Analyze the legal foundation of parenting and civil partnership

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This article is written by Meenakshi Asthana, Advocate Balashsaheb Apte college of law, an intern at legal vidhiya.

Abstract

Legal parents have a family relationship to the child by law if not by blood . Parenthood has different meaning than biologically giving birth to a child , even if the child doesn’t have the same DNA, even if that person who is not biological parent can or may make a legal -decision on the basis of legally recognised parents by law. An adopted child may be fine example of parents not connected by blood but connected through law , non -biologival parent having right over the kid . Let’s analyze a personality recognition of legal mother and legal father

Keywords: parentage , mother, father , legal parent , solemnized partnership

Introduction :-

Let’s decide the whole structure here whatever we are going to talk about in this whole context the topic is about and what is a the deal between marriage , adoption , and civil partnership , firstly the concept of Hindu marriage

Hindu marriage:- a sacrament or contract

Hindus have always considered their marriage as a sacrament(sanskara), which has the implication that it is permanent , indissoluble(i.e.valid not merely in this life but in lives to come)and holy(i.e. performance of religious ceremonies is essential). Wife is also ardhangini(half of man). according to satpatha brahmana,’The wife is verify the half of the husband . man is only half, not complete untill he marries’

A Hindu marriage is unlike a Muslim marriage which only requires offer and acceptance , further unlike Muslim law , the only purpose of Hindu marriage is not to beget children and get them legitimated , it is a holy union to perform religious duties

Thus, Hindus conceived of their marriage as aa union primarily meant for the performance of relegious and spiritual duties. Such a marriage cannot take place without the performance of sacred diyes and ceremonies. secondly , a sacramental union implies that it is a permanent union. Marriage is a tie which once tied cannot be united. This implies that marriage cannot be dissolved. Thirdly, the sacramental union means that it is an eternal union;it is valid not merely in this life but in lives to come

The Hindu Marriage Act , 1955 has reformed Hindu law of marriage. Hindu marriage continues to be a sacrament. It has been seen that the sacramental marriage among Hindus has three characteristics; it is a permanent and indissoluble union, it is an eternal union, and it is a holy union. It is evident that the first element has been destroyed by the Act; divorce is recognised. The second element was destroyed in 1856 when the window remarriage was given statutory recognition, probably , to some extent the third element is still retained.In most of the Hindu Marriages, a sacred or relegious ceremony is still necessary. But the ceremonial aspect of the sacramental marriage is of least importance.

Thus, to conclude , it can be said that Hindu Marriage has not remained a sacramental marriage and has also not become a contract ,though it has resemblance of both. It has resemblance of a contract as consent is if some importance; it has semblance of sacrament as in most marriages a sacramental ceremony is still necessary

PRESUMPTUON OF MARRIAGE :

Section 114 of the Indian Evidence Act ,1872 lays down that where independent evidence of solemnization of marriage is not available , it will be presumed to be a valid marrige by continuous cohabitation between the parties unless contrary proved . It is the policy of law to lean in favour of validity of marriage , once it is proved that it has existed de facto. If a community of neighbours treat a couple as husband and wife , they are this reputed to be married , the burden of proof that they are not properly married lies on the party asserting so . The PRESUMPTUON does not apply to cases to restitution of conjugal rights and bigamy where the solemnization of marriage , as a fact , has to be proved.

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled , namely :-

Neither party has a spouse living at the time of marriage;
At the time of marriage , neither party:- (a)-is incapable of giving a valid consent to it in consequence of unsoundness of mind;or

(b)though capable of giving a valid consent , has been suffering from mental disorder of such a kind of the such an extent as to be unfit for marriage and the procreation of children;or .

©has been subject to recurrent attacks of insanity

The bridegroom has completed the age of twenty-one years and the bride , the age of eighteen years at the time of the marriage
The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two
The parties are not sapindas as of each other, unless the custom or usage governing each of them permits of a marriage between the two

Concealment of pre-marriage pregnancy-

Concealment of pre-marriage pregnancy by the respondent is a ground of voidable marriage . The ground is pre-marriage pregnancy of the bride and not her unchastely . The requirements of the ground are:-

The respondent was pregnant at the time of the marriage
She was pregnant from a person other than the petitioner .
The petitioner at the time of the marriage , did not know of the respondents pregnancy .
The petitioner must be presented within one year of the commencement of the Act in respect of the pre-Act marriages and within one year of the marriage in respect of the post-act marriages , and.
Marital intercourse did not take place with the consent of the petitioner after the discovery of respondent’s pregnancy by the petitioners .

Hindu Adoption & Maintenance Act 1956 –

Adoption is the admission of a stranger by birth to the privileges of a child by a legally recognised form of affiliation. Under the old Hindu law,there were many rules relating to adoption which could be supported only on the basis that adoption was a sacramental act.

For instance , the adopted son must be a reflection of a son:this prevented the adoption of orphans and illegitimate children ; daughter could not be adopted; one could not adopt a child whose mother one could not marry when she was maiden (thus , a daughter’s son or sister’s son could not be adopted as one could not marry one’s sister or daughter) . Apart from religious motives, secular motives were also important , such as man’s desire for the perpetuation of his lineage , for providing security in the old age and for dying in satisfaction that one has left on heir to one’s property

In modern law , it’s purpose is also to rescue the helpless , the unwanted the destitute or the orphan child and provide it with parents and a home. The Hindu adoptions and maintenance act 1956 has made adoption as secular institution free from all relegious and sacramental aspect , so much so that even a religious ceremony is not necessary for adoption

Section 4- of the Hindu Adoption and maintenance act 1956 abrogates the old law but only to the extent to which provision is made in the act . It reads:

“Save as otherwise expressly provided in this Act-

Save as otherwise expressly provided in this Act-
(a)any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act Shall cease to have effect with respect to any matter for which provision is made in this Act.
(b)any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision contained in this Act”

ADOPTION ESSENTIAL REQUISITES:

No addition shall be made after the commencement of this Act by or to a Hindu except in accordance with the provision contained in this chapter , and any adoption made in contravention of the said provision shall be void
An adoption which is void shall neither create any rights in the adoptive family in favourite of any person which he or she could not have acquired except by reason of the adoption , nor destroy the rights of any person in the family of his or her birth'”

NO adoption shall be valid unless :-

The person adopting has the capacity , and also the right , to take in adoption
The person giving in adoption has the capacity to do so
The person adopted is capable of being taking in adoption;and
The adoption is made in compliance with the other conditions mentioned in this chapter”

Who may take in Adoption:Section 6

Every Hindu , male or female has the capacity to make an adoption if he or she is a major and of sound mind . Majority means completion of the age of 18 years and in case a guardian is appointed for a minor under the Guardian and wards Act 1890 the age of majority is extende to completion of 21 years “unsoundness of mind’ related to general condition of mind . No adjudication of insanity by a court is necessary. All conditions of insanity including epilepsy,idiocy and lunancy come under ‘Unsoundness of mind’

Adoption by a Hindu Male-

According to section 7 of the Hindu Adoption and maintenance act, 1956,a major Hindu male of sound mind can adopt ,whether he is a bachelor , widower , divorcee or married . But for a married Hindu male, it is obligatory to obtain the consent of his wife . An adoption made without the wife is void. In case he has more than one wife , consent of all the wives is necessary . The consent of the wife or of any of the wife , or of any of the wives , in case a person has more than one, may be dispensed with in any of the following cases(a) if the wife has ceased to be Hindu :or © if he has completely and finally renounces the world

Capacity of a female Hindu to take in adoption –

Any female Hindu who is of a sound mind and is not a minor has the capacity to take a son or daughter in adoption , provided that , if she has a husband living , she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindi or has been declared by a court of competent jurisdiction to be of unsound mind

Legal Mother-A legal mother is considered when:

The woman who gave birth to the child was conceived using donor egg
The woman who adopted the child
The duomeder( female partner of birth mother) who has automatically become the child , or has been declared the child’s parent by a court

Legal father – A legal father is considered when:

The mother’s husband or registered partner at the time of the child’s birth, unless his paternity of the child’s denied
The man who acknowledges or adopts the child
The man who has been declared the child’s father by a court

The above applies equally to marriage and registered partnerships like marriage a registered partnerships is solemnized by a registrar of births , deaths , marriage and registered partnerships (burgerlikejstand) , so it is not same as cohibitation agreement

Legal parenthood regulated by the law of parentange. A child’s legal parent does not automatically have responsibility for that child , as laid down by law of parentage . If you have responsibility for a child you have the right and the duty to raise and care for that child, the word parent in the civil code means Child’s legal parents . Legal parents has legal right and responsibility of a child’s health , education and we’ll – being . A non legal parent may have no rights to custody or even visitation with a child should something happen to the legal parent may have no ability to claim the child’s generally has no right to inherit from a person who is not a legal parents or relative

When a relationship breakup and a couple separate it’s an emotional decision of separating and when a couple has a child together there are more decisions to be taken like arrangements need to be made about the rights and duties to look after children the question arises when the couple have a child afterwardlock usually the custody of the child in that case goes to the mother that means she has completed authority to make any major and minor decision regarding her child’s welfare parental responsibility is extremely important for civil partnership resolution also because it gives you the right to contribute towards your child children’s upbringing even if they do not live with you after the resolution is finalized

Obviously there are several hindrances in establishing parentage In case where it is difficult to assess who has parental responsibility in a civil partnership depends on number of factors such as whether the child has conceived by a artificial insemination adopted or conceived via surrogacy

The woman who has given birth to the child will automatically have parental responsibility even though she is not biological mother as the child was donated egg artificial insemination or through surrogacy the parental right has to be taken from her once in adoption order is made even same sex couple who were adoptive parents have to be taken parental responsibility it should be transferred from legal parents the civil partners must obtain a parental order or adopt the child become their legal parents and obtain parental responsibilities

Living together and civil partnership -Legal differences

This information is about the legal differences between civil partnerships and living together

For information in England and Wales about the legal differences between living together and marriage , see living together and marriage -legal

Living together means living together as a couple without being married or in a civil partnership

In some areas of law you may not have the same rights as you would if you registered a civil partnership although in other areas of law you will find

Civil Partnership – if i explain civil partnership in defined term it is ‘A Civil partnership is a legal relationship which can be registered by two people who aren’t related to each other’, but if you must here in regular term or in a language a non-legal student might understand ‘When a person decides to be with the same person for atleast a pre-notioned of being together for a specific amount of time’ In India if you marry a person according to your relegious terms , you are in a civil partnership with them,but our of India you need to be in a registered legal recognition of being together as husband &wife or as husband & husband or wife & wife although in India same sex marriage is not legalize , most people confuse the De-Criminalization of Section 377 as the same sex marriage being legal but no it’s not true for real it protects the LGBTQ from being torchered and labelled as criminals for being in a same sex relationship but however it does not in anyway recognise the Civil partnership of A same sex relationship. The Civil partnership must be atleast for a year before the dissolution of the relationship. Commonly saying civil partnership has to be drawn on papers as an agreement. In some cases there are pre-nuptial agreements drawn in marriages also that decides on Advance as terms of divorce , custody of kids (of any) mainly it is written to set a notion of the present ongoing and future relationship, duration of relationship and after the relationship , so that there are no quarrels later regarding the roles and responsibilty, divorce deeds ,maintenance . Both the partners are allowed to contact and recieve counseling from their respective lawyers and make sensible decisions separately . Although a pre- registration agreement is not legally binding kind of a noterial agreement where you make an agreement that in no way is putting the onus on you to follow it . But if the dissolution takes place the Pre-agreement can be of a used in courts while deciding the dissolution terms, now i need to explain why i am using the word ‘Dissolution’ and not ‘Divorce’ it’s because The Partnership is a technical term it’s a registered legal relationship between two Mature Individuals , whereas Marriage is solemnized spiritual and religious relationship between Two individuals girls over 18 and Boys over 21 , also marriage is solemnized with different religious laws by Personal laws of Individuals , these personal laws however cannot be a concrete proof the relationship in different countries so a registered relationship is important so that your relationship is recognised worldwide

There are some important points mentioned short hand for a little brief of Civil partnership:

Adoption might be an issue for same sex couples in India, however for any other couple of opposite genders with registered relationship legally can be allowed
Inheritance and living together – if you are just merely living together , you both have no rights over each other’s property but in case of Civil partnership the case is different and have ownership of each other’s movable and immovable property
In case of children if the child is born out of wedlock, they don’t have right over the parents property , unless there is a will written , but in civil partnership and legal adoption the inheritance is automatic
In Separation of legal Civil Partnership , courts need to be informed about the separation but in case of just living together the break up isn’t a term for public display or court orders
Financially the couple is dependent on each other in case one is not earning enough or less than other partners but legally the dependency can only be when there is a civil partnership with each other if not for a civil partnership partners cannot claim such financial dependency
In Rented accomodation a couple merely living together and the rent agreement is not named after any of the two the one who is not legally named in agreement does not have any right over each other’s agreement
In case of sole ownership of house where the person owns the property on their name have all the possession the other person have to move out in case of separation in a live in relationship but in civil partnership a partner can claim the ownership
A kin can only be developed in legal relationship not in living together merely

Statute and Case laws :-

Section 9 – of the Hindu Adoptions and maintenance act ,1956 give a list of persons capable of giving in adoption . It reads

No person except the father or mother or the guardians of a child shall have the capacity to give the child in adoption
Subject to the provisions of sub -section(4)the father or mother, if alive shall have the right to give a son or daughter in adoption .
Sub section (3) deleted vide amendment act 2010(w.e.f.31August 2010)
Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent t jurisdiction to be of unsound mind or where the parentage of the child is not known , the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
Before granting permission to a guardian under sub – section (4) , the court shall be satisfied that he adoption will be for the welfare of the child , due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permissio has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction

Explanation –for the purposes of this section

The expression ‘Father’ and ‘mother’ do not include an adoptive father and an adoptive mother
‘Guardian’ means a person having the care of the person or a child or of both his person and property and includes
A guardian appointed by the will of the child’s father or mother;and
A guardian appointed or declared by a court:and;
‘Court’ means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides’

Section 12-Effects of Adoption

Section 12(c) specifically lays down that ‘the adopted child shall not divest any person of any estated which vested in him or her before the adoption ‘For instance A died leaving his window B and two daughters X and Y.

On A’s death B , X and Y inherited properties of A , each taking 1/3rd share . This one – third vests in each of them immediately on the death of A . if now B adopts a son P , P cannot divest B,X or Y

Case laws:

-Balu Sakharam Power vs Lahoo Sambhaji Tetvura on 16 October ,1939
-Rajwinder Kaur &And vs Central Adoption Resources on 31August 2021
-Smt. Vineeta kushwaha vs Not Mention on 12 February 2018
-lakshmi Kant Pandey vs Union of India on 6 February 1984
Plea for Marriage Equality – Bench CJI D.Y Chandrachud, S.K kaul, S.R Bhat J, Hima Kohli J, PS Narasshima

Supriyo@ Supriya chakaraborty &Anr.v. Union of India-

The supreme court will decide if the personal laws governing marriage under various enactments discriminate against same-sex couples by defining marriage as a union between men and women

Early Release of Bilkus Bano Gangrape Convicts -Bench -K.M Joseph J, B.V Nagarantha J

Bilkus Yakub Rasool V. Union of India

The Supreme court will decide if the Gujrat government followed due process when releasing the 11 men convicted of gangrape in the Bilkis Bano Case

Recent development :

paramountcy of child welfare.’

Judgment

In Mrs Justice Leiven’s judgment, she set out that both FC and MC clearly loved D very much and wanted what they perceived was best for him. It was FC’s evidence that she was entirely committed to D and that the parties’ original intentions were that they should have a baby together and be joint parents.

Mrs Justice Leiven stated that agreements at the time of conception and birth are not determinative in deciding whether parental responsibility should be granted, but that such agreements were not wholly irrelevant. Mrs Leiven went on to say that what was of more interest to the court was the applicant’s current commitment and attachment to the child.

She concluded that it would be in D’s best interests for FC to have parental responsibility and for there to be a shared care/lives with order. She accepted FC’s evidence that she had made a lifelong commitment to D and that she continues with that commitment.

Conclusion:

Different personal laws apply to minors of different religions but guardians and words act like 1890 is apply to minus is respective of their caste and faiths under some personal loss specific laws are available to deal with the issue of custody under Hindu personal law dealt with the by Hindu minority and guardianship act 1956 and Hindu marriage act 1955 under Muslim personal laws different provisions are available to deal with custody issue under Christian and Parsi law there is no specific personal or to deal with such matters it is dealt with the provision of Guardianship and Words Act 1890 and other statues generally applicable to all religion including the Indian divorce act 1869

Hindu adoption and maintenance act 1956 has made adoption as secular institution free from all religious and sacramental aspect so much so that even a religious ceremony is not necessary for adoption In some states a person who is not a legal parent may not have be able to consent to medical care for the child or even have the authority to approve things like school field trips

Having parental responsibilities means you have rights and duties to look after your children there are multiple ways to acquire parental responsibility as civil partners when it is to acquire without being biological parents especially family law solicitor can help you

check your legal rights and ensure that you are respected during the dissolution proceeding

Once you acquire the parentage you have several adoption option for coming into arrangements with your former partner about their upbringing such as family mediation or getting a code order

CJI DY Chandrachud -Recently put across a statement where he mentioned the issue of biological difference is not enough to claim Gender , .however there will be a debate but the right of same sex marriage can be seen happening in future of India legally

References –