The disabled and family laws
So far as laws of India relating to marriage the various laws enacted by the government for the various communities apply equally to the disabled persons along with those who are not disabled.
In most of these Acts it has been provided that the following circumstances will disable a person from undertaking marriage. These are:
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Where either party is an idiot or lunatic,
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Where one party is unable to give a valid consent due to unsoundness of mind or is suffering from mental disorder of such kind and extent as to be unfit for marriage or for procreation of children.
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Where the parties are within the degree of prohibited relationship or are sapindas of each other unless permitted by custom or usage.
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Where either party has a spouse living :
✓ For any of the above grounds a marriage can be declared as null and void and a court will be competent to dissolve the marriage by a decree of divorce .
✓ There is no bar in respect of a disabled person having relationship by marriage with another non disabled person provided they are of marriageable age and do not suffer from any of the disabilities specifically mentioned above.
✓ Marriageable age is different in different laws. Marriage has to be performed with the free consent of the two parties of the opposite sex.
✓ The rights and duties of the parties to a marriage whether in respect of disabled or non disabled persons are governed by the specific provisions contained in :
The Hindu Marriage Act, 1955 (for Hindus)
The Christian Marriage Act, 1872 (for Christians)
The Parsi Marriage and Divorce Act, 1935 (for Parsis).
The Special Marriage Act, 1954 (for spouses of differing religions)
The Foreign Marriage Act, 1959 (for marriage outside India).
✓ A disabled person who is a complete idiot or lunatic cannot be validly married.
✓ The Child Marriage Restraint Act, 1929 as amended in 1978 to prevent solemnization of child marriages also apply to the disabled.
✓ A disabled person cannot act as a guardian of a minor under the Guardian and Wards Act, 1890 if his disability is to such a degree that he cannot act as a guardian of a minor.
✓ Similar is the position under the Hindu Minority and Guardianship Act, 1956 as also under the Muslim law.
These laws also provide for grounds on which there can be a divorce between the parties such as :
sufferance from incurable leprosy,
venereal form of communicable disease,
entering into another marriage while one marriage is subsisting,
living in adultery, change of religion, of being mentally unsound or having mental disorders, renunciation of the world or where the other party has not been heard of as alive for more than seven years.
Divorce by mutual consent of parties is also provided by law.
° Disability of an adult person does not come in the way of his or her adopting a child.
° Similarly, a disabled child can also be adopted into a family of abled persons.
✓ Under the Hindu Adoption and Maintenance Act, 1956 in which the questions of adoption and maintenance have been dealt with, also apply to persons with disability.
✓ The provisions of Section 125 of the Criminal Procedure Code for seeking maintenance from spouse or the parents or children also apply to persons with disability.
✓ Under the recent National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999 a guardian can be appointed for persons with disability who are more than 18 years of age.
✓ Parents, siblings, relatives and voluntary organisations can make appropriate applications for appointment as guardian before the respective Local Level Committee set up under the Act. More about this has been discussed later.