Rights of Children from Marriage under Special Marriage Act, 1954
The author of this blog is Vaishnavi Navghare, 2nd-year student of
B.A.LL.B.(Hons.) at Maharashtra National Law University, Nagpur.
In India, nowadays inter-religion marriage
has become much more common than earlier. And so the laws take care of the
people who choose to marry with the inter-religion spouse. Also, the children
born under these marriages should be taken care of. The Special Marriage Act
1954 comes in the rescue of those people who choose to marry without worrying
about the religion they are attached to.
Concept Of
Marriage
Marriage is nothing but a socially
recognized union between two people known as spouses. Where this union
establishes certain rights and certain obligations not only between them but
between them and other relations as well. Marriage is a union between two
people which is recognized by society as well as by law. It creates a new
relationship of love, affection, care, and concern between the husband and wife.[1]
Marriage is when two people have a wedding ceremony to exchange vows before God
and their family. Different cultures have their own concept of marriage. And
hence the definition and concept of marriage differ from place to place. It
varies between cultures and religion and it varies through the history of any
place, religion, and culture. It is very important to determine the
rights of children. As marriages can, at many times, be declared void or voidable,
it is important that children do not suffer due to the actions of their
parents. Section 13 of The Hindu Minority And Guardianship Act, 1956
specifically states that the welfare of the children is a paramount
consideration and it should be given most importance.
Maintenance
Rights
Maintenance is the support which one
person, who is bound by law to do so, gives to another for his living. A father
is required to maintain his children. A child is bound to provide maintenance
for this father and mother in case they are unable to do so for themselves.
Maintenance is, therefore, a right to get certain necessities from another
which are reasonable. And what are reasonable necessities differ from case to
case? Maintenance does not just include food, shelter, and clothing, but, as
held in various cases, it also includes certain things that are needed for
comfort and status in which the person entitled is reasonably expected to live.
Maintenance rights
are generally claimed by the wife from the husband and they are generally
provided when wife and husband live separately. There is also some other sorts
of relationship in which there is a dependency in monetary terms, apart from
just the relationship of spouses and therefore, they are also entitled to
maintenance under the Hindu Adoptions and Maintenance Act, 1956. So, the
father-in-law is bound to maintain her widowed daughter-in-law. The parents are
bound to maintain their minor children, whether legitimate or illegitimate.
Similarly, any Hindu is bound to maintain his aged and infirm parents. The term
parent here also includes an issue-less stepmother. The cases of maintenance
are governed according to their personal laws.
Section 36 and Section 37 of The Special
Marriage Act, 1954 deals with the maintenance rights of the wife against the
husband. While Section 38 of the same Act deals with the custody and
maintenance of children from the marriage under The Special Marriage Act, 1954.
This section empowers the district court to pass any interim orders as it may seem
just and proper with respect to custody, maintenance and education of the minor
children, and consistently with their wishes where it’s possible. Also, it
empowers the district court to revoke, suspend, make or vary from time to time,
all such orders and provisions with respect to the custody, maintenance and
education of such children.
Also, Section 13 of The Hindu Minority And
Guardianship Act, 1956 specifically states that the welfare of the children is
a paramount consideration and it should be given the most importance.
Inheritance
Rights
Any male and female can marry under the
Special Marriage Act, 1954. But which laws will govern them and what will be
the rights available to them varies in different conditions.
When both the parties who are from the same
religion choose not to solemnize their marriage under their personal law but
directly under the Special Marriage Act, 1954 then all their affairs will be
governed by The Special Marriage Act, 1954 and all the property and inheritance
rights will be governed by The Indian Succession Act, 1925. At the same time
even if they first marry under their personal law and then subsequently
register under the Special Marriage Act, 1954, then the moment their marriage
will be registered, they will be severed from their personal laws and will be
governed by the Special laws like the Special Marriage Act, 1954, The Indian
Succession Act, 1925, etc. For e.g., if a Muslim man solemnizes his marriage
with a Muslim woman under The Special Marriage Act, 1954, then their all
marital affairs including their property rights will be governed by The Special
Marriage Act, 1954, and The Indian Succession Act, 1925.
EXCEPTION - There is an exception to the
application of The Special Marriage Act, 1954. Any man and woman of the same
religion, if solemnized their marriage under this Act would be severed from
their personal laws. But if any Hindu, Buddhist, Sikh or Jaina man and Hindu,
Buddhist, Sikh or Jaina woman solemnize their marriage under this Act, they
would not be needed to renounce their personal laws and their joint family. It
does not matter whether they solemnize their marriage directly under The
Special Marriage Act, 1954 or not. They will be governed by their personal laws
which include the Hindu Marriage Act, 1955 and their property rights will be
governed by The Hindu Succession Act, 1956.
Rights of children when both the
parents are from different religions.
When both the parties are from different
religions and they solemnize their marriage under The Special Marriage Act,
1954, then they will be governed by The Special Marriage Act, 1954 and The
Indian Succession Act, 1925. For e.g., if a Hindu man marries with Muslim
woman, then they will be governed by the special laws like the Special Marriage
Act, 1954, The Indian Succession Act, 1925, etc.Now, what happens when one will marry under
this Act and will be severed from his family. According to Section 18, 20, 21
and 26(3) of The Special Marriage Act, 1954, any children born from marriage
under The Special Marriage Act, 1954 should not be conferred upon any rights in
or to the property of any other person than their parents. That means all the
children under this marriage would only be able to claim a share from the
property of their parents and no other person than that.
Conclusion
It can be concluded that the child is an
essential element to think about when deciding about the marital affairs of the
spouses. Though the parliament and judiciary are always ahead in upholding the
rights of children, there are still some loopholes and scope of improvement. The maintenance rights given to the
children include all the rights related to custody, education, and maintenance
of children, and also the district court is empowered to further pass interim
orders which seems just and proper from time to time regarding these rights
upon the filing of the petition. But it only includes monetary rights
whereas a child also needs love and affection from both parents. The inheritance rights given to the
children include only share in the property of the parents and not the
ancestors. There is an exception to it which is discussed in the project which
is the Hindu Undivided Family concept. This rights seem to be against the children
as the child born under The Special Marriage Act, 1954 would not be entitled to
the ancestral property though it is not his/her fault. It can be concluded that
though children’s rights are taken care of by the parliament and judiciary,
there is still a need to review them to bring some changes for their welfare.
Comments
Post a Comment