In family law cases, outside India, the emancipation of a minor (also called “divorce from parents”) refers to a court process through which a minor can become legally recognized as an independent adult.
By: Anshika Singh, 3rd Year, LLB (Hons.), Department of Law, PIMR.
Emancipation is an unrecognised concept in Indian law. In general, Emancipation means the process of giving social or political freedom and rights. It is defined as:
1. The act of setting free or liberating from a restraint or bondage (as in slavery).
2. To release a minor child from the care and control of the minor’s parents. Rules for emancipation vary from state to state.
-Nolo’s Plain-English Law Dictionary
Emancipation of minors means giving freedom from parental control or guardian, before attaining majority, subject to certain restrictions and exemptions in case of needed protective circumstances. This concept exists in common law and various countries such as USA, South Africa, Canada, etc, also have separate provisions for emancipation.
In India, from the era of Manu Samhita, we have valued our traditions and cultures more than anything. Those values are our “dharma”, which we have inherited in our Constitution as well as in the Laws of the country, such as, giving recognition to the concept of Hindu Undivided Family (HUFs) in Company Laws, etc. A child gains separate personality from their parents after the age of 18 years, where he or she becomes a separate legal subject (but also Minor’s interests are protected by law) and enjoys full freedom both social and political. Until attaining the age of majority, the child enjoys his rights under protectionism. Thus, we can say, a protectionistic approach is followed by the laws to secure the interest of the minor.
But, there is a different concept in other countries, where the emancipation of minors is practiced.
Under their law, a minor can get emancipation from their parents even before the age of 18 years but this comes at a cost of certain restrictions.
There are three major circumstances in which the minor becomes emancipated:
- Enlisting in the Military, which requires parent consent
- Marriage, which also requires parental consent.
- Obtaining a Court order from a Judge does not require parents’ consent.
After-effects of Emancipation
After the emancipation process, a person emancipated is legally able to do everything, except a few.
General procedure for adopting Emancipation may vary from state to state.
Parents may object to the proceeding.
In Illinois, if a parent objects to an emancipation proceeding, the case is terminated without emancipation. In Michigan, by comparison, a parent’s objection does not automatically terminate a proceeding but is taken into consideration.
However, to file for emancipation, the general process is to:
- File Petition in a Family Court- To get emancipation a person needs to file a petition in a proper format, to a family court, having competent jurisdiction to deal with.
- Particulars- The petition should consist of a request with reasons as to why do you want emancipation, and some other particulars like name, address, etc.
- Proving Financial support- A person filing for emancipation must prove financial support. This helps the court in determining, whether a person could sustain or not after getting emancipated.
- Separate Living- This means that the person seeking emancipation, is doing it all with parental support without raising the concept of ‘Running-away’ from home.
In the practical aspect, emancipation for minors is mostly denied and rarely given. The judiciary mainly focuses on providing free Legal aid available to a child seeking emancipation but in the USA they allow emancipation for beneficial purposes.
Emancipation and Disownment
We have heard many times about parents disowning their major/minor children and breaking the moral ties with them. Disowning a child is not a new thing in India. The concept of disowning is different from emancipation, as, in Disownment, the parents break the moral, and sometimes, social ties with their children. But in emancipation, the child seeks separation and freedom from their parents socially or politically.
In India, there is no law with respect to both emancipation and disownment. However, for disownment, one can make a publication in newspaper about the breaking of moral ties from their children.
Such processes have no law-binding force, but is just a reminder or proof for the money lenders and creditor, for removal of moral ties, so that they cannot claim from them, whatever their child has asked for.
However, a disowned child still has a pending interest in the ancestral property and he/she cannot be disowned from that property which is devolving from their ancestors. But he/she cannot claim their parent’s property. In the case of Madan Lal Phool Chand Jain vs State of Maharashtra and others , it was held that only ancestral property can be claimed if the child is Disowned.
The present laws with respect to child rights in India are sufficient enough to protect their interest, but there is a serious problem in their implementation. The children of separating or divorcing parents lose their interest socially and to some extent politically, in such a situation, if a child has enough maturity or has a proper understanding of living he/she can be provided emancipation. Due to dynamism in society and practical problems arising in the context of family relations in near future, there will be a need for bringing emancipation laws in India. Keeping in mind such dynamics, the laws in foreign countries also have a provision for cancellation of emancipation on the grounds that the minor is no longer able to support himself/herself or has lied to the court for seeking emancipation.