stay together and enjoy each other’s company, if
one spouse stays away without reason, the other can file a suit to move back with the
aggrieved party. The courts have to look into the circumstances of each case and then
decide. A wife can claim defences against her husband’s claim as given below:
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a. He falsely accused her of adultery;

b. Her prompt dower was not paid on demand;
c. The husband has been expelled from the caste;
d. Cruelty, physical or emotional, by the husband; and
e. Husband converted from Islam to another religion or used objectionable words
against the Prophet, etc.
The Dissolution of Muslim Marriages Act, 1939 has widened the defences even more.
ADOPTION
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Adoption has the dimension of connection not only to your own tribe, but beyond,
widening the scope of what constitutes love, ties and family. It is a larger embrace. By
adopting, we stretch past our immediate circles and, by reaching out, find an
unexpected sense of belonging with others.’
-Isabella
Rossellini
INRODUCTION
Children are considered a bundle of joy and on whom the future of the country
depends. While on one hand children born in India are being pampered, taken care of
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and given all the necessities for their all-round development, on the other hand there
are over 60,000 children being abandoned per year in India.[i] In some cases, these
children become victims of human trafficking and sexual violence. In fortunate cases,
the abandoned children are taken to any adoption agency and may hope for a better life
while waiting to get adopted.
Such cases, of children being given a chance at a second life through adoption are on
the rise. In its simplest of senses, adoption is a process whereby a person assumes the
parenting for another and, in doing so, permanently transfers all rights and
responsibilities, along with filiation, from the biological parent or parents.
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This paper on the Adoption Laws will trace the adoption practices in English law. A
brief description will be given about the history of adoption and its development to the
modern adoption laws as we know now. Apart from this, the areas where adoption is
discussed under many other jurisdictions is touched upon.
Finally, the legal framework governing adoption laws in India are extensively
discussed. A comparison is made among the differences cited in the adoption laws for
different religions in India. The paper then discusses about the need for uniform civil
code regarding adoption. Lastly, this paper ends with a short note on inter-country
adoption.
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ADOPTION UNDER ENGLISH LAW

The English Law started recognizing adoption during the latter half of the nineteenth
century. Legal adoption came into existence only during 1926. The purpose of this
Adoption Act was to prevent the biological parents from claiming back their children.
A more comprehensive Act was passed in 1950. This Act was modified in the year
1958.
English law of adoption is very similar to the Hindu Law of Adoption inasmuch as that
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it lays down that the adopted child, for all intents and purposes, becomes like a natural
child and the child’s ties with his natural family are severed.
MODERN ADOPTION LAWS
The history of adoption traces back to ancient times. Examples of Moses being adopted
and the adoption of King Octavian Augustus. Modern adoption laws came into
existence only after the First World War. The main reasons were the influenza
epidemic and the aftermath of WW I. Many kids were abandoned by their parents,
others were separated from their biological families. The confusion and chaos caused
due to the War influenced many countries to enact new legislations or modify
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previously existing laws on adoption.
The first adoption laws were passed by England and Wales. It was the Adoption of
Children Act, 1926. Until that date adoption had not been recognized as a legal
concept. This law required the consent of both the biological parents and that of the
adoptive parents. Although the Act recognized that adopted children benefited from the
same rights, duties, liabilities and obligations as a birth child, it did not ensure the
child’s full integration into the adoptive family, nor were inheritance rights replaced in
the birth family.
A large number of countries enacted new adoption laws in the aftermath of the World
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War II. Several amendments were made to earlier legislations during 1940 – 1980. A
number of countries also modified existing legislation on adoptions to allow for new
form of adoption.
ADOPTION IN INDIA
The custom and practice of adoption in India dates back to the ancient times. Although
the act of adoption remains the same, the objective with which this act is carried out
has differed. It usually ranged from the humanitarian motive of caring and bringing up
a neglected or destitute child, to a natural desire for a kid as an object of affection, a
caretaker in old age, and an heir after death.

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But since adoption comes under the ambit of personal laws, there has not been a scope
in the Indian scenario to incorporate a uniform law among the different communities
which consist of this melting pot. Hence, this law is governed by various personal laws
of different religions.
Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews
in India. Hence they usually opt for guardianship of a child through the Guardians and
Wards Act, 1890.
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
that was enacted in India as a part of the Hindu Code Bills. It brought about a few
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reforms that liberalized the institution of adoption.
HINDU LAW
Hindu law is the only law in India which treats an adopted child as being equivalent to
a natural born child. The reason for this is mostly because of the belief that a son was
indispensable for spiritual as well as material welfare of the family. But it is significant
to note here that this role as a ‘deliverer of hell’ was only limited to the son.
Under the old Hindu Law, only a male could be adopted and an orphan could not be
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adopted. Then even if a male was to be adopted, restrictions were imposed based on
Caste and Gotra. A female child could not be adopted under the Hindu Law. Under the
old Hindu law, only the male had a right to adopt and the consent or dissent of his wife
to the proposed adoption was immaterial
But such restrictions have changed in the course of time. Such gender biases have been
minimized in today’s modern society. Under the modern Hindu Law, every Hindu,
male or female has the capacity to make an adoption provided he or she has attained
majority and are of sound mind. Most of these laws, rules and regulations have been
enumerated in the Hindu Adoption and Maintenance Act of 1956.

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HINDU ADOPTION AND MAINTENANCE ACT, 1956
The Hindu Adoption and Maintenance Act was passed after Independence as part of
modernizing and codifying Hindu Law. The Act to some extent reflects the principles
of equality and social justice by removing several (though not all) gender based
discriminatory provisions.
This Act deals with topics such as capacity to adopt, capacity to give in adoption, effect
of adoption, gender bias and such others.
Capacity to Adopt: In this Act it is said that any adult Hindu male who is of sound
mind can adopt a child. If the said man is married, the consent of the wife is
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necessary. Likewise, a female adult Hindu of sound mind could adopt a child if she is
a. Unmarried
b. Divorced
c. Widowed or
d. Her husband suffers from certain disabilities
e. Ceased to be a Hindu
f. Has renounced the World
Capacity to give in Adoption: The section 9 of this Act states that only the father, the
mother or the guardian can make the decision of giving a child in adoption. The father
can give the child in adoption only with the consent of the mother, unless the mother
has ceased to be a Hindu, has renounced the world or is of unsound mind. The mother
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may give the child in adoption if the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.
Effect of Adoption: When once a child has been adopted, that child severs all ties with
his natural family. All the right and obligations of natural born children fall on him.
The wife of a Hindu male, who adopts is deemed to be the adoptive mother. Where an
adoption is made with the consent of more than one wife, the senior most in marriage is
deemed to be the adoptive mother and the rest are given the title of step mothers. All
laws relating to the adoptive parents and/or step parents can be seen in ss. 12, 13 and
14 of the Hindu Maintenance and Adoption Act of 1956.

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In this context, an issue came up. The case of Sawan Ram v. Kalavati, brought out the
question as to whether, in the case of adoption by a widow, would the adopted child be
deemed to be the child of the deceased husband as well, so as to be his heir. The
Supreme Court held that the adoption would not only be by the female, but also to her
deceased husband. This argument was based on the words found in s. 5(1) of the Act
Also, it has to be noted that the adoptions once made by the parents cannot be
cancelled by the parents, nor can the adopted child renounce the adoptive family and
go back to his/her birth parents. Adoption is generally held to be permanent in nature,
with neither parties going back on their words. This has been stated in section 15 of
The Act. But care has to be taken that the adoption referred to in this section is a valid
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adoption.
Gender Bias in Adoption: Though after the enactment of the Act, it has been noted
that the gender discrimination has been eliminated but in actual sense it still exists. A
married female cannot adopt, not even with the husband’s consent, unless her husband
dies or suffers from any disability or renounces the world or so. On the other hand, a
husband may adopt with the consent of the wife. To clearly show the gender
discrimination, two cases have been referred.[x] Similarly, in the matter of a giving a
child in adoption, the Hindu male enjoys broader rights than a corresponding female.
The case of Malti Roy Choudhury v. SudhindranathMajumdar is oft referred to.
In the case of Malti Roy Choudhury, the appellant, Malti had been adopted by the
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deceased mother. After her mother’s death, she became the sole heiress and applied for
estates and properties left behind by her mother. There were a lot of evidences which
have been presented by the appellant like proof of the ceremony of adoption, natural
parents handing over the child to the adoptive mother in the presence of her husband
and the priest; acknowledgement through school records; Malti being performed the
funeral ceremony of her mother. But however, the Court did not accept the argument
and it was held that, “under the provisions of the act, the husband alone can adopt, but
here, it is an admitted position that Malti was adopted by the mother Tripti not by the
father and thereby, rejected her appeal.”
It is time that law, in this age of equality, takes cognizance of the same and give equal
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rights to both men and women with regard to adoption. There is no reason to give to
the husband veto power to deny fulfillment of maternal instincts of his wife.
GUARDIANS AND WARDS ACT, 1890
As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly the
guidelines for the Hindu society. Another law had to be made which was sensitive to
the personal laws of other religions which did not come under the Hindu Adoption and
Maintenance Act of 1956. This gave rise to the Guardians and Wards Act of 1890.
The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding
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the same. It became the only non-religious universal law regarding the guardianship of
a child, applicable to all of India except the state of Jammu and Kashmir. This law is
particularly outlined for Muslims, Christians, Parsis and Jews as their personal laws
don’t allow for full adoption, but only guardianship. It applies to all children regardless
of race or creed. Following is an overview of the act.
It was stated that any child who had not completed 18 years of age was to be a minor.
This child would be appointed guardians by the court or any other appointed authority.
They would decide who would take place as the said child’s guardian or by removing
another as a guardian. All these procedures took place only after an application had
been placed by the person who was willing to take a child under himself and to act as
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his guardian. The applications should contain all the possible information that would
have been required, including the information about the guardian and any reason as
such for the guardianship. This was just the first step. Once the court admits the
application, a date for a hearing would be set. The court will hear evidence before
making a decision. Unlike in the procedures given in the Hindu Adoption and
Maintenance Act, 1956, where a person once adopted has a single set of parent, here a
minor and his property could have more than one guardian. It was required under these
cases of guardianship that the court use its discretionary power and considered the
interests of the minor. His/her age, sex, religion, the compatibility quotient with the
guardian, the death of the parent, etc. must be taken into consideration. The minor’s
preference may also be taken into consideration.
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MUSLIM LAW
Adoption is a little different under Islamic law than the usual adoption practices that
are followed. The Islamic term for what is generally called adoption is kafala. Like
everything else in Islamic Law, the practice of adoption is highly regulated. A
guardian/ward role is played out rather than a parent. This relationship has specific
rules. These rules are mainly to preserve the integrity of the family line.
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Adoption is certainly not prohibited. What is unlawful is to attribute one’s adopted

child to oneself, as if there is a biological relationship. This is because Islam seeks to
safeguard biological lineage and not confuse lineage.
There are a few rules in Islam surrounding the concept of Adoption:

➢ An adopted child retains his or her own biological family name (surname) and
does not change his or her name to match that of the adoptive family.
➢ An adopted child inherits from his or her biological parents, not automatically
from the adoptive parents.
➢ If the child is provided with property/wealth from the biological family,
adoptive parents are commanded to take care and not intermingle that
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property/wealth with their own. They serve merely as trustees.

These Islamic rules emphasize to the adoptive family that they are not taking the place
of the biological family they are trustees and caretakers of someone else’s child. Their
role is very clearly defined, but nevertheless very valued and important.
It is also important to note that in Islam, the extended family network is vast and very
strong. It is rare for a child to be completely orphaned, without a single family
member to care for him or her. Islam places a great emphasis on the ties of kinship a
completely abandoned child is practically unheard of. Islamic law would place an
emphasis on locating a relative to care for the child, before allowing someone outside
of the family, much less the community or country, to adopt and remove the child from
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his or her familial, cultural, and religious roots. This is especially important during
times of war, famine, or economic crisis when families may be temporarily uprooted
or divided.
CHRISTIAN LAW AND PARSI LAW

The personal laws of these communities also do not recognize adoption and here too an
adoption can take place from an orphanage by obtaining permission from the court
under Guardians and wards act. A Christian has no adoption law.
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Since adoption is legal affiliation of a child, it forms the subject matter of personal law.
Christians have no adoption laws and have to approach court under the Guardians and
Wards Act, 1890. National Commission on Women has stressed on the need for a
uniform adoption law. Christians can take a child under the said Act only under foster
care. Once a child under foster care becomes major, he is free to break away all his
connections. Besides, such a child does not have legal right of inheritance.
The general law relating to guardians and wards is contained in the Guardians and
Wards Act, 1890. It clearly lays down that father’s right is primary and no other person
can be appointed unless the father is found unfit. This Act also provides that the court
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must take into consideration the welfare of the child while appointing a guardian under
the Act.
There is no specific statute enabling or regulating adoption among Christians in India.

In the absence of a statutory or customary adoption recognized by courts, foster
children are not treated in law as children. On death of the foster parents, their estate is
distributed among legal heirs of the intestate, to the detriment of foster children.
Christians in India can adopt children by resort to section 41 of the Juvenile Justice
(Care and Protection of Children) Act 2006 read with the Guidelines and Rules issued
by various State Governments.

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UNIFORM CIVIL CODE FOR ADOPTION
Laws relating to crime and punishment are the same for all citizens in India, and so are
the laws relating to commerce, contracts and other affairs. But there are, as is evident
from the case laws and the authorities put forth above, that there are no uniform laws
regarding family matters in the Indian context. It has been requested since a long time
for a uniformity in such laws. To treat all citizens equally, one must have same laws for
everybody. In case of adoption, the conspicuously different laws for Hindus and Non
Hindus creates an emotional problem. The non-Hindu parents, who may want to adopt
a child and treat him/her as their own are not legally allowed to call themselves the
parents or claim the child as their own. Hence, there has been a cry for a uniform civil
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code with respect to adoption.
A uniform civil code in adoption laws will not violate fundamental right to religion. It
should be remembered that directive principles of States policy mandate the state to
bring uniformity in laws. India being signatory to CRC (Convention on the Rights of a
Child), such uniformity is necessary so that the rights of adoptive children can well be
enhanced and protected. Since Adoption is a salient feature of Hinduism, The Hindu
Adoptions and Maintenance Act, 1956 statutorily recognizes adoption. The Act
brought about significant changes to the law of adoption amongst Hindus and has
improved the position of women in this regard. It is absurd that Muslim and Christian
Indians cannot legally adopt a child for lack of a uniform code on adoption. If a
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Uniform Civil Code is enacted, like the Hindu women, the women following other
religions will also be allowed to adopt. With the coming of a Uniform Civil Code, the
status of Indian women will definitely improve in all aspects of social life. One way to
avoid conflict would be to give people the option to opt out of classification based on
religion. It should not be mandatory that there should be a set of religious personal
laws that govern a person’s life; instead, more laws to ensure basic human rights are
the need of the hour. If the Centre is unwilling to move forward, individual states
should take the lead. Goa is one state that has shown the way and other states may
follow suit. A secular India needs a uniform civil code.
Apart from this, care has to be taken that the uniformity that has been requested for
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breaks through the shackles of gender bias too. The different rules regarding adoption
for men and women must stop. Both must have equal rights to adopt a child. Thus this
issue also needs to be addressed.
INTERCOUNTRY ADOPTION
Inter-country adoption is the process by which you:
➢ Adopt a child from a country other than your own through permanent legal
means; and
➢ Bring that child to your country of residence to live with you permanently.
Inter-country adoption is similar to domestic adoption. Both consist of the legal
transfer of parental rights and responsibilities from a child’s birth parent(s) or other
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guardian to a new parent or parents. Lakshmi Kant Pandey’s case is the most important
in the area of inter-country adoption. In 1982, a petition was filed under Article 32 of
the Constitution by advocate Lakshmi Kant Pandey alleging malpractices and
trafficking of children by social organizations and voluntary agencies that offer Indian
children for adoption overseas. The petition was filed on the basis of a report in the
foreign magazine called “The Mail”. The petitioner accordingly sought relief
restraining Indian based private agencies “from carrying out further activity of routing
children for adoption abroad” and directing the Government of India, the Indian
Council of Child Welfare and the Indian Council of Social Welfare to carry out their
obligations in the matter of adoption of Indian children by foreign parents. By an order-
dated 6.2.1984 the Supreme Court laid down detailed principles and norms to be
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followed for the adoption of children by the people overseas. Many examples and
references were cited while ‘discussing the issue, including the statutory provisions and
the international standards. While discussing the issue the court said: “When the
parents of a child want to give it away in adoption or the child is abandoned and it is
considered necessary in the interest of the child to give it in adoption, every effort must
be made first to find adoptive parents for it within the country because such adoption
would steer clear of any problems of assimilation of the child in the family of the
adoptive parents which might arise on account of cultural, racial or linguistic
differences in case of adoption of the child by foreign parents. If it is not possible to
find suitable adoptive parents for the child within the country, it may become necessary
to give the child in adoption to foreign parents rather than allow the child to grow up in
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an orphanage or an institution where it will have no family life and no love and
affection of parents and quite often, in the socio-economic conditions prevailing in the
country, it might have to lead the life of a destitute, half-clad, half-hungry and suffering
from malnutrition and illness”
The Supreme Court of India has laid down that every application from a
foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a
social or child welfare agency recognized or licensed by the Government or a
Department of the Foreign Govt. to sponsor such cases in the country in which the
foreigner is resident. The foreign agency should also be an agency ‘authorized’ by
CARA, Ministry of Social Justice & Empowerment, Govt. of India. No application by
a foreigner/NRI/PIO for taking a child in adoption should be entertained directly by
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any social or child welfare agency in India.
CONCLUSION
Adoption is a noble cause, which brings happiness to kids, who were abandoned, or
orphaned. This gives a chance for the humane side of civilization to shine through. It’s
a beneficial program where the child is treated as the natural born child and given all
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the love, care and attention. At the same time, it fills the void in the parents who
yearned for kids, their laughter and mischief echoing off the walls of a home. Although
a few changes could be made to make all the laws regarding adoption a little, uniform.
Sources of law
Domestic Violence
Domestic Violence Act, 2005 was legislated as an attempt to protect women from
abusive partners and family. As per Section 2 (f), the Act not only applies to a married
couple, but also to a ‘relationship in nature of marriage’. The Supreme Court in
D. Velusamy v. D. Patchaiammal and Indra Sarma case has allowed live-in
relationships to be covered within the purview of this legislation, subject to fulfillment
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of some additional criterion.
A woman under DV Act is entitled to claim remedy in case of physical, mental, verbal
or economic abuse. In addition, remedies are conferred for alienation of woman’s
property and restriction from use of facilities to which the abused is entitled. The
abused has been granted several rights and protections under this legislation. If the
Magistrate is convinced of domestic violence taking place, he can pass orders
prohibiting the accused from:
“(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
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(c) entering the place of employment of the aggrieved person or, if the person
aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person,
including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or
enjoyed by both the parties, jointly by the aggrieved person and the respondent or
singly by the respondent, including her stridhan or any other property held either
jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the
aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.”
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In addition, Magistrate can pass restraining orders, order accused to provide monetary
reliefs to the abused, which includes medical expenses, reimbursement for loss of
earnings or property and maintenance. The woman, in such cases is also allowed
custody of her kids, and a right to claim compensation for any harm caused.
Velusamy case subserves a common law marriage to be same as a live-in relationship

to constitute a ‘relationship in the nature of marriage’. The pre-requisites of such a
relationship are:
“(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being
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unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being
akin to spouses for a significant period of time.”
Indra Sarma case, on the other hand, enlists a number of criteria on basis of which a
subjective analysis of the relationship should be undertaken by the Court in order to
determine if it constitutes a live-in relationship under the purview of Domestic
Violence Act. The grounds listed were neither strictly binding, nor exhaustive. They,
however, provided an insight into the aspects which would bring live-in relationships
under the definition of ‘relationships in the nature of marriage’. The guidelines are:
“(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression “at any point of time”, which means
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a reasonable period of time to maintain and continue a relationship which may vary
from case to case, depending upon the fact situation.
(2) Shared household
The expression has been defined Under Section 2(s) of the DV Act and, hence, need no
further elaboration.
(3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts,
acquiring immovable properties in joint names or in the name of the woman, long term
investments in business, shares in separate and joint names, so as to have a long
standing relationship, may be a guiding factor.
(4) Domestic Arrangements
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Entrusting the responsibility, especially on the woman to run the home, do the
household activities like cleaning, cooking, maintaining or up keeping the house, etc. is
an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for
emotional and intimate relationship, for procreation of children, so as to give
emotional support, companionship and also material affection, caring etc.
(6) Children
Having children is a strong indication of a relationship in the nature of marriage.
Parties, therefore, intend to have a long standing relationship. Sharing the
responsibility for bringing up and supporting them is also a strong indication.
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(7) Socialization in Public

Holding out to the public and socializing with friends, relations and others, as if they
are husband and wife is a strong circumstance to hold the relationship is in the nature
of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and
as to their respective roles and responsibilities, primarily determines the nature of that
relationship.”
If these guidelines indicate a ‘relationship in the nature of marriage’, a complaint can
be filed under the Domestic Violence Act. Whether a relationship meets the above
mentioned tests is purely a question of fact and degree. The Court in IndraSarma case,
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&
School of Law
has given detailed guidelines to gain an insight into the nature of relationship in
comparison to earlier cases, where Court had given a vague requirement of ‘being akin
to a marital relationship’. Moreover, Court has clarified that the listed guidelines are
not exhaustive and are merely indicative, giving a wide ambit to scope of the Act.

Family Law-1

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Family Law -1 Chander Prabhu Jain Notes

bballb (Vivekananda Institute of Professional Studies)

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Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

The concept of marriage – a sort of man women relationship, a responsible union of

Chanderprabhu Jain College of Higher Studies

homogenous togetherness. That of parents, grandparents, sons, daughters, there

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It is of two types namely:

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Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

On account of the greater harmful effects of polygyny on family life,

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Polyandry may take two forms namely:

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Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

No universal generalisations can be made with regards to the causes of

➢ Lesser number of Women: According to Westermark, when the number of

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away from the centres of culture and progress.

So, polyandry is generally considered an obstacle in the way of social

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Chanderprabhu Jain College of Higher Studies

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Chanderprabhu Jain College of Higher Studies

Monogamy seems to be superior to other forms of marriage. It enjoys certain

➢ Universally Practicable: Since there is one-to-one ratio in almost all the

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Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

prefer other forms of family organization. Anthropological data suggests a

Marriage as we know is a very important social institution. That is why no society

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

Chanderprabhu Jain College of Higher Studies

tribes of Chhota Nagpur of Madhya Pradesh. Among some tribes of Baroda,

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Today, there is a greater trend towards exogamous marriages. Exogamy is

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Chanderprabhu Jain College of Higher Studies

In India, following forms of endogamy are to be found:

➢ Divisional or Tribal Endogamy: This is the endogamy in which no individual

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Chanderprabhu Jain College of Higher Studies

people of one class or of particular status.

➢ Preserves the group’s homogeneity.

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➢ Keeps women happier.

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The institution of Hindu marriage occupies a prominent place in the social

Chanderprabhu Jain College of Higher Studies