What is the ossification test for determination of age? Does it apply in rape cases? An ossification test, also known as a bone age test, is a medical examination used to determine the maturity of the bones in a person's body. In the context of rape cases, ossification tests are used to estimate the age of an accused person. Specifically, it is used to determine if an accused person is above or below the age of 18, which is the legal age of consent in India.
The test is performed by taking X-rays of the bones in the wrist and elbow, which are then compared to a set of standard X-rays to determine the maturity of the bones. The test is typically used to determine the age of someone who is suspected of being underage, but whose birth records are not available.
The use of ossification tests in rape cases is controversial because the test is not always accurate. In fact, studies have shown that the test can be off by as much as 4 years in either direction. This means that an accused person who is actually 18 years old could be determined to be either 14 or 22 years old based on the results of an ossification test.
Additionally, it is important to note that ossification test is not a conclusive evidence of age, it is only one of the factors considered by the court along with other evidence like school records, voter ID, PAN card, Passport etc.
Despite these limitations, ossification tests are still widely used in India as a way to determine the age of an accused person in rape cases. This is primarily because the test is relatively inexpensive and can be performed quickly.
However, it is important to note that ossification test is not a conclusive evidence of age, it is only one of the factors considered by the court along with other evidence like school records, voter ID, PAN card, Passport etc.
Furthermore, the test should be used in conjunction with other forms of evidence and should not be the sole determining factor in a case. This is particularly important in cases where the accused person is a minor, as the laws and penalties for those under the age of 18 are different from those for adults.
It is also important to note that the use of ossification tests in rape cases raises ethical and legal concerns. The test is invasive and can be traumatic for the person being examined, especially if they are a victim of sexual assault. Additionally, there is a risk of false accusations and wrongful convictions based on inaccurate test results.
In conclusion, ossification tests can be a useful tool in determining the age of an accused person in rape cases, but it is important to understand the limitations of the test and to use it in conjunction with other forms of evidence. Additionally, the test should be used with caution, as it raises ethical and legal concerns. It is essential that the court should consider all the evidence along with ossification test results and come to a conclusion.
Section 375 of The Indian Penal Code defines the offence of rape. The sixth paragraph of section 375 says that the consent of the victim is immaterial in offence of rape when the age of the victim is under 18 years. If the accused takes a plea that the victim was above the age of 18 years when the offence was committed. Therefore in this condition determination of age is necessary. The court may order for ossification test of a rape victim if no other director is available regarding her age.
Generally when the victim appears to be above 18 years and some records show that she is below 18 years then contradiction towards age arises. Ossification test is conducted by a medical expert. This test is based upon the fusion of joints in the human body. Generally, all joints of bones become fused at or after the age of 25 years.
However, it is scientific evidence but not conclusive because it may be possible that bones take more time infusion. It is almost admitted by law that 2 years should be given as grace period to the person examined.
In Ramdeo Chauhan alias Raj Nath vs State of Assam (2001) SCC it is held by the supreme court that:
“The statement of the doctor is no more than an opinion, the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question……In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform.”
In Vishnu alias Undrya vs. State of Maharashtra (2006) 1 SCC the Supreme Court rejected the plea of defence that ossification test is scientifically proved and it deserves acceptance. Court held that:
“We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is advisory and not binding on the witness of fact.”
The court shall examine all the physical evidence of the person concerned. Its decision can’t be based solely upon the opinion of the doctor. If there is any doubt regarding the age, benefit of doubt must in all cases be given to accused. Medical opinion is not binding on the court. This view is reaffirmed by the Supreme Court in Prahlad And Anr. Vs. The State of Haryana (2015) SCC.
Could a juvenile accused claim his juvenility at any stage of proceeding? A fact that accused was juvenile at the time of the commission of the offence is the most important fact. This fact can be raised at any stage of a criminal proceeding. Trial, appeal and revision are the stages of a criminal proceeding and accused can take the plea of juvenility at any stage.It does not matter that it was not raised in trial and the first time is taken in appeal or revision proceeding. If a sentence is passed against the accused in absence of the fact that the accused was juvenile, accused can take the plea of juvenility in an appeal against the sentence.If the sentence is passed and accused has been in jail for many years, he can file appeal, revision or file Special Leave Petition before the Supreme Court and take his plea of juvenility. Maximum imprisonment is prescribed for a juvenile offender is of three years.In Upendra Pradhan v. State of Orissa (2015) SCC, it is held by the Supreme Court that:“The plea can be raised before any Court and at any point of time…… we will look into the present petition keeping in mind the juvenility of the accused-appellant at the time of the commission of the crime….. it has been brought to our notice that the appellant has undergone about 8 years in jail.The appellant falls within the definition of “juvenile” under Section 2(k) of the Juvenile Justice (Care and Protection of children) Act, 2000. Upendra Pradhan has undergone almost 8 years of the sentence, which is more than the maximum period of three years prescribed under Section 15 of the Juvenile Justice Act of 2000. Thus, giving him the benefit under the Act, and the appellant be released forthwith.”This similar view is taken by the Supreme Court in Ram Narain vs State of Uttar Pradesh (2015) SLP 1446/2004 in this case accused was undergoing sentence for 10 years and he raised the plea of juvenility first time before Supreme Court through SLP.
I am not happy with my wife, and I want to end our relationship. I heard about the nullity of marriage if the husband is not happy. Am I right and if so please advise to end my relationship and nullify my marriage.
Asked from: West Bengal
On the fulfilment of certain conditions, Hindu marriage becomes null and void. Parties to the marriage can file petition towards annulment of their marriage. Provisions towards nullity of marriage are incorporated in section 12 Hindu Marriage Act (HMA). Requirements of a valid marriage are mentioned in Section 5 of HMA.
The law of nullity depends upon the existence of some pre-marriage impediments. Hindu law divides these impediments into two categories.
Absolute impediments
Relative impediments
Marriage becomes void ab initio on the existence of absolute impediments. This marriage is invalid from the very beginning so it is called void marriage. According to section 5 of HMA, these are the ground of void marriage.
At the time of marriage, either party has a spouse living (Bigamous marriage)
The parties are sapinda to each other.
The parties are within the prohibited degree of relationship.
No legal consequences flow from the void marriage, parties to the marriage are free to solemnize another marriage because they are not treated as husband and wife. It does not matter in the void marriage that all the valid ceremonies are performed at the time of marriage or marriage is registered under section 8 of HMA.
In the existence of relative impediments, a marriage is voidable. However voidable marriage is perfectly valid till the petition filed by either party for annulment of marriage under section 12 of HMA. If no petition is filed then marriage has these effects.
It confers upon parties as to the status of husband and wife.
Children out of this marriage are legitimate.
All other mutual and legal rights like inheritance, maintenance, succession etc arise from it.
Parties to the marriage may file a petition for annulment on these grounds.
The inability of the respondent to give consent or suffering from a mental disorder.
The inability of the respondent to consummate the marriage on account of his or her impotency.
Concealment of pre-marriage pregnancy by the respondent.
Consent of the parties being obtained by fraud or force.
What is the procedure for registration of marriage under the Hindu Marriage Act? Registration of marriage is a mode of proof of marriage. On adducing the registration certificate of marriage, it may be presumed by the law that marriage is deemed to has taken place.
Before the codification of the Hindu Marriage Act in 1955, there was no provision for registration of marriage in Hindu personal law. Section 8 of the Hindu Marriage Act provides that the State Government may make rules for the registration of marriage to facilitate the proof of Hindu marriages.
Although Section 8 does not make registration compulsory, it is advisable to register the marriage within 15 days of its solemnization. The presence of both parties before the registrar is necessary and the registrar can also ask the identity proof of the parties. So you must keep the Aadhar card.
Section 8(5) of the HMA specifically states that failure to register a Hindu marriage does not affect its validity. Only marriages between two Hindus can be registered under the HMA. If only one party is Hindu, then such marriages should be registered under the Special Marriage Act.
Registration of a marriage without the performance of valid ceremonies is invalid, and the registration itself is null and void. It is important to note that the mere act of registration does not validate an otherwise invalid marriage.
The registration certificate of marriage serves as evidence of marriage for obtaining visas, in cases of divorce, legal separation, alimony, custody of children, and succession to property.
Effect of registration of marriage
No foreign embassy or consulate grants visa to a spouse without proof in the form of a marriage certificate.
In the case of divorce, legal separation, alimony, or custody of children, courts may insist on seeing the marriage certificate.
It is evidence in case of a second marriage.
It is useful for reasons of succession to property.
Does a Hindu marriage valid without solemnization of the proper ceremony. Marriage without ceremony is invalid because Hindu marriage is sacramental rather than contract. Section 7 of the Hindu Marriage Act requires that a Hindu marriage may be solemnized under the customary rites and ceremonies of either party.Kanyadan, Panigrahan and Saptpadi are the necessary ceremonies of Hindu marriage which should be performed. However, Section 7 of the Hindu Marriage Act enumerates that marriage should be performed either by shashtric or customary ceremony of either party but where such ceremonies include saptpadi the marriage becomes complete and binding when the seventh step is taken. Marriage performed without any ceremony is invalid.In the offence of bigamy, it is always essential to prove that necessary ceremonies were performed. In absence of this proof prosecution for bigamy can’t succeed.In Dr Amar Nath Mukerji vs state (1969), marriage was performed by three mock ceremonies which were not prevalent in any party. It is held by the Allahabad High Court that marriage is invalid and accused can’t be prosecuted for the offence of bigamy.
What is the legal validity of sagai? Sagai or Betrothal is a contract of marriage. According to Manu when a girl a is promised in marring to one man, the good men do not give her in marriage to another man.Sagai or Betrothal is a contract of marriage. According to Manuwhen a girl a is promised in marring to one man, the good men do not give her in marriage to another man.Sagai is a valid agreement, both parties to the agreement are bound to perform their liability unless any certain specific defect is discovered or both parties have a better choice to marry another person.According to Narada a man who withdraws from his contract without proper cause may be compelled to marry the girl against his will. However, the above-mentioned view is not applicable and irrelevant today but a party who suffered a loss due to withdraw of the agreement has the right claim special damages which are caused to him.In Pursottam vs Pursottam it has held by the court that if some money has spent on fest or other things, as part of the celebration of sagai, the amount to spent may be recovered as special damage.In some parts of India custom allows a man who has a wife living to contract a sagai marriage if he is a childless man, if she begot child then she shall be entitled to maintenance, the child would take the property as legal heir.
Irretrievable breakdown of a marriage is prevalent in the US. Does the Hindu Marriage Act enumerate it as a ground for divorce? Irretrievable breakdown of a marriage is not a valid ground of divorce under section 13 of Hindu Marriage Act 1955 so divorce can not be granted only on the ground of irretrievable breakdown of the marriage.
A decree of divorce can only be granted when one of the grounds as enumerated in section 13 of the Hindu Marriage Act 1955 has been made out. If none of such ground is made out a decree of divorce can not be granted simply because there has been an irretrievable breakdown of the marriage.
Irretrievable breakdown of marriage has recognized as a valid ground of divorce by the law of many countries. The modern law has laid down that if a marriage has been broken down beyond any possibility of a repair then it should be dissolved and the party should not be under a legal obligation to prove any ground of divorce. The court should have the discretion to decide every case on the individual basis whether the marriage has broken down or not.
The law commission of India has recommended that irretrievable breakdown of marriage should be inserted in section 13 of the Hindu Marriage Act because it becomes the demand of our society. A bill is still pending before House of the people towards the insertion of this ground in section 13 and extend the scope of divorce. Related: Divorce under Hindu Marriage Act
I want the divorce; therefore, I contacted an advocate to file a case under section 13 of the Hindu Marriage Act. He advised me that if my wife is ready to give divorce then I should move a petition under section 13b. However my wife is also ready to separate from me, but I want to know what is the importance of consent in divorce. My advocate told me that if I file a petition under section 13 then I have to prove the guilt of my wife. Sir, what is the consent theory of divorce?
Asked from: Jharkhand
The principle of the "Consent theory" of divorce is that spouses should have the right to dissolve their marriage by mutual consent. As socio-economic conditions have advanced, spouses have become more self-reliant and independent and may choose to separate rather than stay in an unhappy marriage.
This theory contradicts the "guilt theory" of divorce, where one spouse must prove the guilt of the other before obtaining a divorce. Section 13 of the Hindu Marriage Act provides grounds for divorce, most of which are based on the guilt theory.
However, the Hindu Marriage Act also requires free consent from both parties for a valid marriage under Section 5. Therefore, if marriage is a contract based on the free volition of both parties, they should also have equal freedom to dissolve it. To reflect this, the Act was amended in 1976 to include a new provision, Section 13 B, which allows for divorce by mutual consent.
Mutual fidelity is the foundation of marriage, and if for any reason parties feel that they cannot maintain this fidelity, they should have the freedom to dissolve their marriage. Critics argue that the consent theory will lead to chaos and hasty divorces, but this is not necessarily true. If parties agree that they cannot continue living together and it is better to end their marriage, the law should provide them with the opportunity to start anew.
Ultimately, the consent theory of divorce corrects an error made by both parties when they realize they cannot live together and their marriage has become a bad deal.
I want to know the guilt theory of divorce. My wife and I are want to take divorce through our free will. There is no dispute between us but we think that our views are different. When I contacted an advocate for divorce on the free consent of the parties. But he said that without proving the guilt of opposite party we could not get a divorce.
Asked from: Uttar Pradesh
The concept of guilt theory of divorce is one of the approaches which is considered by the court while deciding divorce cases under the Hindu Marriage Act. According to this theory, a marriage may be dissolved if one spouse has committed any matrimonial offence. The grounds for divorce are enumerated in Section 13 of the Hindu Marriage Act, which is based upon the “guilt theory” or commonly known as the “fault theory”. It stands upon different footings than the consent theory of divorce commonly known as mutual consent divorce.
Under the guilt theory of divorce, parties are differentiated on the grounds of guilt and innocence. The innocent party has the right to get a divorce on the ground that the other party has committed a matrimonial offence or is guilty. Therefore, if a party is seeking a divorce, they must be innocent.
In the English law, this theory was taken to an extent where if both the parties, independent of each other, committed a matrimonial offence, the marriage could not be dissolved. Therefore, when both parties are guilty, then divorce could not be granted, there must be one guilty party and one innocent party.
Section 13 of the Hindu Marriage Act is based on the guilt theory, where some grounds for divorce are based on the guilt of the respondent. However, Section 23 of the Hindu Marriage Act laid down that the petitioner will not be allowed to take advantage of his or her wrong or disability in the divorce petition.
If the guilt of the respondent is the direct or indirect outcome of some wrong or disability of the petitioner, then the petitioner will not be entitled to get matrimonial relief or divorce, even if they have proved their case beyond all doubts.
In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court opined that the law of divorce based mainly on the fault is inadequate to deal with a broken marriage. However, under the fault theory or guilt theory, as accepted under Section 13 of the Hindu Marriage Act, guilt has to be proved for divorce.
In Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1, the Supreme Court reiterated that the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act are based on the “fault” of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the “matrimonial offence theory” or the “fault theory”.
Furthermore, it was highlighted that under this jurisprudential principle, only on the ground of an opponent’s fault, can a party approach a court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to a divorce.
Although the guilt theory of divorce has been criticized for being outdated, it still holds its place in the Indian legal system. The concept of fault theory or guilt theory has been a significant approach in deciding divorce cases in the Hindu Marriage Act, which has evolved with time and practice.
Does Hindu marriage sacramental or contract? It is now subject of debate that Hindu marriage became a contract or still sacrament. We are living in a new era which is the result of the industrial revolution, the most significant contribution of the industrial revolution is the emergence of the concept of that all human and social relations must be based on the free volition of the individual.Marriage is the highest social relationship of a human being. People demanded that this relationship too must be squarely based on the free volition of the individual. Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract.Clause 2 of section 5 enumerates that: A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, if at the time of the wedding, neither party.
Incapable of giving a valid consent to it in consequence of unsoundness of mind; or
Though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
Has been subject to recurrent attacks of insanity.
Clause 3 enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage.Section 12 of Hindu Marriage Act enumerates that: Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity in the ground that the marriage is in contravention of the condition specified in clause 2 of section 5.So the above provisions laid down that parties to the marriage should be sound mind, capable of giving valid consent, attained stipulates age and must capable of understanding the purpose of marriage. According to section 11 of the Indian Contract Act above mentioned conditions are necessary for a valid contract. In the absence of these elements, the contract becomes void.However, section 12 of the Hindu Marriage Act render the marriage voidable. We can say that although consent is necessary for the valid marriage; therefore in the absence of consent, marriage becomes voidable. Hence, a party to the marriage can treat their marriage as a valid marriage. Eventually, Hindu Marriage is sacramental. However, there is some element of the contract.
