Family Laws
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  • Abortion

    Abortion in India is illegal. However it is permitted under law only in special circumstances. These include when the woman was raped, when the child would suffer from severe disability, failure of contraceptive devices etc. To find out when it is legal to have an abortion, read further.
     
    Categories...
    1) Lawfulness
    2) Special Circumstances like when raped, or failure of contraceptive devices
    3) For the Unmarried Woman
    4) Sex Determination Tests
    5) When Something Goes Wrong During the Abortion
    6) Causing Miscarriage
     
     
    1) Lawfulness
    Majority of the people believe that abortion is illegal in India, but in special circumstances when the woman doesn’t really have a choice abortion is allowed.
    The rules with regard to when abortion is legal or not are under the Medical Termination of Pregnancy Act and it also provides for special situations in which a woman has the right to have an abortion for her own peace of mind, like when she was raped.
    The decision to have an abortion is under law is in the hands of the woman and her doctor. The opinion of the father of the child as to whether the woman can have
    an abortion or not is immaterial to determine whether it’s legal or not.
     
     
    2) Special Circumstances like when raped, or failure of contraceptive devices
    There are special circumstances provided under law when regardless of whether it is the opinion of a doctor that having a child would involve a risk to the life of the woman, cause her grave mental or physical injury or that the child may be born with severe disabilities, a woman can have an abortion.

    Tip: When the woman was raped, or was using contraceptive devices and they failed it is assumed that having a child would cause grave injury to the mental health of the woman and so she is allowed to have an abortion.

    3) For the Unmarried Woman

    Abortions for unmarried women are done on the basis of the assumption that having a child would constitute grave injury to their mental health.
    But they need the opinion of doctor(s) to state that it would cause such grave injury. Also the doctor has to take into consideration the current financial and other conditions (like age) of the woman and what would be the likely situation in the future for the mother and the child, when deciding whether doing the abortion would be legal or not.
     
     
    4) Sex Determination Tests
    In India, some families would rather have a son than a daughter. So when it is possible to determine the sex of the child, many women do the test, or are forced to do the test, and then made to kill the child if it is a girl. This is known as female foeticide, and to prevent this from happening (as abortion is legal so foeticide is not a crime necessarily) a law was passed which made having an abortion after being aware of the sex of the child, a crime. It is also a crime to do a particular test called the amniocentesis test, which is a test largely to determine the sex of the child.

    There are 927 females to 1000 males in India right now, which indicates that in spite of preventive measures abortion of the female foetus, and female infanticide is still taking place.

    5) When Something Goes Wrong During the Abortion
    When something goes wrong during an abortion, you have the same rights against the doctor doing the abortion that you would have against any other doctor who is treating you, or doing a procedure on you. Your rights are as a consumer of services that he is delivering as a medical professional.

    Remember that abortion in the first twelve weeks at least, cannot be called surgery or something that requires specialized skill. So your rights are on the basis of the reasonable care that the doctor should exercise when delivering his professional services.

    6) Causing Miscarriage
    In some circumstances, causing a miscarriage or aborting the child is an offence under criminal law. If a registered medical practitioner does an abortion according to all the conditions given under the Medical Termination of Pregnancy Act then the abortion is legal. However if a person has caused a miscarriage or abortion, but it was not done in good faith to save the life of the woman, then this act is punishable under law. This act is an offence...

    There are also provisions to prevent the killing of the unborn child, or preventing the birth of a child when it is not a legal abortion as per the Medical Termination of Pregnancy Act, or if it was not done in good faith to save the life of the woman under Section 312 of the Indian Penal Code.

    This was done by the government to put an end to the practice of female foeticide

     

    Adoption

    Categories...

    1) Divorce
    2) Adoptions
    3) Marriage
    4) Family Courts
     
     
    1) Divorce
    Inter-religious
    The Special Marriage Act which enable inter religious marriages in India provides for divorce as well. As a registered marriage is considered as a “civil contract”, the Act recognizes divorce by mutual consent as well, which is otherwise not available to marriages performed under Muslim and Christian personal law.
    Hindus 
    It is well established that marital relationships should be safeguarded from every possible angle, and that severance of a marriage should be allowed only when the marriage has irretrievably broken down. Prior to 1956 (i.e. before the coming into force of the Hindu Marriage Act, divorce among Hindus was not recognized, except where allowed by custom. The Hindu Marriage Act, provides 15 grounds of divorce. Of the 15 grounds of divorce specified, eleven grounds are available either to the husband or the wife and 4 additional grounds or divorce are available to the wife only. In addition to the 15 grounds of divorce, the Hindu Marriage Act, also provides for divorce by mutual consent.
    Muslim
    Muhammadean law is based on the Quran mostly. It applies to all Muslims, whether by birth or conversion. This body of law governs relations between Muslims, including marriage and divorce. Talak, or repudiation of marriage is the main form of divorce in Muslim law. There are a few traditional forms of divorce and a few forms, which were added. For example, a Muslim woman cannot divorce her husband under traditional law because of cruelty without losing a part of her property. However, under the Dissolution of Muslim Marriages Act, 1939, she can. Muslim laws of divorce give the husband the right to divorce his wife without any misbehaviour on her part. Since Muslim law allows polygamy, seeking a divorce for adultery is almost out of the question. Divorce, on the grounds of cruelty and desertion came in with the Dissolution of Muslim Marriages Act, 1939,. Mutual Consent divorces exist in Muslim law and are called Khul or Khulla and Mubaraa or Mubaraat. In Khul, the wife has to part with some of her dower or some other property. Since Mubaraa is repudiation by mutual consent, no property has to be given. There are other forms of divorce. These are Ila, where the husband vows that he will not have sexual intercourse with his wife for four months or more, or an unspecified period. Zihar is another form of divorce where the husband compares his wife to a woman whom he cannot marry. For example, he says that his wife is like his mother. His wife then automatically gets the right to deny him sexual intercourse. He can atone be doing suitable penance. Then there is Li'an or Laan, which is a false charge of adultery. Where the husband falsely accuses the wife of adultery, if she proves that she is not guilty of adultery, she is entitled to a divorce. Talak can be pronounced in three ways. Firstly, three separate pronouncements, each in the periods of purity, or the intervals between menstruation, and abstinence from sexual intercourse in the interim. The next form is one single pronouncement, followed by abstinence from sexual intercourse for the period of iddat. Both these forms are sanctioned, and both these are revocable till the period of iddat is completed. The third is the infamous triple talak. This is irregular and not highly approved. In this form of divorce, the man makes three pronouncements of divorce in immediate succession. This form of talak becomes irrevocable immediately.
    Christians
    Divorce for Indian Christians is governed by the Indian Divorce Act . The problem with this is that the husband can only seek divorce if the wife has committed adultery. The wife has numerous grounds. If her husband converts, commits bigamy or rape, sodomy or bestiality, she can seek a divorce. Apart from these, she has to prove two faults to get a divorce,
    e.g. Cruelty and adultery
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