Unit 13-14

Children of potentially polygamous marriage can succeed to the property in UK. Therefore,
polygamous marriage can be recognised for limited purposes such as enforcement of
proprietary rights under personal law. In the case of Hashmi v. Hashmi, a Pakistan domiciled
husband married a pakistani woman and had children. He then went to England and married
an English woman and had children. The issue before the court was the legitimacy of the
children from both the marriages. For declaring the legitimacy, the court declared the
marriage as valid.

Formal Validity of Marriage

The formalities of marriage include questions such as whether a civil ceremony or a religious
ceremony or a ceremony at all is required, what should be the number of witnesses, the
permitted time when the ceremony can be conducted etc. Formal validity is governed by Lex
Loci Celebrationis.

Apt v. Apt, (1947), a rule which admits marriage by proxy is related to formal validity of
marriage, since it is concerned with the manner in which marriage ceremony is conducted. A
proxy marriage is one in which the individual being married is not physically present and is
being represented by another person.

Essential Validity of Marriage

There are 2 theories with respect to the same.
1. dual domicile theory
2. theory if intended matrimonial home

The capacity of parties to enter into valid marriage is related to essential validity.
All the impediments to marriages such as lack of age, polygamy, prohibited degree of
relationship, physical incapacity etc also fall within essential validity of marriage.

In Brook v. Brook, a marriage was celebrated in Denmark between an English domicile man
and his deceased wife sister of English domicile. Marriage was valid and legal by Danish law
but illegal by English law. The question is whether Lex Loci Celebrationis will prevail over
prohibition as to domicile (capacity of parties). The House of Lords held that the marriage
was void as Lex Domicile will prevail.

The english law governing marriage and matrimonial reliefs like divorce is the matrimonial
causes act 1973.
In the case of starkowski vs attorney general 1953, english case,
The facts are as follows:
Two Roman Catholics H&W domiciled in Poland were married in may 1947 in an Austrian
church without a civil ceremony. Austrian law did not recognise such marriage but after a few
weeks an austrian legislation validated such marriages restrospectively provided they were
registered. Marriage was registered after the parties H & W acquired English domicile.
In 1950 the wife married another man in England and the question before the court was
whether the 2nd marriage by the wife was valid?
The court held that the austrian marriage was valid due to the restrospective law and therefore
the 2nd marriage was bigamous and void.
Divorce and other matrimonial relief:
1.⁠ ⁠Section 47 of Matrimonial causes act, 1973 provides for several matrimonial reliefs in case
of polygamy such as
a. Divorce
b. decree of nullity
c. Judicial seperation
d. Financial relief including two children
2.⁠ ⁠Judicial seperation is recognised by the courts since 1858. The principle is that the parties
can live separately but their marriage is not dissolved and it usually decided as per the
English law on the principle of mensa et thoro (seperation from bed and board).
3.⁠ ⁠Nullity of Marriage is governed by section 11 of Matrimonial causes act, 1073 and it is
concerned with the validity of the marriage, unlike a divorce which dissolves a marriage
validly created. For example in english law if the party is below the minimum age of
marriage or is already married, then the marriage will be void. In Scotland if there is no
consent then the marriage is void ab initio.
4.⁠ ⁠Brook vs Brook and Starkowski vs Attorney General

Attitude towards LGBTQ+ and transsexual persons right of marriage

•⁠ ⁠In UK, the matrimonial causes act 1973 did not expressly cover same sex marriage.
•⁠ ⁠in talbot vs talbot (1967 UK) the court extended the prohibition where one spouse was post
operative transsexual with the observation that “marriage is a relationship which depends on
sex and not gender”
•⁠ ⁠wilkinson vs kitzinger, both parties where parties in Canada, domiciled in England and
legally married in Canada in 2003. However on their return to the UK their marriage was not
recognised and therefore the couple filed a petition in the HC for recognition of their
marriage and that a civil partnership is a lesser substitute. The HC in 2006, held that their
union cannot be granted the status of marriage. Justice potter, observed that marriage is an
age old institution and has a long standing definition and acceptance as a relationship
between a man and a woman. He also observed that the couple are recognised as a civil union
/ partnership and will get all the rights under the civil partnership act 2004
•⁠ ⁠same sex marriage as of today is legal throughout UK. It was recognised in England and
wales and Scotland in 2014 and Northern Ireland in 2020. UK is the 27th country in the
world to grant such recognition.

•⁠ ⁠SC of India in Supriyo vs UOI (2023) 5 judge bench held that right to marry is a statutory
right and not fundamental and therefore same sex marriage can only be recognised by the law
of parliament

Lord Campbell's observation above in Brook vs. Brook:

In the sphere of English conflict of laws, since the decision of House of Lords in 1861 in
Brook v. Brook, (1861) 9 HL Cas 193. it is well established that a distinction has to be made
between formalities and essentials of marriage -and that the latter which includes capacity is
governed by the law of domicile of the parties. In Brook v. Brook, the marriage was
solemnised in Denmark between a man and his deceased wife's sister, both of English
domicile. According to the law of Denmark, the marriage was valid. According to the law of
England, as it stood then, the parties were within prohibited degrees of relationship and hence
the marriage was void.

The question in issue was whether the lex loci celebrationis would prevail over the
domiciliary prohibition as to capacity. The point was debated before very eminent Law Lords
and in an exhaustive judgment it was held that the marriage was void, as under the law of
England such a marriage was void. Lord Campbell, L.C. at p. 207 in that case stated:

"There can be no doubt of the general rule that a foreign marriage, valid according to the law
of a country where it is celebrated, is good everywhere. But, while the forms of entering into
the contract of marriage are to be regulated by the lex loci contractus, the law of the country
in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law
of the country in which the parties are domiciled at the time of marriage, and in which the
matrimonial residence is contemplated.

Although the forms of celebrating the foreign marriage may be different from those required
by the law of the country of domicile, the marriage may be good everywhere. But if the
contract of marriage is such, in essentials, as to be contrary to the law of the country of
domicile, and it is declared void by that law, it is to be regarded as void in the country of
domicile, though not contrary to the law of the country in which it was celebrated", and at p.
212 the Lord Chancellor further observed:

"It is quite obvious that no civilised State can allow its domiciled subjects or citizens, by
making a temporary visit to a foreign country to enter into a contract, to be performed in the
place of domicile, if the contract is forbidden by the law of the place of domicile as contrary
to religion, or morality or to any of its fundamental institutions." The other Lords, Lord
Cranworth and Lord St. Leonards also enunciated the same principles. Ever since that
decision the principle has been applied in England to varying situations.

Unit 15- 16
Adoption English Law - Indian Law (Chapter 8 Sections 56-73 JJ Act 2015)

Adoption in India is governed by the JJ Act, 2015. It is a secular law exclusive of the Hindu
Adoption and Maintenance Act 1956 which is only meant for Hindus. Under the JJ Act,
CARA i.e. Central Adoption resource authority is established for facilitating the process of
adoption by Prospective Adoptive Parent based in India and also inter country adoption.

PAP can also visit District Child Protection unit in their district.
Specialised Adoptive Agency in every district appoints.a social worker to prepare home
Study Report of the Prospective Adoptive Parent. This report is valid for 3 years.

Based on this report the eligibility of the parent is decided. The eligibility under the JJA is
governed by the Prospectie Adoptive Parents’ physical and mental health, financial capacity,
gender, age etc. Eg: A child upto 4 yrs can be adopted by Prospective Adoptive Parent couple
with max combined age of 90 years and Prospective Adoptive Parent max age 45 years (if
individual).

Categories of child in jJA: Surrendered, Abandoned, Orphan, Child of relative.

Temple of Healing vs UOI; Tolani vs Azad Cases.

The Hindu Adoption and Maintenance Act, 1956 does not lay down any requirement of
residence, domicile or nationality. For instance, a Hindu parent can give the child to someone
who is also Hindu irrespective of the fact whether that person is an Indian national or alien or
domiciled in India or abroad.

In the case of Re Sister Gemma, an unclaimed, destitute and orphan child was sent to one
Mercy Home at the age of one year. A French lady who domiciled & resided in France
wanted to adopt the child so that she could educate & look after the child. When the
application for appointment of a guardian was done, then, court observed that the child was
destitute and there was no one for him to take care. So, the court held that if the French lady
adopted the child, then it would be for the welfare of the child. Usually, under the said Act,
there is no provision for any provisional orders of adoption.

Under the Hindu law, an adopted child is treated just like a natural child. Under section 12(a)
of the Act, it lays down that the adopted child is related to all the relations on the side of their
adoptive father & mother as they would have been if they were naturally born to them.
A comprehensive statute of adoption was passed in 1950, modified in 1958. Finally, the Act
of 1968 came whose purpose was to give effect to the Hague convention on Adoption of
children, 1965 in which England is also a part. Under the English law, the jurisdiction of the
court exists only on the twin conditions that the applicant is domiciled in England or Scotland
And the child & applicant are resident in England .

English law differs from Hindu law in the sense that the English law confers on the court
power to make a provisional order of adoption. It is a criminal offence under the English law
that any person other than the parent, guardian or relative takes or sends a child of British
origin out of Great Britain for adoption. Whenever an adoption order is made in respect of a
child, its effect is to extinguish all rights, duties and obligations along with the liabilities,
maintenance & education and to vest all such rights, duties, obligations, liabilities as if the
child were born out of lawful wedlock .

English courts have recognised adoptions where the adopter And the child & adopter are
residents of England only because English law is wedded to the doctrine under which
personal status is governed by lex domicilii . In the case of Re valentine’s settlement, where a
South Rhodesian couple domiciled in South Africa and adopted a boy & girl under the
adoption order from the South Africa court. According to the Rhodesia law, these children
were not recognised for adoption. This case basically stated that if the adoption is valid by the
law of adopter’s domicile, then, adoption is valid considering whatever the law in the child’s
domicile.

In conclusion, the Indian law regarding foreign adoptions are not yet developed. In the case
of C.S Natraja Vs C.S Subbaraya , one Shadashive died domiciled in Pondicherry. His wife
continued to be domiciled there and adopted a male child of three years of age. When the
question of validity of the adoption came up in the court, it was held that such adoption was
not valid as the widow had no capacity to adopt any child of her own. The court finally held
that since the woman had been domiciled in Pondicherry, her capacity to adopt was governed
by French law. It is to be kept in mind that the adoption between the countries must be done
between the convention countries. A ‘Convention country’ means any country excluding
Great Britain and a specified country, for the time being designated by an order of the
secretary of the state .

*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.

Legislative Background

Inter-country adoption is also known as transnational adoption. A few years back, India did
not have specific laws for inter-country adoption. In the famous case of Rasiklal Chhaganlal
Mehta, Gujarat High Court and the landmark case of Laxmikant Pandey v. Union of India,
the Supreme Court issued certain guidelines regarding adoption processes, and, subsequently,
CARA (The Central Adoption Resource Authority) was established for the regulation of inter-
country adoptions in India.

Later, CARA was designated as the Central Authority for implementation of the Hague
adoption convention.
Till 2000, JJ Act’s provisions related to adoption were not very clear and comprehensive but
in the 2015 amendment, the Act made the laws regarding adoption process complete and
streamlined. The law now clearly states that all inter-country adoption will take place only as
per the provision of the JJ Act and adoption regulations framed by CARA.

Principle of Subsidiarity

The basic principle of childcare and protection emphasizes that the child should be raised by
their own biological family. But if a child does not have a family, then efforts should be made
to place the child in an alternate family-based care for a peaceful and healthy growth. Here
adoption may be considered, but while considering adoption, it should be preferred that the
child remains in their original social, cultural environment and this is the prime reason why
in-country adoption should be the first choice.
If a suitable family cannot be found in the country of origin, inter-country or cross-border
adoption may be considered, so that a permanent family can be offered to a child.

What is CARA?

CARA or the Central Adoption Resource Authority is a statutory body under the Ministry of
Women and Child Development, Government of India, which was founded in June, 1990.

It acts as the nodal body for adoption of Indian children and is mandated to monitor and
regulate in-country and inter-country adoptions.

What is the Hague Convention?

The Hague Convention on Protection of Children and Co-operation in Respect of

Intercountry Adoption is an international treaty. This treaty was concluded in Hague on 29
May 1993 and came into force on 1 May 1995.
The document of the treaty was drafted by the Hague Conference on private international law
and till now the treaty has been ratified by 99 countries and 3 countries have signed it but not
yet ratified.

The countries which have ratified the convention are supposed to follow the conditions or the
standards as far as possible. Many countries which have not ratified the convention are
neither permitted to participate in foreign adoptions of their children nor are allowed to adopt
foreign children by their residents.

Purpose of the Hague Convention

The purpose of the Hague Convention is to safeguard the best interests of the adopted child
and to prevent illegal, irregular adoptions so that both the families and child are protected at
all costs. To achieve this purpose, it has set out clear roles, responsibilities, and procedures
regarding inter-country adoptions.

It has also established a system of cooperation between the authorities of the child’s native
country and the receiving country. It provides inter-government recognition of the adoption,
which has taken place following the Hague convention. Such adoptions shall be held valid by
both the countries and no adverse consequences will be faced by the adopted child and the
adoptive family.

India has signed and ratified the Hague convention in 2003 and it is also a member of the
Hague Conference.
An NRI, OCI, or a foreign prospective adoptive parent who wishes to adopt a child from
India must follow the Indian guidelines. These regulations are required to check illegal
practices like trafficking, kidnapping, and sale of children and corruption.

Laws Applicable on Inter-Country Adoption in India

All inter-country adoptions, whether it is an adoption of an orphan or an abandon, or a

surrendered child, or adoption of a relative’s child, can be done only as per the provisions of
the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017 (framed by CARA).
These provisions give effect to the Hague Convention on adoption, to which India is a
contracting party and, therefore, obligated to adhere to its conditions.

Eligibility for Intercountry adoption in India

Both single adopters and heterosexual married couples may adopt.

A married couple with a combined age of up to 90 years, or a single adopter up to 45 years
may apply for a child up to 4 years of age.
A married couple with a combined age of up to 100 years, or a single adopter up to 50 years
may apply for a child between 4-8 years of age.
A married couple with a combined age of up to 110 years, or a single adopter up to 55 years
may apply for a child up to between 8 and 18 years of age.

Procedure for Intercountry Adoption

Intercountry adoption under the Hindu Adoption and Maintenance Act, 1956 (78 of 1956),
initiated after the Adoption (Amendment) Regulations, 2021, follow a standard procedure for
eligible Non-Resident Indian or Overseas Citizen of India cardholders adopting Indian Hindu
children.
Hindu prospective adoptive parents residing abroad who wish to adopt an Indian Hindu child
born to Indian Hindu parents in India should reach out to an Authorized Foreign Adoption
Agency, the Central Authority, or the relevant Government Department in their country of
residence.
The Authorized Foreign Adoption Agency, Central Authority or the concerned Government
department sponsors the application of eligible prospective adoptive parents to the Central
Adoption Resource Authority (CARA).
The Central Adoption Resource Authority (CARA) shares the sponsoring letter to from the
Authorized Foreign Adoption Agency with the District Magistrate of the child’s residence
district.
The District Magistrate commissions a family background report, which includes essential
documents related to the biological parents and the child proposed for adoption. This report is
conducted through the District Child Protection Officer or unit outlined in Schedule XXXIV.
Upon receiving the Family background report, the Central Adoption Resource Authority
forwards it to the relevant Authorized Agency /Central Authority or the concerned
Government Department in the adoptive parent’s country of residence. This is done to obtain
necessary permission under the Hague Adoption Convention or a supporting letter for
adoption in countries where the Hague Convention is not adopted.
Upon receipt of the verification certificate from the District Magistrate regarding the
registered adoption deed and the necessary permission under Articles 5 or 17 from the
receiving country as stipulated in the Hague Adoption Convention, the Central Adoption
Resource Authority (CARA) is tasked with issuing a No objection certificate (NOC) for
Hague ratified countries.
Additionally, CARA issues a Conformity Certificate under Article 23 of the Hague Adoption
Convention subsequent to receiving the verification certificate. For countries outside the
purview of the Hague Adoption Convention, CARA issues a support letter subsequent to the
verification certificate, providing the necessary endorsement for the adoption process to
proceed smoothly.
Following this new rule, adoptive families can now inform Indian diplomatic missions two
weeks in advance of their intent to travel with the adopted child. During this process, the
families must furnish all details of their residence. Hereby, the Indian missions will then
monitor the progress and security of the adopted child, instead of CARA and other
authorities.

Challenges in Case of Inter-Country Adoption

There are some regulatory challenges in transnational adoption. These regulations are
required to check illegal practices like trafficking, kidnapping, exploitation, child labor, and
the sale of children. The major object of the amendment is to prevent such illegal activities
against children.

Some of the challenges that come with inter-country adoption are –

• Lengthy Process
Due to the Lengthy process of adoption in our country, sometimes it is tough and
cumbersome to attain the documents of adoption like NOC, etc. within a limited time for
adoptive parents. Hence, to speed up the procedure the Ministry of Woman and Child Welfare
has introduced some new guidelines and issued directions to CARA.

• Illegal Practices
Sometimes people who want to be adoptive parents have malicious intentions towards the
adoption of a child, and in such cases, after taking them to other countries the child can be the
subject of illegal activities like exploitation, child labor, human trafficking, etc. To ensure the
safety of children and to prevent such illegal practices the government should proceed with
the process of adoption only after conducting a thorough investigation with all required legal
proceedings.

• Post Adoption Identity Problem

In transnational adoptions, the procedures are generally onerous and lengthy. Adoptive
parents should complete the entire adoption procedure here in the child’s native country as
well as their own country by following all the regulations of adoptions of the countries
involved. In a situation where they fail to complete the adoption process of a foreign country
after taking the child abroad and the guardian does not turn out to be the adoptive parents of
the child, the condition can significantly worsen for the child. Hence, the Child Protection
Authorities, CARA, and now the Indian diplomatic missions ought to ensure the safety of
adopted children every time.

• Post Adoption Negligence

In such inter-country adoptions, it is very tough to monitor the child custody in hands of
adoptive parents regularly therefore, there is a high possibility of negligence by the parents
towards adopted children. Hence, the government seeks the recommendation of adoptive
parents by a child welfare agency or a social agency that is recognized by the government of
that country in which the foreign couple resides, to ascertain the security of the child.

Way Forward

Moving forward and offering suggestions, international adoption stands as a transformative

journey for both the adopting parent and the child, promising a secure future and better care.
However, these challenges and complexities inherent in international adoption can be
effectively addressed with a sense of responsibility. Here are several recommendations:
Cultural Socialization: This encompasses how parents navigate ethnic and racial dynamics
within the family, including the transmission of cultural values, beliefs, and behaviors to the
child. Adoption Agencies and authorities should thoroughly assess the mental preparedness of
the prospective parents, particularly in cases of transnational, interracial or intercultural
adoption. Providing training and guidance will equip parents with necessary tools to
responsibly nurture and support the child.
Community Sensitization Efforts: Institutions such as schools, hospitals and colleges should
play an active role in promoting awareness and understanding of racial differences among
students and staff. Moreover, all individuals involved in the intercountry adoption process
must undergo comprehensive sensitization programs to ensure strict adherence to established
guidelines and protocols. This will guarantee that the principles governing intercountry
adoption are upheld with utmost sincerity and dedication.