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Legal Dispute after marriages related to Adoption, Child Custody and Alimony under Hindu Law

Author: Adarsh Raj, 4th year BBALLB student at BVDU New Law College, Pune


INTRODUCTION

To understand this topic which is ‘Disputes in marriages related to adoption, child custody, alimony and maintenance under Hindu law’ first we should start from the basics of it like what is marriage under Hindu law what is the purpose to marry or get married. Marriage is found in all the societies in ancient times marriage was usually said to be a union between a man and a woman. In recent times where everything has to be run by the code and procedures marriage is also to be followed by certain rules and regulations to be a valid marriage. Thus to identify a valid marriage the Indian law has also stated many rules and regulation under the ‘Hindu marriage act 1955’. Thus there to be a valid marriage under Hindu law all the conditions between both the parties who are the husband and wife must be fulfilled or the marriage can be called void or voidable. According to Hindu marriage act a marriage means a contract between a man and a woman who come or unite together to support each other in a shared household. Some of the mandatory requirements for a valid marriage under Hindu law are mentioned under ‘Article 5 of Hindu Marriage Act 1955’. Under this law the legal age for marriage of men is 21 and that of for women is 18 years. In country like India where marriage is considered to be so divine it also has its dark side as well. Marriage consisting of two people will consist two mind of both husband and a wife which may think whole differently in a different way resulting in different outcomes and disputes and many conflicts. So many a times after marriage this problems and conflicts arise which may lead to divorce among the partners. “Divorce according to Hindu marriage act 1955 is termination of marriage among the spouses which gives them right to marrya again and status of unmarried single as bigamy is a illegal system in Indian so in India to marry again divorce with previous spouse is necessary or if the previous spouse is dead then the spouse alive can marry again. So our topic comes in role here where the term disputes, conflicts or divorce arise. Let us assume there was a marriage between Mr. and Mrs. x and they had a son named ‘A’ and due to some conflicts in the spouses they are getting a divorce so in this case who gets the custody of their child and to decide the amount of maintenance or alimony by the court. Thus the aim of our research paper is to understand all of this


Causes of disputes after marriages :-

In todays societies marriage is a highly practiced ritual which is practiced my majority of the society, thus being a highly practiced ritual among the vast majority of population and India being a highly populated country where the population is hundred of crores marriage is practiced by majority of the [2] population so in a highly populated country where different people have different way of thinking and different way of handling situations and when these two people tend to marry together they initially feel everything to be ok but later on with passing time they feel the increasing gap mentally and emotionally between them. With the passing time the gap between the couples tends to be increasing and at last which may result to divorce. Apart from the unparallel way of thinking there are also many other reasons which me result in disputes or conflicts among the couples.

Some of the other reasons which may results in divorce or in disputes among parties after marriages are:-

  • Communication issues :- when after marriage the communication gap starts increasing among the couples instead of talking of a way out of this with their partner they tend to avoid talking on such topics thus the problems remains unsolved and the communication gaps keeps increasing. Communication gap is one of the easiest problem to be solved which can be just solved by talking and communicating effectively with your partner just by talking their likes and things which they don’t like in this way you can improve yourself too by knowing likes and unlikes of your partner and making yourself more compatible for each other.

  • Parenting :- children being one of the most lovely and beautiful creation by god and a wonderful extension to family may also be a topic of conflict among the partners. At a point in life may one partner may feel the need of children but other may avoid due to financial problems or due to any other problems. Even after the child being born there me be a lot of point of conflicts among the partners as both the partner may have their own way of parenting the children and may impose their own personal beliefs on the child which may be not liked by the other partner.

  • Infidelity:- one of the partner being unfaithful towards the other may be one of the major causes for divorces in marriages. Infidelity means to have a relationship which is sexual or romantic with another person other than their spouse.

  • Financial problems:- In todays world where day by day inflation is rising a common ground for the expenses in a house should be fixed among the partners as money problems are one of the prime causes of marital problems. In todays time it is also been seen than difference in earning of the spouses also creates conflicts among them as the person earning more may think they have more power on that money to spend the way they want causing conflicts among them. Financial problems may also result in conflict arising in way of parenting among the partner as one may think to give his/her child expensive toys or things but the other may think it as not a proper use of money due to instability in finances


Types of disputes after marriages:-

There are various types of disputes which may arise after marriages but in this research we will limit our topics to the following types:-

  • Child custody:- When after marriage the spouse want to get divorce as they are not compatible with each other anymore they tend to get divorce and in many condition if the partners have a child a main question arises who should have the custody of child. What should be beneficial for the child all these things are considered by the court and final decision is made on who among the father or mother should have the custody of child.

  • Adoption:- In many marriages where the wife is incapable of giving birth and also normal spouses who want to adopt a child the partners may feel the need of adopting a child and according to Hindu minority and guardianship act one of the spouse can only adopt a child with the consent of the other spouse so many a times conflict may arise that wether to adopt a boy or a girl and of what age.

  • Maintenance:- It is a financial support given by a spouse from other spouse after divorce


Legal provisions for disputes after marriages:-

The government of India has also formulated legal provisions to tackle these disputes in order to achieve a smooth functioning of the societies. Some of the legal provisions are:-

  • Hindu Marriage Act, 1955 :- The Hindu Marriage Act,1955 states all the provision required for a valid marriage and also states the provisions under which the may marriage can be void or voidable. This is applicable to all the Hindus across the country . This acts gives us the guidelines, rights and obligations to be followed by a married couple or to become married couple.

  • Hindu Adoption and Maintenance Act, 1956:- This law gives us the guidelines for the adoption and maintenance of Hindu children. This law is only applicable on Hindu Childrens only. It is applicable in whole of India.

  • Hindu Minority And Guardianship Act, 1956:- This law was basically formed for the protection of minor children. A minor is someone whose age is below 18 years. This law provides the safety and well being of minor children


Disputes related to Adoption under Hindu law:

Introduction:

In many marriages where the wife is incapable of giving birth and also normal spouses who want to adopt a child the partners may feel the need of adopting a child and according to Hindu minority and guardianship act one of the spouse can only adopt a child with the consent of the other spouse so many a times conflict may arise that wether to adopt a boy or a girl and of what age

Who may take in Adoption:-

  • A male hindu of sound mind who is not a minor can take a boy or a girl for adoption but if that male has living wife the consent of wife is must for taking in a adopted child

  • A female hindu who is of a sound mind and not a minor is capable of taking in adoption but if that female is married and have a husband living at the time of adoption his consent is mandatory for adoption

Who may give in Adoption:-

No person except the natural guardian of the child who is a father or a mother and guardian have the capacity to give in the child for adoption. If both the parents of the child are dead the guardian of the child with the permission of the court can give in child for adoption. The adoption of child should only be done for the welfare of him/her

Who may be Adopted:-

1. He or she must be Hindu

2. Has not been already adopted

3. Not married unless there is a custom applicable to parties

4. Not above age of 15 yrs unless there is a custom applicable


Disputes related to child custody under Hindu law:

Introduction :-

When after marriage the spouse want to get divorce as they are not compatible with each other anymore they tend to get divorce and in many condition if the partners have a child a main question arises who should have the custody of child. What should be beneficial for the child all these things are considered by the court and final decision is made on who among the father or mother should have the custody of child.

Legal provision related to child custody:-

Some of the legal provisions related to child custody are mentioned under:-

1. Hindu Minority and Guardianship Act,1956

2. Hindu Adoption and Maintenance Act, 1956

3. Guardians and wards Act, 1890

4. Hindu Marriage Act,1955


Conclusion:-

So the reason to choose this topic for our research was to address the problems which arise among partners during or post divorce . well for most of the problems there are already a lot of provisions given by our legal system but yet this field need to be researched a lot and many changes need to be brought. The law needs to equally treat men a woman on all matters. Disputes or conflicts in marriages among partners may arise due to various factors some of the reasons for so are listed above also in this research paper. These problems can be solved by effectively communicating with your partner each other problems needs to be addressed by the other partner. This research paper also indicates that how a bad relation among the husband and the wife can affect the life of children also. Thus to have a better life for the child and both the parents these laws are made so their problems can be solved and smooth functioning of the society would

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