UNIT VI MARRIAGE

6.1 Definition of marriage

• Marriage, a legally and socially authorized union

usually between a man and a woman, that is
regulated by laws, rules, customs, beliefs, and
attitudes that prescribe the rights and duties of
the partners and accords status to their
offspring.
• Marriage is a universal phenomenon which initiate a
family life of a person and authorizes the couple to
procreate upspring.
• It is an institution of society that can have very
different implications in different cultures. Its
purposes, functions, and forms may differ from
society to society, but it is present everywhere as an
institution.
According to Hindu philosophy, marriage is taken as a religious
tradition and not as a contract according to this, men and women
become perfect only after marriage.
marriage
Marriage is an important institution for their personality
development and the continuation of society.
It is usually compulsory for man and woman to undergo this Vivah
Sanskar to enter the Grihast-ashram
ashram stage of life and Marriage is
believed to harmonizes two individuals (mostly male and female) fo
ultimate eternity, so that they can pursue DHARMA (responsibility
/duties)
Simply marriage is an institution that ties husband and wife to fulfill
their desired needs like sex satisfaction bringing children, instituting
family and fulfilling the social and psychological needs of both males
and females.
Definition
Malinowski says that marriage is a “contract for production and
maintenance of children.”
According to Westermarck,, “it is a relation of one or more men with
one or more women recognized by the law and custom having some
rights and duties in case of having children.”
Horton and Hunt say, “It is a social system us hereby two or more
than two persons establish a family.”
Mr. Muhammad NiaZ,, ‘It is a union of husband and wife approved by
the following four agencies i.e. religion, society, morality, law.”
UN “an act, ceremony or process by which the legal relationship of
husband and wife is constituted. The legality of the union may be
established by civil, religious or other means as recognized by the
laws of each country”
The National Civil Code 2074 sec 68. 68 Marriage to be inviolable social
bond: Marriage shall be a permanent, inviolable and holy social and
legal bond, which is based on free consent and established to start
conjugal and family life between a man and a woman.
Conditions for a valid marriage in Nepal
Consent of both man and woman to enter into the marriage;
The man and the woman are not relatives, punishable by law on
incest (except for the practices prevailed in ethnic community or
clan);
The matrimonial relationship of both the man and woman should not
exist; and
Both man and women must attain twenty years of age.
Types of Marriage
6.3.1: Valid Marriage:
6.3.2: Void marriage :
6.3.3: Voidable marriage:
6.3.1: Valid Marriage:

• If a man and a woman accept each other as the

husband and wife through any occasion, ceremony,
formal or other act, a marriage shall be deemed to
have been concluded (sec 67).
67)
• Marriage by registration (sec. Sections 77, 78, 79 & 80)
6.3.2: Void marriage :

• The Civil Code 2074 sec 72. Marriage to be void: A

marriage concluded on any of the following conditions
shall, ipso facto, be void:
• A marriage concluded without consent of the man or the
woman,
• A marriage concluded between the relatives, punishable
by law on incest.
• A marriage concluded before attaining 20 years of age
• No marriage shall be deemed to have been concluded
between a man and a woman in any of the following
circumstances even if a child is born from physical
intercourse with the man:
• If a woman gives birth to a child by conceiving pregnancy as the
consequence of rape,
• If a woman delivers a child by conceiving pregnancy from a
physical intercourse with a man within the relationship punishable
by law on incest.
• Marriage concluded before attaining 20 years of age
• During the continuation of the marital relationship
(The National Panel Code 2074 sec 175):
175) A married man shall, during
the continuation of the marital relationship, conclude another
marriage.
A marriage concluded within such condition shall be invalid ab initio.
6.3.3: Voidable marriage:

The Civil Code 2074 sec 73. Voidable marriage: (1) If a marriage is
concluded in any of the following circumstances and any person who
concludes such a marriage does not accept it, the person may get
such a marriage voided:
If the marriage has been concluded, or caused to be concluded, by
way of misrepresentation
If a marriage is concluded under the sec 71, such marriage is also
voidable
• One who has contracted human immunodeficiency virus (HIV) or Hepatitis 'B'
or similar other incurable severe disease,
• One who has already been proved to have no sexual organ, to be impotent or
to have no reproductive capability,
• One who is dumb or has lost hearing capacity, being fully blind or is suffering
from leprosy
• One who is of unsound mind,
• One who is already a married,
• One who is a pregnant,
• One who has been convicted of a criminal offense involving moral turpitude
by a court and sentenced for the same.
A marriage shall be void only with the consent of the woman if she is
pregnant or has delivered a baby as the consequence of the marriage
6.4: Termination of Marriage

Marriage is terminated only by legal provision i.e. Divorce.

Divorce:
It is the final termination of a marital union, cancelling the legal duties
and responsibilities of marriage.
NCC Section 93 mentions that if both the husband and wife desire to
get divorce then they can get the divorce at any time. But if both
parties do not have consent each other to get divorce then there is
ground to get divorced.
Grounds for husband:
If the wife has been living separately for three or more consecutive
years, without consent of the husband;
If the wife deprives the husband of maintenance costs or expels him
from the house;
If the wife commits an act or conspiracy likely to cause the grievous
hurt or other severe physical or mental pain to the husband; or
If the wife is proved to have made sexual relation with another
person;
Grounds for wife:
If the husband has been living separately for three years or more
consecutively, without consent of the wife;
If the husband deprives the wife of maintenance costs or expels her from
home;
If the husband commits an act or conspiracy likely to cause grievous hurt or
other severe physical or mental pain to the wife;
If the husband concludes another marriage; or
If the husband is proved to have made sexual intercourse with another
woman; or
Marital rape.
Adoption
6.5.1: Concept:
The process of transferring a parent’s legal rights and duties to
another person is called adoption. In other words, adoption includes
the termination of a child’s legal rights and duties toward his or her
natural parents and the substitution of such rights and duties toward
his or her adoptive parents.
Adoption means creation of relationship of parent and child between
the persons who are usually not related to each other by nature.
ADOPTION: means the act of creating the legal relationship between
parent and child when it does not exist genetically. It is the
permanent legal transfer of all parental rights from one person or
couple to another person or couple.
• Act of adoption transfers all the obligations towards the adopted
child from the natural parents to the adoptive parents who by nature
have no obligation towards the child.
Adoption Changes the Status of the Child He/she becomes child of
his/her adoptive parents in eyes of law to the exclusion of his/her
natural parents.
Thus „Adoption‟ means the process through which the adopted child is
permanently separated from his biological parents and becomes the lawful
child of his adoptive parents with all the rights, privileges and
responsibilities that are attached to a biological child.
Adoption has been described in Manusmriti as ‘taking someone else’s son
and raising him as one’s own’.
Hindu Adoption and Maintenance Act has made the definition of
‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child
includes both a girl and a boy child, and not merely a son
Encyclopedia Britannica explains “Adoption is a way of conferring the
privileges of parents upon the childless and advantages of parents upon
the parentless.”
Types of Adoption

There are basically two types of adoption. They are:

A. Open adoption:: This is the type of adoption in which biological
parents get a chance to meet their child despite having all the legal
rights of adoptive parents.
B.Closed adoption: In this type of adoption, there is no contact
between the biological parents and the adoptive parents and child
after the adoption takes place.
OBJECTIVES OF ADOPTION

To continue blood line

To consolidate and perpetuate family’s property rights
To enlarge family
ADOPTION IN NEPAL

Domestic Adoption
Inter-Country Adoption
PROVISIONS OF Civil Code RELATING ADOPTION

SECTION 170- Best Interest Of Child must be protected - adoption

must be affected in a manner that it protects the best rights and
interests of the child.
SECTION 175- Consent To Be Obtained For Adoption: in effecting
adoption of a child, the adopter shall obtain written consent of both
father and mother of such a child.
SECTION 174. Difference Of Age Between Adopter And Adoptee:
The age difference between the adopter and the adoptee shall be at
least twenty-five years.
Who can adopt a child in Nepal

Section 172 of NCC (a) A couple to whom no child has born even up
to ten years of the marriage
(b) An unmarried woman having completed forty-five
forty years of age, a
widow, divorcee woman or judicially separated woman, having no son
or daughter
(c) An unmarried man having completed forty-five
forty years of age, a
widower, divorcee or judicially separated man, having no son or
daughter.
Who can not adopt a child in Nepal?

(a) A person with an unsound mind,

(b) A person who is convicted by the court of a criminal offense
involving moral evilness,
(c) One who does not have the financial capacity to afford
maintenance, health care, education, sports facility, entertainment,
and care of the minor.
Who can not be adopted in Nepal?

(a) One who has attained fourteen years of age,

(b) One who is the one and only son or daughter,
(c) One who has been already adopted as a son or daughter
previously,
(d) One who is in a greater degree of a relationship than the person
adopting the son or daughter,
(e) One who is not a citizen of Nepal. ( the provision of this clause
shall not apply to a non-resident
resident Nepali citizen who has obtained
foreign citizenship )
Procedure of Adoption in Nepal

File Petition to the Concerned Court:: If a person is desirous of adopting a

child, he or she shall make a petition to the concerned court, along with a
duly executed deed of adoption, in fulfillment of the legal requirements.
Court Authenticates Deed &Grants Permission: Upon inquiring into the
deed of adoption received pursuant to the concerned court finds that
permission may be given to the petitioner for adoption, it shall issue an
order granting permission for adoption and shall authenticate such deed.
May reject the authentication: Upon making inquiry, if the court finds that
permission cannot be given to the petitioner for adoption, it shall issue an
order accordingly and give information thereof to the petitioner.
The rights, obligations, and responsibilities of an adopted son or
daughter will be the same as that of a biological son or daughter of
the adoptive person.
If a son or daughter is born to a person who has already adopted a
person, the equal status of such adopted son or adopted daughter to
that of a biological son or daughter will not be damaged.
Obligations of adopted son or daughter:

The obligations of the adopted son or daughter shall be as follows:

(a) To make arrangements for the maintenance, health care, and care
of the adoptive person according to 97 his or her reputation and
capacity as if such person were his or her natural father or mother,
(b) To protect, look after and properly manage the property of the
adoptive person,
(c) To protect the rights and interests of the adoptive person.
The surname of the adopted son or daughter after
adoption in Nepal:
An adopted son or daughter may use the surname of either or both of
he adoptive father and mother.
If an adopted son or daughter wishes, he or she may use the surname
of his or her biological father or mother.
If the adoption is revoked, his or her surname will be that of his or her
biological father or mother.