Category Archives: Marriage, Divorce, Adoption etc.

The tricky issue of child custody, explained

Custody of Children: A sensitive area of the law

A very sensitive and tricky issue that arises when a couple is getting divorced or their marriage is being annulled is the status of minor children. Minor children are the victims of the troubles in the family, and once separated, where the children will stay becomes a major cause for concern.

Custody proceedings accompany any divorce proceeding usually, and it must be understood that there are two kinds of custody, physical custody and legal custody. Legal custody means that the parent is entitled to participate in decisions that affect the welfare of the child including medical treatment, insurance claims and religions practices.

Having ‘Physical’ custody means that the child resides with that parent, and the parent is responsible for the most basic needs of education, housing and food. The parent with Legal custody is given ‘visitation rights’, which means he/she can meet the children on certain designated days.

On what basis does a Court decide whom to give custody to?

Most people think that custody automatically goes to the mother. Others think that custody goes to the parent with the better lawyer. Neither of them is entirely true. What the Court looks at, more than anything else, is the best interest of the child, not the argument put forward by the parents.

The Court often gives the custody of young children to mother because it believes that a mother can bring up a young child alone better than a father can. This is not a rule, naturally, and the Court will look at factors like financial security, parenting skills and the amount of disruption that will be caused to the child if custody is given to that parent. (A very young child, however, as a rule is looked after by the mother.)

If a child has been living with the mother (which is often the case) for some time after the divorce, the Court may give the custody to the mother, since the amount of disruption caused to the child will be minimised. On the other hand, if the mother is in poor financial health, or has problems like alcoholism and a history of physical abuse of the child, the custody will immediately go the father.

Different laws relating to custody in India:

Which law applies to questions of custody is not an easy question to answer. In Islam, different communities have differing periods of custody. Muslim law recognizes the paramountcy of the mother when it comes to matters of custody. The right of the mother is called the right of ‘Hizanat’, and in the different communities, different periods have been prescribed. The period for boys is also different from the period for girls. Some communities set the period of Hizanat for boys as low as the time till the child has been weaned from the mother. Among other communities, the period of Hizanat is as long as till the son has attained puberty. For Girls, the period ranges from the time the girl has attained a certain age all the way till the time the girl has been married. Only a lawyer qualified in these matters can give you complete guidance.

Among Christians, the Indian Divorce Act is applied, and the Court will make orders for custody while hearing the proceeding for judicial separation. The Courts effort will be to ensure that the child will be well looked after, and that essentials like education and health will be well taken care of. Among some other communities, like the Parsis, the Guardians and Wards Act applies. Here too, the main effort is to ensure that the welfare of the child is maximised.

Finally, among the Hindus in India, there is a legislation called the Hindu Minority and Guardianship act, which covers all aspects relating to minor children and guardians for minor children. Here too, the welfare of the child is the primary focus of the Court.

Is the child’s preference taken into consideration?

Yes, indeed. The Court will first determine whether the child is capable of making an informed choice, and if the child is, its opinion is sought. A child of around nine or ten years is usually thought capable of making an informed choice.
If there are two children or more and they want to live with different parents, the Court will try not to separate the children, and will then decide which parent the children must live with. This will obviously be emotionally devastating for the child which wants to live with one parent and not the other, but it is a difficult choice the Court often makes.

Is the decision of the Court permanent?

No, most definitely not. The decision of the Court is always motivated by the best interest of the child and the welfare of the child, so if it can be shown that staying with one parent is harming the child, custody can be given to the other parent.

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Divorce Law in India

Divorce is a very traumatic occurrence for any individual or couple, and the law can only intervene to regulate how the separation between man and woman must take place. In India, most things connected to marriage and family are governed by religions laws. Divorce among Hindus, including Buddhists, Sikhs and Jains, is governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939.
Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956.

What are the various reasons for divorce recognized by law?

The law will not permit you to get a divorce merely because you are bored of looking at the same face, or because you find someone else more interesting. Some ‘grounds’ have been laid down in law.

One common ground is ‘adultery’ or extramarital sex. Although a valid ground among Hindus, Christian law does not allow a woman to sever ties only because of adultery. Another ground is ‘desertion’, which has been defined as either spouse refusing to cohabit, without just and reasonable cause, for a period of three years. A third recognized reason is cruelty, which is physical and mental abuse and neglect. The last two reasons are a chronic disease affecting either spouse (which can include a sexually transmitted disease, leprosy or a mental ailment) and impotency.

In India, a couple can also get a divorce by mutual consent, where both parties want the marriage to end. The law gives them one year to reconcile their differences, and if at the end of one year, they cannot resolve their differences, the marriage is ended by mutual consent.

How does a person get a divorce?

The law also outlines a procedure which must be followed before you can get a divorce.

Adultery. While no formal definition of adultery exists, it does have “a fairly established meaning in matrimonial law”, namely “the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband”. While the law considers it valid grounds for either sex, it is often felt that adulterous women are judged more harshly than men.

The various religious regulations are not unanimous on this issue. Hindus are allowed divorce on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision “recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage,” striking down a section of the law that allowed for an unconstitutional distinction between the sexes.

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The law relating to Adoptions in India

In our country, many matters relating to marriage, family and children are governed entirely by religion specific laws. For Muslims, for example, the Sharia law is applicable, which is derived entirely from Islamic texts on the interpretation of the Quran.

Adoption is one such matter which is entirely governed by religion specific laws. And as per law in India, only Hindus can adopt a child as their own child. A Muslim or a Christian can become the legal guardian of a child, but only a Hindu can adopt a child. (In Indian law, the word ‘Hindu’ includes Buddhists, Jains and Sikhs as well, but not Parsis and Jews.)
This may sound unfair, but the reason is that Islam does not recognize adoption, and neither do the personal laws of Christianity, Judaism or Zoroastrianism. In Mohammed Allahdad Khan v. Mohammad Ismail, it was held that there was nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Hinduism is the only religion that gives its followers the freedom to adopt and give their child in adoption. An exception made is that a Muslim or Christian, or even a Parsi or Jew, can adopt from an orphanage, as long as the consent of the Court has been taken.

Which law applies?

A Hindu adoption is governed by the Hindu Adoption and Maintenance Act, 1956. Before this Act was introduced, only a male child could be adopted, but the Act makes a provision that a female child can also be adopted.

Who can adopt?

For an adoption to be valid, the person adopting has to be capable of adopting, and there are specific rules as to who is capable of adopting a child. The law is quite simple and equitable.

If you are a man, you must have attained majority (unless you have a legal guardian, you attain majority the moment you reach the age of 18) and must not be mentally unsound. If you are married, you must take your wife’s consent, unless has converted from Hinduism to another religion, or has been declared by a Court to be mentally unsound. Finally, although this is very rare, if your wife has completely renounced the world, you need not take her consent either.
For women, the requirements are quite similar. If you are married, then the adoption must be by your husband. A married woman cannot adopt, her husband alone can adopt, after she gives him her consent. If your marriage has ended, or your husband has passed away, or converted out of Hinduism, or renounced the world, you can adopt independently. Also, like for women, if your husband has been declared mentally unsound, you need not take his consent and can adopt independently. (Even if you think so, it doesn’t matter! A Court must declare him so)

Who can give a child on adoption?

Only the father, mother or guardian of the child can give it on adoption. However, if the child is an orphan, or if his/her parents have renounced the world, or abandoned the child, or become mentally unsound, the legal guardian of the child can give it on adoption. This adoption has to be approved by the Court, which will check that the adoption is for the welfare of the child. If the child is old enough to understand and give its opinion, the Court will even ask the child whether he/she wants to be given on adoption.

The husband can adopt, provided his wife consents, and the same requirements mentioned above for a man adopting a child apply to a husband giving his child on adoption. (should not have converted out of Hinduism, renounced the world or been declared mentally unsound.) A mother can give her child in adoption independently only if her marriage has ended or husband has died, renounced the world, converted or become mentally unsound.

Finally, adoption is an act driven by a desire to bring up a child and show it love and affection. The human element is critical in adoption, so a Court will not allow an adoption where there is even a hint of reward or compensation, unless the Court sanctions it.

Can any child be adopted?

After the Hindu Adoptions and Maintenance Act, 1956, both boys and girls can be adopted. However, only a Hindu child can be adopted, not one born to Muslim, Christian, Jewish or Parsi parents. Also, the child must be less than fifteen years of age, unless there is a local custom in that community according to which even older children can be adopted. Naturally, (unless there is a custom to the contrary) a married person cannot be adopted. A child which has been adopted once, cannot be adopted again.

Finally, are there any other things I must be aware of?

Yes, just a few. If the adoption is of a son, the man or woman adopting him must not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter living at the time of adoption. This can get a little confusing, but read it slowly and carefully, and it is actually quite simple.

If the adoption is by a male and the person to be adopted is a female, the man adopting must be at least twenty one years older than the person to be adopted. This is to discourage sexual relationships between the man and the girl being adopted. Similarly, if the adoption is by a female and the person to be adopted is a male, the adoptive mother must be at least twenty one years older than the person to be adopted.

As long as these requirements are met, you can adopt in peace. An adoption, even after completing these requirements, is complete once the child is actually physically taken by the adopting parents. A ceremony called data homam is usually performed, but the validity of the adoption does not depend on this.

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Adultery and (the long arm of) the law

Adultery is the act of having sex with a woman or a man outside of marriage. We commonly refer to it as ‘extramarital sex’, and most people are surprised when they hear that it is actually a crime under Indian law, like robbery or dacoity. The word adultery is derived from the words ‘ad’, which means towards and ‘alter’, which means other in latin. According to some studies, as many as 27% of women and 50% of the men in the U.S.A have engaged in extramarital sex. And if we take the view of the Bible, “But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (Matthew 5:28)”, it will be almost 100% of mankind.

Despite that, many nations have taken very strict views against adultery. Many states in the United States still view it as an offence. It is amusing today that in the West, adultery was looked at a man’s property (his wife) being shared, and so he was entitled to compensation! In our times, the Islamic world is famous (infamous, really) for its very harsh stance on extramarital sex. In many Islamic countries, including our neighbor Pakistan, the punishment for adultery can extend to death.

Indian law on adultery, as many people acknowledge, is quite outdated and unequal. The Indian law states that a person commits adultery, if “he has sexual intercourse with a woman who is and whom he knows or has reason to believe to be the wife of another man.” By using the word ‘he’, it limits itself to men only, and women cannot be even accused of the crime. Additionally, it is only limited to married women. Therefore, even if the man is unmarried, it can be adultery for him to have sex with a married women. Only if the woman’s husband consents to them having sex, it is not an offence. Naturally, if the woman is forced to have sex with the man, it is not adultery, but the much more serious crime of rape.

To sum up, an act of adultery is committed when any man, married or unmarried has sex with a married woman
1. Without the consent or connivance of the husband, and
2. The woman consents to having sex with the man, i.e. it is not rape.

Not only is it unequal, it is also quite severe. A man committing adultery can be put behind bars for as many as five years. A lady who suspects her husband of being in an adulterous relationship can therefore file a criminal complaint against him. One wonders however whether this is a workable solution in a country like India, especially when the punishment is so severe.

A few changes must be introduced in the law to make it equitable and fair. First, it should be an offence to have sex by a married man even with an unmarried woman. If the objective is to punish a man for his disloyalty, it does not matter with whom the act of disloyalty is committed. If the objective is to somehow compensate the husband of the unfaithful woman, we need to re-examine our law, because such an objective is very unfair and regressive. Moreover, if that is the objective, then why not punish the woman as the abettor too? The punishment in that case must be extended to both sexes, if at all a punishment is to be imposed.

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