Wedding and Jewellery: March 2015

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Sikh Marriages and Registration Procedure in India

Introduction

Sikh marriages, being a holy union considered sacrament, are performed with the blessing of the ‘Guru Granth Sahib’ as per Sikh Rehat Maryada are governed by the Anand Marriage (Amendment) Act, 2012.

Conditions for Marriage

The following conditions are to be satisfied to solemnize a Sikh marriage:

No party to the marriage should have a partner living at the time of marriage;
Both the parties to the marriage-

should be able to give a free and valid consent, should be mentally fit and not of an unsound mind; or
No party should be suffering from any mental disorder or mental illness thereby effecting their ability to give a valid consent for the marriage and procreation of children or
No party should be suffering from persistent bouts of insanity;

the bridegroom should have completed the age of twenty - one and the bride should have completed the age of eighteen years at the time of marriage;
The parties to the marriage should not be related to each other and should not come under the degrees of prohibited relationship, unless otherwise allowed under the rituals or customs which governs each of them which allows for such a marriage between both of them.

Documentation for Registration

Completed application form signed by the parties to the marriage.
Documentary evidence of date of birth of both parties, such as a passport, pan card, driving license etc .
An affidavit provided by both parties specifying the date, location and time of marriage. It should also contain information pertaining to the marital status and nationality of both parties.
Two passport size photographs of both the parties and one marriage photograph and marriage invite.

Procedure for Registration

Sikh Marriages are now registered under the Anand Marriage (Amendment) Act, 2012 by the following procedure:

All Sikh marriages performed prior to or after the onset of the Anand Marriage (Amendment) Act, 2012, are to be recorded in the Marriage Register maintained by an officer of the State Government or of a local authority authorized by the State Government,
The Marriage Register would be open on all working hours for the examination of the records by the parties to the marriage, and the use of such information as proof for future purposes. In order to obtain certain information contained in the register by the parties, an application has to be made to the Registrar with the appropriate fees attached. The Registrar on receiving the application would issue the information required to the parties concerned,
If any marriage has been performed by the ‘Anand Karaj’, but not recorded in the Marriage Register. Such a marriage would still be valid,
Registration or recording of a marriage in the register under the act, saves the parties the obligation of getting their marriage registered under some other law enforced at that time, including the State Act.

Family Courts under The Family Courts Act, 1984

The purpose and aim of establishing the Family Courts is to protect and preserve the institution of marriage and to promote the welfare of children and provide for settlement of disputes by conciliation. The Family Courts Act extends to the whole of India except Jammu and Kashmir.

Every State Government after consultation with the High Court establishes in every area in the state, a Family Court. One or more judges head it and preference is given to women judges.

SUITS OR PROCEEDINGS FILED IN FAMILY COURT

The Family Courts are empowered to deal with the following matters:

A suit or proceeding between the parties to a marriage for nullity of marriage or restitution of conjugal rights or dissolution of marriage.
A suit or declaration as to the validity of a marriage or as to the matrimonial status of any person
A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.
A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.
A suit or proceeding for a declaration as to the legitimacy of any person
A suit or proceeding for maintenance.
A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

Family Courts also have jurisdiction exercisable by a Magistrate of the 1st class relating to an order for maintenance of wife, children and parents under the Code of Criminal Procedure.

DUTIES OF FAMILY COURT

The family Court shall make an endeavor to assist and persuade the parties in arriving at a settlement.

If the Court feels that there is a reasonable possibility of a settlement the Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to arrive at a settlement.

FAMILY COURT- A CIVIL COURT

Family Court shall be deemed to be a civil Court (except for proceedings relating to Maintenance of wives, children and parents relating to the Code of Criminal Procedure).

PERSONAL APPEARANCE MANDATORY

No party shall be entitled as a right to be represented in a Family Court by a legal practitioner. The parties to the proceedings have to appear themselves and put forward their case.

RECORD OF ORAL EVIDENCE AND BY AFFIDAVIT

The Court shall record what the witness deposes and the memorandum shall be signed and form a part of a record. The Court may on the application of any of the parties summon and examine any such person as to the facts contained in the affidavit.

APPEAL

An appeal lies to the High Court from every judgement or order passed by the Family Court. However no appeal lies against a decree or order passed by the Family Court with the consent of the parties under proceedings relating to maintenance of wives, children and parents under the Code of Criminal Procedure.

LIMITATION

An appeal to the High Court from every judgement or order not being an interlocutory order passed by the Family Court has to be filed within 30 days.

ADDRESSES

DELHI

BANGALORE

BOMBAY

Divorce Under Muslim Law

Introduction

Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires.

Generally, both the parties to the marriage contract have an opinion for divorce, but the husbands right in this respect is much greater than that of the wife.

The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement.

But the wife cannot divorce herself from her husband without his consent. She can of course purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation).

Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.

Divorce by husband/wife

A Husband may divorce in the following manner-

Talaq: which is release from the marriage tie immediately or eventually.
Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.

A wife may divorce in the following manner-

Talaqetafwiz: talaq by the wife under the husbands delegated power.

Divorce by judicial decree under dissolution of The Muslim Marriage Act,1939

Following are the grounds on which a marriage may be dissolved under the Marriage Act.

Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.

WOMANS RIGHT TO DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT. 1939

A Muslim woman may file for divorce on the following grounds-

That the whereabouts of the husband have not been known for a period of 4 years
That the husband has neglected or has failed to provide for her maintenance for a period of two years.
That the husband has been sentenced to imprisonment for a period of seven years or upwards.
That the husband has failed to fulfill his marital obligation for a period of three years.
That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
That the husband was impotent at the time of marriage and continues to be so.

The women, having being given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.

Triple divorce

Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.

Divorce Under Hindu Marriage Act

Introduction

Under the old Hindu laws, divorce was viewed as forbidden and was not talked about as freely as it is spoken out today, but with the codification of the laws the provision of divorce were laid down The provision of “Divorce" has been dealt with under the Hindu Marriage Act, 1955 as being a true blue method whereby both the parties to the marriage, decide to break all the promises or vows taken at the time of marriage. All Hindus, Buddhist, Jains or Sikhs are covered under the divorce provisions of the act.

Grounds for Divorce

The following grounds can be invoked for securing a divorce under the act:

Adultery: During the period of marriage, if either spouse maintains sexual relations with a person other than his or her lawfully wedded companion.
Cruelty: After the marriage, subjecting the petitioner to cruelty.
Desertion: If either one of the parties to the marriage deserts the other for a consistent span of at least two years , prior to the filing of the petition by the other party.
Conversion to another religion by either party other than Hinduism
Mental Disorder: If the spouse of the petitioner suffers from any unsoundness of mind, mental illness or disorder that cannot be cured, then the petitioner can file for divorce
Virulent and Incurable Disease: in the form of leprosy.
Venerable Disease in Communicable form.
The renunciation of the world or entered any religious order.
Not heard being alive for a period of seven years or more.

Additional Grounds for Dissolution of the Marriage by the Wife

Under the act, the wife is entitled to seek divorce from her husband on the following grounds:

Where the husband has another living wife from his previous subsisting marriage, before the commencement of the act.
Post the marriage, the husband was found guilty of rape, sodomy or bestiality.
Where the wife was awarded an order or decree for maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, by the court, in spite of the fact that she was living apart from her husband even before the passage of such decree or order. The conjugal relations between the parties failed to resume within one year or more, even after the passage of this order.
The marriage was performed before the attainment of 15 years of age by the wife, and on completion of 15 years and not before 18 years of age, the wife rejected the marriage.Under the Hindu Marriage Act, 1955, a divorce petition can be filed by the parties only after the passage of one year from the marriage date.

The Irretrievable breakdown of Marriage

The Marriage Laws (Amendment) Bill, 2010 incorporated another ground for seeking divorce, namely the ‘Irretrievable breakdown of marriage’ under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the term suggests, it leads to a situation whereby, either or both the parties to the marriage fine it impossible to peacefully cohabit with each other, due to personality’s clashes, differences in opinion and have lived separately from each other for a long period of time and are no longer too eager to further carry on their matrimonial relationship.

Divorce by mutual consent

Divorce by mutual consent is the fastest way of getting a divorce in India. A petition seeking divorce has to be filed in the Court by the married couple, on the grounds that both the husband and the wife have been living individually for a time frame of one year or more, thereby failing to fulfill their matrimonial obligations and wanting to dissolve their marriage. A reasonable amount of time, i.e. between 6 to 18 months are given to the married couple for reconsidering their decision for seeking divorce and withdraw the petition. However, if the petition is not withdrawn during this period, the Court after having been fully satisfied with the averments made in the plaint and after having heard both the parties would grant a decree of divorce.

Filing for the Petition for divorce

Every petition for divorce should be filed in the District Court within the jurisdiction of which:

The marriage was performed as per Hindu ceremonies and rituals,
Both parties to the marriage dwelled,
The other party at the presentation of the petition resides; or
Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more.

Every petition should include the following details:

The facts or details on the basis of which relief is sought for by the party seeking divorce,
Both the parties have not collaborated together to deceive the court by filing for a divorce,
The averments made in the petition are subject to verification by the petitioner or any other reliable person.

Location and Address of the following family courts in India are as follows:

DELHI

1.Tees Hazari Court,
near Inter State Bus Terminal,
Delhi-92
2.District Court Saket,
New Delhi -17
3.Karkardooma Court,
District Court, Karkardooma,
Delhi-32
4.Dwarka Court,
Dwarka Courts Complex,
Sector - 10
Dwarka,
New Delhi-110075
5.Patiala House,
348, Purana Quila Road,
Patiala House,
India Gate,
New Delhi-01
6.Rohini Court,
Rohini Sector 14 Extension,
North West District,
New Delhi-85

Mumbai

1.Family Court,
Bandra Kurla Complex
Bandra East,
Mumbai -51

BANGALORE

1.Family Court,
H Siddaiah Road,
Sudhama Nagar
Bengaluru,
Karnataka-27

CHENNAI

1.Family Court,
Annex Building of City Civil Court Complex,
High Court Campus,
Chennai-104.

Divorce Procedure for Sikhs

IntroductionUnder Sikhism, divorce is treated aversely and even considered ‘taboo’. The provisions for seeking divorce are stipulated under the Hindu Marriage Act, 1955.

Grounds for Divorce under the Hindu Marriage Act, 1955

The following grounds can be invoked for securing a divorce under the act:

Adultery: During the period of marriage, if either spouse maintains sexual relations with a person other than his or her lawfully wedded companion.
Cruelty: After the marriage, subjecting the petitioner to cruelty.
Desertion: If either one of the parties to the marriage deserts the other for a consistent span of at least two years , prior to the filing of the petition by the other party.
Conversion to another religion by either party other than Hinduism
Mental Disorder: If the spouse of the petitioner suffers from any unsoundness of mind, mental illness or disorder that cannot be cured, then the petitioner can file for divorce.
Virulent and Incurable Disease: in the form of leprosy.
Venerable Disease in Communicable form.
The renunciation of the world or entered any religious order.
Not heard being alive for a period of seven years or more.

Additional Grounds for Dissolution of the Marriage by the Wife

Under the act, the wife is entitled to seek divorce from her husband on the following grounds:

Where the husband has another living wife from his previous subsisting marriage, before the commencement of the act.
Post the marriage, the husband was found guilty of rape, sodomy or bestiality.
Where the wife was awarded an order or decree for maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, by the court, in spite of the fact that she was living apart from her husband even before the passage of such decree or order. The conjugal relations between the parties failed to resume within one year or more, even after the passage of this order.
The marriage was performed before the attainment of 15 years of age by the wife, and on completion of 15 years and not before 18 years of age, the wife rejected the marriage.

Under the Hindu Marriage Act, 1955, a divorce petition can be filed by the parties only after the passage of one year from the marriage date.

The Irretrievable breakdown of Marriage

Divorce by mutual consent

Filing for the Petition for divorce

Every petition for divorce should be filed in the District Court within the jurisdiction of which:

The marriage was performed as per Hindu ceremonies and rituals,
Both parties to the marriage dwelled,
The other party at the presentation of the petition resides; or
Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more.

The facts or details on the basis of which relief is sought for by the party seeking divorce,
Both the parties have not collaborated together to deceive the court by filing for a divorce,
The averments made in the petition are subject to verification by the petitioner or any other reliable person.

DELHI

1.Tees Hazari Court,

2.District Court Saket,

3.Karkardooma Court,

4.Dwarka Court,

5.Patiala House,

6.Rohini Court,

Mumbai

1.Family Court,

BANGALORE

1.Family Court,

CHENNAI

1.Family Court,

Court Marriage in India

Introduction

In India, a marriage between two individuals or persons belonging to different religions, nationality, caste or creed, are governed by the Special Marriage Act, 1954. Court Marriages enables the parties to make an application to the Marriage registrar for the solemnization, registration and grant of marriage certificate, thereby doing away with the customs and rituals of a traditional marriage.

Valid conditions for Court Marriage

Some of the essentials to constitute a valid court marriage under the act:

Both parties should not have a subsisting marriage at the time of Court Marriage.
The bridegroom should have completed twenty-one (21) years of age and bride should have completed eighteen (18) years of age.
The parties to the marriage must be mentally fit, not suffering from any persistent bouts of insanity.
The consent to the marriage should free and valid and not obtained under any coercion or undue influence.
The parties should not come within the degree of prohibited relationship.

Procedure for Court Marriage , where both the parties to the marriage are Hindus

The notice of an intended marriage has to be filed by one of the parties to the marriage with the Marriage Registrar within the area of residence of the party making such application. Provided that the party must have resided in that area for not less than 30 days immediately prior to the date on which such notice is applied for.
Publication of the notice for calling out any objections from the general public by the Marriage Registrar.
After the lapse of 30 days of the time period post the publication of the notice, and if no objection comes up within this period. The marriage would be performed as according to the provisions laid down under the act.
The solemnization of the marriage should take place at the stated Marriage Office.
On the date of the court marriage, the presence of both the parties along with three credible witnesses is required.

Documentation required for registering a Court Marriage

The Complete application form with the appropriate fee,
Passport Size Photographs of both parties,
Documentary proof of residence, an age proof, a pan card copy of both parties.
Details of three witnesses, including a copy of their pan cards.
A certified copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower

Solemnization of marriage between parties belonging to different religions:

The Hindu Marriage Act, 1955 pertains to marriage performed between two Hindus or persons who have converted to Hinduism. Marriages between parties belonging to different religions other than Hindus, Buddhists, Jains or Sikhs are performed under the Special Marriage Act, 1954.

Documentation Required:

The Complete application form signed by both parties.
Age proof and residence proof of both parties.
Two passport size photographs of both the parties
A certified copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower,

Procedure for Registration:

The notice of intended marriage has to be filed by one of the parties to the marriage with the Marriage Registrar within the area of residence of the party making such application. Provided that the party must have resided in that area for not less than 30 days immediately prior to the date on which such notice is applied for.
Publication of the notice for calling out any objections from the general public by the Marriage Registrar.
After the lapse of 30 day timeperiod post the publication of the notice, and if no objection comes up within this period. The marriage would be performed as according to the provisions laid down under the act.
The solemnization of the marriage should take place at the stated Marriage Office.
On the date of the court marriage, the presence of both the parties along with three credible witnesses is required.

Performance of a Court marriage between an Indian National and a Foreign NationalUnder the provisions of the Special Marriage Act, a marriage can be performed between an Indian and a foreign citizen before a Marriage Registrar in India or a Marriage Office in a foreign country.

Eligibility Criterion:

The Act prescribes the following conditions to be complied with for registration of a marriage between an Indian and a Foreign Citizen-

One of the parties to the marriage must be an Indian citizen.
The bridegroom should have completed the age of 21 years of age; and the bride 18 years at the time of marriage.
No party should have a previous subsisting marriage at the time of marriage, and no living spouse as a consequence of such subsisting marriage,
No party suffers from any mental illness or insanity,
The parties are not within degree of prohibited relationship

Documentation Required:

The complete application form signed by both parties,
Documentary evidence of age proof, residential proof,
Passport copy with a valid visa at the time of the marriage,
Evidence pertaining to place of residence in India by one of the parties for more than 30 days,
No objection certificate or Marital Status certificate from the concerned embassy or Consulate in India by a foreigner partner.
A certified copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower,

Registration Procedure :

A prior application in writing is submitted with the Marriage Registrar, where either party to the marriage has been residing for a period of 30 days or more,
Verification of documents by the Office of Marriage Registrar.
The law of another country shall not be in conflict with Indian laws.
The notice is then published inviting objection to the marriage, if any.
If no objection is made, then, on the expiry of the notice publishing period, the marriage may be solemnized.
The marriage shall be solemnized in the presence of at least three witnesses.
After the marriage has been performed and registered in the register, the marriage registrar issues the marriage certificate to the parties concerned.

Christian Marriage and Registration Procedure in India

Introduction

Under the Indian Christian Marriage Act, 1872, Christian marriages in India are performed by a Minister or Priest in a church. After the marriage is performed the minister or priest enlists the marriage and issues a marriage certificate, thereby endorsing the marriage. A marriage, performed earlier by a Priest or Minister of the Church, can likewise be enrolled, in the register by the registrar of marriages. In order to get a marriage registered, it is incumbent on each party to the marriage to make an application to the concerned authority located within its place of residence.

1.Essential Requirements

In order to constitute a valid marriage under the act, it is a requirement that either one or both parties are Christians. Unless one of the parties to the marriage is governed by its own personal law which forbids such a marriage on the grounds of prohibited degrees of relationship, thereby rendering the marriage as void and redundant under the act. To constitute a legitimate marriage under the act the following factors have to be complied with:-

The bridegroom must not be under twenty-one years and the bride must not be under eighteen years of age respectively;
Consent must be free and voluntary and not obtained by misrepresentation of facts, compulsion or undue influence;
Neither party should have a spouse living at the time of marriage;
Marriage must be performed in the presence of at least two reliable witnesses, by a person licensed to grant a certificate to the marriage.

2.Conditions for Performance of a Marriage by a Marriage Registrar

The following conditions have to be complied with for the performance of the marriage by the Marriage Registrar appointed under the Act. They are as follows:
(a) Notice of Intended Marriage: A written application or notice is made by either party to the marriage residing in the same area to the Marriage Registrar to notify the concerned authority of their intention to get married. Incase both the parties reside in different areas, each party would have to make a separate notice in writing to the Marriage Registrar located within their areas of residence. The written application or notice is recorded in the ‘marriage notebook’ and is pasted in a clear noticeable area in the office.
(b) A Pledge Before Registrar: Before the certificate of notice has been issued, either one party to the marriage should make a personal appearance before the Marriage Registrar, pledging that:

there is no obstacle ,natural inclination or other legitimate impediment to the Marriage;
the place of residence is within the locale of the marriage registrar;
where one of the parties is a minor, the consent of one of the persons mentioned below is of paramount importance in order to perform the marriage :

Father of the minor, if alive and not deceased, then,
The Guardian of the minor or if no guardian, then,
Consent of the mother is required unless, no person authorized to give such consent resides in India.

Issuance of the Certificate of Notice after the Pledge has been taken: Once the pledge has been taken before the registrar by either one of the parties to the marriage and a time limit of four days have lapsed after the notice of intended marriage has been received, the Registrar has the power to issue the Certificate of Notice. The information contained in the Certificate of Notice pertains to the location of the Church or Chapel, where the marriage rituals are expected to be performed. The certificate won't be issued if it is stopped by anyone demonstrating grounds why the testament ought not to be issued. The certificate issued makes it mandatory to perform the marriage within two months from the date of issuance of it failing which, the certificate becomes redundant and a fresh certificate would have to be issued.

3.Persons authorized to perform the marriage under the act

Under Section 5 of the Act, the following persons are competent to perform the marriage:

persons appointed by the Episcopal, provided that such marriages are performed as per the customs and rituals, regulations governed by the Church of which he is a Minister;
by any Clergyman of the Church of Scotland, provided that such marriages are performed according to the customs, rules and regulations governed by the Church of Scotland;
by any Minister of Religion licensed under this Act to solemnize marriages;
By any person who is appointed by or in the presence of the Marriage registrar under the Act;
any person licensed under this Act to grant certificates of marriage between Indian Christians

If a marriage is performed by a person who is not authorized under the act to perform it, such a marriage would be termed void.

4.Performance of the Marriage under the Act.

A Christian Marriage is performed between the parties to the marriage according to the rituals considered essential and proper as per Minister or Priest performing the marriage. The marriage rituals require the mandatory presence of two witnesses apart from the minister or the priest performing the marriage. If a marriage has not been performed within two months after the issuance of the certificate of notice, such a marriage cannot be performed after the lapse of the two month period, and a fresh certificate of notice would have to be applied for in order to solemnize the marriage.

5.Time and Place for the Performance of the Marriage

The Act, clearly stipulates the ‘time’ and the ‘place for the performance of marriage. Time for performing of marriage rituals has been fixed to six in the morning and seven in the evening and the place where the marriage is to be performed is the Church. The Clergy of the Church, under a special issued are given flexibility in the time and place for performance of the marriage.

6.Registration of Marriage:

An application for registration of marriage is made by the parties to the concerned authority in whose Jurisdiction either party has been residing. Marriage is registered in the Marriage Register, by the Registrar who was present and performed the marriage of the couple. The acknowledgement slip of the registration is signed by both the parties to the marriage along with their witnesses and is attached to the register as a proof that the marriage was registered. These acknowledgement slips are sent out at the end of the month to the Registrar General of Births, Deaths and Marriages. Indian Christian marriages can also be endorsed under a special provision without a prior notice.

7.Documents Required for Registration of Marriage under the Act:

Complete application form;
Passport Size photographs,
The Marriage Certificate issued by the Minister or the Priest who performed the wedding,
Two photographs of the wedding rituals along with the wedding invite;
Residence and age proof of either party to the marriage;
An affidavit certifying the mental and marital status of both parties.

Adoption Among Hindus

Introduction

ADOPTION in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all adoptions can be made in accordance with this Act. It came into effect from 21st December, 1956.

Prior to this Act only a male could be adopted, but the Act makes a provision that a female may also be adopted.This Act extends to the whole of India except the state of Jammu and Kashmir.

It applies to Hindus, Buddhists, Jainas and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion

Requirements

No adoption can take place unless:

THE PERSON ADOPTING HAS THE CAPACITY / RIGHT TO TAKE CHILD IN ADOPTION

CAPACITY OF MALE

Any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision.

CAPACITY OF FEMALE

Any female Hindu

who is of sound mind
who is not a minor, and
who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind,

has the capcity to take a son or daughter in adoption.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife.

THE PERSON GIVING A CHILD IN ADOPTION HAS THE CAPACITY/RIGHT TO DO SO:

No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.
The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child.

The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.

THE PERSON CAN BE ADOPTED

No person can be adopted unless

he or she is a Hindu;
he or she has not already been adopted;
he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

OTHER CONDITIONS FOR A VALID ADOPTION ARE FULFILLED

if the adoption is of a son, the adoptive father or mother by whom the adoption is made 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;
if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted;
if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted;
the same child may not be adopted simultaneously by two or more parents;
the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth.

Effect of valid adoption

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption.

However any property which vested in the adopted child shall continue to vest in such person subject to the obligations if any attached to the ownership of such property including the obligation to maintain relatives in the family of his or her birth.

Similarly the adopted child shall not divest a person of any estate which vested in him or her before adoption.

Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or will.

The personal laws of Muslims, Christian, Parsis and Jews in India do not contain any provision of adoption. However these persons can adopt the children from orphanage by obtaining permission from the court under the Guardians and Wards Act .

Registration

The adoption deed is not required to be registered (except in Uttar Pradesh).

Except where it declares or reserves an interest worth Rs. 100 or more for a third person in an immovable property.

However authority to adopt is required to be registered under section 17(3), Indian Registration Act.

Adoption-Others

Muslims

Adoption is the transplantation of a son from the family in which he is born, in to another family by gift made by his natural parents to his adopting parents.

Islam does not recognise adoption. In Mohammed Allahdad Khan v. Mohammad Ismail it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.

Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledgee must not be known son of another.

However an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act.

Christians, Parsis and Jews

The personal laws of these communities also do not recognize adoption and here too an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act.