Introduction

Under Section 125 of the CrPC, a person who has sufficient means is required to provide maintenance to his or her spouse, children, or parents
who are unable to maintain themselves. The amount of maintenance is determined by the court based on the needs of the dependent and the
means of the person who is required to provide maintainance. The provision also provides for the payment of interim maintenance during the
pendency of the case. This ensures that the dependent is not left without support during the course of the legal proceedings. Section 125 of the
CrPC is a significant legal provision that aims to protect the rights of dependents who are unable to maintain themselves. It ensures that they are
not left without support and can lead a dignified life.
Scope and applicability of Section 125 CrPC :-The scope of maintenance under Section 125 is quite broad. It includes not only the basic needs
of the dependent but also his or her educational and medical expenses. The amount of maintenance is determined by the court based on the
needs of the dependent and the means of the person who is required to provide maintenance. The provision is applicable to all persons who are
Hindus, Muslims, Christians, and Parsis.
The provision also provides for the payment of interim maintenance during the pendency of the case. This ensures that the dependent is not left
without support during the course of the legal proceedings.
It is important to note that maintenance under Section 125 is not a punishment but a right of the dependent. The provision aims to ensure that
those who are dependent on others for their maintenance are not left without support.
Who is entitled to maintenance under Section 125? - Under Section 125 of the CrPC, a person who has sufficient means is required to provide
maintenance to his or her spouse, children, or parents who are unable to maintain themselves. Let us look at each category in detail:
Wife: A wife is entitled to maintenance from her husband if she is unable to maintain herself. The husband has a legal obligation to provide for his
wife’s maintenance, and failure to do so can result in legal action against him.
Children: Children, whether legitimate or illegitimate, are entitled to maintenance from their parents until they are capable of maintaining
themselves. The amount of maintenance is determined by the court based on the needs of the child and the means of the parent.
Parents: Parents who are unable to maintain themselves are entitled to maintenance from their children. This provision is particularly important for
elderly parents who may not have a source of income.In all three cases, the dependent must prove that he or she is unable to maintain himself or
herself. The burden of proof is on the dependent, and he or she must provide evidence to support his or her claim.

Grounds for refusing maintenance under Section 125

While the provision for maintenance under Section 125 is intended to ensure that dependents are not left without support, there are certain
grounds on which maintenance may be refused. These grounds are:
1. The dependent is not unable to maintain himself or herself: Section 125 provides maintenance only to those who are unable to maintain
themselves. If the dependent is found to be capable of maintaining himself or herself, maintenance may be refused.
2. The dependent has remarried: If a wife who is entitled to maintenance under Section 125 remarries, she will not be entitled to maintenance
from her former husband.
3. The dependent has sufficient means: If the dependent has sufficient means to maintain himself or herself, maintenance may be refused.
4. The dependent is living in adultery: If the wife is living in adultery, she will not be entitled to maintenance under Section 125.
5. The dependent has neglected to maintain the person from whom maintenance is claimed: If the dependent has neglected to maintain the
person from whom maintenance is claimed, maintenance may be refused.
6. The dependent has refused to live with the person from whom maintenance is claimed without any sufficient reason, maintenance may be
refused.
7. The dependent is a major and has ceased to be a student, maintenance may be refused.
It is important to note that the burden of proving that the dependent is not entitled to maintenance lies on the person from whom maintenance is
claimed. The court will examine the evidence presented by both sides and make a decision based on the facts of the case.
Landmark judgments
Here are some landmark case laws related to Maintenance Under Section 125 CrPC:
1. Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate (2003): In this case, the Supreme Court held that a husband cannot refuse to pay
maintenance to his wife merely on the grounds that she is well-educated and capable of earning her own livelihood. The court observed that
the husband’s liability to pay maintenance arises from the marital relationship and not the wife’s ability to earn.
2. Rajesh Kumar Agarwal vs. Kusum Agarwal (2011): In this case, the Supreme Court held that the court can grant interim maintenance to the
wife under Section 125 of the CrPC even if she has her own income. The court observed that the wife’s income is relevant only for determining
the quantum of maintenance and not for denying her entitlement to maintenance.
These landmark cases have played a significant role in shaping the interpretation and application of Section 125 of the CrPC. They have helped to
establish the principles that guide the courts while deciding cases related to maintenance and have ensured that dependents are not left without
support.
Conclusion
Maintenance under Section 125 of the CrPC is a provision that is aimed at ensuring that dependents who are unable to maintain themselves are
not left without support. The provision applies to all persons who are Hindus, Muslims, Christians, and Parsis and is gender-neutral.A wife,
children, and parents who are unable to maintain themselves are entitled to maintenance under Section 125.
In conclusion, Section 125 is a provision that is essential in ensuring that dependents are not left without support. The provision is a testament to
the Indian legal system’s commitment to the welfare of its citizens, and it is essential that it is used to its fullest potential to ensure that no
dependent is left without support.

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Q. Discuss the grounds available to both parties to claim divorce under hindu marriage act 1955?

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, the Hindu Marriage Act is based on the fault theory in which
any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the
grounds on which only the wife can approach the court of law and seek the remedy of divorce.
Grounds of Divorce as per The Hindu Marriage Act
Section 13(1) provides grounds on which divorce can be sought by either of the partners in a marriage. After the amendment of 1976, grounds for
divorce specified under Section 13 of the Act and judicial separation under Section 10 are similar.
1. Adultery
Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite
sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the
Adultery.
Essentials of Adultery

1. One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another spouse.

2. Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes any bodily injury
to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty
is lack of kindness which adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say
about mental cruelty.
3. Desertion
Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. In
General, the rejection of the obligations of marriage by one party.
Before the 1976 Amendment, desertion was only a ground for judicial separation and not divorce. But now, desertion of any of the spouses by the
other for a continuous period of two years immediately before filing the petition is a valid ground to seek divorce as well as judicial separation.

4. Conversion
If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the
court and seek the remedy of divorce.
Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach
the court and seek for divorce on the ground of conversion.
5. Unsoundness of mind
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent 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.
6. Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another.
Thus it is considered as the valid ground for divorce.
7. Venereal Disease
Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid
ground for divorce.
Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable. There’s also a chance that B can also get
infected by that disease if she lives with A. Here, B can approach the court for the dissolution of the marriage
8. Renunciation
It means when one of the spouses decides to renunciate the world and walk on the path of the God, then the other spouse can approach the court
and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and is
considered as a valid ground for divorce.
Illustration
A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the
remedy of divorce.
9. Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead
for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.
Illustration
A was missing from the last seven years and his wife B does not get any news about him of being alive or dead. Here B can approach the court
and ask for the divorce.

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JUDICIAL SEPERATION Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955,
can, under Section 10 of the Act, file a petition for judicial separation. After a decree is passed in favor of the parties, they are not bound to cohabit
with each other. Some matrimonial rights and obligations, however, continue to exist. They cannot remarry during the period of separation. They
are at liberty to live separately from each other. Rights and obligations remain suspended during the period of separation. The grounds for judicial
separation are the same as for divorce. Under Section 13(1), judicial separation may be sought on the following grounds :Adultery, cruelty,
leprosy, desertion, conversion, insanity, leprosy, venereal disease, Renunciation the world and not live for seven tears.

Difference between judicial separation and divorce:

Points Judicial separation Divorce

Time for filing A petition for judicial separation can be filed at A petition for divorce can only be filed after one year of
petition any time after marriage. marriage.
Under a petition for divorce, the judgment is a two-step
Under a petition for judicial separation, there is
Stages of granting process, where attempts are made first for
only one stage of judgement. If the grounds
a decree reconciliation, and if that fails, a divorce decree is
are satisfied, a decree is granted.
granted.
A decree on judicial review will lead to a
Effect A divorce decree will bring a marriage to an end.
temporary suspension of marriage.
The parties cannot remarry after the passage The parties can remarry once a divorce decree in their
Remarriage
of the decree. favour is passed.
Ground for
It is one of the grounds for divorce. NA
divorce
Living in an adulterous relationship or satisfying any
Basis for granting A single instance of adultery is sufficient for
grounds stated under particular sections, depending on
the decree judicial separation.
the legislation, is necessary.

Reconciliation There is a possibility of reconciliation. There is no possibility of reconciliation.

Right to Under a decree of judicial separation, the right Whereas, under the divorce decree the right to
inheritance to inheritance remains enforced. inheritance ends once the divorce decree is passed.

Q. Explain the grounds on which a marriage may be declared as voidable under the Hindu marriage act 1955?

Difference between Void and Voidable Marriage

Void Marriage Voidable Marriage
A wife does not have the right to claim maintenance in
A wife has the right to claim maintenance in the voidable marriage.
the void marriage.
In a void marriage, the parties do not have the status of
Husband and wife have the status in the voidable marriage.
husband and wife.
In a void marriage, no decree of nullity is required. In a voidable marriage decree of nullity is required.
A void marriage is none in the eyes of law. A void marriage is to be declared void by a competent court.
The children in a voidable marriage are treated as illegitimate but
The children in a void marriage are treated as legitimate. this distinction is deleted by the Supreme Court and said a child
cannot be said termed as illegitimate.

Voidable Marriages

Voidable marriages are those which are void at the option of the aggrieved party. Such marriages can be annulled by a decree of nullity on any of
the following grounds:

1. That the marriage has not been consummated owing to the impotence of the Respondent.
2. That the marriage is been performed with a person of unsound mind or having a mental disorder or suffering from recurrent attacks of
epilepsy.
3. That the consent of the Petitioner or its Guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material
fact or circumstances concerning the Respondent.
4. To succeed on this ground, it is necessary that the Petition must be presented in the Court within one year after the force has ceased to
operate or the fraud has been discovered. It is also necessary that after the force has ceased or fraud discovered, the Petitioner has not,
with consent, lived with the other side.
5. That the Respondent was at the time of marriage pregnant by some person other than the Petitioner.

Explain the procedure and grounds of divorce by mutual consent?

Page 3 of 12
Divorce by mutual consent – (Section 13B of Hindu Marriage Act, 1955)
In a case where none of the aforementioned grounds is available but the parties decide they do not want to remain married to each other or
cannot live with one another, they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.
The Hindu Marriage Act, 1955 enshrines the right to divorce by way of mutual consent under Section 13B. The spouses can jointly file a petition
seeking divorce under Section 13B before the family court, which possesses the jurisdiction to pass such a decree of divorce under Section 13B.
The Section expressly mentions the conditions under which the spouses can file a petition for the grant of divorce by mutual consent.

Procedure for getting a decree of divorce by mutual consent

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.
Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil
jurisdiction of where the marriage was solemnized or where either of the parties currently resides.
As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.

Step 2: First motion

After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded
then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to
file the second motion.
This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to introspect and think about their decision. It is a
time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.

Step 3: Second motion

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed
upon the decree of divorce is passed after this step. The marriage has finally ended by now and divorce by mutual consent has been granted.

Essentials of divorce by mutual consent

Parties should be living separately
Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1
year before filing the petition.
This period of one year where the parties have lived separately must be immediately before the filing of the petition.
The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. Wherein it was made clear that living separately
does not necessarily mean living in different places. The parties can be living together but not as spouses.
Parties have not been able to live together
It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. These days divorce is
taken very lightly and people go for it as a first resort whereas the intention behind the law of divorce was to make it a last resort. Many times, in a
marriage it so happens that the spouses can’t stand each other and can no longer live together happily. That is when they opt for divorce by
mutual consent.
Sadly enough, it often happens that the parties are not able to live together even after trying mediation and reconciliation and putting multiple
efforts, before filing a divorce petition by mutual consent.
They have mutually agreed that marriage should be resolved
In some situations – the parties may choose to give their marriage another chance and mutually resolve their marriage. During the waiting period,
the parties may sometimes be able to reconcile and make their relationship work.
After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18
months, both parties are deemed to have withdrawn their consent mutually.

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2.Restitution of Conjugal Rights under the Hindu Marriage Act
Section 9 – The Hindu Marriage Act, 1955
Restitution of Conjugal Rights, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.”

When a spouse is guilty of staying away without any reasonable or a just cause and if the suit of restitution of conjugal rights succeed than the
couple would be required to stay together. Thus it can also be inferred that section 9 is the marriage saving clause or section. This remedy was
earlier applied in England and later on implemented by the privy council in India, for the first time in a case namely MoonsheeBazloor v.
Shamsoonaissa Begum. However, this matrimonial remedy of restitution of conjugal rights has been removed in England way back in 1970.

There are three important requisites to be fulfilled for Section 9

 Spouses must not be staying together.

 Withdrawal of a party from the other must have no reasonable ground for such withdrawal.

 The aggrieved party must apply for restitution of conjugal rights

Constitutional Validity of Section 9

It is to be noted that there arises a contention that restitution of Conjugal Rights clearly violates Right to privacy of the wife. Although the Supreme
Court is its judgement of Kharak Singh vs. State of UP has held right to privacy “is an essential ingredient of personal liberty”. In Gobind v.
State of M.P.again the court had to encounter the issue raised in the case of Kharak Singh. In this case the honourable Supreme Court came to a
conclusion that right to privacy -among other rights is included in right to liberty.

Q. Discuss the Essential of valid marriage and Divorce grounds in Christian marriage act?
There are 4 Essential Conditions for Valid Christian Marriage

1.Age of Bride should not be less than 18 and the Groom age should not be less than 21[Sec.60]
2.either of the Parties must have spouse still living at the time of marriage[ Sec.60].
3.The marriage ceremony must take place in presence of the person licensed [Sec.9]and in presence of at least two witness.
4.According to Personal law if there is no concerned of either party or either party forbids the concern of marriage then nothing in the Act shall
Validate any marriage. [Sec.88]

For Instance, inter-caste marriage between a Christian and another person will be invalid, if the personal law governing the other person prohibits
marriage with a Christian.

What Are the Grounds for Divorce Under Christian Law in India?
There are several grounds for divorce under Christian law in India. The most common one is adultery, which is when one of the spouses has an
affair.
Other grounds for divorce include desertion, mental cruelty, and religious conversion. If one of the spouses converts to a different religion and the
other one doesn’t agree with it, that can also be grounds for divorce.
When it comes to getting a divorce, Christians in India have a few more grounds to choose from than those who follow other faiths. Here are the
most common grounds for divorce under Christian law in India:
 Adultery: This is by far the most common ground for divorce, and it’s easy to see why. If one partner is caught cheating, it can be grounds for
the relationship to end.
 Cruelty: If one partner is routinely cruel or abusive, it can be ground for a divorce. This can include physical, verbal, or emotional abuse.
 Desertion: If one partner leaves the relationship without any explanation or warning, it can be ground for a divorce
 Dishonesty: If one partner has been caught lying or cheating, it can be ground for a divorce.
 Mental illness: If one partner is diagnosed with a mental illness that makes them unable to care for themselves or the relationship, it can be
ground for a divorce.
 Physical illness: If one partner becomes seriously ill and is unable to care for themselves or the relationship, it can be ground for a divorce.
Incurable insanity: If one partner becomes incurably insane, it can be a reason of divorce.

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 Emergence of Schools of Hindu Law

 Originally, there were no schools of Hindu jurisprudence. Due to the emergence of various commentaries on Shruti and Smriti, different
schools of thought arose.
o Shruti means which has been heard. The shrutis include the four Vedas - Rig, Yajur, Sam, and Athrava along with their brahmanas. Vedas
primarily contain theories about sacrifices, rituals, and customs.
o Smriti means what is remembered. It includes those works which are created by the virtue of memory of sages and are further divided
into Dharmashastras and Dharmasutras.
 The commentary in one part of the country varied from the commentary in the other parts of the country.
 In Rutcheputty v. Rajendra (1839), the Privy Council observed that different schools of Hindu law have originated because of different local
customs prevailing in different parts of India.

Existence of Schools of Hindu Law

 In the codified area of Hindu Law, there is no scope for existence of Schools as the codified Hindu Law lays down uniform law for all
Hindus.
 The Schools of Hindu Law have relevance only in respect of the uncodified areas of Hindu Law.

Schools of Hindu Law

There are two main schools of Hindu Law:

1. Mitakshara School
2. Dayabhaga School

1. Mitakshara School
 The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara.
 The followers of Mitakshara are grouped together under the Mitakshara School.
 The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also a digest of practically all the leading Smritis of Hindu Law.
 The provisions of this School are applicable throughout India except in the State of Bengal and Assam.

Features of Mitakshara School

 Mitakshara School is based on the principle of the joint family system where ancestral property is passed on from generation to generation,
and each member of the family has a right to a share in the property.
 It also recognizes the concept of survivorship, where the share of a deceased coparcener automatically passes on to the surviving coparceners.
 One of the unique features of Mitakshara School is that the coparcener male child (four generations from a common ancestor) acquires right in
family property by mere birth.
 A woman could never become a coparcener. But the Hindu Succession (Amendment) Act, 2005 empowered women to become a
coparcener like a male in ancestral property.
Sub – Schools Under the Mitakshara School
 There are four Sub-Schools under the Mitakshara School which are as follows:
A. Madras School or Dravidian School of thought
B.Maharashtra School or Bombay School of thought
C.Benaras School of thought
D.Mithila School of thought

A.Madras School or Dravidian School of Thought

 It exists in South India. The main authority accepted by this school is Smriti Chandrika authored by Devananda Bhatta. In the case of adoption
by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption.
o Two individuals are considered sapindas of each other if they have a common ancestor within the preceding three generations.In other
words, if they share a common bloodline within three generations, they are considered sapindas.

B.Maharashtra School or Bombay School of Thought

 It exists in Bombay (Mumbai) and Gujarat. The main authority accepted by this school is Vyavahra Mayukha authored by Nilakantha. This
school has got an entire work of religious and Civil laws.

C.Benaras School of Thought

 It extends of whole of northern India except in Punjab where its authority is modified by customary law in rural areas.The main authority
accepted by this school is Viramitrodaya authored by Mitra Mishra.

D.Mithila School of Thought

 It exists in Tirhut, North Bihar and Uttar Pradesh near the Yamuna River areas.
 The main authority accepted by this school is Vivad Chintamani authored by Vachaspati Mishra and Vivad Ratnakara authored by
Chandeshwar Thakur.

Page 6 of 12
 2. Dayabhaga School
 The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana under the title Dayabhaga. It exists in Bengal and Assam
only. It has no sub-school.

Features of Dayabhaga School

 Sapinda relation is by pinda offerings.
 The right to Hindu joint family property is not by birth but only on the death of the father.
 The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.
 Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.
 On the death of the husband the widow becomes a coparcener with other brothers of the husband. She can enforce partition of her share.

Difference between Mitakshara and Dayabhaga School

Mitakshara School Dayabhaga school

Under this school the right to ancestral property arises by Under this school the right to ancestral property is only
birth. given after the death of the last owner.
The son becomes the co-owner of the property sharing It does not recognise the birth right of any individual over
similar rights as of fathers. ancestral property.

The father has the absolute right of alienation of the

The father does not possess the absolute right to alienate
ancestral property as he is the sole owner of that property
the property.
during his lifetime.

The son attains the right to become the co-owner of the

property and he can ask for the partition of the ancestral The son has no right to ask for the partition of ancestral
property even against the father and can demand for his property against his father.
share.

Under this school the survivorship rule is prevalent. In While in case of Dayabhaga school the interest of the
case of the death of any member in the joint family, his member on their death shall pass on to their heirs like
interest shall pass to other members of the family. widow, son, daughters.

The members of the family enjoy the absolute right to

The members can’t dispose of their share of property.
dispose of their property.

The rule of blood relationship or consanguinity is

Inheritance is governed by the rule of the offering of pinda.
followed in case of inheritance.

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Inter-Country Adoption
Under inter-country adoption, any individual or any couple can become legal parents to any child who is a citizen of a different country. If an Indian
citizen is considering overseas adoption, they should meet the eligibility criteria of that country, in addition to meeting eligibility criteria within India.
For example, the adoptive parents need to be willing to meet the needs of children requiring adoption through CARA.

Concept of Inter-Country Adoption in India

In the case of In Re RasiklalChhaganlal Mehta, [12] the issue of transnational adoption was first discussed by the court, which held that adoption
under Section 9 (4) of the Hindu Adoption and Maintenance Act, 1956, inter- country adoption is legally valid. In the case of Laxmi Kant Pandey v.
Union of India,[13] the Apex Court formed some guidelines which were to govern international adoption. Setting up of a Central Regulatory Body
was suggested and in pursuance of the suggestion, Central Adoption Resource Agency (CARA) was set up in 1989. The agency plays a pivotal
role in laying down both substantive law and procedural law on intra-country and inter- country adoption.

Central Adoption Resource Authority (CARA)

CARA is an autonomous body which has been set up under the Ministry of Women and Child Development and looks after matters of intra-country
and inter-country adoption. CARA Guidelines state that any foreign couple who wants to adopt a child from India must be sponsored by a child
welfare agency or a social agency which is recognized by the government of the country in which the foreign couple resides.
CARA Guidelines also states that intra-country adoption is preferred first. As per CARA Guidelines, only three types of children are recognized as
adoptable.
1. Those children who have been surrendered.
2. Those who are abandoned.
3. Those who are orphans and are under the care of some specialized adoption agency.
International adoption (also referred to as inter-country adoption or transnational adoption) is a type of adoption in which an individual or couple
becomes the legal and permanent parent(s) of a child who is a national of a different country. In general, prospective adoptive parents must meet
the legal adoption requirements of their country of residence and those of the country whose nationality the child holds. The laws of countries vary
in their willingness to allow international adoptions. Some countries, such as China and South Korea, have relatively well-established rules and
procedures for international adoptions, while other countries expressly forbid it. Some countries, notably many African nations, have extended
residency requirements for adoptive parents that in effect rule out most international adoptions. The author, in this project, attempts to elucidate on
the various pressing issues relating to inter country adoptions. Also, she recommends certain changes in the contemporary framework on this
point for Indian legal system. ORIGINS OF INTER-COUNTRY ADOPTIONS "Every child has a right to love and be loved and to grow up in an
atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The most
congenial environment would, of course, be that of the family of his biological parents. But if for any reason it is not possible for the biological
parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not
willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the
loving care and attention of the adoptive parents."1 The practice of inter-country adoption came about largely as a humane response to the plight
of war orphans and the abandoned children of servicemen in World War II, the Korean War and the Vietnam War. Today, the main receiving
countries are the United States, Canada and the developed countries of Western Europe. Factors such as the decline in fertility associated with
stalling marriage, the limited success rate and high cost of infertility treatment and a lack of domestic adoption opportunities have made inter-
country adoption an alternative to childless couples in the receiving countries. However, in states of origin or sending countries, extreme poverty,
lack of contraception and society's attitudes to birth of illegitimate children are three major factors leading to the abandonment of children to
institutions.2 The concept of "male" child also leads to the abandonment of the girl child which is an unfortunate reality in our own country.
INTERNATIONAL AND REGIONAL LEGISLATIVE FRAMEWORK
At global level, it is of course the Convention on the Rights of the Child (the "CRC") that now constitutes the basic standard-setting text on
adoption. Inter-country adoption is specifically regulated by the '1993 Hague Convention on the Protection of Children and Cooperation in Respect
of Inter-country Adoption' (the "HC"), which has now been ratified by about 90 States.
The approach of international legislators to adoption changed at the end of the 20th century as a result of serious concerns on adoption-related
abuses that were being increasingly expressed at that time. CRC Article 21 includes the obligation to "ensure that the child concerned in inter-
country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption."
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ADOPTIONS FROM NON-HAGUE COUNTRIES
Despite the ever-growing number of countries that have ratified it, the majority of inter- country adoptions still take place outside this framework.
Non-Hague countries whose adoption procedures continue to be subject to less stringent conditions may well be more open to allowing growing
numbers of their children to be adopted abroad: for example, ICAs from Ethiopia continued to grow substantially throughout the past decade, from
a few hundred per year at the start to over 4,000 in 2009. Non-Hague countries therefore tend to be relatively attractive partners for inter-country
adoption. If this turns out to result in ever-increasing pressure on those countries to institute or further develop inter-country adoption to
"compensate" for reductions in Hague- compliant counterparts, rather than genuine instigation to ratify the treaty, the true aims of adoption,
including inter- country adoption, would once again be severely compromised.
ADOPTION FOLLOWING DISASTERS
The agreed policy of all major international agencies concerned is now that inter-country adoption should not be envisaged during or in the
immediate aftermath of disaster situations, a position reflected by Guidelines adopted by the United Nations in 2009.8 A 1994 recommendation
related to the HC already established that principle as regards the potential adoption of child refugees.9 The main concern underlying this
approach is that considerable time is needed to ascertain whether children who may apparently be orphaned or abandoned have in fact simply
been separated involuntarily from their parents or other family members as a result of the disaster. The January 2010 earthquake in Haiti
demonstrated the fragility of its application. In addition to the fact that Haiti is not a party to the HC, and that its adoption system was already
known to be at unacceptable variance with international standards, three major factors contributed to the problems encountered in this specific
case:
Adoption orders regarding hundreds of children had already been granted at the time of the earthquake, but travel documents for these children
had not been issued, and hundreds of other children were at some stage in the adoption process or had simply been preliminarily and unofficially
identified as adoptable; Receiving countries took differing stances in relation to the status of the children who they were prepared to evacuate and
how this was to be done; It was not only legally adopted children whose transfer abroad was expedited but also many whose adoption was
hurriedly "signed off" administratively, under pressure, including some who had not even been matched with prospective adopters.
PROBLEMS SUBSISTING IN INTER-COUNTRY ADOPTIONS
CHILD TRAFFICKING IN THE GUISE OF TRANSNATIONAL ADOPTION
The biggest threat to the child in inter-country adoption is becoming a victim of child trafficking racket. After the domestic procedure for adoption by
the foreign adopting parents is over, it becomes more a question of international law and international treaties to look after the well- being of the
child. Moreover, the lack of awareness regarding the legal procedures for inter-country adoption has given rise to many fake adoption agencies.
Children are sold abroad by providing false information about them, falsifying documents, and making use of loopholes in the adoption guidelines
prescribed by the Supreme Court.
POST ADOPTION NEGLIGENCE
When the child is given for inter-country adoption, post adoption follow-ups become increasingly difficult. Even though CARA guidelines outline the
role of the Indian diplomatic missions, foreign accredited agencies and professional social workers in protecting a child from post adoption
maltreatment, it has virtually not helped anyone.
POST ADOPTION DOMESTIC SUCCESSION
Once the testator dies after bequeathing the property in the name of the child who had been given in adoption, the identity of the child has to be
proved. In cases where there is a challenge
to the succession by other survivors, the procedure becomes even tougher. The country of residence will take the matter as per the laws of
domicile and if such succession becomes legally void due to any unfortunate mistake, the adopted child would never be able to claim legal rights
of the property and thereby has to suffer great financial, physical and emotional agony. Unfortunately India has not entered into any agreement or
treaties to solve such succession matters. The British law still rules the courts in such cases. Every adopted child develops a strong inclination to
know his/her roots at some point of time. Such legal turmoil over successions from the biological family may even leave the adoptee in great
frustration
POST ADOPTION IDENTITY CRISIS
Juvenile Justice Care and Protection (Amended) Act), 2006 specifies that a child can be adopted by any individual, irrespective of his/her marital
status, by parents who wish to adopt a child of same sex irrespective of the number of living biological sons or daughters, or by couples who have
no children of their own. It has made adoption a simpler and universal law than the traditional laws. The law is still tricky, however, in case of inter-
country adoptions as prospective foreign parents still have to first take the role of guardians and take the child to their country. The process has to

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be finished there as neither the new law nor any existing law specifically mentions a procedure in cases of overseas adoption. Once the child
becomes ready for overseas adoption, the international law needs to recognize Indian adoption procedure and the child is adopted according to
the laws of the country of adoptive parents' residence. The child becomes the ultimate sufferer unless the "guardians" turn real parents as per the
law of his new residence.
GUIDELINES LACK FORCE OF LAW
CARA guidelines most often lack the force of law. Hence the parties never really remain obliged to follow the guidelines or even the Indian law in
case the habitual resident belongs to a country which is not a member or has relinquished its membership from the convention. The guidelines fail
to ensure the health, safety and adjustment of the child after he/she has left India. It should be noted that as the numbers of adoptions increase,
the number of regulations followed are lesser. The guidelines should have put a maximum number of adoption procedures a month, by each
adoption agency so that social workers, the authorities, and voluntary coordination committees would not be overburdened. Lack of regular checks
at the adoption agencies and the manner in which they operate can also lead to many problems.
Since the CARA guidelines mention nothing about any penal actions against unrecognized adoption agencies, child trafficking in the name of inter-
country adoption has gotten an easy way out.

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Q.Explain the Dower or Mehr in muslim law?

MUSLIM LAW DOWER

Dower, also known as “mahr” in Islamic law, refers to the amount of money or property that a husband pays to his wife as a mark of respect and
support. It serves as a financial provision for the wife’s sustenance and welfare, ensuring that she is not left helpless in the event of marriage
dissolution. There are four kinds of dower in Muslim Law. The types of dower in Muslim law are Muta Dower, Specified Dower, Prompt Dower and
Deferred Dower.

Types of Dower in Muslim Law

Muta Dower
Muta marriage is one of the kinds of dower in Muslim Law. It refers to a marriage that is contracted for a specific period of time. In the case where
the marriage is not consummated, the woman is entitled to receive only half of the agreed dower. However, if the marriage is consummated, the
wife is entitled to the full dower amount. However, if the wife decides to leave the marriage before the specified duration, she will not be entitled to
the dower or “Mehr”.

Specified Dower
Specified dower is another type of dower in Muslim Law. It refers to a specific amount of money or property that is mutually agreed upon by the
parties involved in the marriage. The amount of dower differs between Sunni Law and Shia Law. Under Sunni law, the minimum amount entitled to
the woman is 12-13 Rupees, which is equivalent to at least 10 Dirhams, with no upper limit specified.
In contrast, Shia law does not provide a specific lower amount and the maximum amount is also not specified. It is important to note that the dower
payment should be based on the financial capability of the husband and a poor man should only pay what he can afford in terms of money or
property.
If the dower amount has been determined prior to or at the time of the marriage, it is referred to as a specified dower or Mahr-i-musamma. In the
case of Kukkiya Begum vs Radha Kishan, AIR 1944 All 241, the Allahabad High Court ruled that the amount of dower can be increased by
mutual consent after the marriage.

Prompt Dower
The dower payment is further categorised into prompt payment and deferred payment. A prompt dower, as the name suggests, must be paid
promptly upon demand. The husband is obligated to pay the dower as soon as the demand is made, usually before or immediately after the
marriage ceremony and before consummation.
Consequently, the husband’s right to restitution of conjugal rights arises only after the dower payment has been fulfilled. Therefore, it can be
inferred that the dower should be paid before the marital relationship is consummated.
In the case of Rabia Khatoon vs Mukhtar Ahmed, AIR 1966 All 548, the Allahabad High Court ruled that a wife may refuse to live with her
husband or engage in sexual intercourse until the prompt dower has been paid. It was further stated that the prompt dower is payable upon
demand and proof of sexual intercourse is not necessary to claim payment.

Deferred Dower
Deferred dower, also known as Mahr-i-Muwajjal, refers to a dower that is not immediately payable after the consummation of the marriage. It
becomes due only upon the occurrence of a specific event, the expiration of a particular period or the dissolution of the marriage through death or
divorce. The wife is not entitled to demand the payment of deferred dower unless it has been mutually agreed upon by the parties.

Proper Dower
Proper dower is one of the types of dower in Muslim Law. It is determined when the husband and wife have not predetermined the amount of
dower to be paid. In such cases, the wife has the right to determine a reasonable and appropriate dower amount based on her own judgment. It is
important to note that the proper dower is not dependent on the husband’s earnings or financial ability.

Conclusion
There are 4 types of Dower in Muslim law. Muta dower, a temporary marriage arrangement, outlines specific conditions for the payment of dower
based on consummation and duration. Specified dower establishes a fixed amount or property agreed upon by the parties involved, with variations
between Sunni and Shia law. Prompt dower necessitates immediate payment, ensuring that the husband fulfils his financial obligations before the
marriage is consummated. Deferred dower, on the other hand, becomes payable upon certain events or the dissolution of the marriage.
Lastly, proper dower offers flexibility for a wife to determine a suitable dower amount when no pre-decision has been made, irrespective of the
husband’s financial status. Each type of dower serves a distinct purpose and is subject to specific conditions as per legal traditions and
agreements between the parties.

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Q Describe the different kinds of guardianship under muslim law and explain powers of guardians?

What is Guardianship?
Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of the
guardianship are different and are governed by the different laws.
The guardianship of a child means that overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal
grandfather, being the natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a physical
possession (custody) of the child upon a certain age.
Although the mother is not the natural guardian of the child under Muslim law, she has a right to the custody of the child, until the child attains a specific
age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.
Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian

2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian

Natural or Legal Guardian

Natural guardian is a one that encompasses a right to regulate and supervise the activities of a minor. Father is recognized as the natural guardian of
his kid underneath all the schools of Muslim law. The father’s right to act as guardian of a minor is an independent right and is given to him underneath
the substantive law of Islam.
A natural guardian is additionally known as a legal guardian. But within the absence of the father, the father’s executor might also act as a legal
guardian. The executor could be one who is appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.
Thus, the natural guardian of a minor in order of priority are as follows:

1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons, no one else is recognized as the natural guardian of a minor.

Shia Law
Within the absence of father only paternal grandfather could act as a legal guardian. In the presence of paternal grandfather, the father’s executor has
no right to act as legal guardian of a child.

Testamentary Guardians
A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will. Only father or, in his absence, paternal grandfather has
the right to appoint a testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian.
Shia Law
A non- Muslim cannot be chosen as a testamentary guardian.

Guardians appointed by Court

In case of the absence of a natural and legal document guardian, the court is authorized to appoint a guardian for the aim of the minor’s person or
property or for both. The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is applicable to all the Indians
irrespective of their religion. Such guardians are also called Statutory Guardian.

De-facto Guardians
A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian, but has himself assumed the custody
and care of a child. According to Tyabji a de-facto guardian means that an unauthorized person who, as a matter of fact, has custody of the person of a
minor or his property. A de facto guardian could be a person having no authority for the guardianship however underneath the circumstances has taken
the responsibility to act as the guardian of a minor.

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