DIKSHA BHALLA

FAMILY LAW-I
(SECTION-D)
 SALIENT FEATURES OF HINDU LAW OF ADOPTION

There are three main essentials which have to be satisfied in order to make the
child adopt. These are given as follows:

 Capacity to adopt a child

Under Section 6 of the Hindu Adoption and Maintenance Act, the law specifying
adoption says that both male and female can adopt a child whether they are
married or unmarried. The main conditions with this respect are that they should
be of sound mind and should be at the age of majority or above. In case the male
or the female is married, he or she has to take the necessary consent of the
person that he is married to and in that case, the consent of that party should be
free. Under Hindu law, as per the Hindu Adoption and Maintenance Act, there are
certain special conditions which are to be followed:

1. The individual should not have a living child at the time of adoption. This
concerns both legitimate and illegitimate child being adopted by either a
male or female.
2. Also, he/she should be equal or above 21 years of age.
3. Consent in cases, where the adopting individual is married.
In case of a female, the conditions have been given under the Section 8 wherein it
is stated that apart from these conditions, a widower or a divorced woman can
adopt a child without any prior consent of her husband if he has completely
renounced from the world, is no longer a Hindu by religion or has been declared
to be of unsound mind by the court.

 Capacity to give one’s child in adoption

Section 9 of the Act tells us about a person’s capability to give his/her child for
adoption by another person or married couple.

The capacity has been divided under 3 parties having rights:

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(i) Father

A biological father of a child is capable of giving his child for adoption and has
more or less the same duties and rights in this regard as the mother of the child.
The condition under which this right would be ceased from him would be if he has
completely renounced from the world, is no longer a Hindu by religion or has
been declared to be of unsound mind by the court.

(ii) Mother

Basically, the father and the mother of the child have the same rights concerning
this issue. If however, the mother is living separately in the marriage due to the
reason of a marital dispute, then she does not have this right. This has been
illustrated in the case of Ram Sakhi Kuer v. Daroga Prasad Singh whereby the
court said that a woman loses the right to give her child in adoption after she
remarries.

Here, the mother of the concerned child must be his biological mother and not
mother under any kind of other relationship. Also, she has no right by herself in
this case if the biological father of the child is alive, however, she can take the
permission of her husband in the cases where the husband is disabled. In addition
to this, she has the right to give the child for the purpose of adoption if he has
completely renounced from the world, is no longer a Hindu by religion or has
been declared to be of unsound mind by the court.

(iii) Guardian

In case of the absence of a biological father or mother of the child, the guardian
has this capacity. This also applies in cases where the parents have been declared
to be of unsound mind by the court. In these cases, all the documents concerning
the adoption have been registered and stamped by the court of law when the
guardian has clarified his position in the court as to the welfare of the child and
his custody.

 Capacity to be adopted

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In order to be adopted, the child or the person who is to be adopted also satisfy
certain conditions for the fulfilment of the procedure. These are as follows:

 The child should be belonging to no other religion except Hindu.

 He/she should not have been adopted before the valid process of adoption
has taken place.
 Should be below the age of 15 years. (depends on the customs, if they
allow then he can be adopted after 15 years also)
 He should not have been married till the time he is adopted (depends on
the local customs)

 INTERCOUNTRY ADOPTION

In India, the adoption of an Indian Child by a foreign citizen or NRI has been
covered under the Guidelines i.e. Adoption of Children, 2015. These guidelines
are made to stop the misuse or illegal use of children through adoption. As per
the Supreme Court, a foreigner can adopt an Indian child before the age of 3
years. In the absence of any concrete act on inter-country adoption, the
provisions of Guardians and Wards Act, 1890 will be followed for adoption.

If a person wants to adopt an abused, surrendered child, that kind of inter-

country adoption can be done as per the Juvenile Justice (Care and Protection of
Children) Act, 2015.

But the Guardians and Wards Act, 1890 does not have any provision regarding the
adoption of orphans, abandoned child. Section 58 of this Juvenile Justice (Care
and Protection of Children) Act defines that any Indian citizen of India,
irrespective of their religion if someone is interested to adopt an orphan or
abandoned or surrendered child, he/she have to apply for the same to a
Specialised Adoption Agency(SAA).

Section 57 under the Juvenile Justice (Care and Protection of Children) Act tells
about the eligibility of prospective adoptive parents. As per Section 57 of Juvenile

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Justice (Care and Protection of Children) Act, the adoptive parents should be
physically fit, financially sound, mentally alert and highly motivated to adopt a
child for providing hi/her a good upbringing and both partners must consent for
the adoption.

 THE LEGITIMACY OF A CHILD UNDER MUSLIM LAW IN

INDIA

Under Muslim law in India, the basis of legitimacy is the paternity of a child and
that depends upon the marriage, that is, the legitimacy of a child is recognised
only by direct or indirect proof of the existence of marriage between the father
and the mother of the child. When there is no direct proof of the existence of
marriage which is lawful it can be established by the following:

 Acknowledgement by a man that a woman is his wife;

 When a man acknowledges that he is the father of the child;
 When a man and woman cohabit for a long period of time.
The object of a Muslim marriage is to legalise intercourse resulting in children. It
was observed in the case of Habibur Rahman v. Altaf Ali, that legitimacy is
recognised of a son if he is born of a man and his wife and otherwise the offspring
is considered from an illicit relationship. The term wife essentially signifies
through marriage but maybe without any ceremonies having taken place and an
indirect proof will also suffice in the absence of direct proof.

It is to be noted that recognition here means a pronouncement establishing

paternity. Here, the marriage exists but the child’s paternity is questionable as
the alleged marriage can’t be proven by a direct proof as in Muslim law.
Therefore, an acknowledgement cannot legitimatise a child who is proven
illegitimate.

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 THE LEGITIMACY OF A CHILD UNDER HINDU LAW IN INDIA

Rules for the validity of the marriage under Hindu law is laid out in Sections 5 and
7 of the Hindu Marriage Act, 1986 and if unfulfilled, then, a child born out of such
a marriage is considered illegitimate. Section 11 of the Act states that a marriage
is void if it is bigamous, if the marriage has taken place between the sapindas or
when the marriage takes place between persons falling in the prohibited degree.
Section 12 of the Act gives provision for reasons for voidable marriage.

Thus, in the case of void/voidable marriage, if a child is born or conceived before

the decree of annulment has been passed then such a child will be legitimate.
But, if the decree of annulment has been passed and the child is conceived after
that, then, the child would be considered illegitimate under Section 16 of the Act.
Under Hindu law, a child born out of a lawful marriage has all the rights be it in
guardianship, maintenance, property, and inheritance. The same rights and
privileges are not accorded to an illegitimate child.

In the case of Revanasiddappa vs. Mallikarjun, the Supreme Court maintained

that the constitutional values protected in the Preamble of the Indian
Constitution concentrate on the concept of equality of status and dignity of an
individual. The Apex Court added that the Court should remember that a
relationship between the parents may not be lawful but a child born out of such a
relationship has to be viewed in isolation of the relationship of the parents.

 LIVE-IN RELATIONSHIPS

To avoid the obligations of a traditional marriage and on the other hand to enjoy
the benefit of cohabiting together, the concept of live in relation has come into
picture. Live in relationships provide for a life free from responsibility and
commitment which is an essential element of marriage. The concept of live in
relationships is not new to the Indian society, the only difference is that earlier
people were hesitant in declaring their status may be due to the fear of the
society but now the people are openly in this kind of relationship.

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The concept of a live-in relationship was a practice avoided by Indian society for a
long time. Living together before tieing the knot is an offence or crime to the
Indian culture previously. Most importantly, the Hindu Dharma prefers ‘One man,
one wife’ as the most sacred form of matrimony. But as people start to evolve
mentally, the successive generations are ready to accept a few refusing practices.
For instance, let’s take the case of decriminalisation of homosexual cohabitation.
The recent judgements, like the decriminalizing section 377 and 497 of the IPC,
shows how the Indian laws have also evolved along with society.

One need not follow strict rules while in a live-in relationship. Statistics reveal that
80% of Indians now support the concept of live-in relationship and less than half
per cent prefer living in this form of life. Dealing with family is one of the major
hurdles that our Indian couples face. No wonder that most couples living in live-in
relationships in India hide this fact from their family. In this blog, we will see what
is live in relationship, what does live in relationship in India mean, how does the
Indian law for live in relationship define it and also the legal provisions.

What is the meaning of live-in Relationship?

The idea of live in relationship evolves from the broadened mindset of the people
who started to crave for a relationship with no-strings-attached. A living
relationship couple are the ones who cohabit, with no expectations being the
bottom line. However, there is no legal definition to describe the concept in
Indian law. It is more of a westernised theory with very less relevance with the
Indian tradition. So the Supreme Court, at various instances taken the liberty to
elaborate on the concept through their judgements. It is different from a
marriage. (Marriage or wedlock or matrimony, is a socially/ritually
acknowledgeable union of a couple). Live in relationship partners don’t force on
obligations.

When asked if a live-in relationship is good or bad, there is no proper explanation

on if it is good or bad. It merely depends on the person and one’s personality on
looking from a different perspective. People ought to believe that when living

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together, they can understand each other better and also for many other reasons,
which cannot be denied.

Official statement by the Judiciary

There is no specific law on the subject of live-in relationships nor is it recognised

by the Hindu Marriage Act, 1955. In the absence of any statute, the court did try
to shed light on it through the judgement given in Badri Prasad v. Deputy Director
of Consolidation and Payal Katara v. Superintendent Nari Niketan Kandri Vihar
Agra and Others, where in the former it upheld the legal validity of the 50-year-
old live-in relationship of a couple and in the latter, the court said that a man and
woman can live together, without getting married. Besides, it was also noted that
it may be immoral for society but is not illegal. But some reckon that, the judiciary
is neither overtly encouraging such relationships nor prohibiting it, but only
rendering justice while keeping in view social and constitutional morality.

In the case of S. Khushboo v. Kanniammal & Anr., the court held that living
together is a right to life. The actress Khushboo, allegedly endorsed pre-marital
sex and live-in relationships and her detractors accused her of perpetuating
nuisance. The court gave a judgement in the favour of the actress, thus upholding
the distinction between law and morality.

And finally in the case of S.P.S. Balasubramanyam v. Suruttayan, the supreme

court held that if a man and a woman live under the same roof and cohabit for a
number of years, there will exist a presumption under section 114 of the Indian
Evidence Act, that, they live as husband and wife and the children born
thereinafter will be legitimate.

What does Indian law mean to say?

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In a typical marriage, the partners are given certain rights and duties to be
performed by either of them. There are several personal laws such as the Hindu
laws, Muslim laws, Christian Laws, etc. that govern and protect the marital bond
of a recognized couple. Live-in relationships, being an alien concept to the Indian
legislature does not have any legal implications for the couples who live together
without marriage involved in the relationship. Since living relationships also
support pre-marital sex, there are high chances of a child being born. These
children, unlike the successors born out of wedlock, do not have any rights over
the inheritance. Besides this, society treats them as illegitimate children, which is
unacceptable. However, the Hon’ble Supreme Court cleared them of this ill-fated.
And granted them the status of a legitimate child along with the right to property.

Live-in relationships were legally considered void-ab-initio. But in a judgement in

1978, such relationships are valid for the first time because of the Supreme Court.
If the requisites of a marriage such as mental soundness, the fulfilment of the
legal age of marriage, consent, etc. are all satisfied, the couple is considered to be
in a legal live-in relationship. The couple is also regarded as married if they live
together for a considerably long period until proven otherwise.

The apex court has given five different types of living together in the excellent
judgement of Indra Sarma Vs V.K.V.Sarma in 2013. It also stated that such
relationships fall within the ambit of Section 2(f) of the Protection of Women
Against Domestic Violence Act,2005 that provides an insight into the said concept.
In living relationships, the facets of the relationship might come to a conclusion,
irrespective of any decision made by the couple.

Legal provisions for the protection of women in a live-in relationship:

Couples wanted to explore various types of living a life, nowadays. Live in

relationship has become common since they know that the perception of
understanding might vary. Though Indian couples widely accept the concept, the
patriarchal mindset has partially not been eradicated from society. Women were
taken for granted and mistreated by the male partner on various occasions. But

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did not have any hope for legal remedies in Indian laws. However, as cases of
harassment and violence started increasing, the Supreme Court provided the
victims with the relief, produced under the Domestic Violence Act. This act does
not specify marriage but as a ‘relationship in the nature of marriage’.

The right to maintenance is also a provision exclusively provided for married

women in the existing personal laws. Still, as these laws do not govern anything
less than a marriage, the women in a live-in relationship cannot, at any
instance, ask for maintenance from the male partner. The courts later gave this a
remedy by widening the scope of support under section 125. From the Code of
Criminal Procedure, criminalising any man who does not provide proper
maintenance to the woman is questionable.

Rights of the Male Partner

‘The rights of a male partner’ is hotly debated amongst the men’s rights activists
and the judges, where the former accuses the latter of always gravitating towards
the other sex. As of very recently, only women can claim maintenance from men
in a live-in relationship. Even in the case of S. Khushboo v. Kanniammal & Anr.,
the court drew an assumption that ‘a live-in relationship is invariably initiated and
perpetuated by men’. While this relationship is based on gender parity, the
desired justice is a far cry.

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