Tag: #familylaw

Taboo of Inter-Religion Marriages in India – Detailed Analysis of Special Marriage Act 1954

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S.noContents
1.Introduction
2.Stigmas Related to Inter Religion Marriages in India
3.Introduction to Special Marriage Act, 1954 and its Basic Outline
4.Inter Religion Marriages under Special Marriage Act 1954
5.Recent Judgement Related to Inter Religion Marriages
6.Case Laws Pertaining to Significant Inter Religion Marriage Judgements
7.Conclusion

Introduction

We all vision our Nation to be at the top of its zenith, be it economically, culturally, socially or politically. But the obstacles we face aren’t just limited to poverty or corruption or mere resolves. The major issue we face every day is fighting the restricted and orthodox mentalities of people. While it’s the common man/woman who helps the Nation progress, it’s they who pull it back with the burden of their thoughts.

While we could flaunt discussing the legality of Same Sex Marriages in India, and say that the taboo of Inter Religion Marriage has been totally eliminated, the case on the ground isn’t that simple.

Inter-religion marriage is a union between two individuals belonging to different religious communities. In India, inter-religion marriage is a socially and culturally sensitive topic, especially when it involves Hindu and non-Hindu communities. The complexity of this issue arises from the fact that India is a country of diverse cultures, languages, religions, and social customs. The practice of inter-religion marriage is often met with social and familial opposition and can even result in legal complications. India is home to many religions, including Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism. Each religion has its own set of beliefs, customs, and practices, which can influence inter-religion marriages.

The issue of inter-religion marriage has been the subject of debate in India for several years. While some argue that inter-religion marriage can promote social harmony and unity, others view it as a threat to cultural and religious identities. The Supreme Court of India has consistently upheld the right of individuals to marry the person of their choice, irrespective of religion or caste.

In India, inter-religion marriage is governed by different personal laws that vary according to the religion of the parties involved. For instance, the Hindu Marriage Act 1955, governs Hindu marriages, while the Special Marriage Act 1954[1], governs marriages between individuals of different religions. The Muslim Personal Law governs marriages in the Muslim community. Further, light is thrown on the Societal issues and taboos related to Inter Religion Marriage, briefly explains all the provisions under the Special Marriage Act, 1954, talks about how Inter Religion Marriages are governed under this law and finally a conclusion with some recent judgements and the Author’s views related to the Topic

Stigmas Related to Inter Religion Marriages in India

Inter-religion marriages in India are still considered taboo in many parts of the country. While the issues are prevalent in different spheres of society, all the possible efforts to culminate it have been effective, but not as effective as expected. The situation can be summarized in the following points which put up a clearer perspective of the antagonistic situation[2]:

  • Social stigma: In India, inter-religion marriages are often frowned upon, and couples can face social stigma and discrimination from their families, communities, and even the society at large.
  • Legal hurdles: While inter-religion marriages are legal in India, couples often face legal hurdles when it comes to obtaining marriage registration and other legal documents. This can be especially challenging when one partner belongs to a minority religion.
  • Religious barriers: Some religious communities in India do not permit inter-religion marriages, and couples who belong to these communities can face significant opposition from their families and religious leaders.
  • Family pressure: In many cases, families put immense pressure on their children to marry within their own religion, which can cause significant stress and strain on the couple’s relationship.
  • Violence and threats: In extreme cases, inter-religion couples can face violence and threats from their families and communities, which can make it difficult for them to live together in peace and safety.
  • Lack of acceptance: Despite the legal recognition of inter-religion marriages, many people in India still do not accept such unions as legitimate, which can make it difficult for couples to live and work in certain communities.
  • Need for social change: Given the challenges faced by inter-religion couples in India, there is a need for greater social acceptance and support for such unions. This requires a change in attitudes and beliefs about marriage and religion, as well as greater legal protection and support for inter-religion couples

Introduction to Special Marriage Act, 1954 and its Basic Outline

The Special Marriage Act 1954 is a legal framework that provides for the solemnization of marriages between individuals of different religions, castes, and nationalities. It is designed to allow for civil marriages and to create a legal mechanism to register such marriages. It provides legal recognition to civil marriages and protects couples from social stigma and discrimination. The Act has been instrumental in promoting secularism and unity in diversity in India. The Act is applicable to the whole of India, except for the state of Jammu and Kashmir[3]. Some of the Key Provisions of the Act which are evident in the Daily Court Procedures are: –

  • Applicability: The Special Marriage Act is applicable to any Indian citizen who wishes to solemnize a marriage regardless of their religion, caste, or creed. It applies to any person who is a resident of India or domiciled in the country, as well as to those who are outside India and intend to marry in the country.
  • Notice of Intended Marriage: The Act mandates that both parties intending to marry under this Act must give notice of their intention to do so. The notice must be given in writing to the Marriage Officer of the district where at least one of the parties resides.
  • Objections to the Marriage: Once the notice of intended marriage is given, the Marriage Officer must display it in a prominent place in the office for thirty days. If no objections are raised during this time, the marriage can be solemnized. However, if objections are raised, the Marriage Officer must conduct an inquiry to determine whether the objections are valid or not.
  • Solemnization of Marriage: Once the Marriage Officer is satisfied that there are no objections to the intended marriage, the marriage can be solemnized in the presence of three witnesses, including the Marriage Officer. The ceremony must conform to the provisions of the Act and can be performed by a registered Marriage Officer, a Registrar of Marriages, or any person authorized by the government to do so.
  • Registration of Marriage: After the marriage is solemnized, the Marriage Officer must enter a certificate of marriage in the Marriage Register. The certificate must be signed by the parties to the marriage, the witnesses, and the Marriage Officer. The certificate is conclusive proof of the marriage, and a certified copy can be obtained from the Marriage Officer upon request.
  • Dissolution of Marriage: The Special Marriage Act also provides for the dissolution of marriage by mutual consent or on grounds of adultery, cruelty, desertion, or conversion to another religion. The procedure for obtaining a divorce under the Act is similar to that of obtaining a decree of divorce under the Hindu Marriage Act, of 1955.
  • Miscellaneous Provisions: The Act also contains provisions relating to maintenance, custody of children, and the rights of children born out of wedlock. It also provides for the registration of marriages performed outside India under this Act.

Inter Religion Marriages under Special Marriage Act 1954

In India, inter-religion marriage can be solemnized under the Special Marriage Act 1954. The Act provides for the registration of marriages between persons of different religions, castes, or creeds. Here are the legal sections and conditions for inter-religion marriage under the Special Marriage Act 1954:

  • Eligibility: Any two individuals who are of marriageable age (21 years for the groom and 18 years for the bride) can marry under the Special Marriage Act, irrespective of their religion, caste, or creed. The conditions laid down for the eligibility have been mentioned by Section 4[4] of the Special Marriage Act 1954, for it also says that they must not be within the degree of a prohibited relationship, and they must not have a living spouse at the time of the marriage.
  • Notice of Intended Marriage: The first step is to give a notice of intended marriage to the Marriage Registrar of the district in which at least one of the parties has resided for a minimum of 30 days prior to giving the notice. Section 5 [5] of the Special Marriage Act is responsible for this clause of the law.
  • Objections: After the notice is published, any person may file an objection to the marriage if they have a valid reason for doing so. According to Section 7[6] of the Special Marriage Act 1954, Any person may object to the intended marriage within 30 days of the publication of the notice by filing an objection in writing to the Marriage Officer. The Marriage Officer is required to investigate the objection and decide on the validity of the objection.
  • Waiting Period: After the notice is published and there are no objections, a waiting period of 30 days is mandatory before the marriage can be solemnized. Based upon Section 6[7] of the Special Marriage Act 1954, Upon receipt of the notice of intended marriage, the Marriage Officer is required to display the notice at a conspicuous place in his office and issue a copy of the notice to the parties involved.
  • Declaration: Both parties must sign a declaration stating that they are not related to each other within the prohibited degrees of the relationship as specified in the Act.
  • Solemnization: The marriage can be solemnized in the presence of a Marriage Officer and two witnesses. The Marriage Officer will register the marriage and issue a certificate of marriage. Section 12[8] of the Special Marriage Act lays down the conditions for the Solemnisation and Registration of the marriages, which are either inter-religious or inter-caste.
  • Registration: The marriage must be registered within 90 days of the solemnization, failing which the registration may be done only with the permission of the Marriage Officer and on payment of a penalty.

It is important to note that the Special Marriage Act 1954 does not allow for any religious ceremony or rites during the solemnization of the marriage. The marriage is considered a civil contract and is governed by the provisions of the Act.

Recent Judgement Related to Inter Religion Marriages 

Recently, the Supreme Court turned down a public interest lawsuit recently that contested elements of the Special Marriage Act that require posting interfaith spouses’ personal information ahead of their wedding.

According to Sections 6[9] and 7[10] of the law, couples have 30 days before their wedding to invite or consider objections by posting a public notice in a visible place or on the notice board in the marriage officer’s office. Their names, phone numbers, dates of birth, ages, occupations, addresses, and identifying information are all included in the notice’s details.[11]

The appeal against these two Act clauses, as well as the portions allowing anybody to object to the marriage and the marriage officer’s ability to inquire into a couple’s past, was rejected by a bench of Justices Dinesh Maheshwari and Bela M Trivedi. According to the petitioner’s attorney, his client wed a guy of a different religion in accordance with the Special Marriage Act. The bench answered, “It ceases to be a PIL if it is your personal cause.

The Act had begun to take force in 1954, the court also found, citing Bar and Bench. It asked the attorney, “Where’s your cause of action?” as it rejected the PIL.

Case Laws Pertaining to Significant Inter Religion Marriage Judgements 

  • Smt. Lata Singh v. State of UP[12]: This case marks the Supreme Court announced that a person has the right to choose their life partner and that inter-caste and inter-religion marriages should be encouraged. The court also directed the police to provide protection to couples who marry against the wishes of their parents.
  • Salamat Ansari v. State of UP[13]: Being a legendary case in the history of Family Laws in India, the Judgement of the Supreme Court in the case said that an inter-religious marriage solemnized under the Special Marriage Act is valid and that the consent of parents or guardians is not required.
  • Ramesh Kumar v. State of Haryana[14]: In this case, the Supreme Court held that the choice of an adult to marry a person of their choice is a fundamental right guaranteed under the Constitution of India and that interference by family members or society in such marriages is illegal.
  • K. Srinivas Rao v. D.A. Deepa[15]: As per the Supreme Court, the Special Marriage Act allows parties to register their marriage without any religious ceremonies, and parties to an inter-religious marriage can choose to follow the customs and traditions of their respective religions.
  • Sarla Mudgal v. Union of India[16]: For all those who are well-versed in the case laws of India, they would understand the significance of this specific case. Supreme Court in this Judgement held that a person cannot convert to another religion just for the purpose of marrying a person belonging to that religion and that such conversions are illegal and void. The court also directed the government to enact a law to prevent such conversions

Conclusion to the Unfathomable Taboo of Inter Religion Marriage

Inter-religion marriage has been taboo in India for a long time, and it has been the subject of political and social debate for many years. The laws related to inter-religion marriage have evolved over time to address this issue and provide legal protection to couples who wish to marry outside their religion or caste.

The Special Marriage Act 1954, provides a legal framework for inter-religion and inter-caste marriages in India. It lays down the conditions for the solemnization of special marriages and mandates that the parties involved must give notice of their intention to get married to the Marriage Officer. The Act also provides for objections to the marriage, and the procedure for solemnization of the special marriage.

Despite the legal framework in place, inter-religion marriage continues to face opposition from certain sections of society. Some political parties have also used this issue to further their own agendas. However, in recent years, there has been a shift in the public perception of inter-religion marriage, with more and more people accepting it as a personal choice.

The law has also evolved to keep pace with changing social norms. In 2018, the Supreme Court of India passed a landmark judgement, decriminalizing adultery, which was a major step towards recognizing the individual autonomy of adults in their personal relationships. This judgement, along with other legal developments, has provided greater legal protection to couples in inter-religion and inter-caste marriages.

Inter-religion marriage is often met with resistance from society and families, which can lead to social ostracism and even violence. Families may object to inter-religion marriages on the grounds of cultural and religious differences. The couple may also face legal challenges, such as cases of abduction, forced conversion, and even honour killing.

In conclusion, inter-religion marriage continues to be a contentious issue in India, with social and political factors influencing public perception. However, the legal framework has evolved to provide greater protection to couples who wish to marry outside their religion or caste. While there is still a long way to go, there are signs that society is becoming more accepting of inter-religion marriage, and this is reflected in the changing legal landscape.

Endnotes:

  1. Special Marriage Act, 1954
  2. Maharashtra sets up panel to track interfaith, intercaste marriages, The Indian Express (Dec. 19, 2022), https://indianexpress.com/article/cities/mumbai/maharashtra-sets-up-panel-to-track-interfaith-intercaste-marriages-8323158/
  3. Section 1 of the Special Marriage Act, 1954
  4. Section 4 of the Special Marriage Act, 1954
  5. Section 5 of the Special Marriage Act, 1954
  6. Section 7 of the Special Marriage Act, 1954
  7. Section 6 of the Special Marriage Act, 1954
  8. Section 12 of the Special Marriage Act, 1954
  9. Ibid 7
  10. Ibid 6
  11. Press Trust of India, Government response awaited on the law on inter-faith marriages, The Hindu (Jan. 24, 2022), https://www.thehindu.com/news/national/government-response-awaited-on-law-on-inter-faith-marriages/article38278975.ece.
  12. Smt. Lata Singh v. State of UP, (2006) 5 SCC 475 (Sup. Ct. 2006)
  13. Salamat Ansari v. State of UP, (2008) 2 SCC 202 (Sup. Ct. 2008).
  14. Ramesh Kumar v. State of Haryana, (2017) 12 SCC 588 (Sup. Ct. 2017).
  15. K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 (Sup. Ct. 2013).
  16. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (Sup. Ct. 1995)

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

Rights of Women Under Changing Perspective of Hindu Law with Special Reference to Hindu Succession Act

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This article is about the evolution of women’s rights before and after the Hindu Succession Act and how it has impacted gender equality.

INTRODUCTION

Gender inequality is one of the main aspects under the law which requires a major focus. There are still a variety of issues pertaining to gender inequality yet to be addressed. One of the major areas where it is still prevalent is property rights. It is true about the very fact that many legislations have been passed with an aim to improve the status of women in society by ensuring economic accessibility as well as their rights on property. Mere passing of the legislation is not enough, the focus on implementation matters and this is one of the major reasons why inequality still exists.

The blame shall not fall on the legislative or judiciary alone. Everyone involved in ensuring equality is collectively responsible in some way or another. Even women themselves are less motivated to uphold their rights because of familial expectations, public stigma, and associated demands. Ancient laws in the country including Hindu law were too harsh on women denying them basic economic rights. A woman was always considered as someone who is always dependent either on their father or their husband. women’s claim to property was reduced by the patriarchal structure laid down by the commentaries and smritis. Male members were given the right of inheritance of the property under the mitakshara school of law. Since divorce was uncommon, women could not easily be denied their right to a place to live and support themselves after marriage. The Hindu Woman’s Separate Residence and Maintenance Act, of 1946 also formalized a woman’s right to demand separate housing and maintenance in specific situations, such as abuse or adultery.

ANALYSIS

The Hindu women’s right to property bill was introduced in the year 1937. The primary aim of this bill was to achieve equality in the matter of property by evicting all sorts of discrimination between men and women. But due to heavy opposition from the public, the bill had to be modified. The English notion known as a widow’s estate was adopted where women were given only rights along with restrictions the concept of providing women absolute rights on the property was discarded. The bill focused on giving women the right the separate property after marriage. The concept of inheriting the family’s property was removed. This act gave more clarity to attaining property from the eyes of a widow and not a woman. Thus, more problems were created in place of solving equality. This gave rise to the setting up of a Hindu law committee in the year 1941 which proposed to give more clarity on this act. Later in 1944, a second Hindu law committee was formed which adopted both property rights in marriage as well as succession.

The Hindu Succession Act of 1956 revolutionized the whole matter of inequality in property rights by demolishing the patriarchal structure of men enjoying all the rights with women having little room to claim rights. Earlier only stridhana was awarded to women before marriage in place of property. But even it did not ensure financial independence as it was limited. But the Hindu succession act ensured economic viability as well as social independence. The act removed the restriction on absolute ownership and ensured.

As the years passed, many needs emerged which were not as such addressed by the succession act of 1956. Many areas of property law have still discrimination. Therefore, the government decided to amend the act of 1956 in the year 2005 with the aim to provide more economic stability to women of the society. The Hindu Succession Act of 2005 gave women the recognition of coparcener and gave them the power to inherit property like that of a son and now there is no difference in the rights of a son and daughter. Now women even have the power to become the karta of the family which earlier only male members could hold the status. The 2005 Act addresses unfairness in inherited property, residential properties, and widows’ rights. It also safeguards the interests of some new heirs by adding them to the Class I heirs list. In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again.

Landmark judgments and judicial interpretations

One of the major landmark judgments regarding the succession act was the Prakash v. Phlulvati[1] case, In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again. She will be eligible for her father’s tribe and self-involved property since birth because the amendment’s main purpose was to abolish the current discrepancies between sons and daughters about their coparcenary liberties. The High Court decided that the revised clauses should be applied. In spite of this, the Supreme Court rejected the High Court’s request, stating that the Act shall apply in the future and until it is expressly stated in the statute.

Since the amendment’s primary goal was to eliminate the current disparities between daughters and sons regarding their coparcenary rights, she will be entitled to her father’s tribe and self-involved property from birth. The altered sections should be used, the High Court said. However, the Supreme Court denied the High Court’s motion, holding that the Act will continue to be in effect up until and unless otherwise specified in the act.

In a recent decision known as Vineeta Sharma vs. Rakesh Sharma[2] stated on the eleventh of August 2020, the status of women’s coparcenary rights has been switched. In this case, it was decided that regardless of when they were born—before or after the amendment—the ladies would be eligible for coparcenary status and the same liberties as sons.

The requirement that dads should be alive on the day the law was passed (09.09.2015) is not necessary. The court gave the act a “retroactive” application. The court’s decision in the Prakash v. Phulvati[1] case was overturned, granting equality to women. The court offered an option between the two viewpoints, first providing women equal coparcenary freedoms since birth and disregarding the fact that the father was still living at the time the amendment was made. Clarification was provided for all the ambiguity and confusion surrounding women’s succession rights.

Conclusion

Over time, things have changed gradually. Women in the modern day now have the same inheritance rights as sons after a gradual process. The rules that prohibited gender inequality are no longer in effect. beginning with the Mitakshara rule, which prohibited women from co-owning property and so discriminated against them. The 1956 Hindu Succession Act also fell short of social law’s standards and wasn’t gender-neutral.

With the Hindu Succession Amendment Act of 2005, which gave women coparcener status, significant changes were brought about. Even though there were conflicting legal options and a chaotic demeanour, the “Vineeta Sharma Case” provided a definitive statement on the subject at hand. The Supreme Court made its final ruling, stating that it is the responsibility of the courts and other bodies to uphold the established principles.

Citations

  1. Prakash v Phlulvati, A.I.R. 2011 Kar. 78.
  2. Vineeta Sharma v Rakesh Sharma, (2020) AIR 3717 (SC).

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

VINEETA SHARMA v. RAKESH SHARMA

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CITATION

Civil appeal No. diary No. 32601 of 2018

APELLANT

Ms.  Vineeta Sharma

RESPONDENT

Ms. Rakesh Sharma

DECIDED ON

24th August 2020

COURT

Supreme court of India

JUDGES

Justice Arun Mishra, Justice S. Abdul Nazeer, justice M.R. Shah

AREA OF LAW

Section 6 of Hindu succession act, 1956

BACKGROUND

Mr Dev dutt Sharma and his wife had 3 sons and a daughter named Rakesh Sharma, Satyendra Sharma and vineeta Sharma respectively. Mr Dev dutt Sharma passed away on 11 December 1999 and one of his three sons who were unmarried passed away on 1st July 2001. Later, Ms. Vineeta Sharma filed a case against rakesh Sharma, satyendra Sharma and her mother stating her right to receive 1/4th  share of her father’s property. The respondents claimed that she ceased to become the member of joint family once she got married.

ISSUE

Earlier according to Hindu succession act, 1956 only male members of the family were considered as co- parceners. But later according to the 2005 amendment act (section 6) daughters were also considered as co- parceners since birth and they are also equally liable. But the question raised was as the amendment got implemented on 9th September 2005, whether it is applicable to the cases if the father got expired before the date of implementation of amendment or it’s important for the father to be alive.

JUDGEMENT

Before this case, several other cases were taken as an account for property succession of daughters. The landmark cases that finally worked as a precedent for the case was:

  1. Prakash v. phulwati [1]: in this case the two judge bench consisting justice Anil Dave and Justice A.K Goyal stated that it’s necessary for the father to be alive to pass his property rights to his daughter.
  2. Danamma v. Amar[2] : in the case the two judge bench consisting justice A.k sikri and justice Ashok Bhushan stated that even if the father passed away on 2001 ( years before the implementation of       the amendment) still the property can be passed on to his daughter.

Finally after all these judgements, the three judge bench stated that women acquire their right for ancestral property by birth even if the father is alive or not.

RATIO DECIDENDI

  • The verdict passed for the case had ended the legal ambiguity regarding the transfer of property rights for women by granting equal rights to acquire ancestral property.
  • The judgement had made clear that no one can discriminate citizens on the basis of gender and gender cannot be deemed as an account for granting property rights. It thus strengthens the ideology of article 14 ( right to equality) and article 15 ( right against discrimination)
  • It also empowers woman who are economically backward to cease the implication of male authority over them.

CONCLUSION

This case helped to implement the idea of women empowerment by providing equal property rights for both male and female.

END NOTES

  1. (2016) 2 SCC 36
  2. 2018(4) ADJ406
  3. https://indiankanoon.org/doc/67965481/

This case analysis is written by Nourien Nizar studying at Government Law College, Ernakulum

Inter-Country Adoption

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Adoption abroad, which is also called transnational adoption, describes the process of a couple or individual adopting a child from a different country, taking full responsibility for their care and maintenance the same way their natural parents did. A surge in international adoptions occurred during the Second World War. As a result of World War II, a large number of children was abandoned, the underdeveloped and developing countries were unable to provide them with a safe home. The idea of international adoption was born as a means of providing children with a healthy and safe environment where they could develop their full potential. In addition, the countries signed the Hague Convention for Protection of Women and Children to provide a framework for inter-country adoptions and to enable various laws in their respective countries to enforce such adoptions. It motivates many to go for adoption legally. Concerning international adoption and child protection, India has ratified the Hague Convention. Following that, India made several amendments to its inter-country adoption law. The adoption process has become more advanced over time regarding both intra-country adoption and international adoption.

Inter-country Adoption and Indian provisions

Inter-country adoption refers a social tradition, whereby, a baby born into one family becomes part of another through adoption, removing old biological lines and establishing new, socially approved ones.[i] In India, adoption was governed by the Hindu adoption and maintenance act, 1956, before The Hague Convention and it does not provide for international adoptions. Adoptions of juveniles and abandoned children are covered by the juvenile justice act 2000. In India, inter-country adoptions had been governed by the guardians’ act, 1890, which requires prospective adoptive parents to apply to the government for the appointment as guardians of the child. The proceeding of appointing a guardian was to be conducted before the district court, which is only authorized to pass an order if it is in the minor’s favour. Later on, a series of developments had made in the laws on transnational adoption, especially in India by the impact of Hague convention guidelines and also through various precedents.

Hague convention

As one of the leading organizations in the area of private international law, the Hague Conference on Private International Law drafted the “Hague Convention on the Protection of Children and Co-operation” regarding International Adoption. The agreement entered into force on 1 May 1995, three years after it was signed on 29 May 1993. The Convention provides formal recognition of inter-county adoptions at the international and intergovernmental levels. The Hague Convention requires a central authority to regulate and control all inter-country adoptions and to serve as the principle for such inter-country adoptions. A subsidiary principle of the Hague Convention is that transnational adoption can only be employed when the children are at risk of abuse or neglect in their country of origin, and it is preferable to place the children locally whenever possible.[ii] Hague Convention Guidelines stipulate that the central authority responsible for adoptions should make sure that the child is of the right age and informed of the adoption and its consequences. A child’s consent is a crucial part and it must be reassured that it has not been obtained through duress or by compensation. The guideline emphasizes preserving the child’s origins, his medical history, and the true parents, but access can also be limited in exceptional circumstances. There are various guidelines provided by the convention to bring the uniform and standard set of rules regarding adoptions abroad to ensure the welfare of the child.

India and Hague convention

The Hague Convention on Protection of Children and Cooperation of International Adoption is ratified by India which leads to the adoption of the same principles as the Hague Convention. For instance, the principles like establishing a system of cooperation between the contracting states to ensure the safeguards are adhered to before a transnational adoption occurs[iii]  were followed in India as well. An independent body under the Ministry of Women and Child Development was created and named “The central adoption resource authority (CARA)”. CARA examines transnational adoptions and establishes guidelines and frameworks with respect to adhering to The Hague Convention guidelines. CARA stipulates that any foreign couple wishing to adopt in India must be sponsored by a child welfare organization or social service agency that is recognized by the government. Inter-country adoption agencies should be affiliated with the respective state or union territory. The agency responsible for the placement of children under inter-country adoption is called a placement agency (PA) and all such agencies must be registered and recognized by the central adoption resource agency (CARA). CARA guidelines encourage intra-country adoption; however, a new guideline allows only three types of children to be adopted. They were abandoned, surrendered, and orphaned children under a legitimate agency. Even though there are various guidelines set up by the CARA with respect to the Hague convention, Judiciary plays a prominent role in dealing with the unspoken issues of inter-country adoption, especially in India.

Precedents and their guidelines

 Among the most prominent lawsuits relating to inter-country adoptions Lakshmi Kant Pandey v Union of India[iv] stays above all. After examining the inter-country adoption process in India, the Supreme Court issued guidelines for inter-country adoption. “Essentially, adoption is the best non-institutional way of rehabilitating a child. For a child to grow best he must be placed in his own culture; therefore, inter-country adoptions should only be considered as a last resort when all other efforts to place him in his country have failed and the child’s welfare demands. In both cases, whether it be adoption within the country or outside the country, the interest of the child shall always hold the utmost priority and all orders thus passed shall be paramount to the interest of the child”.  As a result of the guideline from the case Government of India establishes a regulatory agency, ‘CARA’ in 1989. Thus, the agency setup plays a key role in regulating inter-country adoptions, as well as all other adoption agencies across the country. The court further held that “It is preferable to place a child in international adoption before he or she reaches the age of three.” According to the Supreme Court, “The chances of a child becoming integrated into a foreign environment and culture are greater if he or she is adopted before the age of three”.

During the case of Craig Allen Coates v. State through the Indian Council for Child Welfare and Welfare Home for Children, [v] the SC Court observed that “no adoption can be approved unless clear and convincing reasons are provided for inter-country adoption and the Adoption Reform Act should enforce stricter guidelines on this point”. Here, the SC clearly points out that the motive behind the adoption will be considered as a prominent factor in allowing the adoption. It was brought with an idea to avoid child trafficking.

SC of India had also allowed direct adoption in certain cases. Taking into account the unique circumstances in the case of Mr. Tim Cecil v Unknown[vi], the court held that the Supreme Court of India permitted a direct adoption outside of any of the countries that had ratified the Hague Convention on Inter-Country Adoption.

In the recent case of Varsha Sanjay Shinde & anr. v. Society of Friends of the Sassoon Hospital and others[vii], it was held that once a couple has approved a child, the child cannot be shown to Indian parents, who simply because they are Indian Parents should be given preference over overseas Indians and foreign couples. Through all of these judgments, the Supreme Court makes it clear that the preference should be given to parents of Indian descent, even when adoption is inter-country so that the child can grow and prosper in its own culture and heritage.

Indian judiciary had timely taken effective steps in solving the procedural and also the substantial questions that had been unsolved by the guidelines. In all these cases the judiciary is given prominence to the welfare of the children. The welfare of the children post-adoption guidelines was framed by the judiciary and they play a vital role in resolving the latency issues that arise.

Conclusion

As stated in Lakshmikant Pandey’s case[viii] “Every child has a right to love and be loved, to grow up in a loving and caring environment, and to be protected from both material and moral evils, and only a family can provide this”. In India, inter-country adoption is a relatively new trend. Various amendments and actions have been taken by the government to ensure the enforcement of inter-country adoptions in India and to ensure adoptions in other countries are legal. The Supreme Court has also outlined rules that need to be followed while any inter-country adoption takes place. Where the adoption is based on love and care, many times it was misused. Child trafficking in inter-country adoption has been on the rise, and only a very few cases have been reported. It emphasizes the lack of laws and guidelines preventing such activities. Children are the treasure and they are needed to be protected.

[i] Soura subha ghosh, inter-country adoption procedure, supreme court guidelines- adoption laws in India, http://www.legalservicesindia.com/articles/adopt.htm, accessed on 24.07.2021

[ii] Hague Convention, Article 4

[iii] Hague Convention, Preamble and Article 1

[iv] 1984 AIR 469

[v] 162(2009) DLT 605

[vi] AIR 2011 MAD 247

[vii] 2014(5)ALLMR297

[viii] Ibid,4

This article is presented by Bharatee Preeya A.K., pursuing B.B.A.LL.B (hons) at Alliance University, Bangalore.

Edited by- Deeksha Arora

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What are the various areas of law to practice?

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The present article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

FIELDS OF LAW

The legal line of work is widely mistaken for being limited to courtroom appearances and defending criminals. Actually, the bar encompasses a huge subject pool and areas of practice. Sometimes, lawyers began their careers in one field, only to diversify to try something different in their later years. This will be because that field was the chance that was most readily available to them after school of law or thanks to a conscious decision to maneuver faraway from a field of the law.

However, few lawyers know which field is suitable for them from the very beginning of their legal career. This text aims to explain the various fields of law that you simply will study in school of law and may take up as a career path.

CONSTITUTIONAL LAW

The Constitution is deemed to be the supreme law of the country. It governs the affairs of the country and involves rights and duties of the govt. also as its citizens. The study of the Constitution is one of the foremost important subjects in school of law. The practice of constitutional law is one among the foremost lucrative areas of the law in India. Most top lawyers in India are going to be constitutional experts thanks to years of practice and knowledge. Almost like the practice of human rights law, the constitution may be a vast area of the law and may have many cases and jurisprudence to stay track of. These cases require you to access the High Courts and Supreme Court as a number of these issues are often of great significance to the justice system. Most landmark judgments in India will have a constitutional law aspect built into them somewhere.

CORPORATE LAW

The field of corporate law deals with rules concerning the facilitation and management of the business. A company lawyer can advise on an agreement, write up a contract, or negotiate clauses on behalf of a client. Corporate lawyers don’t attend court, but rather advise clients from the comfort of their office. An understanding of the Business Act, 2013, and therefore the Indian Contract Act, 1872, is a must. This is often one of the foremost lucrative areas of practice in recent years, with young graduates flocking to prestigious law firms to practice corporate law due to the attractive pay packages. Life as a company lawyer will involve very long hours. However, a robust understanding of corporate law can make sure you can work for several different types of clients like companies, start-ups, banks, etc.

CRIMINAL LAW

This is a neighborhood of the law that’s often considered the foremost interesting and involves defending criminals or advocating for the innocent in cases of murder, rape, theft, etc. legal code requires an understanding of court procedures, police investigations, and therefore the Indian legal code, 1860. Typically, lawyers who enjoy court-facing lawyers practice legal code. Most law aspirants, dream of practicing within the courtroom as criminal lawyers thanks to the sector being intriguing and interesting. One will see that there’s a bent to avoid practicing legal code in India thanks to questions of safety and low pay, as compared to salaries in law firms at the beginning of your career. However, the amount of legal code cases is on the increase, and practice within the field pays well as you progress ahead in your career if you’re a first-generation lawyer. The foremost successful and well-known lawyers in India are criminal lawyers.

EMPLOYMENT LAW

Employment law concerns the rights & duties of employer and employee. Employment lawyers often fight cases to either defend compliance with the labor laws or absolve their clients of requirements prescribed by such legislation. Employment lawyers will also review employment agreements and assist with the termination of employees. They’ll also represent a private employee, employee unions, and other interest groups. While employment law in other parts of the planet is usually a really specialized area of practice, in India it’s not uncommon to ascertain employment law being clubbed alongside corporate law, with one legal team advising on both areas of the law. Employment law is one of the more exciting areas of the law because it has got to do with tons of people-centric issues (hiring, firing, onboarding, health and safety of workers, etc.), and therefore the Indian government has recently made it easier to practice employment law by harmonizing multiple legislations into singular codes of practice.

ENVIRONMENTAL LAW

The practice of environmental law in India may be a growing area of the law. It deals with laws concerning air, water, wildlife, biological preservation, and environmental protection. With the recent creation of the National Green Tribunal, there are more environmental law cases being litigated and corporations are taking environmental compliance more seriously also. Environmental issues affecting many of us often have an underlying constitutional aspect. Being an environmental lawyer also can allow you to figure more easily for international organizations like the WWF-India or government departments. Thus, the practice of environmental law can allow you to figure during a sort of settings that are different from the traditional firm or lawyer’s office.

FAMILY LAW

Family law concerns personal laws, which affect the personal relationships of citizens. Family lawyers are involved in divorce cases, cases involving custody of youngsters, also as property law. In India, family lawyers need to affect a variety of legislations, which may include even complex laws governed by one’s religion (Hindu laws, Muslim laws, etc.). Family lawyers often affect cases that will be very emotionally difficult, because the issues in family law affect families and young children.

HUMAN RIGHTS LAW

Human rights lawyers advocate on behalf of victims who have violated their rights. In India, the practice of human rights law is often long and arduous together tries to urge their day in court – however, this will even be one among the more satisfying areas of the law as often there’s a vulnerable party at one end who needs legal advice, also because of the relief. To be an honest human rights lawyer, one must remember basic rights that are enshrined within the Indian Constitution. One can also see human rights principles as reflected in procedural laws in India, as the Code of Criminal Procedure.

INTELLECTUAL PROPERTY LAW

Intellectual Property law deals with securing and protecting legal rights concerning innovation, discoveries, and creations. The law seeks to guard the property rights of authors, inventors, artists, and businesses. A property lawyer will often advise on issues regarding the interpretation of statutes about patents, copyrights, or trademarks. Property law is one area that has grown significantly in recent years, with the increase of the media and show business. The work includes registering property, drafting legal notices, and actions associated with enforcing a breach of agreements. Being a property lawyer can keep you closer to business than other areas of the law, with many lucrative opportunities in companies like Netflix and Dharma Productions. Property law is taken into account by many to be one of the foremost exciting areas of practice for a lawyer today.

PROPERTY LAW

Property law deals with the laws regarding the transfer and inheritance of property. The practice of property law is a remunerative area of the law and may have some overlap with family law when families litigate disputed household properties. However, property lawyers also can be involved in land transactions, like people who concern the main construction projects that are prevalent in a developing country like India. The practice of property law also can include the review of tenancy contracts and rent agreements, which are straightforward and routine within the Indian system.

SECURITIES LAW

Securities law is a neighborhood of the law that has greatly expanded within the last 20 years. It focuses on the principles concerning investment and therefore the financial sector. With the expansion of fintech operators in India and an expansion of the Indian economic system, legal issues concerning them are getting increasingly common. Typically, one will find the large law firms in India with great law practice groups. A person should be well versed with the rules issued by the Securities and Exchange Board of India (SEBI).

The school of law journey is meant to offer law students a favor for these areas of law in order that a typical law graduate has minimal competence altogether of them. A student can then decide which area they need to specialize in and pursue upon graduation.

TAX LAW

Tax lawyers advise on the interpretation of provisions of the tax Act 1961 and may be expected to fight cases on behalf of clients in special tax courts. Law requires an intricate understanding of complex laws and maybe one among the foremost difficult areas of the law to master. However, each case is usually very unique, unlike other practice areas which will involve a repetition of issues and use of templates. There’s also an undersupply of lawyers during this domain, and therefore the competition isn’t as great because it is in other practice areas. Very similar to other countries, in India, the law is taken into account to be a distinct segment area of practice.

BIBLIOGRAPHY

  1. Discover Law, https://www.discoverlaw.in/fields-of-law.
  2. The Lawyer Portal, https://www.thelawyerportal.com/free-guides/areas-legal-practice/.
  3. Picking Your Area of Law, https://www.enjuris.com/students/types-of-law-careers.html.
  4. 16 Top Areas of Law, https://www.michaelpage.com/advice/career-advice/job-search-advice/16-top-areas-law.

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