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Module – 4
Maintenance under personal lawsxiii
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of
1974), right of maintenance extends not only to the wife and dependent children, but also to
indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband
having sufficient means. Claim of maintenance for all dependent persons is limited to Rs 500 per
month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great
advantage of making the remedy both speedy and cheap. However, divorced wives who have
received money payable under the customary personal law are not entitled to maintenance claims
under the Code of Criminal Procedure.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But
she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in
the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the
husband. It also judges whether the wife is justified in living apart from husband. justifiable
reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses
of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no
independent income for his or her support. The same principle will govern payment of permanent
maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act,
1986 protects rights of Muslim women who have been divorced by or have obtained divorce from
their husbands and provides for matters connected therewith or incidental thereto.

This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband;

(b) where she herself maintains children born to her before or after her divorce, a reasonable
and fair provision and maintenance to be made and paid by her former husband for a period of two
years from the respective dates of birth of such children;
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c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to the Muslim Law and

(d) all property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends. In addition, the
Act also provides that where a divorced Muslim woman is unable to maintain herself after the
period of iddat the magistrate shall order directing such of her relatives as would be entitled to
inherit her property on her death according to the Muslim Law, and to pay such reasonable and
fair maintenance to her as he may determine fit and proper, having regard to the needs of the
divorced woman, standard of life enjoyed by her during her marriage and means of such relatives,
and such maintenance shall be payable by such relatives in proportion to the size of their
inheritance of her property and at such periods as he may specify in his order.

Where such divorced woman has children, the Magistrate shall order only such children to
pay maintenance to her, and in the event of any such children being unable to pay such
maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to
her. In the absence of such relatives or where such relatives are not in a position to maintain her,
the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995
functioning in the area in which the woman resides, to pay such maintenance as determined by
him.

The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court
as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net
income. In fixing the quantum as permanent maintenance, the court will determine what is just,
bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The
order will remain in force as long as wife remains chaste and unmarried.

The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi law and the same considerations are applied in
granting maintenance, both alimony pendente lite and permanent maintenance.

Maintenance under Hindu law:

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Maintenance is a right to get necessities which are reasonable from another. it has been held
in various cases that maintenance includes not only food, clothes and residence, but also the things
necessary for the comfort and status in which the person entitled is reasonably expected to live.
Right to maintenance is not a transferable right.

Maintenance without divorce

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to
livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems
of law, recognises right of any dependent person including wife, children, aged parents and
widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act,
1956, provides for this right.

Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only upon filing for
the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under
matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is
defeated. However, the right of a married woman to reside separately and claim maintenance, even
if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu
law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her
right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages
certain situations in which it may become impossible for a wife to continue to reside and cohabit
with the husband but she may not want to break the matrimonial tie for various reasons ranging
from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must
prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.

Grounds for award of maintenance

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor
of the wife, maintenance is granted. These grounds are as follows:

a. The husband has deserted her or has willfully neglected her;

b. The husband has treated her with cruelty;

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c. The husband is suffering from virulent form of leprosy/venereal diseases or any other
infectious disease;

d. The husband has any other wife living;

e. The husband keeps the concubine in the same house as the wife resides or he habitually
resides with the concubine elsewhere;

f. The husband has ceased to a Hindu by conversion to any other religion;

g. Any other cause justifying her separate living;

Bar to relief

Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if
she has indulged in adulterous relationship or has converted herself into any other religion thereby
ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the
marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial
relationship between the husband and wife is non-existent and therefore no right of maintenance
accrues to wife. However, thanks to judicial activism, in particular cases the presumption of
marriage is given more weightage and the bars to maintenance are removed.

Other dependents who can claim maintenance

Apart from the relationship of husband and wife other relations in which there is economic
dependency are also considered to be entitled to maintenance by the Hindu Adoptions and
Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her
father-in-law to the extent of the share of her diseased husband in the said property. The minor
children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their
parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from
their children. The term parent here also includes an issueless stepmother.

Maintenance Under Muslim Law

Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the
Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained
divorce from, their husbands." The Act makes provision for matters connected therewith or
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incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to
the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or
abridged. The Act lays down under various sections that distinctively lay out the criterion for
women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled
to have a reasonable and fair provision and maintenance from her former husband, and the husband
must do so within the period of idda and his obligation is not confined to the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board
for grant as under section (b)which states that If she fails to get maintenance from her husband,
she can claim it from relatives failing which, from the Waqf Board.

An application of divorced wife under Section 3(2) can be disposed of under the provisions
of Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which
nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested right
of the Muslim woman.

All obligations of maintenance however end with her remarriage and no claims for
maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman
sufficient means of livelihood so that she is not thrown on the street without a roof over her head
and without any means of sustaining herself.

Protection to Divorced Women Sub-section (1) of Section 3 lays down that a divorced
Muslim woman is entitled to:

(a) a reasonable and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband;

(b) where she herself maintains the children born to her before or after the divorce.

Maintenance Under Christian Law

A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.
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If a divorced Christian wife cannot support her in the post divorce period she need not worry
as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply
for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her
alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which
is only applicable to those persons who practice the Christianity religion inter alia governs
maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law
and the same considerations are applied in granting maintenance, both alimony pendente lite and
permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced
herein covered under part IX -s.36-s.38

IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or a
wife, and whether or not she has obtained an order of protection the wife may present a petition
for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of
the statements therein contained, may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one fifth of the husband's
average net income for the three years next preceding the date of the order, and shall continue, in
case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made
absolute or is confirmed, as the case may be.

37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree
absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by
the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum
of money, or such annual sum of money for any term not exceeding her own life, as, having regard
to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks
reasonable; and for that purpose may cause a proper instrument to be executed by all necessary
parties.
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Power to order monthly or weekly payments. -In every such case, the Court may make an
order on the husband for payment to the wife of such monthly or weekly sums for her maintenance
and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such
payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to
suspend the same as to the whole or any part of the money so ordered to be paid, and again to
revive the same order wholly or in part as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the
Court makes any decree or order for alimony, it may direct the same to be paid either to the wife
herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or
restrictions which to the Court seem expedient, and may from time to time appoint a new trustee,
if it appears to the Court expedient so to do.

Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular
realm

Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not
only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of
the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance
for all dependent persons was limited to Rs 500 per month but now it has been increased and the
magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of
maintenance under the Code of Criminal Procedure has the great advantage of making the remedy
both speedy and cheap

Order For Maintenance of Wives, Children And Parents

S.125.Order for maintenance of wives, children and parents.- (1) If any person having
sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
or
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(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is by reason of any physical or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.

Explanation- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of
1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date
of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole or any part of
each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of one year from the
date on which it became due:
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Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated
by her, and may make an order under this section notwithstanding such offer, if he is satisfied that
there is a just ground for so doing.

Explanation- If a husband has contracted marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband,
or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living
in adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order. The objective of this
section as expressed by Krishna Iyer, J. is to ameliorate the economic condition of neglected
wives and discarded divorcees

Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But
these criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that
Court to make such orders may be just.

It should be kept in view that the provision relating to maintenance under any personal law is
distinct and separate. There is no conflict between the two provisions. A person may sue for
maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his
or her personal law, the magistrate while fixing the amount of maintenance may take that into
consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted
of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to
maintain his wife, children, father or mother by a person who has sufficient means to maintain
them. The criterion is not whether a person is actually having means, but if he is capable of earning
he will be considered to have sufficient means. The burden of proof is on him to show that he has
no sufficient means to maintain and to provide maintenance.

Maintenance Under Parsi Law:

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Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as
there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at
all unlike the civil proceedings.

If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is
refusing to pay maintenance even after the order of the court. The court can then sentence the
Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long
as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to
maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can
be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth
of the husband's net income. In fixing the quantum as permanent maintenance, the court will
determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct
of the parties. The order will remain in force as long as wife remains chaste and unmarried.

S.40. Permanent alimony and maintenance

(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or
at any time subsequent thereto, on an application made to it for the purpose by either the wife or
the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the
plaintiff as having regard to the defendant?s own income and other property, if any, the income
and other property of the plaintiff, the conduct of the parties and other circumstances of the case,
it may seem to the Court to be just, and any such payment may be secured, if necessary, by a
charge on the movable or immovable property of the defendant.

(2) The Court if it is satisfied that there is change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the Court may deem just.

(3) The Court if it is satisfied that the partly in whose favour, an order has been made under
this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at
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the instance of the other party, vary, modify or rescind any such order in such manner as the Court
may deem just

Maintenance Under The Special Marriage Act, 1954xiv

Alimony During The Pendency Of The Case In The Court

Where in any proceeding under the Special Marriage Act, 1954, it appears to the District
Court that the wife has no independent income sufficient for her support and the necessary
expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her
the expenses of the proceeding, and weekly or monthly during the preceding such sum as having
regard to the husband’s income, it may seem to the Court to be reasonable.

Permanent Alimony and Maintenance

Any Court exercising jurisdiction under the Special Marriage Act, 1954 may, at the time of
passing any decree or at any time subsequent to the decree, on application made to it for the
purpose, order that the husband shall secure to the wife for her maintenance and support, if
necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical
payment of money for a term not exceeding her life, as having regard to her own property, if any,
her husband’s property and ability, the conduct of the parties and other circumstances of the case
it may seem to the Court to be just.

If the District Court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as it may seem to the Court to be just.

If the District Court is satisfied that the wife in whose favour an order has been made under
this section has remarried or is not leading a chaste life, it may, at the instance of the husband vary,
modify or rescind any such order and in such manner as the Court may deem just.

Amount of maintenance

The amount of the maintenance shall be purely the discretion of the Court. In determining
the amount of the maintenance the court shall have due regard to the following considerations,
namely,
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the position and status of the parties;

the reasonable wants of the claimant;

if the claimant is living separately, whether the claimant is justified in doing so;

the value of the claimant’s property and any income derived from such property, or from the
claimant’s own earnings or from any other source;

Any other relevant fact and circumstance.

The captioned subject is complex by its very nature. We, therefore, always encourage our
visitors & Clients to seek an independent legal advice by our empanelled lawyers. In such Cases,
our lawyers devise most appropriate legal recourse for our Clients after examining the related
provisions of law, i.e The Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The
Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other
relevant Acts & Judgments and Citations of the Hon’ble Supreme Court Of India and the
High Courts. Even otherwise, the question as to how to apply the laws, judgments and citations
is rather more complex, as it involves a thorough examination of substantial laws, procedural laws
and Court precedents in a given set of facts and circumstances.

Maintenance Under Hindu Adoption and Maintenance Act, 1956xv

Introduction

The Hindu Adoption and Maintenance Act, 1956 (hereinafter ‘the Act’) is an important
personal law that aims to amend and codify the law relating to adoptions and maintenance among
the Hindus. Apart from the Hindus, this act also applies to Buddhists, Jains, Sikhs and any other
person who is not a Muslim, Christian, Parsi or Jew.

Meaning of Maintenance

Maintenance includes:-

1. provision for food,

2. clothing,

3. residence,
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4. education

5. medical attendance and treatment

6. in the case of an unmarried daughter, maintenance also includes reasonable expenses for
her marriage.

This Act provides rules for the maintenance for wife, children, aged or infirm parents,
widowed daughter-in-law and dependents. But we shall be focusing on maintenance for wife,
children and aged or infirm parents.

The main reason behind the provision of maintenance is to provide financial support to a
divorced wife or aged parents or minor children or any other dependents for their well-being and
for their sustenance needs.

Maintenance for women

The Act provides that a Hindu wife is entitled to be maintained by her husband throughout
her lifetime.

A Hindu wife can live separately while getting the alimony from her husband if:-

1. her husband is guilty of desertion, i.e., abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her;

2. her husband has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;

3. her husband has any other wife living;

4. her husband keeps a concubine in the same house in which his wife is living;

5. her husband habitually resides with a concubine elsewhere;

6. her husband has converted to another religion and ceased to be a Hindu;

7. if there is any other cause justifying her living separately.

A Hindu wife is not entitled to maintenance if:-

1. she was unchaste, meaning, she engaged in illicit relations or had an extramarital affair;
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2. she ceases to be a Hindu by converting to any other religion.

Maintenance of children and aged

The Act provides that a Hindu is obliged under this Act to maintain her/his children and aged
or infirm parents if they are unable to maintain themselves out of their own earnings.

Here, the term ‘children’ means –

1. minors who are below the age of 18 years;

2. the term includes legitimate and illegitimate children.

Also, the term ‘parent’ includes a childless stepmother.

Amount of Maintenance for wife, children, and aged or infirm parents

The Act specifically mentions that it shall be the discretion of the Court to determine whether
the claimant is entitled to maintenance or not and if so, what.

Once the Court is satisfied that the claimant is entitled to the allowance, it needs to take the
next step which is to decide the amount to maintenance that shall be awarded to the claimant.

The Act lists out the considerations the Court takes into account to decide the amount of
maintenance to be awarded to the wife, children, aged or infirm parents, widowed daughter-in-law
and dependents. But we shall focus on the considerations for wife, children and aged or infirm
parents.

The Act provides the following considerations that the Court shall take into account to decide
the amount of maintenance to be awarded to the wife, children and aged or infirm parents –

1. The position and status of the parties:

The status and position of the parties include their financial and social status and any other
status which must be taken into account.

In all the cases, the means and capacity of the party against whom the award of maintenance
has to be made must be taken into account. The Court must evaluate the earning potential of that
party and accordingly fix the amount of maintenance after considering other factors. Apart from
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the status and position of the party against whom the award of maintenance has to be made, the
status and position of the claimant(s) shall be taken into account.

In the claimant is a wife, her financial and social status must be considered. If the wife is
earning, the husband cannot deny his liability to maintain her if her income is not sufficient to
sustain her. In the case of the claimant(s) being children or aged parents, their financial and social
status must be considered. Unmarried daughter above the age of 18 years can claim maintenance.
The amount of maintenance fixed by the Court must suit the position and status of the aged parents
or the children.

2. The reasonable wants and claims of the claimant:

The claims of the claimant(s) who may be the wife or children or the aged parents must be
reasonable and must match the standards of necessities in their lives. If their claims are not feasible
keeping in mind various factors like the earning potential of the party against whom the award of
maintenance has to be made, the claimant’s necessities, etc., or if their claims are not reasonable
and excessive and redundant, the Court shall not entertain such claims.

3. Whether the claimant is justified in living separately if she is doing so:

The wife is entitled to the claim of maintenance even if she lives separately but only if she is
justified in doing so. The grounds on which a Hindu wife can live separately while being
maintained by her husband are mentioned above under the sub-heading, ‘Maintenance for women’.
Only when she satisfies any of those grounds and the Court finds her justified, the Court shall
award maintenance to her. The same rule is applicable to children and aged parents who live
separately from the party against whom the award of living expense has to be made.

Though the Act does not provide any grounds on which the children and the aged parents shall
be justified in living separately but the Court shall consider their reasons for living separately
which depend on the facts and circumstances of each case. The Court shall also consider this factor
to determine the amount of maintenance because the standards of living and expenses incurred
while living with the party against whom the award of maintenance has to be made, may differ
from the standards of living and expenses incurred while living separately.

4. The value of the claimant’s property and all sources of their income:
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The Court shall consider all the sources of income and the properties of the claimant(s) to
decide the amount of maintenance. If Court finds that the income and/or the properties of the
claimant(s) is not enough to fulfill their needs, to meet their standards of living and to meet their
expenses, the Court shall try to fill the lacuna by accordingly fixing the maintenance amount to
support them.

5. The number of persons entitled to be maintained under this Act:

The number of persons entitled to be maintained plays an important role in fixing the amount
of maintenance because the earning potential and the status of the party against whom the award
of maintenance has to be made should not be ignored. If the number of persons entitled to be
maintained is more as compared to the earning potential of the party against whom the award of
maintenance has to be made, the Court shall accordingly reduce the maintenance amount and vice-
versa.

The claimant(s) whether it be a wife or children or aged parents shall not be entitled to claim
maintenance under this Act if they cease to be a Hindu. The amount of maintenance may be
changed with a change in circumstances and factors affecting the decision to fix the amount of
maintenance.

Maintenance under Criminal Procedure Codexvi

Introduction

The term Maintenance literally means to take care of something, the process of preserving a
condition or situation, the state of being preserved or to provide financial support to somebody to
make their living expenses. In India, Various laws are applicable to the matters of maintenance of
wives, parents, sons, daughters and other dependents such as HAMA, 1955, HMA, 1955,
Protection of Women from Domestic Violence Act, 2005, Special Marriage Act, 1954, Guardians
And Wards Act, 1890, etc.

Under chapter IX of Criminal Procedure Code, 1973, Section 125 provides for Maintenance
of wives, children and parents. Section 126 provides the procedure to initiate proceedings under
Sec. 125, Section 127 talks about Alteration in allowances ordered u/s 125 and lastly, Section 128
enable the enforcement of order of maintenance.
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Nature of Section 125:

• It is a secular law , irrespective of religion- Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6
SCC 233

• Social-welfare legislation- Badshah Vs. Urmila Badshah Godse & Another, (2014) 1 SCC 188

• Not strictly criminal in nature, the proceedings are civil in nature- Vijay Kumar Prasad Vs. State
of Bihar, (2004) 5 SCC 196

• Proceedings u/s 125 CrPC are summary in nature and intended to provide speedy
remedy- Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541

• We need a maintenance provision under CRPC though its already provided in personal laws so
that it can be strictly followed- Rajnesh v. Neha Criminal Appeal no. 730 of 2020

Section 125 CrPC : Order of Maintenance of Wives, Children and Parents

1) When person have sufficient means and neglects or refuses to maintain his-

i. Wife, unable to maintain herself

ii. Legitimate/illegitimate minor children, whether married or not and unable to maintain itself

iii. Legitimate/illegitimate major children but not a married daughter, if they are unable to maintain
itself by reason of physical or mental injury.

iv. Father or mother, unable to maintain himself or herself.

The Magistrate I class may order that person to give monthly allowance at such monthly rate
for maintenance, upon proof of neglect or refusal to maintain to above-mentioned person/s as
Magistrate time to time directs. Three proviso clauses are attached to clause (1) those are-

Magistrate may order the father of “minor married female child” to make allowance if her
husband is not possessed with sufficient means to maintain her, until she attains majority.

Magistrate may order the person to pay “interim maintenance along with expenses incurred
in proceedings” during pendency of proceeding under Section 125 as it thinks fit.
 18

The application for monthly allowances and expenses of proceeding shall be disposed of
within 60 days from date of service of notice of application u/s 125 CRPC to such person.

In Bhagwan Dutt v Kamla Devi AIR 1975 SC 83 the Supreme Court held that under Section
125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance.
The object of these provisions is to prevent vagrancy and destitution, the Magistrate has to find
out as to what is required by the wife to maintain a standard of living which is neither luxurious
nor penurious, but is modestly consistent with the status of the family.

In case of Rajnesh v. Neha Criminal Appeal no. 730 of 2020 the Court held, that the
maintenance amount awarded must be reasonable and realistic, and it must avoid either of the two
extremes i.e. amount awarded to the wife should neither be so extravagant which becomes
oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to
penury.

In case of Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 Court held an earning wife is also entitled
to claim maintenance if her income is insufficient to maintain herself.

In case of Shahbuddin Vs. State of UP, 2006(1) ALJ 372(All) Court held, where a minor
daughter attained majority during pendency of maintenance proceedings, she will be entitled to
get interim maintenance up to date of attaining majority.

In case of Jagdish Jugtawat Vs. Manjulata, 2002 SCC (criminal) 1147(SC) and Noor Saba
Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, Court held, that combined reading of Section 125
CrPC and Section 20(3) of HAMA, 1956 entitles a major unmarried daughter for maintenance
from her parents.

But a contrary view was taken in Abhilasha v Parkash & Ors. Decided on 15.10.2020 in
Criminal Appeal No.615/2020 where Court marks a distinction between both the laws and three
judge bench held that right of claiming maintenance from father is absolute in personal law but
Sec 125 limits this right until child attains majority unless they suffer form physical or mental
injury which makes them unable to maintain.

Explanation clause of Section 125-

 19

a) “minor” means a person who has not attained majority as per provisions of Indian Majority
Act, 1875 i.e. 18 years.

b) “wife” includes a divorced woman and has not remarried.

In case of Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC) Court
held, woman not lawfully married cannot be treated as wife and is not entitle to claim maintenance
u/s 125 CRPC.

In case of Badshah Vs. Urmila Badshah Godse and Another, (2014) 1 SCC 188 Court held, a
second wife is entitled to maintenance if she was unaware of the fact of subsisting marriage of her
husband and the latter has duped her and concealed the fact of already existing marriage. Also,
husband cannot take the plea that second wife is not entitled to maintenance solely on the ground
that it is a void marriage. Therefore, he cannot take advantage of his own wrong.

In case of Rohtash Singh Vs. Smt. Ramendri, AIR 2000 SC 952, Court held, a divorce woman
is entitled to enjoy status of “wife” for claiming maintenance till she re-marries or if she is unable
to maintain herself even if the divorce is obtained from mutual consent.

2) Maintenance allowance or interim allowance and expenses be payable from date of order,
or if ordered, then from date of application for maintenance.

In case of Shail Kumari Devi Vs. Krishan Bhagwan Pathak, AIR 2008 SC 3006 Court held,
Order of Magistrate granting maintenance u/s 125 CrPC from date of application without recording
reasons is liable to set aside

3) Where the person who is ordered to make allowances fails to comply with the order of
maintenance, then Magistrate may issue warrant against him in the same manner as provided for
recovery of fine and he may be sentenced to imprisonment for a term which may extend to one
month or until payment of allowances if they remain unpaid even after execution of warrant.

In case of Dalip Kumar Vs. Family Court, Gorakhpur, 2000 CrLJ 3893 (All) Court held,
confinement u/s 125 CRPC cannot in any manner be stretched to more than one month but is
limited up to one month if he fails to comply with maintenance order and on application of wife
for seeking same relief and after issue of warrant. For subsequent non-compliance he can be again
imprisoned but Magistrate has no power to sentence him for more than one month in one go.
 20

4) A wife is not entitled to maintenance or interim maintenance if she is living in adultery,

lives separately by mutual consent or refuses to live with her husband without sufficient grounds.

5) On proof that wife is living in adultery, lives separately by mutual consent or refuses to live
with her husband without sufficient grounds, the Magistrate can cancel the order of maintenance,
interim maintenance and expenses of proceedings.

Section 126: Procedure-

1) The proceedings of maintenance u/s 125 CRPC can be initiated against a person in any of
the districts where-

i. He is.

ii. He OR his wife resides.

iii. He last resided with his wife or mother of his illegitimate child.

2) All the evidences must be taken in the presence of that person or in-absentia, his pleader
and can be recorded as per summon-case. Provided that if Magistrate is satisfied that person is
willfully avoiding or neglecting the proceedings, he has the power to proceed to hear and determine
the case ex-Partee but it can be set-aside within 3 months if reasonable and good cause is shown
by that person for not attending the court.

Section 127: Alteration in Allowances-

1) On proof of changing financial circumstances the Magistrate may alter the amount of
allowance or interim maintenance of person receiving or person ordered to pay u/s 125 CRPC and
make such allowance as it thinks fit.

2) If sum of maintenance is already provided under any proceeding of personal law in a

competent Civil Court, then magistrate should cancel or vary any order made under section 125.

In case of Rajnesh v. Neha Criminal Appeal 730 of 2020 the Court held, if maintenance is
allowed in any other proceeding of personal laws, then it should be intimidated to the court so that
it can take into consideration for ordering maintenance allowances or grant an adjustment or set-
off of the said amount, this view was taken by Court.
 21

3) Where the order u/s 125 CRPC is made in favor of a woman who has either obtained
divorce or been divorced, has now re-married or willfully surrender right to maintenance after
divorce or has obtained the whole sum after divorce of which she is entitled under customary or
personal law applicable to her , then the Magistrate on his satisfaction of same shall cancel the
order.

4) Where a civil suit of recovery of maintenance or dowry is pending between parties and in
meanwhile order u/s 125 CRPC is made, the Civil court at the time of making decree shall take
into consideration the sum recovered from or paid by person who is ordered to make allowances.

Section 128: Enforcement of order of Maintenance

Copy of order u/s 125 CRPC shall be given to person in whose favor it is made or to person
who has to pay without taking any payment and it may be enforced at any place by any Magistrate
in whose jurisdiction the person against whom it is made is, after Magistrate being satisfied as to
the identity of the parties and the non- payment of the allowance due.

Maintenance of parents and senior citizensxvii

Indian society prides itself on its rich culture and heritage. Our society is largely built on the
principles of compassion, respect for elderly, spirituality, integrity, unity in diversity, etc.
Throughout the world, Indian lifestyle and family system is revered and often considered as a
model which incorporates the best of both worlds; tradition with modernity. There are several
households across the country which still believe in the concept of joint families. Invariably, in
majority of families throughout India, elderly are recognized as threads that bind the constituent
units of the household into a unified garland. It goes without saying, elderly are accorded respect
in such families and their words are treated as gospels, regulating the manner in which the day to
day functioning of household is carried out.

Significantly, the practice of touching the feet of elderly in India is not only a sign of
bestowing respect, rather, is also an expression of gratitude for their years of services rendered, in
nurturing the family. Considering these facts, it becomes quite appalling when one comes across
instances where the elderly and senior citizens are neglected and abused. Unfortunately, in several
such cases, parents and senior members of the families are subjected to grave physical and mental
tortures; deprived of basic necessities of life and often abandoned on streets or in old age home.
 22

Such events are perfect illustrations of apathy of the younger generations towards their progenitors
and an ever-growing trend of “use, abuse and discard”. Not only are such incidents reflective of
materialistic and self-serving attitude of the succeeding generations, rather, act as a direct blow on
India’s cultural and religious principles.

Article 212 of the Constitution of India (“Constitution”) confers one of the most significant
rights on individuals; right to life and personal liberty. Significantly, the provisions of Article 21
of the Constitution safeguard these rights of individuals from any insidious encroachments and
unreasonable restrictions. In fact, it is settled law3 , the procedure, which, in any manner, affects
the rights to life and/ or personal liberty of a person must be a ‘procedure prescribed by law’ and
that the same should be “fair, just and reasonable, not fanciful, oppressive or arbitrary” It is an
equally appreciated fact that the safeguards envisioned under Article 21 of the Constitution are
available to all persons/ individuals.

Further, the scope and ambit of the said protection is ever expanding. The Hon’ble Supreme
Court in Ashwani Kumar v. Union of India4 , while considering the expansive meaning of the
provisions of Article 21 of the Constitution, as applicable to the elderly5 , held, “[t]he right to life,
we acknowledge, encompasses several rights but for the time being we are concerned with three
important constitutional rights, each one of them being basic and fundamental. These rights
articulated by the petitioner are the right to live with dignity, the right to shelter and the right to
health.

The State is obligated to ensure that these fundamental rights are not only protected but are
enforced and made available to all citizens.” In fact the Hon’ble Court, inthe instant case,
specifically recognized the right to dignity and adequate compensation; right to shelter and right
to medical care/ assistance, as few of the rights available to the elderly under Article 21 of the
Constitution. The Hon’ble Apex Court, specifically recognized the “need to continuously monitor
the progress in the implementation of the constitutional mandate to make available to the elderly
the right to live with dignity and to provide them with reasonable accommodation, medical
facilities and geriatric care.”

The Ministry of Social Justice and Empowerment, Government of India, in the year 1999
formulated and declared the National Policy on Older Persons (“NPOP/ Policy”). In the NPOP it
was specifically noted, “due to the operation of several forces, the position of a large number of
 23

older persons has become vulnerable due to which they cannot take for granted that their children
will be able to look after them when they need care in old age, especially in view of the longer life
span implying an extended period of dependency and higher costs to meet health and other needs.”

The said policy, inter alia, aimed at strengthening old/er persons legitimate place in society
and help them to live the last phase of their life(ves) with purpose, dignity and peace. NPOP further
visualized State’s role in extending support towards financial security, health care, shelter, welfare
and other needs of older persons; provide protection against their abuse and exploitation; make
available opportunities for development of the potential of older persons; seek their participation,
and provide services so that such persons can improve the quality of their lives.

The Policy further envisaged providing/ ensuring, inter alia, financial security though pension
and legislative schemes; health care and nutrition through strengthening existing medical
framework and providing easy access; shelter through group housing schemes; education and
welfare schemes; etc. Pertinently, in order to ensure the implementation of the Policy, Ministry of
Social Justice and Empowerment was provided as a nodal agency/ Ministry. The NPOP further,
inter alia, provided preparation of Five Year and Annual Action Plan, indicating the steps to be
taken to ensure flow of benefits to older persons from general programmes and from schemes
specially formulated for their well-being.

At the same time, as per the policy, detailed review on the implementation of the Policy was
to be prepared every three years by the Ministry. Pursuant to the NPOP and in furtherance to aims
and objects envisaged therein, Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(“Senior Citizens Act”) was enacted. As per the preamble of the Senior Citizen Act, the said Act
aims to provide for “more effective provisions for the maintenance and welfare of parents and
senior citizens guaranteed and recognised under the Constitution and for matters connected
therewith or incidental thereto” Significantly6 , one of the major aims of the Senior Citizens Act
is to provide for the institutionalization of a suitable mechanism for the protection of ‘life and
property of older persons’.

The Senior Citizens Act defines parent to mean father or mother whether biological, adoptive
or step father or step mother, as the case may be, whether or not the father or the mother is a senior
citizen (Section 2(d) of the Act). As per Section 2(h) of the said Act senior citizen means “any
person being a citizen of India, who has attained the age of sixty years or above.” Further, under
 24

Section 2(b) of the Senior Citizens Act, “maintenance” includes provision for food, clothing,
residence and medical attendance and treatment.” As per Section 4 of the Senior Citizens Act,
application for maintenance can be maintained by a senior citizen, including parent who is unable
to maintain himself from his own earning or out of the property owned by him, against one or more
of his children not being a minor, in case of parent or grandparent.

In case of a childless senior citizen, such application can be made by the senior citizen against
any his relatives as referred to in Section 2(g)7 of the said enactment. Pertinently, such obligation
to maintain a senior citizen extends to ensuring that the parents are able to lead normal life. Further,
as per Section 4(4) of the said Act, such obligation of maintenance extends toany person who is a
relative of a senior citizen, having sufficient means and is in “possession of the property of such
senior citizen or he would inherit the property of such senior citizen.”

Undoubtedly, the significance of elderly in a family is unmatched and cannot be

overemphasized. Society and family/ies cannot opt to repay for their years of dedicated service in
nourishing their households by abandoning and disregarding them. It is equally imperative to
maintain and provide their health, stature and basic necessities, as it is important to respect and
take care of them in their fragile conditions. In his renowned work22, William Shakespeare
compared old age to second childhood by remarking, “Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything” Life, clearly comes to a full circle in old age.

Those fortunate to pass through all the stages of life, do culminate living preceding a stage of
total oblivion, hence, often termed a second childhood. Therefore it is understandable and much
required that equally patience, love and affection is bestowed upon those who dedicated the prime
of their lives in looking after us. It is not only a social responsibility, rather, a mandate of a State
and society built on law order and especially in the case of India, on cultural and religious
principles.

No society or nation can progress if it forsakes its roots for a better tomorrow. The debt we all
owe in our primes towards our elderly is infinite and the least we can do to repay is to nurture such
elderly in their ages of senescence. At the same time it needs to be appreciated that elderly do not
amount to a liability rather their wisdom and knowledge of life is to be cherished and gained. As
someone once said, “The elderly have so much to offer. They’re our link with history.”
 1

Module – 5
Legitimacy of the children born out of void marriages and voidable
marriagesxviii
The status of children, whether legitimate or illegitimate, plays an important role in their life.
It actually defines the way of their life. The rights they confer, the authorization they have, the
liability they possess, it all flows in the conscience of their status. Generally, it has been said that
children born out of valid marriages are legitimate and those who are born out of no valid marriage
or extra marital affairs or invalid sexual relationships are considered to be the illegitimate ones.
The society and personal laws had already created a line of distinction between both, back in the
history. That distinction generally means hardships, no social acceptance, discrimination, disparity
etc. For the illegitimate children, on the other hand, legitimate children enjoys the rightful status
in the society, authoritative for certain things, rightful succession etc.

But this is not the truth, all the children born out of no valid marriage or void marriage
or voidable marriage are not illegitimate. We will study about this in detail in the coming article
but before that one needs to understand the meaning of legitimacy, void marriages and voidable
marriages.

What is legitimacy of a child?

Legitimacy of a child can be defined as the status that he or she acquires when they are born
out of valid marriage or born out of a marriage which fulfills the conditions of Hindu marriage
given under section 5 of Hindu Marriage Act, 1955 or in other words, the child born to the parents
who are legally married to each other and the child conceived before the divorce of them. Status
of legitimacy defines the rights and liabilities of the children. It gives the rightful status of children
in the society. It gives the title and the surname of the father to the child. It gives the right of
inheritance to the child in the father’s property and ancestral property.

Void marriages and legitimacy of children born out of it-

Void marriages– A void marriage is not a marriage, irrespective of the fact that all the rites
and ceremonies took place. In the simpler terms, void marriage is a marriage that took place
between two such person who doesn’t have to capacity to marriage or the marriage is in the
 2

contravention of clause (1), (4) and (5) of section 5 of Hindu Marriage Act,1955. A void marriage
is void-ab-initio, which means it is void from the beginning, i.e. it never existed. Void marriages
do not require a decree to get it annulled, as it never existed, so even if the court passes a decree
of annulment it just declares it null and void, do not render it null and void. Void marriages do not
give rise to any status of husband and wife, do not create mutual rights and obligations. Parties to
the void marriage can remarry, as marriage never existed, so they wouldn’t be charged with the
offence of bigamy.

Legitimacy of children- According to the provisions given under the section 16 of Hindu
Marriage Act, 1955 and Special Marriage Act, children born out of void marriage, irrespective of
being declared annulled/void by court or not, shall be treated as legitimate children, but they
will inherit the property of their parents’ only, not the ancestral property. They do not have
coparcenary rights.

Voidable marriages and legitimacy of children born out of it

Voidable marriages- A voidable marriage is a valid marriage until it is avoided by the either
party, or in other words, a voidable marriage is a marriage that can be avoided at the petition of
declaring it void by either party to the marriage, and if the parties doesn’t file the petition the
marriage remains valid. As long as the voidable marriage is not avoided, all the consequences of
the valid marriage flow from it. Parties to the unavoided voidable marriage can not marry to the
other person, they would be charged with the offence of bigamy if they do so, as the consequences
of valid marriage flows from unavoided voidable marriage.

Legitimacy of children- According to the provisions given under the section 16 of Hindu
Marriage Act, 1955 and Special Marriage Act, the legitimacy of the children born out of voidable
marriages has certain cases, which are as follows:-

CASE 1- CHILDREN BEGOTTEN BEFORE THE DECREE IS MADE

Children begotten or conceived before the decree of nullity is made, would be legitimate as if
the decree would have dissolved rather than annulling the marriage.

CASE 2- CHILDREN OF UNANNULLED VOIDABLE MARRIAGE

 3

Children born out of such voidable marriage which is not rendered void/annulled/avoided by
the either party to the marriage would be legitimate in the same way that of children born out of
valid marriage.

CASE 3- CHILDREN OF ANNULLED VOID MARRIAGE

Children born out of such voidable marriage that has been rendered void/ annulled/unavoided
by the either party to the marriage would be legitimate, but they can only inherit the property of
their parents only, not others. No coparcenary right is given to them.

Prior to the commencement of Hindu Marriage Act, 1955 the parties to the void and voidable
marriage doesn’t have any remedy to render that marriage void or avoid that. But after the
commencement of the said act, the remedy to get rid of such marriages came in existence. Section
11 and Section 12 empowers such parties to the void and voidable marriages to get them annulled.
The said act provided the set of provisions which declare the marriage void and voidable, those
are in contravention of the section 5 of the act. The enactment of the Amendment Act, 1976
empowered the children born out of such marriages. It gave the legitimate status to the children
born out of void and voidable marriages. This enactment stood up for the rights of the children as
being born out of such marriages is not their fault, but the ultimate price has to be paid by them
only. They are the only ones who suffer from all the disparity and discrimination that society has
created. It has been rightfully said by Leon R. Yankwich, “There are no illegitimate children, only
illegitimate parents”.

Adoptionxix
Introduction

Section 5 in The Hindu Adoptions and Maintenance Act, 1956

Adoption means a legal transfer. Generally, new couples prefer to adopt a child not to give
birth to a new child. If we see, in India, orphanages are full of children, as they have no parents to
take care of them. Today many parents give birth to a girl and throw her in the dustbin and don’t
even think twice. This crime is increasing day by day. In today’s generation also people don’t
understand the value of a girl child after so high education qualifications. Half of the population
of children is alone, they don’t have legal parents to take care of them. Adoption is the best way
to give them a good life. It also helps in maintaining the population of the country. Hence, new
 4

couples of our generation are working in this matter by adopting the child and give them a better
life.

Adoption under English law

• U.N adoption program

According to the United Nations, every state has the right to adoption so that adoption may
come in the effect. International Conventions has its own general rules and principles and acts for
the adoption right.

1. The Declaration of the Rights of the Child, 1924 is the first and foremost principle for the
protection of child rights. It is also known as the Geneva Declaration of the Rights of the
child. This right is adopted by the League of Nations in 1924. Geneva has taken this quote
to define the protection of child and child rights under English Law. the quote is
“International Save the Children Union”.

The main objective of this quote is:

1. For the protection of a child and give them a good life.

2. For the development of their mental and physical health.

3. The children who have no one to feed them and the children who are sick and they don’t
get medical health facilities can get adopted and give them all these facilities. Take care of
them in all cases.

4. They are provided with good education even in the orphanages. And most importantly the
children who stay on the roadside also get adopted by orphanages and feed them with good
food and health facilities.

World Child Welfare Charter is the first welfare program which is established and perform in
the established institution by the League of Nation on 26 November 1924. This is the first human
rights document that is approved by the governmental institution to perform the welfare program.

• The second right which is established by the United Nations is The Declaration of the
Rights of the Child is the second document which is established in the year 1959. It gave
the children official recognition of the human rights of the children. There are some
 5

Declarations, Covenants, and Conventions for the children who did not get parental care.
The two summits of UN Convention which was established by the United Nation and India
has become a signatory of those summits. The summit is the Declaration of the World
Summit for Children. This summit’s main intention is to work for the survival and
development goals in the year 2000.

• The seventeenth session of the UN is the Hague Conference on Private International Law
and Hague Adoption Convention(Convention on the Protection of Children and
Cooperation in Respect of Inter-Country Adoption) which is adopted for the protection of
children and the interest of their parents and adoptive parents so they can adopt children
by their own choice and feed them.

• Person Competent to Adopt under English Law

1. Children domiciled in the United Kingdom

2. Couples are the citizens of the United Kingdom

3. Couples must have their residents to stay.

4. They must be employed so they can give their child a good life.

5. Couples must be married.

6. Adoption is not allowed for unmarried couples.

7. Couples must adopt the child with the permission of their parents so if any condition they
become incapable to feed their children so their parents can feed their children.

8. Couples must be age 21 or above.

• A person competent to give their child for adoption

In case natural parents died, the Guardian of that child can give the child for adoption.
Guardians have the right to give the children for adoption under Guardians of Minor Act. in case
of a child is admitted in the hospital, asylum or any other place, in case institution permission is
important for giving the child for adoption as well as guardian permission is also required. Children
who are only attended 6 weeks of age, their adoption is only valid after the permission of their
parents or adoptive parents or guardian.
 6

• Who may be adopted

Children attended the age of 6 weeks they can be adopted or up to the age of 18. The children
who already attend the age of more than 18 years cannot be adapted according to the English law.

• Effects of Adoption

1. Adoptive children can’t marry in their own natural parent’s family.

2. Adoptive children can only marry with adoptive children.

3. Adoptive children have rights in the property of their parents.

4. All the rights are the same for adoptive children and natural children.

5. Adoptive children is a citizen of the United Kingdom only.

6. Natural parents can only adopt children.

7. Adoptive parents cannot adopt children.

8. Adoption is revocable.

9. Adoption is registered under Registrar General.

10. Records of the adoption are always kept a secret from the public.

Modern Adoption Law

Modern adoption law is established in the nineteenth century for some new changes and
development in the society for the betterment of children’s future. Modern adoption promotes the
welfare of children for the new ideological framework. The first act which is established in the
modern adoption law is The Massachusetts Adoption of Children Act which was enacted in the
year 1851.

Rules of Massachusetts Adoption of Children Act:

1. Prove themselves suitable and fit to adopt the child in front of judges.

2. The birth relatives didn’t get terminated because of adoption.

3. A person who has legitimate descendants cannot adopt a child.

 7

In the year 1881 New Zealand has introduced the Adoption of Children Act. New Zealand is
the first country under Common Health to introduced this act.

Adoption in India

“Every child has a Right of Adoption”

This quote brings great change related to adoption in India. It is a very sensitive issue in India
that children have no one for their care in a very high population. In comparison to all other
countries, India has the highest population. And every day, many children are pushed into the
orphanages because of their family problems. Even we see children on roadsides roaming around
and they have to beg on the roadside for the food and dresses and they cry for the food maximum
time. And after seeing these conditions also people don’t even try to feed them when they are
capable of feeding them. This is the reason why maximum children have to stay alone.

Principles to govern the Adoption Process in India

Orphan and abandoned child

• Adoption is legally free under section 31, 32, 33, 36, 40.

• If any child gets adopted without the involvement of the child welfare committee that child
has to stay 24 hours with the committee and also has to submit the reports and other
documents of adoption to the local police station.

• Committee issue an order for the interim care of the child.

• Documents and reports of the adoption are submitted to the local police station as well as
entered online in the Child Adoption Resource Information and Guidance System in the
format as prescribed.

Eligibility of adoption in India

1. Parents should be stable for adoption.

2. Parents should economically, physically and financially capable of adoption.

3. Parents must be married.

4. A single male is not eligible to adopt a girl child.

 8

5. Composite age will count.

6. The age difference between parents and child be 25 years.

7. Step-parent adoption is not allowed.

8. If any couple has 3 children or more than that they cannot adopt a child.

Age perspective:

Age of Maximum composite age of Maximum age of single

child prospective adoptive parents (couple) prospective adoptive parents.

1-4
90 years 45 years
years

4-8
100 years 50 years
years

8-18
110 years 55 years
years

• The adoption process in India

The procedure of Adoption In India:

Child registration:

• Parents have to register themselves in the organization from where they want to adopt a
baby.

• Documents are submitted for the adoption of a child.

• The documents required photographs of the current family, Pan card of the parents, birth
certificate of the parents, proof of residency, proof of income of last year, medical report
of the parents, reference letter, consent of older children.
 9

1. Home inquiry and counselling of parents: when couples registered themselves for the
adoption of the child first they have to submit all their documents as required for the
adoption according to the adoption agency and then the next process of adoption is the
home enquiry of parents where they live. The social worker of the organization where the
parents have registered themselves to adopt the child, from that organization some of the
social workers visit the house of registered parents and study the home and check all the
things in the house for the satisfaction that the parents are capable to adopt the child. And
also they do counselling session with parents to know their strength, motivation, and
preparation for the adoption of a child.

2. The child is referred: after every process of the adoption done from the parent’s side then
the organization shares medical reports, physical examination reports and other relevant
information with the couple and also allow them to spend time with the child so they get
comfortable with each other.

3. Acceptance by parents: finally parents accept the child and take their child with
themselves by signing the petition in the court.

4. A petition filed: the documents of the adoption to the lawyer to present in front of the court
for the adoption process and at last, after the end of the process, parents have to sign the
petition for the completion of the adoption.

5. Pre-Adoption foster care: this process is done when the petition is signed. In this process,
adoptive parents can take their child to the child nursing home for the pre-adoption foster
care centre and help to understand the habits of the child.

6. Court hearing for the process of Adoption: after parents take adoptive child home after
that they have to take their child to attend the court hearing for the adoption process with
the child but this hearing is happened in the closed room with judge and the judge some of
the questions to the parents and mention the amount which needs to be invested in the name
of the child.

7. Follow up: at last agency has to submit the following report of the child’s well being in 1-
2 years.
 10

Adoption Coordinating Agency

The functions and duties of the Adoption Agency are as follows:

1. Care, protection, care of their well-being, health needs, emotional, and psychological
needs, education, training.

2. Training needs like leisure and recreational activities.

3. Protect from child abuse, neglect, and exploitation, social mainstreaming and restoration.

4. All cases must be for the children related to admissions, restorations, transfers, death, and
adoption of children, children missing.

5. All committees like Child Welfare, District Child Protection Unit, State Adoption Resource
Agency, and the Authority through Child Adoption Resource Information and Guidance
System are designated for the post of a missing child to file to the police.

6. The report of orphanages of children is submitted to the Child Adoption Resources

information and Guidance System through the website of CARA.

Hindu law

According to the Hindu Law, it legalises the adoption in India. It defines the adoption under
the Hindu Adoption and Maintenance Act, 1956. It teaches the parents to treat the adoptive
children as their natural child. There must be no discrimination between the adoptive children and
natural children. If any parents adopted girl child they must take care of their girl child by giving
her all the facilities which she is eligible for as they give to their natural child. There will be no
discrimination between a girl child and a boy child. Even girl child get all the facilities they give
to their natural son.

The landmark case on Hindu Law:

Bal Gangadhar Tilak vs Shrinivas Tilak

Facts of the case:

 11

In this Privy Council observed that adoption among Hindus is not only for the legalise the
children but also it is a religious means to make obligations and sacrifices which would permit the
soul of the deceased father passing from Hades to paradise.

Amarendra Mansingh vs Sanatan Singh

Facts of the case:

In this case, the Privy Council observed about the foundation of the Brahmanical doctrine of
adoption is the duty which every Hindu owes with his ancestors to provide for the continuance of
the line and the solemnization of the necessary rites.

• Adoption is a part of the customs and burden of proving the validity of adoption depends
on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.

Binapani Samanta vs Sambhu Mondal

Facts of the case:

The petitioner has filed a petition challenging the defendant who is the probate of the will on
the ground that she was the adopted daughter of the deceased who died and the probate is
fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It was held
that she could not challenge the probate.

Hindu Adoption and Maintenance Act, 1956

This act was enacted in the year 1956 for the maintenance of children who don’t have legal
parents and they have to live in an organization.

• Features of the Act

1. Females can adopt a child and even give for adoption.

2. Female can adopt the child with the consent of his husband

3. A widow can also adopt the child.

4. The male has to take the consent of his wife if he wants to adopt the child.

5. Female can adopt the child which was not permissible in pre-act
 12

Capacity to adopt

1. Unmarried males can also adopt the child.

2. An unmarried female can also adopt the child after the HAMA act, 1956

3. If any married male wants to adopt a child he has to take the consent of his wives.

4. If any married woman want to adopt the child she has to take the consent of her husband.

5. Divorced and widow can also adopt the child.

Capacity to give for adoption

1. If in case parents died then the guardian can give for adoption.

2. If only the father is alive then he can alone give for adoption without any consent.

3. If the mother becomes unsound mind then her/his father can give for adoption.

Effect of adoption

When children get adopted he/she gets right in the property of their parents. They become part
of the natural family. All the rights and obligations of a natural-born child of the family fall on the
adoptive child with some exceptions. These exceptions are as follows:

1. An adopted children can only marry the adopted child. He cannot marry anyone who is
not adopted.

2. Any property which is vested in the adopted child before adoption continues to vest in him
subject to the obligation, if any, attaching with the ownership of the property, including the
obligations to maintain relations of his/her birth.

3. The adoptive child cannot divest any person of any estate which vested in him or her before
adoption.

If any parents give their property to their adoptive child they lose power to dispose of the
property or transfer the property. They don’t have any rights in the property of the adoptive child.
If any male is already married and his wife has adopted a child she will be the actual mother of
that child and if the male was married another girl she will become the step-mother of the adoptive
 13

child. If any unmarried male adopted a child before marriage and after some time he gets married
then his wife becomes the step-mother of that child. She will not consider as a legal mother of that
child. And if any unmarried woman or a widow or divorced woman has an adopted child and if
she married someone then he will become the step-father of that child. Because of this many times
dispute is caused between adopted child and step-father. The reason behind this adopted son has
no right in the property of his step-father.

Case law:

Gender bias

Comparison between male and female in case of adoption.

1. Married women cannot adopt the child even though she cannot adopt the child with the
consent of her husband.

2. If any female wants to adopt the child, in case she can only adopt the child if she widow or
divorced or a single mother.

3. A married male can adopt the child with the consent of her wife.

4. Unmarried males can also adopt the child.

In the case of giving in adoption father has a better right:

1. If the father is alive he can give his child for adoption with the permission of his wife.

2. But a mother cannot give their child for adoption even with the consent of her husband she
cannot give for adoption.

3. Mother can give the child for adoption if her husband died.

Case laws:

Malti Roy Chowdhury vs Sudhindranath Majumdar

Facts of the case:

This case is filed by the petitioner for the right of married women for adoption because
according to HAMA act married women cannot adopt a child and not even with the consent of her
 14

husband. This case is related to gender discrimination. The court marked for this judgment
is “Adoption has to be taken factually or legally by the male in case of marriage, and not by
the wife. In other words, the wife cannot adopt even with the consent of the husband”.

Brijendra Singh vs The State of M.P

Facts of the case:

This case overruled the case Malti Roy, in this case, it is observed that this case came as a big
disappointment. In this case, disabled lady was married with the village custom, a virgin girl must
get married, her husband left her and after that, she adopted a son after 22 years of her marriage.
In the other case, disputes are under the agriculture land ceiling law. She sought a declaration that
the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first
appellate court. On second appeal to the Madhya Pradesh High Court it was held that, given the
provisions of section 8(c) of the HAMA Act, 1956, the adoption was not valid. The argument she
said that she is leading a life like a divorced woman was not accepted because this was a great deal
of difference between a female Hindu who is divorced and one who is leading a life like a divorced
woman, the court observed.

After this new Act is established in favour of married women, the Gender Discrimination
Act which is a personal law amended in the year 2010, which gives right to the married
women to adopt a child with husband’s consent but that is not likely to change the fate of
married female placed in the position of the disabled, deserted, “divorced-like” lady in this
case.

Factum and proof of adoption

Case law:

Ram Das vs Gandiabai

Facts of the case:

In this case, petitioner filed a suit for partition against the deceased father’s brother. The latter
alleged that the petitioner had no right over the properties, as he was no longer a member of the
family because he had been given away in adoption to the man whom his mother later married and
who maintained him. The court did not accept this plea. It held that simply because the step-father
 15

spent money on his maintenance does not by itself imply that he had been adopted by the step-
father. It was accordingly held that even though he was brought up by the step-father, he continued
to be a member of his deceased father’s family, with all the rights of a son of that family.

Nilima Mukherjee vs Kanta Bhusan Gosh

Facts of the case:

In this case plea of adoption was taken based on joint accounts with the alleged adoptive
father, the court held that the mere fact of having a joint account is no proof of adoption.

Dhanno vs Tuhi Ram

Facts of the case:

This is the case of the property dispute based on the claims of the virtue of adoption, but the
court refused to accept the claim because there was a valid adoption. The son claimed to be the
adoptee of his parents, but he treats him as his biological father, rather than the alleged adoptive
mother, as his parent. Besides, there was no other evidence on record to show any ceremony
regarding adoption. In these circumstances, a mere placing of a registered adoption deed on record,
without proving the factum of adoption, was held to be not enough evidence of adoption.

The judgment of the case:

The court observed that evidence in support of adoption must be sufficient to satisfy the heavy
burden that rests upon any person who seeks to displace the natural succession by alleging the
adoption.

Ram Chandra vs Banwari Lal

Facts of the case:

In this case the validity of adoption deed is challenged where the alleged adoption deed did
not bear the signature/thumb impression of the natural father of the adoptee or any of his guardians
nor was there any indication of presence of parents and guardians of the adoptee at the time of
execution or registration of the adoption deed.

Prafulla Bala Mukherjee vs Satish Chandra Mukherjee

 16

Facts of the case:

In this case, the adoptive mother sought a declaration of absolute right, title, and interest in
respect of the property built by the adopted son, and also a decree for a perpetual injunction
restraining his relatives, the defendants, from interfering with occupation and possession of the
property. According to the court, the mere fact that an allegedly adopted son permitted his adopted
son, adoptive mother, and her family to live in his house, was no proof of adoption. On the
contrary, there were several facts to disprove the adoption like the adopted son treating his natural
mother as his mother till his death, appointing her as his nominee in the insurance policy, provident
fund, etc. performing the shraddha ceremony of his natural father, and his own death, his shraddha
ceremony being performed by his brother.

Suma Bewa vs K.B. Nayak

Facts of the case:

The plea of adoption is rejected in this case because there was proof of the adoption. There
was no document executed by the parties in support of the alleged adoption, no contemporaneous
document recording name of adopted son as the son of the adoptive father, nor any document to
show that the name of the adoptive father was recorded in the service book of the adopted son. On
the contrary, the voter’s list indicated the name of the natural father. Besides, oral evidence was
found to be suspicious, no independent witnesses were examined to prove adoption ceremony nor
a single neighbour examined to testify that adoptive father and adoptive son were living together
and addressing each other as such.

Oriental Insurance Co.Ltd vs Lalita Sharma

Facts of the case:

In this case, the mere fact that the child was living with his father and step-mother, who
claimed to be the adoptive mother, in the same house was held not enough to prove adoption.

Chandan Bilasini vs Aftabuddin Khan

Facts of the case:

 17

In this case where there was enough evidence of adoption, the mere fact that the adoptive
mother, who was an old lady of 86, and some other persons who were present at the adoption
ceremony, could not be produced in the court for giving evidence, was held not to be enough to
assail the validity of the adoption. Also, where all rituals of adoption as per Hindu Law were
followed the adoption deed was registered and photographs and negatives of photographs which
had been taken at the time of adoption were produced, the adoption cannot be challenged. It is
significant to note that registration of an adoption deed is not mandatory and there is no
presumption in law against the validity of an unregistered adoption. However, when the same is
registered, there is a strong presumption under section 16 of the act that the adoption has been
made in compliance with the provisions of the act unless and until it’s disproved. Such
presumption, however, is not irrebuttable and the court may refuse to accept an alleged adoption
as legal despite it being registered if there is evidence of circumstances indicating that there was
no valid adoption. Such presumption, cannot, however, be rebutted by minor discrepancies in the
evidence. For instances where there was enough evidence of adoption, the mere fact that the
adoptive mother, who was an old lady aged 86, and some other persons who were present at the
adoption ceremony, could not be produced in the court for giving evidence, was held not to be a
sufficient ground to assail the validity of the adoption.

Siddalingaiah vs H.K. Kariappa

Facts of the case:

This is the case challenging the adoption which was raised 40 years after the adoption the
court held that the moment the adoption deed was registered parties to the adoption would have
constructive notice of the same and challenging it after such a long gap would be barred by
limitation. The court further clarified that even if the bar of limitation is not set up as a defence the
court must take note of this and dismiss the suit.

Age requirement

Case law:

Uma Prasad vs Padmavati

Facts of the case:

 18

The claim of an adopted son to properties was sought to be challenged on grounds that the
boy was above the age of 15 when he was adopted, and so the adoption was not valid. The parties,
who were Agarwals by caste, however, succeeded in proving that they were governed by ancient
and well-established custom and usage, which permitted the adoption of boys over the age of 15.
The adoption was, consequently held to be valid.

Khagenbam Sadhu vs Khagembam Ibotial Singh

Facts of the case:

Where the fact of adoption was proved, the challenge that the child was above 15 years, and
Manipur custom did not allow such adoption, was held to be not sustainable as the alleged Manipur
custom against such adoption was not proved. Adoption was therefore held to be valid. However,
in a case where a plaintiff who was not.

Amit Chandubhai Chauhan vs Ahmedabad Municipal Corporation

Facts of the case:

In this case, the alleged adopted son sought a compassionate appointment after the death of
his mother, his case was rejected as he was aged 23 at the time of the alleged adoption and he could
not prove cogent evidence of the existence of a custom permitting adoption of the child over 15
years.

Parvathamma vs Shivakumar

Facts of the case:

In this case, the child is over the age of 15 is allegedly adopted and it was not established that
there was a judicially recognised custom amongst the lingayats of Karnataka permitting such
adoption, the same was held to be void under Sec5(1) violation of section 10(iv) of the Act.

Atluri Brahmananda(dead) through L.R. vs A.S. Bapuji

Facts of the case:

This is the case where the petitioner succeeded in proving the custom in the Kamma
community to which he belonged, recognising the adoption of a boy over the age of 15 and this
 19

custom and fact of adoption was also recorded in the registered adoption deed which was not
disproved, the adoption was held to be valid.

Patel Mukesh Kumar vs Regional Passport Authority

Facts of the case:

The petitioner’s application before the passport authorities for the inclusion of his adoptive
father’s name in his passport was rejected on the ground that the appellant was aged 34 at the time
of adoption and hence the adoption was not valid. On appeal against this rejection, it was held that
the passport authority has no power to render a finding regarding the legality or otherwise of the
adoption of such findings could be given only by a competent court. Further, the adoption was
affected by a registered deed. There is a legal presumption that the same has been made in
compliance with the statutory requirements unless it is proved otherwise. In this case, it was not
the case of the respondent passport authority that the adoption has been disproved, hence the
presumption of validity of the adoption would apply, the court held.

Adopted child to be Hindu

Case law:

Kumar Sursen vs The State of Bihar

Facts of the case

The issue of the adoption of a Muslim child came up before the court. The child was
admittedly brought up by Hindu parents since his every tender age and they also treated him like
their son. The court, however, declined to give him the status of an adopted child because of the
specified provision of section 10(i) of the Act.

Consent of Wife

Case law:

Siddaramappa vs Gouravva

Facts of the case:

 20

The court invalidated an alleged adoption by a male without seeking his wife’s consent. The
plea that the relations between the husband and wife were stained, and therefore her consent could
not be taken was not accepted, as there was documentary evidence to establish that they were
living together at the time of the alleged adoption. There was nothing to indicate that it was
impossible to have a wife’s consent. Apart from that, when the conditions under which such
consent may be dispensed with are specified in the Act, taking any other plea would be adding
words to the statute.

Ghisalal vs Dhapubai

Facts of the case:

This is the case based on the significant judgment of the Supreme Court. It was a property
dispute where the issue of the validity of an adoption by a male, even though by a registered deed,
was raised. The focal point was, the consent of the wife in the adoption while the petitioner claimed
that he is the adopted son was entitled to the properties of the adoptive father, the latter denied the
factum of adoption and also absence of the wife’s consent. The trial court, the lower appellate
court and the Madhya Pradesh High Court were all of the opinion that the adoption was valid and
the consent of the wife of the adopted male can be inferred from the circumstances of the case,
that she was present in the ceremonies of adoption and did not question the adoption till the stage
of filing the written statement in the suit filed by the petitioner. On appeal, however, the Supreme
Court analysed the facts and circumstances of the case in detail and set aside the judgment of the
courts below, adoption was held to be invalid.

Deen Dayal vs Sanjeev Kumar

Facts of the case:

In this case, the mother’s consent is equally mandatory in giving and taking of a child in
adoption. Thus, an adoption, even through, registered, where the child was given in adoption by
the natural father but without the consent of the mother, was held to be invalid.

Consent of the father

Consent of the father is equally important when the mother wants to give or take a child in
adoption unless he suffers from the statutory disabilities mentioned in sections 8 and 9 of the Act.
 21

Case laws:

Teesta Chattoraj vs Union of India

Facts and judgment of the case:

In this case, the parents had a divorce by mutual consent and as per the settlement the father
gave up all the claims and duties of their daughter. Two years later, the mother remarried and by
a registered adoption, deed gave the daughter to the second husband without seeking the consent
of the biological father. When the child applied for a passport with step father’s name as the father,
the application was turned down because the adoption was invalid. Hence, the child’s petition
through her mother under Article 226 of the Constitution. Her plea that the natural father had, in a
way “finally renounced” the petitioner’s world since, at the time of obtaining a divorce by mutual
consent, he gave up all his rights, responsibilities and claims over the child, was not accepted. On
the other hand, a Government Circular of 2009 by the Ministry of External Affairs which provides
that relationship of the child with his biological parents subsists even after divorce and the name
of the stepparent cannot be written in the passport of the children from a previous marriage was
relied upon. While there is logic to this provision, too technical an interpretation may go against
the interest of the child. A recalcitrant parent may have abdicated himself/herself of all the
responsibilities towards the child yet out of sheer vindictiveness may hold requisite consent which
could cause psychological, emotional, social and practical problems as also embarrassment to the
child. Each case needs to be assessed on its own merits and facts.

Guardians and wards Act, 1890

This act is established in the year 1890. The main intention of this act is to define the
guardianship of the child. Parents are the real and natural guardian of children but after the death
of parents, grandparents or other members of the family becomes the guardian of the children but
they are not considered as the natural parents of children. This act is applicable when any couple
adopts children and after some because of some reasons they died then child responsibility comes
over guardians so they can feed their child or if they are not capable of adoption they can give their
child for adoption under this act. Guardians have full rights on the child-related to the right to
education, employment, etc.

Duties, Rights and Liabilities of Guardians

 22

1. Fiduciary relation of guardian to ward- The Guardian and children relation is considered
as the fiduciary relation. This relation is for the protection of will and other instruments.
But the guardian cannot make any profit in the will and property of children.

2. The capacity of minors to act as guardians- Minors is considered incompetent so he or

she cannot become the Guardian of the children. He could be parents of his children but
not a guardian.

3. Control of collector as guardian- if the Guardian is minor then the court appoints the
collector for the care and protection of children. The collector is connected with the
Guardian. The collector is paid by the government officials.

4. Remuneration of Guardian- when an officer appoints any person for the guardianship of
children then that person’s duties towards children is decided by the court.

Guardian of the Person

Title of guardian to custody of wards- if ward leaves or is removed from the custody of a
guardian of his person by the court then the welfare of the ward is transferred to the guardian by
making the order for his return by the court and before the transfer of the ward to the guardian the
ward gets arrested.

Duties of guardian of the person- the duties and responsibilities are charged to the guardian
after the child is transferred to the guardian by the court.

Removal of Ward from Jurisdiction- the guardian is appointed by the will or another
instrument by the court. If a guardian is adopted with the permission of the court then the guardian
should be removed from the responsibility of children.

Guardian of property

Duties of guardian of property– child are transferred to the guardian with some restrictions
and bounds under the act. He can only do those acts which are reasonable and proper for the
realisation, protection or benefit of the property.

Powers of testamentary guardian– When guardian adopt a child for the care and protection
of the child they have some limited powers on childlike mortgage or charge, transfer by sale, gift,
 23

exchange, etc. guardian can adopt a child with the help of the will or another instrument which are
legal. There are restrictions on the immovable property which belongs to ward is subject to
restrictions which may be imposed by the instrument, unless they are declared guardian and the
court which made the declaration permits them by an order in writing to dispose of any immovable
property specified in the order in a manner permitted by the order.

Limitation of powers of guardian of property appointed or declared by the court– When

the person is appointed as a guardian or collector by the court for the protection of the child than
he shall not without the previous permission of the court mortgage or charge, transfer by sale, gift,
exchange, or otherwise, any part of the immovable property of his ward.

Other than he can lease any part of that property for a term exceeding five years or for any
term extending more than one year beyond the date on which the ward will cease to be a minor.

Voidability of transfers made in contravention of section 28 or section 29– A disposal of

immovable property by a guardian in contravention of either of the two last foregoing sections is
voidable at the instance of any other person affected thereby.

Practice concerning for permitting transfers under section 29– This section mentioned
that the guardian has permission to do any acts which are mentioned in this section but it is not
granted by the court except in case of necessity or for an evident advantage to the ward. The grant
the permission from the court, shall recite the necessity or advantage, as the case may describe the
property with respect to which that act permitted is to be done, specify such conditions, if any, as
the court may see fit to attach to the permission and it shall be recorded, dated and signed by the
judge of the court with his hand, or when from any cause he is prevented from recording the order
with his hand, shall be taken down in writing from his dictation and be dated and signed by him.
The court may in its discretion attached to the permission the following among other conditions.

1. That a sale shall not be completed without the sanction of the court.

2. When some people are specially appointed by the court then the sale shall be made to the
highest bidder by public auction before the court and the time and place is specified by the
court. After such proclamation of the intended sale as the court subject to any rules made
under this act by the High Court.
 24

3. That a lease shall not be made in consideration of a premium or shall be made for such
term of years and subject to such rents and covenants as the court directs.

4. According to the court, direction guardian shall be paid to the court on prescribed
securities.

Variations of powers of guardian of property appointed or declared by the court– if any

guardian is appointed by the court and if such a guardian is not the collector then the court may
from time to time restrict or extend his powers with respect to the property of the ward in such
manner and to such extent as it may consider being for the advantage of the ward and consistent
with the law to which the ward is subject.

Right of guardian so appointed or declared to apply to the court for opinion in

management of property of ward– A guardian appointed or declared by the court may apply by
petition to the court which appointed or declared him for its opinion, advice or direction on any
present question respecting the management or administration of the property of his ward.

The obligation on Guardian of property appointed or declared by the court– Where a

guardian of the property of ward has been appointed or declared by the court and such guardian is
not the collector than he shall:

• If a guardian is required to give the bound in the prescribed form to the judge of the court
to ensure the benefit the judge for the time being with or without sureties for engaging duly
to account for what he may receive in respect of the property of the ward.

• A guardian is required to deliver to the court in every six months from the date of his
appointment or declaration by the court as the direction of the court. The statement of the
immovable property which belongs to the ward related to money and other movable
property which the guardian has received on behalf of the ward up to the date of delivering
the statement, and of the debts due on the date to or from the ward.

• Guardian have to exhibit his account in front of court when court requires and in such form
as the court from time to time directs.

• A guardian has to pay the due balance from his account to the court if court is required as
the court directs.
 25

• If the guardian apply for the maintenance, education, and advancement of the ward and
the ward is dependent on the guardian then such portion of the income of the property of
the ward as count from time to time directs, and if the court directs, the whole or any part
of that party.

Power to award remuneration for auditing accounts– when accounts are exhibited by a
guardian of the property of a ward in pursuance of a requisition made under clause (c) of section
34 or otherwise, the court may appoint a person to audit the accounts and may direct that
remuneration for the work be paid out of the income of the property.

Suit against guardian where administration-bond was taken– Where a guardian appointed
or declared by the court has given a bond duly to account for what he may receive in respect of the
property of his ward, the court may on application made by petition and on being satisfied that the
engagement of the bond has not been kept, upon such terms as to security, or providing that any
money received be paid into the court, or otherwise as the court thinks fit, assign the bond to some
proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond
had been originally given to him instead of to the judge of the court, and shall be entitled to recover
thereon, as trustee for the ward, in respect of any breach thereof.

Suit against guardian where administration-bound was not taken– Where a guardian
appointed or declared by the court has not given a bond as aforesaid, any person with the leave of
the court, may, as next friend, at anytime during the continuance of the minority of the ward, and
upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against
his representative, for an account of what the guardian has received in respect of the property of
the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be
payable by the guardian or his representative, as the case may be.

General liability of guardian as trustee– Nothing in either of the two last foregoing sections
shall be constructed to deprive a ward or his representative of any remedy against his guardian, or
the representative of the guardian, which, not being expressly provided in either of those sections,
any other beneficiary or his representative would have against his trustee or the representative of
the trustee.

Termination of guardianship
 26

Right of survivorship among joint guardians- On the death of one of two or more joint
guardians, the guardianship continues to the survivor or survivors until a further appointment is
made by the court.

Removal of guardian- The court may, on the application of any person interested, or of its
motion, remove a guardian appointed or declared by the court, or guardian by the court, or a
guardian appointed by will or another instrument, for any of the following causes namely:

1. For abuse of his trust.

2. For continued failure to perform the duties of his trust.

3. For incapacity to perform the duties of his trust.

4. For ill-treatment, or neglect to take proper care of his ward.

5. For contumacious disregard any provision of this act or of any order of the court.

6. For conviction of an offence implying, in the opinion of the court, a defect of character
which unfits him to be the guardian of his ward.

7. For having an interest adverse to the faithful performance of his duties.

8. For ceasing to reside within the local limits of the jurisdiction of the court.

9. In case of a guardian of the property, of bankruptcy or insolvency.

Discharge of Guardian- If a guardian appointed or declared by the court desires to resign his
office, he may apply to the court to be discharged.

Muslim Law

Adoption is the transfer of a child to the parents. Under Muslim law Islam does not recognise
the adoption, it is very different from Hindu law. In Muslim law, adoption is recognised as
“Acknowledgment of paternity”.

Acknowledgment of Paternity is the principle that establishes the legitimacy of the child. In
this principle child gets acknowledges to become a legitimate child means paternity of the child is
established upon him.
 27

Case law in which the Supreme Court gave judgment related to the adoption, to extend the
right of adoption to Muslims also.

Shabnam Hashmi vs Union of India, (2014) 4 SCC 1

Facts of the case:

The judgment of the case, the Supreme Court of India declared that the right to adopt the child
by a person as per the provisions of Juvenile Justice Act would prevail over all personal laws
and religious codes in the country. The three judges bench consisting of Chief Justice P.
Sathasivam and Justice Ranjan Gogoi and Shiv Kirti Singh, however, maintained that

personal laws would govern any person who chooses to submit himself until such time that
the vision of a uniform civil code is achieved.

The Hon’ble Court also stated that adoption was a matter of personal choice and there was no
compulsion on any person to adopt or adopt a child.

According to the Act, Juvenile Justice Act, 2002 defines Adoption in section 2(aa). This act
confers that the adoptive parents and the child rights, privileges and responsibilities that are
attached to a normal parents child relationship.

Parsi law

“Parsi law” is the only personal law that is defined under the Hindu Adoption and
Maintenance Act. There is no other laws governing people belonging to other religions or
communities. The Parsi who are governed in their law by Parsi Marriage and Divorce Act,
1936, and PT III of the Indian Succession Act, 1925 has no provision for adoption. The
customary form of adoption amongst the Parsi is known as “Palak”. In the Parsi Law widow can
adopt the child on the fourth day of her husband’s death, simply to perform certain annual religious
ceremonies. The adopted child does not have the right to property.

Christian law

“Christians have no Adoption Laws” because the personal law of these communities does
not recognize adoption and adoption can take place from an orphanage by obtaining permission
from the court under the Guardians and Wards Act. if any Christians want to adopt a child then
 28

has to take permission from the court under the Guardians and Wards Act. National
Commission on Women has stressed on the need for uniform adoption law. With the help of
the National Commission Christians can adopt a child under foster care. If any child is adopted
under foster care and when he becomes major he can break all the connections with his family.
This type of child has no right of inheritance.

Case laws:

Philips Alfred Malvin vs V.J. Gonsalves

Facts of the case:

In this case, the court give the judgment that in spite of any absence of any law or alleged
existence of any custom enabling Christians to adopt a child, the court legally recognised the
validity of an adoption.

Uniform Civil Code for Adoption

If we talk about Personal Laws in Indian, all are codified to bring social justice, equality
among classes and uniformity. This personal law is simple easy and it attempts to make personal
faith. It applies to the particular religion. In the case of Uniform Civil Code is also called UCC is
a personal lawmaking system that creates a system for adoption for different religions with
different rules and regulations. It makes the process of adoption uniform and easy. If we talk about
the past situation of the adoption our forefathers do not know UCC but in the present situation,
there is a choice to include the provision for UCC to help the future government to implement the
law for adoption under UCC.

Conclusion

The only statute governing adoption in India is the Hindu Adoptions and Maintenance Act
or Juvenile Justice Care and Protection of Children Act, 2000. The Juvenile Justice Act has
provisions of adoption but in a different context. HAMA has liberalised the law in several aspects
like:

1. Clear religious bias

2. Hindu can only be adopted.

 29

3. Hindu can take and give for adoption

The act has an interest in the care and protection of the child as well as the welfare of the
child. Since there is no provision to investigate and look into the suitability and antecedents of the
family seeking to adopt, nor any follow-up to ascertain how the child is being treated. Other than
that if a foreigner wishes to adopt a child in India he cannot adopt under this act. He can adopt the
child under guardian and wards act for being appointed guardian of such a child, has to seek court
permission to take the child out of India. Moreover, under this act, the rights which children get
are very limited. They have no inheritance rights. Similarly, those who adopt are only guardians
and no parents. There is a need for a uniform law on adoption. Thousands of abandoned, orphaned
and neglected children need families and innumerable couples wish to adopt, but in the absence of
satisfactory legal provisions, the children remain homeless and people desiring to adopt cannot
adopt. All attempts to enact such laws are futile.

Inter-country Adoption
The Hindu Adoption and Maintenance Act applies only to the Hindus. There is no law
governing adoption by a different religion, nor is there any statutory provision providing for the
adoption of a child by foreigners living abroad.

CARA

Definition of CARA

Central Adoption Authority is a statutory body of the Ministry of Women and Child
Development, Government of India. It functions as the nodal body for the adoption of Indian
children and is mandated to monitor and regulate in-country and inter-country adoptions.

CARA Adoption Guidelines and authorities for adoption in India

1. Photograph of the current family for adopting the child.

2. Pan card of the adoptive parents.

3. Birth certificate of adoptive parents.

4. Residence proof of adoptive parents.

5. Proof of income of the family.

 30

6. Medical certificate from a medical practitioner.

7. Marriage certificate.

8. Divorce decree.

9. Reference letter from relatives in support of adoption.

10. Consent of the old siblings.

11. Home study report valid for 3 years only.

12. Parents should be declared legal.

13. Parents can file a suit against the adoption agency for the rejection of adoption.

14. The appeal referred to in sub-regulation 14 shall be disposed of within 15 days and the
decision of the Authority in this regard shall be binding.

State Adoption Resource Agency

State Name of the SARA Address

Andaman and Directorate of Directorate of Social Welfare, Golghar,

Nicobar Island Social welfare Port Blair, South Andaman & Nicobar Islands.

Women and Government of Andhra Pradesh 4th floor

Andhra Pradesh Development and Child Jampani Towers, Lodge Center, Amravati
Welfare Department Road, Guntoor Andhra Pradesh- 522006

Women and Child Social Welfare Department, Government

Arunachal
Development of Arunachal Pradesh post box no- 227,
Pradesh
Department Naharlaguan, Arunachal Pradesh.

State Child Protection Society, house no-

Social welfare
Assam 46, near Sarvey Bus Stop, Beltola, Guwahati-
department
781028
 31

SARA, 2nd Floor Apna ghar behind Lalit

Bihar SARA Bihar Bhawan Bailey Road Punaichak, Patna-
8000023

Department of Union Territory Child Protection Society,

Chandigarh
social welfare Near Vatika School, Sector- 19B, Chandigarh

State Adoption Resources Agency,

Directorate Women Directorate of Women & Child Development
Chhattisgarh and Child development Department, 2nd floor, block A Indrawati
department Bhawan, Atal Nagar, Raipur-492001
Chhattisgarh

Social Welfare Department ICPS Unit 1st

SARA Dadar and
Daman and Diu floor Government Quarters, Dholar, Moti,
nagar Haveli
Daman-396220

Department of Women and Child

Development, ICPS unit 1st floor of
Dept. of Women
Delhi Adharshila Observation Home for Boys Sewa
and Child Development
Kutir Complex Kingsway Camp, Delhi –
110009

Directorate of Directorate of Women & Child

Goa Women and Child Development, 2nd Floor Old Education
Development Building 18th June Road, Panji, Goa 403001.

Gujarat State Child Protection Society

Department of Government of Gujarat, Block 19 3rd Floor,
Gujarat
Social Defence Dr. Jivraj Mehta Bhavan, Sector-10/A,
Gandhinagar, Gujarat-382010.
 32

Social Justice and Women and Child Development

Haryana Empowerment Department, Government of Haryana, Bays
Department No. 15-20, Sector 4, Panchkula, Haryana.

Jharkhand State Child Protection

Social Welfare
Jharkhand Society(JSCPS) FFP Building, 3rd Floor Room
Department
No 313, Dhurwa Ranchi, Jharkhand-834004.

Specialised Adoption Agency

1. The parents responsibility towards children is to take care, protect them and take care of
their well-being and shall cater to their health needs, emotional as well as psychological
needs, educational and training needs, leisure and recreational activities, protection from
any kind of abuse, neglect and exploitation, social mainstreaming and restoration or as the
case may be and follow-up.

2. The cases related to admission, restorations, transfers, death, and adoption of children is
to be reported in the institutions like Child Welfare Committee, District Child Protection
Unit, State Adoption Resource Agency and the Authority through child Adoption Resource
Information and Guidance System. These are also the designated portal for child and
police.

3. Status of the child orphan abandoned and surrendered child on the Child Adoption
Resources Information and Guidance System, is to be submitted on the
website www.cara.nic.in.

4. Certificates are issued of the children by the Child Welfare Committee to declare the child
legality free for adoption in Child Adoption Resource Information and Guidance System
within forty-eight hours from the receipt of such certificate and must be uploaded.

5. Child study report must be prepared by the social worker and upload it in Child Adoption
Resource Information and Guidance System, within seven days from the date, such
children are declared legally free for adoption by the Child Welfare Committee.
 33

6. The medical tests of the child are to be submitted or uploaded in the Child Adoption
Resource Information and Guidance System as provided in schedule IV and it is prepared
in the home by the parents or orphanage.

7. Prepare individual care plan for each child in the following order: restoration to the
biological family or legal guardian, inter-country adoption, foster care, and institutional
care.

8. Album of the children is to be made after the adoption by the parents.

9. Make efforts to place each child in adoption, who has been declared legally free for
adoption by the Child Welfare Committee.

10. Ensure that siblings and twins are placed in the same family, as possible.

Authorised Foreign Adoption Agency

1. Register the prospective adoptive parents interested to adopt children from India and to
complete their home study report.

2. Follow-up with Specialised Adoption Agency for ensuring early adoption after receipt of
No Objection Certificate for the Adoption from the authority.

3. Give orientation to the prospective adoptive parents on culture, language, and food of the
place to which the adopted child belongs.

4. Ensure the submission of post-adoption follow-up of the progress of adopted children and
to address the cases of disruption, as specified in regulation 19.

5. Arrange get-together of children of Indian origin and their adoptive families from time to
time with the involvement of the Indian diplomatic missions concerned.

6. Facilitate root search by older adoptees.

7. Upload attested copies of the adoption application of the prospective adoptive parents in
the Child Adoption Resources Information and Guidance System and forward the original
of the same to the allotted Specialised Adoption Agency.
 34

8. Fulfill the legal requirements of the host country as well as the terms and conditions of the
authorisation given by the Authority.

District child protection unit

The district child protection is introduced by the Government of India in the year 2009-10.
The main aim to bring this Child Protection Unit:

• Bring some programs for child protection with some improved norms.

• Incorporate other interventions that aim to address issues that were so far not covered by
earlier schemes.

• Based on principles of protection of child rights and the best interest of the child.

• Every District has a child protection unit.

• The district child protection unit is under the Chairperson of the Chairperson.

• District Magistrate, District Child Protection Unit has been established in District Panipat
from July 2012.

The District Child Protection is set up by ICPS envisages in each district as a fundamental
unit for the implementation of the scheme. This unit is under the chairperson of the chairperson.
The District Magistrate is the chairperson has been established in District Panipat from July 2012.

Name of the Phone

Address
office No

District Child District Child Protection Unit Room No- 407, Fourth 0180-
Protection unit Floor Mini Secretariat, Panipat 2641574

S.no Designation Name Phone no

District Programme Officer Cum Smt. Usha

9896179209
Member Secretary Arora
 35

District Child Protection unit

Smt. Nidhi
2. District Child Protection Officer 9255644002
Gupta

Rights of Adopted Child in India

The child has all the rights, as well as the adopted child have all the rights after adoption. The
adopted child becomes legal as the normal child. This is defined in the Hindu Succession Act,
1956. If the parents die without making the will of the property then the property always goes to
the Class-1-heirs. An adopted children also have rights in the will of the parents.

Conditions for Adoption

According to the Hindu Law, below the age of 15 years if he/she is not adopted previously.
But if any child already gets adopted then he cannot get adopted twice. In the Guardianship Law
and the Juvenile Justice Act, 2015, if any child is not Hindu and if he is above 18 years of age
then he/she can also be adopted. In other religions like Islam, Christianity, Parsis and the Jews, if
they want to adopt a child then they can adopt a child under section 8 of Guardians and Wards
Act because they have no personal law for adoption. There are some rules and regulations for the
adoption which adoptive parents have to follow.

Conclusion

At last, I conclude this topic by saying that adoption of the child is the biggest development
process. Because of this process, the children who are not legalised are to be legalised after the
adoption and they also get all the care and protection from their family. It also maintains the
population of the country. If we see, in India, orphanages are full of children, as they have no
parents to take care of them. Today many parents give birth to a girl and throw it in the dustbin
and don’t even think. This crime is increasing day by day. In today’s generation also people don’t
understand the value of girl child after so high education. Half of the population of children is
alone they don’t have legal parents to take care of them. Adoption is the best way to give them a
good life. It also helps in maintaining the population of the country. But new couples of our
generation are working in this matter by adopting the child and give them a better life.
 36

Adoption under the Juvenile Justice Act of 2015xx

Meaning of adoption

Adoption is the legal act of permanently placing a child with a parent or parents other than the
biological parents. Adoption results in the severing of the parental responsibilities and rights of
the parents and the placing of those responsibilities and rights onto the adoptive parents. It is a
worldwide institution. Almost all religions and mythologies contain some reference or other to
adoption. In the contemporary world, the thirst for the concept of adoption has changed from
providing a child to childless to providing a home to the homeless.

Whole Chapter VIII has been dedicated, this deals with “Adoption under the Juvenile Justice
(Care and Protection of Children) Act, 2015 from Section 56-73.

Section 2 (2) of the Juvenile Justice Act,2015, defines ‘adoption’ as the process by which an
adopted kid is legally separated from his biological parents and becomes the lawful child of his
adoptive parents, with all of the rights, privileges, and responsibilities that come with being a
biological child.

The effectiveness of the provision

Initially, the option of adoption was only accessible to the Hindu community after the Hindu
Adoption and Maintenance Act came into effect in 1956, which facilitated the adoption of Hindu
children by a person adhering to the Hindu community, and did not apply to communities such as
Muslims, Christians, and Parsis, who had to depend on the Guardians and Wards Act, 1890, under
which they could become guardians. However, the procedure only established a guardian-ward
connection. The Juvenile Justice (Care and Protection) Act of 2000, which was last updated in
2015, was the first step toward a secular adoption law.

The Juvenile Justice Act establishes elaborate procedures for both in-country and intra-
country adoption, which are governed by the Central Adoption Resource Authority, a statutory
authority of the Government of India. A prospective parent can apply at their state’s Adoption
Coordination Agency (ACA), which is a CARA-accredited agency in each state. This adoption
agency prepares a complete assessment of the family, including pre-adoptive counseling that is
valid for three years. At this point, potential parents can express their preferences. Once a suitable
child has been selected, the agencies can arrange for potential parents to meet the youngster. If the
 37

match is made, the child can be placed in pre-adoption foster care after signing the foster care
agreement.

Meanwhile, within 10 working days of matching, the Specialized Adoption Agency/Child

Care Institution and the prospective parents submit an application with the District Court as co-
applicants. According to Section 61(2) of the Juvenile Justice Act, all processes must be held in
private and concluded within two months after filing. However, figures from the Ministry of
Women and Child Development show that there is a large number of pending adoption cases in
India’s Civil Courts that have been there for longer than the time limit specified in section 61(2)
of the Juvenile Justice Act. Even though several adjustments have been made over the years to
address concerns encountered during the Act’s implementation.

In cases of children in need of care and protection, the CWC is no longer the “ultimate
authority.” The District Magistrate will be the CWC’s grievance redressal authority, and anyone
linked with the child may file a petition before the district magistrate, who will consider and issue
appropriate orders.

One advantage is that the district magistrate will be able to manage the process more
efficiently and promptly since he has access to and is more familiar with all of the departments in
his jurisdiction.

Loopholes if any: a highlight

Sections 14(1) and (2) of the Act are primary core issues. The first is the basis on which the
Juvenile Justice Board will decide whether a 16- or 17-year-old should be tried in a Regular Court
or under the JJ Act. The most problematic feature of these tests is that almost all of them carry a
presumption that the child is guilty of having committed the charge if they are positive.
Furthermore, the question of how the Board will make these decisions in one month and before
the actual trial remains unaddressed. Juveniles between the ages of 16 and 18 who are found guilty
of committing terrible crimes after a preliminary inquiry by the Juvenile Justice Board will be
transferred to a Children’s Court, which will be able to proclaim the youngster guilty. These minors
can be held in a “safe environment” until they reach the age of 21. Even if they are deemed to have
been “reformed” by the age of 21, they may be sent to adult prisons. The ‘place of safety,’ also
known as ‘borstals,’ is currently unavailable in the majority of states.
 38

Beyond rape and murder, the new juvenile laws have broadened the category of terrible
crimes. All offenses punishable by seven years or more in jail are classified as heinous. Experts
have examined the law and identified several offenses for which children can face adult charges.
Offenses relating to drugs, war, trafficking, abetment of crimes, enabling one’s property to be
utilized, and many others are among them.

According to the Juvenile Justice Act of 2015, there is a provision for specialists to be
available in about 600 of the country’s above-mentioned districts to provide advice to JJBs. It will
be determined whether or not a child committing a crime is in a ‘child-like frame of mind based
on their findings. On paper or in a political debate, this theory may appear sound, but it is highly
subjective in practice. It lays an excessive amount of responsibility on the Juvenile Justice Board,
which may cave to public pressure and, as a result, minors may be moved to the adult criminal
justice system.

This law has grown contentious as a result of the growing incidence of adolescent elopement
and consensual sex among teenagers. The boys may now face rape charges. A kid cannot consent
to a sexual act until the age of 18, hence any act of sex, even consensual, is considered rape under
the Protection of Children from Sexual Offenses Act (POCSO).

It contradicts UN commitments derived from several conventions and guidelines to which

India is a signatory, particularly recommendations 79 and 80 of the UN Committee on the Rights
of the Child, which specifically request that India “ensure that persons under the age of 18 are not
tried as adults, following the principle of non-discrimination contained in Article 2 of the
Convention.

Recommendations and suggestions

The Juvenile Justice Act should be aggressively implemented. Acting without willing hands
is inefficient and harmful. As a result, the government should ensure that the legislation is
appropriately enforced by the authorities.

India should not have a uniform juvenile age for all crimes. The system can be designed along
the lines of those used in the United States, the United Kingdom, and France to categorize and
divide the Juvenile Justice system into distinct age groups.
 39

Juvenile cases should not be moved to Adult Courts.

Every Juvenile Justice Board should collaborate with local child welfare agencies to improve
their efficacy in providing safe shelter to abused and neglected children.

Members of the Juvenile Justice Board should collaborate with local child welfare agencies
to improve their efficacy in providing safe havens for abused and neglected children.

The feasibility of establishing a non-judicial juvenile justice system should be investigated.

Ensuring and improving the quality of the juvenile correctional services process would result
in justice for minors who have broken the law.

The juvenile age should not be reduced at all since it will have a far-reaching impact on India’s
criminal justice system, which will be adverse to the advancement of justice and equity.

Case laws associated with the same field

Shilpa Mittal v. State of NCT of Delhi and Anr. (2020)

Issue of the case

Whether an offense has a maximum punishment of more than seven years in jail but no
minimum term, or with a minimum penalty of fewer than seven years, can be regarded as a
‘heinous offense’ under Section 2 (33) of the Juvenile Justice (Care and Protection of Children)
Act, 2015.

Judgment

While considering the case, the Court stated that it was not the Court’s responsibility to fill in
the gaps and fix them. The Court stated that it could add or delete words from the legislation if the
legislature’s meaning was apparent. In circumstances where the aim of the legislature is unclear,
however, the Court cannot add or eliminate words to offer meaning that the Court believes would
fit into the scheme of things. The Court was interpreting a statute, which had to be construed by
its wording and intent. The goal of the Act of 2015 is to ensure that children who violate the law
are dealt with separately, rather than as adults. We cannot wish away the word “minimum” when
the language of the clause stipulates a minimum of 7 years imprisonment when dealing with severe
crime.
 40

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not
carry a minimum penalty of seven years cannot be considered heinous. However, the Act does not
address the fourth category of offenses, namely, offenses where the maximum sentence is more
than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven
years is provided, which shall be treated as serious offenses within the meaning of the Act and
dealt with accordingly until Parliament decides on the matter.

VikramDeo Singh Tomar v. State of Bihar (AIR 1988 SC 1782)

The Supreme Court has taken notice of the poor conditions in the State of Bihar’s care homes
for women and children and has ordered the State to improve affairs in these facilities and provide
at least the minimum living standards necessary to ensure human dignity.

Gaurav Jain v. Union of Indian (1997)

The Supreme Court ruled that the children of prostitutes have the right to equal opportunity,
dignity, care, protection, and rehabilitation to be included in the mainstream of social life without
stigma. The Court ordered the formation of a committee to devise a plan for the rehabilitation of
such children and child prostitutes, as well as its implementation and submission of the registry’s
quarterly report.

Laxmikant Pandey v. Union of India (AIR1984 SC469)

In this landmark case, the Supreme Court of India established a couple of doctrines controlling
the requirements for inter-country adoption. The lawsuit was initiated based on a letter filed to the
court by a lawyer, Laxmikant Pandey, saying that social organizations and volunteer organizations
engaged in the activity of selling Indian children to foreign parents are indulging in malpractices.
 1

Module – 6
Overview of the Hindu Minority and Guardianship Act, 1956xxi
Introduction

In the premature stage of one’s life, a child is incapable of taking care of himself,his/her own
body and his/her property because of his minority. A child can not handle his/her own matters. A
child is even unable to understand what is right and what is wrong. So, he requires the help of
some other person to take care of himself. For the advantage of the minors, the lawmakers have
made specific laws which allow some relaxation and support to the lives of the minors.

The modern laws on minority and guardianship are regulated by the Hindu Minority and
Guardianship Act, 1956. The father is the natural guardian of the child and after his death, the
mother will take the responsibility of the guardianship of the child.

Definitions of the Minor and the Guardian

According to Section 4(a), it is defined as a minor means who has not completed the age of
18 years.

According to Section 4(b), it is also defined that a guardian means a person who has
completed the age of 18 and he is taking proper care of a minor and his property and as well as his
own.

Types of Guardian

There are 3 types of guardian who are in the following:

Natural Guardian

Testamentary Guardian

A Guardian appointed by the Court

Natural Guardian

According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of
the minor. For a minor wife, his husband is the guardian.
 2

Section 6 of the Act gives 3 types of natural guardian in the following:

Father– A father is the natural guardian of a boy or unmarried girl, the father is the first
guardian and the mother is the next guardian of the minor. It is given in the Act that only up to 5
years the mother is the natural guardian of the child.

Case- Essakkayal nadder Vs. Sreedharan Babu. In this case, the mother of the minor died
and the father was also not living with the child, but the child was alive. the child was not declared
to be a Hindu or renounced the world and he was also not declared unfit. These facts do not
authorize that any other person adopts the child and be the natural guardian and transfer the
property.

Mother– The mother is the first guardian of a minor illegitimate child, even if the father is
existing.

Case- Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some
reason and the minor daughter stayed under the guardianship of the mother. Here, it will be
determined that the mother is the natural guardian of the minor girl.

Husband– For a minor wife his husband is the natural guardian.

Under Section 6, it is given that no person will be designated to perform like the natural
guardian of a minor under this portion, which is in the following:

If he/she ceased to be a Hindu.

If he/she has completely renounced the world that they are becoming an ascetic (sayansi) or
hermit (vanaprastha).

Note: In Section 6, the terms “Father” and “Mother” do not include the step-father and the
step-mother.

Powers of a natural guardian

As per Section 8, the powers of the natural guardian to impose on the child are as follows:

The natural guardian of a Hindu minor has the power to do all work, which are compulsory
and which are beneficial for the minor’s interest. Protection or benefits of the minor’s condition.
 3

The natural guardian should bring the prior permission from the Court, for the use of the gift
transferred to him, mortgage or any other valuable things of the minor.

For the lease of any part of minor’s property for about exceeding 5 years or for a term of
extending one year beyond the date on which the minor attains the majority. The prior permission
from the Court is very much needed for doing so.

Violation of any disposal of the immovable property by a natural guardian, it will be voidable
at the case of the minor or any other person claiming on the behalf of him.

No Court shall grant permission to the natural guardian to do any act which is not in the
interest of the minor.

The Guardians and Wards Act, 1890 shall apply to the application for getting the permission
of the Court if the application is for getting the permission of the Court under Section 29 of that
Act and in these grounds:

The natural guardian requires permission from the District Court or under the Court which
empowered by the Guardians and Wards Act, 1890.

Should submit the application to the Court within the local limits of whose jurisdiction,
portion of the property of minor is placed.

An appeal would be declined, when the Court rejects the permission to the natural guardian
to do any acts of property transfer and this remedy is usually the result of this Court decision.

Testamentary Guardian

Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian
only authorized by a will. It is compulsory for the testamentary guardian to receive the
guardianship adoption which may be expressed or implied. A testamentary guardian has the right
to decline the appointment, but once he /she receives the guardianship then he/she can not decline
to perform or resign without the permission of the Court.

According to the Hindu Minority and Guardianship Act, 1956 testamentary power of
choosing a guardian has been provided on both, father and mother. If the father chooses a
testamentary guardian but the mother rejects him, then the chosen guardian of the father will be
 4

inefficient and the mother will be the natural guardian thereafter. If the mother chooses a
testamentary guardian, her chosen guardian will become the testamentary guardian and father’s
appointment will be void. If the mother does not want to choose any guardian then father’s
appointee will become the guardian. It appears that a Hindu father can not choose a guardian of
his minor illegitimate children even when he is allowed to perform as their natural guardian.

A Guardian appointed by the Court

In the earlier days of Smritis, the overall jurisdiction for the children was sanctioned over the
king. The king had the power to choose a closet relation of the minor as guardian. Only priority
was given to the relatives on the paternal side over the maternal side. Only for the security of the
child, this type of laws was formulated by the ancient lawgivers.

Now, this type of powers are applied by the Courts under the Guardians and Wards Act, 1890.

The guardian who is appointed by the Courts, he/she will be known as a certified guardian.

Under Section 13 of the Hindu Marriage and Guardianship Act, 1956, while the appointment
of any person as guardian is going on by a Court, the advantage of the minor shall be the primary
consideration.

Therefore, in both the ancient and modern times the king or the Court has been given the
responsibilities to appoint a guardian for the defence of a minor.

Additional grounds where a guardian is appointed

Guardianship of Minor’s property(De Facto guardian)

A minor, who is under the tender age may achieve some property which is given by
inheritance, gift etc. because of child underage, he/she can not take proper care of the property.

The Smritis gave the opinion that the king has to guard the property of the minor. In this
statement, Manu says that the king should protect the inheritance accepted by a child till his study
is completed or till he attains majority.

Vasistha states that the king should guard the property of a person who is unfit to transact any
business but in a minor’s case when he attains majority, the property will be handed over to him.
 5

In modern law, the natural guardian will take care of the minor. This statement is also used in
the testamentary and certified guardian and in some cases the guardian will protect only those
property for which they were appointed, but not for the excluded property of the minor and the
guardian has no rights to claim for protecting that property.

Therefore, both the ancient and modern lawmakers are interested in the security of the person
and his property. Nowadays there are many laws that are incorporated for the changing need of
the society.

According to Section 11, De Facto guardian is not allowed to dispose or deal with the property
of the minor and it is given that the guardian does not have the rights to take any debt.

Case- Smt. Beti Bai Vs. Jagdish Singh and Ors, in this case Aparbal Singh was the father
of plaintiff, who is no more. Aparbal Singh had 2 wives because, during his lifetime his first wife
died due to some problem, then his second wife came to his life who was the respondent. And the
child of the second wife also died due to some reason. At last after the Aparbal Singh died, the
second wife captured all the property then the son of the first wife filed a complaint.

It was held that, according to Section 4, Section 6, Section 8, Section 11 of the Hindu
Minority and Guardianship Act, 1956, the answer was in the favour of the plaintiff and plaintiff
enjoyed the property. The Court also held that, as the respondent was also had a relation with that
person, therefore, she has the right to get one third of the property, when she will ask for the
partition before the competent authority.

Hindu law tried to find a result from two difficult conditions: one, when a Hindu child has no
legal guardian, there would be no person, who would manage his property under law and therefore,
without a guardian the child would not receive any advantages for his property and second, a
person having no designation could not be a allowed to interfere with the child’s property as to
cause loss to him. The Hindu law got a result of this difficult condition by an according to legal
status to De Facto guardians.

Guardianship of a minor widow (guardianship by affinity)

 6

Earlier days of the Smritis child marriage was very common. After the marriage happened of
a minor girl with the husband, then the husband became the guardian of the girl. In any situation,
if the husband died then the minor widow should not feel unsafe.

According to Narada, when a minor girl becomes a widow then the husband’s relatives have
the duty to protect and maintain her if in husband’s family no one is there, then the father of the
widow takes the responsibilities of the widow to protect her.

Before 1956, there was a guardian called guardianship by affinity. It was the guardian of a
minor widow which was given by the Guardianship and Wards Act, 1850.

No provision is given under the Hindu Minority and Guardianship Act, 1956 for the
guardianship of a minor widow.

Case- In Paras Ram Vs. State, it was held that the father-in-law of a minor widow vigorously
took away the widow from her mother’s control and married her to an improper person without
the widow’s consent. The Court held that the father-in-law guilty of displacing the girl without her
consent.

The Allahabad High Court held that he was not guilty because he was lawfully a guardian of
the widow.

A question has arisen in the Court, whether the nearest blood relatives of the husband
undoubtedly becomes a guardian of the minor widow on the death of her spouse or whether he is
simply as a choice get into the guardianship and therefore, he can not perform as guardian but he
is appointed as such? Paras Ram seems to subscribe to the previous view.

Conclusion

Adoption of a child by any guardian is creating a relationship of the child and the guardian, it
creates the subject matter of personal law and for a minor, it is mandatory to protect his property
and for that reason, there is a guardian who will take care of him and his property. Special thanks
to the lawmakers who invented these types of laws for protecting the minor and his property and
for the unmarried girl and widow. In this way, no one can steal the property of anyone who is a
minor.
 7

Therefore, the guardian is very necessary for a minor to protect himself physically or mentally
and secure from any danger.

Minor and Guardianship under Muslim Lawxxii

Who is a Minor?

This article deals with the concept of Guardianship what it means, the appointment of the
guardian and the removal of a guardian. The ‘Urdu’ term for a child is ‘walad’ and according to
the Holy Quran, a ‘walad’ is a blessing be it a baby boy or a girl. Also, it specifies that be it either
since they are a blessing the persons should content and satisfied with whatever the case may be.

Moreover, the Holy Quran considers female infanticide and believes that those who involve
in such a crime shall be punished on the day of judgment. [1] In several other verses the Quran
provides for adoption, parentage and guardianship.

According to Islamic law, minority ceases when the boy or the girl attains puberty that is also
called ‘bulugh’ in Urdu. And the child can decide to marry and there can be no intervention for
the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age
of fifteen.

It differs from the Indian Majority Act after the completion of the eighteenth year of the child
then he/she becomes an adult. And once in the instance where the marriage has been conducted by
arrangement between the parents of the major boy and girl and has been misrepresented or
concealed in any way then the status of the marriage shall be invalid.

This has been similarly held in the case of Sayid Mohaddin v. Katijabai[2]. On the other
hand, the marriage of a minor child shall be permitted by the parent or the guardian. This power is
given to the parents or the guardian because it is expected of them to act in the interest of the child.
There obviously exists a trust relationship between the minor child and the parent. But the
relationship between the guardian and the child is fiduciary in nature. This is to ensure that the
minor child is not acting unfavourably to their own interest.

Therefore, assuming that the minor child is incapable to maintain himself there is need for
resorting to the appointment of a guardian who shall be an adult and shall be capable to make
decisions on behalf and in the interest of the minor child be it a girl or a boy.
 8

Types of Guardian/ Guardianship under Muslim Law

Guardianship under Muslim Law recognizes the following kind of guardianship:

A natural or legal guardian

Testamentary guardian

Guardian appointed by courts or statutory guardian

De-facto guardian

Meaning of Guardianship under Muslim Law

The word Guardianship is denoted as ‘Hizzanat’ in Urdu.

A Natural Guardian or a Legal Guardian

Etymologically, a natural guardian is a person who shall be naturally or by the virtue of being
a parent shall be responsible for the child. Under all schools of Muslim law, the father is the natural
guardian of the child. This right is derived from the Substantive Muslim law.

The father is liable, responsible and is imposed upon to take care of the child and their well-
being. The authority after the father shall lie with the grandfather. A natural guardian is also
called a legal guardian.

The person who will be next in turn to takeover guardianship in the absence of the father. But
the father, if he is alive he shall be the supreme and the only guardian who shall have the right to
make decisions on behalf of the minor child.

In Shia law, the legal guardian who comes next, in turn, shall be the paternal grandfather i.e.
the father’s father. Moreover, the role of the executor of the father shall not begin if the father is
present and if the father is absent then the paternal grandfather shall be acting.

Testamentary guardian

Lexically, testamentary would mean ‘by the will’. Hence, a testamentary guardian is a person
who shall be appointed as the guardian of the minor child. This appointment is carried out by the
father of the minor child. And under a circumstance where the father is not alive then the paternal
grandfather shall have the authority to decide the guardian.
 9

This mode of appointment is an alternate mode of appointment of a testamentary guardian.

According to usual practice, the testamentary guardian is appointed by way of will which encloses
who shall be the guardian to the minor child in case the natural guardian i.e. the father is not alive.
A testamentary guardian can also be a non-muslim person or a female. However, specifically under
Shia Law, a female can never be a testamentary guardian.

Guardian appointed by courts or statutory guardian

Guardianship and Wards Act, 1890 comes into play when the guardian of the minor child is
appointed by the court. The Rules and procedure are highlighted under this act. However, it needs
to be noted that this act shall not only apply to Muslims but it also applies to every Indian citizen
in India. So it applies to Hindus, Muslims, Parsi and persons of every religion and this is a Specific
Legislation specifically dealing with the policy of guardianship and ward.

Under Muslim law, when the father of the child is not there and there is an absence of legal
documents specifical absence of a will then the court shall have the authority to appoint the legal
guardian of the minor child.

When the guardian is appointed by this method then they are also called ‘Statutory
Guardians’ since they are being appointed by the virtue of the Guardianship and wards Act, 1890.

A district court shall be the court who shall decide and appoint the guardian of a minor child.
This is done in consideration of the age of the child, the sex of the child and the way the child has
been brought up till this point of time. It also needs to be asserted that the High Court also has the
powers to appoint a Guardian.

De-Facto guardian

This mode of guardianship comes into play when the person assumes the role of guardian
without any legal or statutory authority. Therefore, a person who by way of circumstances is in the
guardianship of a minor child not either by way of testament or statutorily then these types of
guardianship is called a De-facto guardianship.

For instance, A is a minor child of 12 years who lives with his mother and maternal
grandmother at his grandmother’s house. A’s mother died due to severe diseases and A was taken
 10

into care by his grandmother. In this case, the maternal grandmother of A becomes the de facto
guardian of A.

Although the grandmother has not been appointed as the guardian by the court, nor is she is
appointed by the parents of A as the guardian, she has to take of A because she is the only relative
of A. Therefore, a person who assumes the care and protection of a minor because of any
circumstance or a moral obligation and not because any legal mandate is called a de facto guardian.

Removal of Guardianship under Muslim Law

There are certain duties which are imposed upon a guardian that is required to be performed
by the guardian. On the failure of which the guardian can be removed. This removal is usually
taken place in the court.

The Court shall have the power the remove the guardian under certain circumstances which
are:

If the husband has abused the trust of the woman

He has not performed any duties as the husband

The husband does not have any capacity to perform the duties

That the husband has not treated the woman well

That there is no regard to the orders of the court by the husband and he is also not regarding
the provisions of the Guardianship Act

When the husband has been found guilty for moral turpitude

Have different interests as a guardian

That the wife ceases to be a minor.

Conclusion

Guardianship under Muslim Law is an essential part of personal laws of people and with the
passage of time, it has been codified by way of legislations. The Guardians and Wards Act is the
legislation passed by the Parliament which deals with the laws and process related to guardianship
in India.
 11

However, it cannot be ignored that personal laws are based on customs and need to be taken
into consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub
Dadamiya[3] clearly held that personal law and beliefs of the parties need to be kept in mind by
the adjudicating bodies whenever they hear any matter of guardianship.

Guardianship in Muslim Lawsxxiii

Guardianship in Muslim Laws

Guardianship of a minor refers to the overall supervision of the minor’s personality. It includes
the care and welfare of the child including the liability to maintain the same. In Muslim personal
law, guardianship largely refers to the guardianship of a minor, including his property by the
natural, testamentary, or court-appointed guardian. Guardianship as a concept itself in Muslim
personal law has many aspects that are not directly comparable to the Western concept of custody.

For example, guardianship may be distinguished from custody or hizanat under Muslim
personal law, with the latter concept being associated with the welfare and care of a minor of tender
age by their Muslim mother. The guardian, in whatsoever manner he is established, has certain
powers and liabilities accruing to him by virtue of his position.

Introduction

Who is a minor in Muslim personal law?

A minor is an individual who has not attained the age of majority as mentioned in the (Indian)
Majority Act, 1875.[1] Except in the matters of marriage, divorce and Mehr, the Muslim
community is governed by the rules of majority as defined in the 1875 Act.[2]

According to customary laws, fifteen years of age is the age of majority relating to marriage,
divorce and mehr. Thus, while fifteen years is the age of majority in general, in the context of
guardianship of a person and property, a minor Muslim will be governed by the 1875 Act which
states 18 years of age as the age of majority for all persons.

What are the categories of guardianship in Muslim personal law?

There are three major types of guardianship, and they are:[3]

1. Guardianship in marriage of a minor (Wilayat-ulnikah)

 12

2. Guardianship of property of a minor (Wilayat)

3. Guardianship of person of a minor (Hizanat)

What is guardianship? How is it different from custody?

Before discussing the Muslim personal law relating to guardianship, it is important to note
that a statute known as the Guardians and Wards Act, 1890 regulates and defines guardianship in
India. The Muslim law of guardianship is customary in nature and the only secular legislation on
guardianship rules is the aforementioned 1890 Act. The 1890 Act had been enacted to protect the
best interest of a minor and secure his property.

According to Section 4(2) of this legislation, the term ‘guardian’ refers to “a person having
the care of a person of a minor or of his property, or of both his person and his
property.”[4] However, as there is no express restriction that the provisions of this Act, it does not
seem that it would interfere with the rules and customs of Muslim law relating to guardianship-
although it shall definitely supplement the same. Thus, this definition of guardianship is also an
appropriate description for the function performed by guardianship under Muslim law, saving
customary differences.

According to Legal Service India,[5] guardianship or wilayat, refers to the guardianship of a

minor Muslim person. It usually refers to the guardianship of property, because “detailed rules
have been laid down for the guardianship of minor’s property, while, on the other, there are very
few rules relating to the guardianship of a minor’s person.”[6]

Custody on the other hand, which is also known as hizanat, lies with the mother of the
minor.[7] The legal sources for guardianship and custody in Muslim law (‘Shariat’) are certain
verses in the Quran, along with a few ahadis. In these sources, the Shariat explicitly speaks of the
guardianship of the property of the minor, while the guardianship of the person of the minor is
seen as a mere inference.[8]

The present article will discuss the three major categories of guardianship under Muslim
personal law. Part I will discuss the Guardianship of property of a minor (wilayat). Part II
Guardianship in the marriage of a minor (wilayat-ulnikah) and Guardianship of the person of
a minor (hizanat).
 13

I. Guardianship in Minor of Property

As mentioned in the introduction, the religious source texts largely refer to the guardianship
of property, in terms of rules relating to guardianship in general.

As guardianship is seen as a patriarchal right, according to Radd-ul-Muhtar, the right of

guardianship of the property of a minor belongs to the father, by preference and in his absence, it
belongs to his executor.[9] In case the father has died intestate, without appointing an executor,
then the grandfather is deemed the guardian.

After the death of grandfather, the guardianship belongs to the grandfather’s executor.
Moreover, if the grandfather had died without appointing an executor, then guardianship is vested
in the kazi who may himself act as such or may nominate someone else to act on his behalf.[10]

According to the Fatwai Alamgiri,[11] a comprehensive legal text of Hanafi law, the law of
guardianship of the property of minor is as follows:

“The executor of a father is in the place of the father, so also, the executor of the grandfather
is in the place of the grandfather, and the executor of the grandfather’s executor is in the place of
the grandfather’s executor, and the executor of the judge is in the place of the judge, when his
appointment is in general.”[12]

What are the different types of guardians?

There are three types of guardians under Muslim law:[13]

▪ Natural guardians

While the term ‘natural guardian’ is not used explicitly by Muslim jurists or appropriate texts,
it is a useful term to consider because the father is recognized as guardian in all the schools of both
the Sunnis and the Shias. In contrast, while the father of the minor is recognized as guardian, which
is synonymous with the term ‘natural guardian,’ the mother of the minor in all schools of Muslim
law is not given due recognition as a guardian, even after the death of the father.[14]

The father’s role and function as guardian subsist even when the mother, or any other female,
is entitled to the custody of the minor. The father’s right to control the education and religion of
minor children has been judicially recognized.[15] He also has the right to control the upbringing
 14

and the movement of his minor children. Thus, as long as the father is alive, he is the sole and
supreme guardian of his minor children.[16]

While Shariat does not recognize the mother as a natural guardian- whether minor legitimate
or minor illegitimate children, she is still entitled to their custody.[17] In contrast, the father’s right
of guardianship extends only over his minor legitimate children and is neither entitled to
guardianship nor to the custody of his minor illegitimate children at any time, even after the death
of the mother.[18]

▪ Testamentary guardians

The rules relating to testamentary guardianship is different for Sunni and Shia schools. In the
Sunnis, the father has the full power of making a testamentary appointment of guardian.[19]

In the absence of the father or his executor, the grandfather has the power of appointing a
testamentary guardian. In the case of the Shias, the father’s appointment of a testamentary guardian
is deemed valid under Shariat only if the grandfather is not alive. This is because in the Shia
traditions, the grandfather, too, has the power of appointing a testamentary guardian.[20] Apart
from the father and the father’s father, no other person has any power of making an appointment
of a testamentary guardian.

That the mother has no power of appointing a testamentary guardian of her children is a
common feature among both the Shias and the Sunnis. According to Dr. Diwan, there are only in
two cases in which the mother can appoint a testamentary guardian of the property of her minor
children, (both legitimate and illegitimate):[21]

Firstly, when she has been appointed a general executrix by the will of the minor child’s
father, she can appoint an executor by her will, and

Secondly, she can appoint an executor in respect of her own property which will devolve after
her death on her children.

There are no specific formalities for the appointment of testamentary guardians under Muslim
law. This implies that an appointment may be made by the appropriate party in writing or orally:
however, in each case, the intention to appoint a testamentary guardian must be clear and
unequivocal.[22]
 15

▪ Guardians appointed by the court

It is only on failure of the natural and testamentary guardians, that the kazi is entrusted with
the power of appointment of a guardian of a Muslim minor.[23] However, in modern India, the
Muslim law of appointment of guardians by the kazi stands abrogated and instead, the matter is
governed by the Guardians and Wards Act, 1890.[24]

As mentioned above, this Act safeguards the best interests of minors and also applies to the
appointment of guardians of all minors belonging to any community. Thus, the High Courts and
District Courts also have inherent powers of appointment of guardians, though the power is
exercised sparingly.[25]

Section 17 of the 1890 Act deals with the matters to be considered by a Court when appointing
a guardian and it may do so whenever it considers it necessary for the welfare of the minor, taking
into consideration the age, sex, wishes, of the child as well as the wishes of the parents and the
personal law of the minor.[26]

In a 1996 case[27], the Gauhati High Court held that when the Muslim mother had remarried
after the death of her husband, she should not be appointed a guardian of her minor daughter.
Instead, the paternal grandmother was held to be a preferable guardian in the view of the court,
and the court-appointed her accordingly.

What are the powers of guardians?

In Muslim law, no hierarchy is made between powers of the natural guardian’s powers and
testamentary guardian’s power over minor’s property. The relevant scripture provided by the
Muslim law-givers first establish the powers of a testamentary guardian and then state that the
natural guardian has the same powers.[28]

The various powers available to guardians of the minor’s property include the following:

1. Power of alienation

According to Dr. Diwan, Muslim law-givers speak of the sale of minor’s property to the
exception of any other types of alienation.[29] There is a distinction made between immovable
and movable property. The guardian in fact has wider powers over the minor’s movable properties
than his immovable properties. Alienation or disposal of minor’s immovable property is
 16

permissible by the guardian only in exceptional cases. This is because the Hedaya[30] sets forth
the reason for this distinction thus:

“The ground of this is that the sale of movable property is a species of conservation, as articles
of this description are liable to decay…on the contrary, with respect to immovable property, it is
in a state of conservation in its own nature, whence it is unlawful to sell it-unless, however, if it be
that it will otherwise perish or be lost, in which case the sale of it is allowed.”[31]

Thus, the sale of movable property is justified not just for the necessity of the minor, but on
the basis of its conservation. It is provided that the guardian is allowed to take all reasonable risks
which are involved in the world of business in his handling of movable property.

The sale of movable property can be avoided by the minor on attaining majority only on the
ground of fraud resulting in the inadequacy of consideration, or when the inadequacy of

consideration is such as to cause serious loss or detriment to the minor, though there is no
indication of fraud.[32]

The case law on the guardian’s power of alienation is fairly clear. It has been held that the
guardian can sell the minor’s property in cases of urgent necessity[33] or for the benefit of the
minor,[34] or for maintenance of the minor,[35] or for the conservation of the property.[36]

The Supreme Court in Meethiyan v. Md. Kunju,[37] held that the father as a natural guardian
has the power to alienate the minor’s property and, in his absence, the legal guardian is competent
to do so. However, the sale of the minor’s property by the mother, who is not a legal guardian nor
was she appointed as such, is void. In this case, the father had died and the contention of the mother
was that as she was natural guardian, her sale of the minor’s property was not void.

2. Power to grant lease

The provisions of the Fatwai Alamgiri[38] were not in favour of conferring any power on the
guardian of leasing out the minor’s properties.[39] In fact, Ameer Ali has taken the view that the
executor may give on lease the minor’s property, only if there be need to do so, and if it is
advantageous to the minor. Moreover, he has also the power to pledge the goods and other movable
property of the minor if it is essential for the maintenance of the minor.
 17

In Zeebunissa v. Danaghar,[40] the Madras High Court held that a guardian of the minor has
the power to lease out minor’s property if and only if it is for the benefit of the minor. It appears
that the guardian cannot give leases of the minor properties extending beyond the period of the
minority of the child.

3. Power to carry on business

According to the Hedaya, the guardian has power to carry on trade or business on behalf of
the minor just like a person of ordinary prudence, provided that the trade is not speculative of
hazardous in nature.[41] Another text, the Fatwai Alamgiri[42] endows an executor to invest
minor’s property in partnership and goes so far to state that he may enter into partnership with
others.

However, it can be argued that the element of risk that any trade or business offers, especially
in the case of partnerships may pose a danger to the best interests of the minor in cases where
aggrieved persons sue the minor for his involvement in any failed venture. The Privy Council in
the past has held that though the guardian had the power to enter into partnership on behalf of the
minor, the minor’s liability was only to the extent to which he had shared in partnership; in no
case, the minor was personally liable.[43]

4. Power to incur debts and enter into contracts

The position on whether the guardian of a minor has the power to incur debts on behalf of the
minor is yet unclear. In essence, a debt contracted without any necessity is not binding on the
minor. However, it has been held that the guardian has the power to execute a promissory note on
behalf of the minor in those cases where the incurring of debt is justified.[44]

In India, there has been a conflict of judicial opinion as to whether the guardian of a minor
under Muslim law as well as Hindu law, could enter into a contract on behalf of the minor, and
whether such a contract is especially enforceable against the minor.[45] A slew of cases dealt with
this question, starting with the Privy Council case in 1912,[46] wherein it held that it was not
within the power of the guardian to bind the minor’s estate by contract for the purchase of the
immovable property.
 18

The issue, in that case, was whether the specific performance of a contract validly entered into
on behalf of a minor could be granted. Following this, the observations in a case relating to Hindu
personal law is relevant in this context because the obiter in this judgment was made in a way to
be applicable to all bodies of personal law in India.[47]

In 1948, the Privy Council held that a contract entered into by a guardian on behalf of the
minor, which is within the capacity of competence of the guardian and which is for the express
benefit of the minor, is especially enforceable against the minor.

5. Power to make partition

According to the Fatwai Alamgiri, the executor has no power to affect partition among the
minors, and if he does so, the partition is not void in law and therefore unlawful.[48] Further, it is
stated that if among the heirs some are minors, and some are adults, the the executor can separate
the share of the adult heirs from the share of the minor heirs and hand it over to them, and retain
the share of the minors in his hands.[49] However, it is forbidden in all cases that the guardian
separate the shares of each minor and if so done, the entire partition is deemed invalid. If all the
heirs are minors, the executor may allot the shares to the legatees, and retain the rest. In case a
guardian is appointed by the court with general powers to deal with all matters of the minor, then
the guardian has power to effect a partition.[50]

II. Guardianship of Minor in Marriage and Person

Guardianship in marriage (Jabar)

Under this form of guardianship, the father as an empowered guardian or ‘wali’ may contract
marriage on the behalf of his minors. The power of imposition of marriage by the wali is known
as ‘jabar.’[51] Apart from the father, the role of wali may even be assumed by the grandfather,
mother, maternal relatives, full brother and other male relatives.

The Qazi or Court may also assume this role. A person who has renounced Islam cannot be a
guardian of a minor Muslim girl for marriage.

Guardianship of person (Hizanat)

Just as modern systems of law place the best interests of the child at the centre of guardianship
in any form, the central principle of hizanat in Muslim law is the welfare of the minor.
 19

It is for this reason that Shariat has always preferred the mother to the father in the case of
guardianship of minor children in their tender years. If the hazina (the person who performs the
function of hizanat) is cruel or neglectful towards the minor then she likely forfeits her right of
hizanat.[52]

Interestingly, however, the lack of funds does not mean that the hazina loses her right
of hizanat- if the hazina has no funds to maintain the child, then it shall be the responsibility of the
father to provide for the hazina with a house and relevant financial support which is essential for
the maintenance of the minor. Thus, poverty of the hazina is no ground for depriving her from
custody. In case the child has property, then, the hazina may provide maintenance out of that
property for the benefit of the minor.

What is remarkable about the Muslim law of hizanat is that every other consideration is
subordinated to the welfare of the child. A woman who is unworthy of credit may still retain the
custody of child, if the welfare of the child so requires. This means that every misconduct which
otherwise disentitle a hazina from the custody of the child is tested on the touchstone of welfare
of the child. Thus, no misconduct is absolute, and what amounts to misconduct will vary from case
to case.

Conclusion

The legal concept of guardianship of property has been formulated due to the fact that minors
are incapable of managing their person and property until they are of age. This article has discussed
the concept of guardianship in customary laws of the Muslim community and has examined the
various categories of guardianship and guardians, with reference to relevant scriptures, statutes
and case-law.

Minority and guardianship under the Guardian and Wards Act, 1890xxiv
Introduction

The Hindu Guardianship and Minorities Act were established to give power to the Guardians
and Ward Act of 1890 (GWA) and provide better rights and protection for children rather than act
as a replacement for the already prevailing law. This law was approved with the purpose of
defining rights, obligations, relations between adults and minors. This law covers Hindus,
followers of Lingayat, Virashiva, Brahmo, Parthana Samaj, Arya Samaj, Buddhists, Sikhs, and
 20

Jains. But Muslims, Christians, Parsis and Jews are not covered under this law. The Guardians and
Ward Act of 1890 applies to everyone regardless of caste, creed or community, whereas the Hindu
Minority and Guardianship Act are considered only Hindu.
The Hindu Guardianship and Minorities Act was established in 1956. Three other important Acts
were also created during this time which include the Hindu Marriage Act (1955), the Hindu
Succession Act (1956), and the Hindu Adoption and maintenance Act (1956). The Hindu
Guardianship and Minorities Act of 1956 (HGMA) was intended to improve the Guardians and
Wards Act of 1890.

This law specifically serves to define guardianship relationships between adults, minors and
people of all ages and their respective assets. The welfare of the child is a top priority under the
HMGA of 1956 and the GWA of 1890. Section 13 of the Hindu Guardianship and Minorities Act
of 1956 perfectly captures the essence and purpose of the act – all measures taken by the guardian
and any judgment rendered by the Court must be for the welfare of the child.

Meaning of minority and guardianship

According to Section 4(a) of the Act, the minority of a particular person is defined by the age
of that person. The age of achievement to be a major varies by religion and time, for example, in
ancient Hindu law, the age of majority was 15 or 16 years, but now it has been increased to 18
years, for Muslims, the age of puberty is considered the age of majority. Both legitimate and
illegitimate minors who have at least one parent who complies with the stipulations described
above are under the jurisdiction of this Law. This concept is called Majority Law. Under this law,
the age of the majority is 18, but if a person is under the care of a guardian, the age of the majority
increases to 21 years.

Guardianship is when a person is appointed under the Guardianship Act to make decisions on
behalf of another person who lacks decision-making capacity due to a disability. Most people with
disabilities do not need guardians and can be supported in making their own decisions. According
to Section 4 (b) of the Minority and Guardianship Act, a guardian is defined as a person who has
attained the age of 18 and is adequately caring for a minor and minor’s property and as well as his
own.

Amendments
 21

The law commission report has suggested the following amendments to the Hindu
Guardianship and Minorities Act:

It analyzes Section 6 clause (a) of the act which explains that in the case of an unmarried boy
or girl, the natural guardian of a Hindu minor is the father and, after him, the mother. The
Commission observes that even after the Supreme Court ruling in the case of Gita Hariharan v
Reserve Bank of India, the mother can become a natural guardian during the father’s lifetime but
only in exceptional circumstances.

The Law Commission recommended that the superiority of one parent over the other should
be eliminated and that both the mother and the father should be considered as natural guardians of
a minor. The welfare of the minor should always be the primary consideration in all circumstances.

It has also recommended changes to Section 7 of the act. This section explains that the natural
guardianship of a minor adoptive child passes, at the time of adoption, to the adoptive father and,
subsequently, to the adoptive mother. But this section only talks about the natural guardianship of
an adopted child and does not talk about the adopted daughter.

When the Hindu Guardianship and Minorities Act 1956 came into effect, at that time the
courts did not recognize the adoption of a daughter. Thus, at the time of the approval of the law,
the adoption of daughters was only allowed only according to custom and not as per codified law.
It was also enacted before the Hindu Adoptions and Maintenance Act 1956, which corrected the
legal status of adopting a daughter by law. Therefore, it recommends that the law now include both
the adopted son and the adopted daughter in the scope of natural guardianship. Also, the
Commission recommended that the natural guardians of an adopted child should include both
adoptive parents, along with its recommendations to Section 6 clause (a) which is provided
above.

Evolution of guardianship laws

Through this list of cases, one can understand the evolution of guardianship laws:

In the case of PT Chathu Chettiar vs. VKK Kanaran, it was held that if the father is alive
and if he is not unfit in any manner as per law to be the natural guardian, then the mother cannot
claim to be the guardian of the minor.
 22

It was seen in the case of Rajalakshmi v. Ramachandran, where the Court stated that the
fact that someone surrenders your property to a minor and appoints yourself as guardian of those
property does not mean that you are a guardian as per law.

The Court threw light on the topic of importance of father as a natural guardian in the case
of Essakkayal Nadder v. Sreedharan Babu. According to the facts of this case, the children did
not live with their father and the mother had expired. The court stated that no one other than the
father himself could be the natural guardian of the minors as the father was very much alive and
as per law he was not declared as unfit guardian for any other reason.

The Supreme Court launched a new wave of gender equality in the case of Gita Hariharan
v. Reserve Bank of India. The court addressed the problematic and patriarchal notion that the
father is the natural guardian and the mother becomes the natural guardian only after him. This
case is an amazing example to understand the position of single mothers. According to the facts of
this case, an educated and financially independent single mother wanted to make her son a
candidate for her investments, but was prevented from doing so until she shared the details about
the child’s father to complete the obligations of the paperwork. The lower courts declared that it
was mandatory for her to provide details about the father as per Section 11 of the Guardians and
Ward Act 1890. Upon appeal, the higher court stated that even if she was a single mother, it was
necessary to check whether the father has any potential interest in the child. However, the Supreme
Court did not support the judgments of the other courts and instead declared two essential
principles to govern such cases in the future:

The most important factor in determining any custody case is checking what the welfare of
the child is. If as per law, the circumstances are such that it is in the child’s best interest for the
mother to be the natural guardian, then she can be the natural guardian.

To maintain her privacy, which is her fundamental right, the mother may refuse to disclose
information about the father. This case was a milestone, since in the Indian legal structure, all
administrative work, from school forms, bank details, to official documents, is in the father’s name.

This trend continued in the case of Jajabhai v. Pathankhan. Here, the couple had separated
and the youngest lived with her mother. In these circumstances, the court found it acceptable for
the mother to be considered the child’s natural guardian.
 23

Another judgment passed in the case of Bakshi Ram v. Shila Devi . The court held that due
to the mother’s remarriage her rights as a natural guardian cannot be questioned or restricted ever.

As per Section 6 of the Hindu Minorities and Guardianship Act, until the minor reaches at
least five years of age, the child is supposed to be under the care and protection of the mother. The
Rajasthan High Court rejected the appeal of the father who requested for physical custody of his
daughter, in the case of Smt. Dr. Snehalata Mathur v. Mahendra Narain. In this case, the mother
was granted custody of the child.

Analysis of HGMA 1956 and GWA 1890

The Guardian and Wards 1890 is a secular act that applies to every citizen and communities
of India while The Hindu Guardianship and Minorities Act of 1965 is applicable only to Hindus
and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Followers of
Brahmo, Followers of Prarthana Samaj, and Virashiva.

Other religious communities such as Muslims, Parsis and Christians do not fall within the
scope of this law. This law is added to the Law of Guardians and Wards of 1860 and does not
replace the latter. GWA 1890 covers the procedure on how to petition courts for the appointment
of a guardian.

Conflicting law

The Indian law commission in its 2015 report has highlighted the gender differences existing
in society that have affected the gender ratio and discrimination and why the empowerment of
women is necessary. Shortly after the enactment of the Hindu Guardianship and Minorities Act,
the Hindu Support and Adoption Act of 1956 was also enacted, which recognized the adoption of
daughters.

The law commission report states that the parliament passed the Hindu Guardianship and
Minorities Act when the adoption of daughters was not recognized by Hindu law and the Hindu
Adoption and Maintenance Act; however, the position of the daughters statutorily improved, but
the conflict between these two laws has not been solved yet. To resolve this conflict, the Indian
Legal Commission recommended an amendment of section 7 of the Hindu Guardianship and
Minorities Act.
 24

Custody

India’s legal commission in its 2015 report has reaffirmed that section 6 of the Hindu
guardianship and minority’s law should be amended because if one law has eliminated such a
discrepancy, then another should also agree to implement the same. This report has also
highlighted issues related to custody of a child and the status of the mother and father in that
custody and has proposed that to grant the same guardianship rights to the father and mother, the
commission has suggested joint custody of the child. To soften the concept of joint custody, the
commission had also established certain guidelines for it so that the well-being of the minor is not
compromised. Bearing in mind this same principle, it is convenient to update our laws regarding
guardianship, custody and adoption.

Mother’s and father’s stand

The Commission has also recommended another provision of the Hindu Guardianship and
Minorities Act, Section 6, this section deals with the natural guardianship of a child and his
property. As per this Section, the first natural guardian is the father and only after him, the mother
is considered the natural guardian of a child.

This means that while the father is alive, the mother cannot claim natural guardian status. The
legal commission found that the issue of natural guardianship should not be ignored and the
influence of patriarchy is so strong that it is suppressing the rights of a mother. The Law
Commission recommended the modification of Section 6 as then the mother and father both can
have the same rights as natural guardians. This matter came to light in 1999 when the Supreme
Court gave a judgment on a petition filed by Gita Hariharan to challenge that only the father can
be the first natural guardian and only after him, the mother is considered as a natural guardian.

The Supreme Court interpreted the word “after” in section 6, which originally meant “after
the death of the father”, but is now “in the absence of the father”. In this case, an absence means
that the parent was absent for an extended period or was inconsiderate of the child or was unfit
due to illness. Therefore, the Apex court had issued judgments where the father is always preferred
as a natural guardian but in exceptional circumstances, the mother is considered as a natural
guardian. This was seen in the case of the famous writer Gita Hariharan where the principle of
equity was challenged. Section 19 of the Guardians and Ward Act 1890 was amended in 2010 in
 25

which this act had prohibited the court from appointing a guardian for a minor whose father was
alive and who was not in a position to take that responsibility. The 2010 amendment applies this
clause to cases where even the mother is alive.

Important case

Ms. Githa Hariharan vs. Reserve Bank Of India

In the case of Ms Githa Hariharan vs Reserve Bank of India, an educated and employed mother
wanted her five-year-old son to be nominated for her investments, but in the paperwork, she had
to disclose the father’s name. The district court rejected her claim because as per Section 11 of the
Guardians and Ward Act of 1890, she needed to disclose the information of the child’s father,
which she was unwilling to do.

When this case was taken to the higher court, they gave the reasoning to uphold this ruling
that even if the mother is not married, the father of the child could have any interest in the child.
But the Supreme Court chaired by Judge Vikramjit Sen annulled this sentence by establishing two
fundamental rules; the first interests of the child are paramount, and consequently, a mother can
be considered a guardian; second, for privacy reasons, the woman has a fundamental right to
conceal the identity of the father. In this case, the couple separated and the mother was the child’s
guardian.

The court of law held that both parents have to be treated equally for the purpose of
guardianship and the word “after” in Hindu minority law and guardianship should not make the
mother’s position secondary. This trial will at least do some good and will safeguard the rights of
single mothers or the illegitimate child that the Guardianship Law had mentioned but that society
had not yet accepted. In this case, the child’s mother obtained the same rights in the case of
guardianship. The interpretation of the word “after” has been changed to “in the absence of the
husband”, so that now the position of the mother is never questioned and treated equally. This
decision will be beneficial to some extent for children born out of wedlock or the descendants of
commercial sex workers. This landmark ruling will also encourage adoption by independent and
single women in India.
 1

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