Thursday, June 30, 2011

CHILDREN BORN OF INTER CASTE MARRIAGE

Children born of inter caste marriage of which either of the parents belongs to Scheduled Caste/Scheduled Tribe should have a caste status either that of the mother or that of the father. 

The question of the status of a child born to a scheduled tribe mother from a forward caste father came up for consideration before the Hon'ble Supreme Court of India in Rameshbhai Dabhai Naika    Vs State of Gujarat & Others   ( CIVIL APPEAL NO.    654     OF 2012-  Decided on January 18, 2012) and the Supreme Court held as follows:-

"In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the  inter-caste  marriage   or  a  marriage   between   a  tribal   and  a non-tribal the husband belongs to a forward caste.   But by no means   the   presumption   is   conclusive   or   irrebuttable   and   it   is open   to   the   child   of   such   marriage   to   lead   evidence   to   show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life   but   on   the   contrary   suffered   the   deprivations,   indignities, humilities   and   handicaps   like   any   other   member   of   the community to which his/her mother belonged.  Additionally, that he was always treated a member of the community to which her mother   belonged   not   only   by   that   community   but   by   people outside the community as well.   In the case in hand the tribal certificate has been taken away from the appellant without adverting to any evidences and on  the  sole  ground   that   he  was  the  son  of  a  Kshatriya father. The   orders   passed   by   the   High   Court   and   the   Scrutiny Committee, therefore, cannot be sustained. The orders passed by the High Court and the Scrutiny Committee are, accordingly, set aside and the case is remitted to the Scrutiny Committee to take a fresh decision on the basis of  the evidences that might be   led   by   the   two   sides. "

 Therefore in the enquiry which will be conducted before issuing the community certificate, the person who claims the status of Scheduled Caste/Scheduled Tribe of his/her father or mother has to establish that on his/her birth, he/she is subjected to the same social disabilities and also following the same customs and traditions and that the community has accepted that person to its fold.
The provision to inherit the caste from mother will go a long way in mitigating the hardships faced by a large number of children born of inter caste marriages.  Suppose a neglected or deserted SC/ST woman, married to a non SC/ST man, brings up her child with the same handicaps, sufferings, disadvantages attached to that caste/tribe, it is too harsh to deny the benefit to that child on the sole reason that the child's father belongs to non scheduled caste/scheduled tribe. 
             
- P.RAJENDRAN

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Tuesday, June 21, 2011

LIVE-IN-RELATIONSHIP

A new social phenomenon has emerged in our country known as “live-in-relationship”. This new relationship is still rare in our country and is sometimes found in big urban cities, but it is very common in North America and Europe. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called “alimony”. However, earlier there was no law providing for maintenance to a woman who was having a live-in- relationship with a man without being married to him and was then deserted by him. In the United States of America, the expression “palimony” was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. The first decision on palimony was the well-known decision of the California Superior Court in Marvin Vs Marvin. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him and was then deserted by him and she claimed palimony.  Subsequently in many decisions of the courts in the US, the concept of palimony has been considered and developed.  The US Supreme Court has not given any decision whether there is a legal right to palimony, but there are several decisions of the courts in various States in the US.  These courts in the US have given divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions.  Hence in the US, the law is still in a state of evolution on the right to palimony. Although there is no statutory basis for grant of palimony in the US, the courts there which have granted it have granted it on a contractual basis.  Some Courts in the US have held that there must be a written or oral agreement between the man and the woman that if they separate the man will give palimony to the woman, while other courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation. A law has now been passed in the year 2010 by the State Legislature of New Jersey that there must be a written agreement between the parties to claim palimony. Thus, there are widely divergent views of the courts in the US regarding the right to palimony.  Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.
In our country, while enacting the Protection of Women from Domestic Violence Act, 2005 the Parliament has taken notice of this new relationship, that is, live-in- relationship.  Section 2(a) of the Act states:
              “2.(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”
Section 2(f) states:
            “2.(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
            Therefore, the expression “domestic relationship” includes not only the relationship of marriage but also a relationship “in the nature of marriage”. Unfortunately, this expression has not been defined in the Act. 
    Some countries in the world recognize common law marriages.  A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry.  The Supreme Court of India has held that “relationship in the nature of marriage” is akin to a common law marriage.  Common law marriages require that although not being formally married:
(a)   The couple must hold themselves out to society as being akin to spouses.
(b)   They must be of legal age to marry
(c)    They must be otherwise qualified to enter into a legal marriage including being unmarried.
(d)   They must have voluntarily, cohabitated and held themselves out to the world as being akin to spouses for a significant period of time.
The Supreme Court of India has held that “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005 must also fulfill the above requirements, and in addition, the parties must have lived together in a “shared household” as defined in Section 2 (s) of the Act.  “Shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Merely spending weekends together or a one night stand would not make it a “domestic relationship”. 
          An ‘aggrieved person” under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12 (2). Under Section 20 (1) (d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).  Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.  Thus, a woman who can prove that she has been in a live- in -relationship with a man as explained above can claim maintenance under the Act.
The Supreme Court of India has said:  “In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel Anna Karenina, Gustave Flaubert’s novel Madame Bovary  and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.  However, Indian society is changing and this change has been reflected and recognized by Parliament by enacting the Protection of Women from Domestic Violence Act, 2005”.

- P.RAJENDRAN
www.prajendran.com

Thursday, June 9, 2011

ADOPTION

In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families.  Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband’s life time without his express consent.  After his death she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so.  In other parts of India, she could adopt without such authority.  However, in no case, a wife or widow could adopt a son to herself.  An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person.  A daughter could not be adopted by a male or female Hindu.  The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. 
After India became a sovereign, democratic republic, this position has undergone a sea change.  The old Hindu Law has been codified to a large extent on the basis of constitutional principles of equality.  The Hindu Marriage Act, 1955 codifies the law on the subject of marriage and divorce.  The Hindu Succession Act, 1956 codifies the law relating to intestate succession.  The Hindu Minority and Guardianship Act, 1956 codifies the law relating to minority and guardianship among Hindus. The Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions. The said Act is also a part of the scheme of codification of laws.  Once the Hindu Succession Act was passed giving equal treatment to the sons and daughters in the matter of succession it was only logical that the fundamental guarantee of equality of a status and equality before law is recognized in the matter of adoption.
The 1956 Act, now provides for adoption of boys as well as girls. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth and any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth and the adopted child shall not divest any person of any estate which vested in him or her before the adoption. The adopted child should not have completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. If the adoption is by a male and  the person to be adopted is a female, the adoptive father should be at least twenty one years older than the person to be adopted. If the adoption is by a female and the person to be adopted is a male, the adoptive mother should be at least twenty -one years older than the person to be adopted.
 By virtue of the proviso to Section 7 the consent of wife has been made a condition precedent for adoption by a male Hindu.  The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family.  If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family, then she can veto his discretion.  A female Hindu  who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right.  A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption. However, if she is married a female Hindu cannot adopt a son or a daughter during the life time of her husband unless the husband is of unsound mind or has renounced the world. A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.  If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.
 By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution of India.
The term “consent” has not been defined in the Act.  Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before the enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/ positive act voluntarily and willingly done by her.  If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that the wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption.  The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption.  The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption.

-P.RAJENDRAN   
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