ERM FOR FAMALY LAW I

UNIT 1 Introduction to Family Law

Origin of family
In India, the concept of family has deep cultural and historical roots. Family law in India is
influenced by various religious and cultural traditions, and it has evolved over time through
legal reforms and judicial decisions. The origin of family law in India can be traced to several
sources
Religious Traditions: India is a diverse country with a rich tapestry of religious traditions,
including Hinduism, Islam, Christianity, Sikhism, Buddhism, and others. Each religion has its
own set of laws and customs governing family matters. For instance, Hindu family law is
primarily based on ancient texts like the Manusmriti and the Dharmashastras, while Muslim
family law is based on Islamic Sharia principles. These religious texts and traditions have
played a significant role in shaping family laws.
Colonial Influence: During British colonial rule, the British introduced their legal system to
India, which had a significant impact on family law. The British colonial administration
codified and modified several aspects of Hindu and Muslim personal laws. For example, the
Hindu Marriage Act of 1955 and the Muslim Personal Law (Shariat) Application Act of 1937
were enacted to regulate marriage and divorce among Hindus and Muslims, respectively. Legal
Reforms: In post-independence India, various legal reforms were undertaken to modernize and
standardize family laws. This included the codification of marriage, divorce, and inheritance
laws. The Special Marriage Act of 1954, for instance, provides a framework for inter-religious
and inter-caste marriages, while the Hindu Succession Act of 1956 significantly changed the
rules of inheritance among Hindus.
Family law in India is not uniform across the country and can vary significantly based on one's
religion and personal customs. Over the years, there have been debates and discussions about
the need for a uniform civil code that would apply to all Indian citizens, regardless of their
religious affiliation. However, implementing such a code remains a complex and politically
sensitive issue, and India's family laws continue to be deeply rooted in its diverse religious and
cultural traditions
Types of family:
Families come in various forms, and they can be categorized into several types based on
different criteria. Here are some common types of families
Nuclear Family: A nuclear family, also known as an elementary or conjugal family, consists
of two generations living together in the same household. Typically, it includes parents and
their biological or adopted children. This type of family is commonly found in many Western
societies.
Extended Family: An extended family includes multiple generations living together or in
close proximity. It often consists of parents, children, grandparents, aunts, uncles, cousins, and
other relatives. Extended families are more prevalent in many Asian, African, and Middle
Eastern cultures.
Single-Parent Family: A single-parent family is headed by one parent who is responsible for
raising and supporting the children. This may result from divorce, separation, the death of a
spouse, or a choice to have children without a partner.
Blended or Stepfamily: A blended family, also known as a stepfamily, is formed when one
or both partners in a new marriage or relationship have children from previous unions. It
combines children from different biological parents into one family unit.
Childless Family: A childless family consists of a married or cohabitating couple who do not
have children. This may be due to choice or infertility. Childless couples often have more time
and resources for careers and other pursuits.
Adoptive Family: An adoptive family is one that has legally adopted a child who is not their
biological offspring. Adoptive families provide a loving and supportive home for children in
need.
Same-Sex Family: Same-sex families are composed of couples of the same gender who have
children or may not have children. As societal acceptance of same-sex couples has grown, more
same-sex families have become visible.
Foster Family: Foster families provide temporary care and support to children who are placed
in the child welfare system due to various reasons, such as neglect, abuse, or family disruption.
Foster parents play a crucial role in the lives of these children.
Communal or Collective Family: In some societies or intentional communities, individuals
choose to live in collective arrangements where multiple families or individuals share
resources, responsibilities, and child-rearing duties. These communal families can take on
various forms.
Long-Distance or Transnational Family: In an increasingly interconnected world, family
members may live in different countries or regions. Long-distance or transnational families
maintain their relationships across geographical boundaries, often through technology and
occasional visits.
Empty Nest Family: An empty nest family occurs when parents' children have grown up and
left the household to pursue their own lives, such as attending college, getting married, or
establishing their own households.
Matrifocal Family: A matrifocal family is predominantly led and sustained by the mother,
with less emphasis on the presence or involvement of the father.
These are just some of the common types of families, and family structures can be quite diverse
and dynamic, shaped by cultural, social, and personal factors. It's important to recognize and
respect the diversity of family forms and the love and support they provide to their members.

What is Family Law

Family law, also known as matrimonial law or domestic relations law, is a specialized area of
legal practice that deals with legal matters related to family relationships. It encompasses a
wide range of issues and concerns involving individuals and their familial connections. Family
law varies from one jurisdiction to another but typically includes the following key areas
Family law, also known as matrimonial law or domestic relations law, is a specialized area of
legal practice that deals with legal matters related to family relationships. It encompasses a
wide range of issues and concerns involving individuals and their familial connections. Family
law varies from one jurisdiction to another but typically includes the following key areas:
Marriage: Family law addresses the legal aspects of marriage, including requirements for
marriage, marriage licenses, and procedures for getting married. It also deals with the legal
recognition of different forms of marriage, such as civil, religious, or same-sex marriages.
Divorce: Divorce law is a significant component of family law, covering the legal process of
ending a marriage. It includes issues such as grounds for divorce, property division, alimony
or spousal support, child custody, visitation, and child support. Mediation or arbitration may
be used to resolve disputes between spouses.
Child Custody and Visitation: Family law governs the legal custody and visitation rights of
parents with regard to their children. It aims to determine the best interests of the child when
making decisions about where the child will live and how visitation rights are granted.
Child Support: Family law establishes the legal obligations of parents to financially support
their children. This includes determining the amount of child support, enforcement of child
support orders, and modifications when necessary.
Adoption: Adoption law regulates the legal process by which individuals or couples can
become legal parents to a child who is not biologically related to them. It involves a complex
set of legal procedures to ensure the child's well-being and the rights of the adopting parents.
Paternity: Paternity law deals with determining and establishing the legal father of a child,
especially when there is a dispute or question regarding parentage. It may involve DNA testing
and legal paternity suits.
Domestic Violence: Family law addresses issues related to domestic violence and protection
orders, which are legal measures taken to protect victims of abuse or harassment within the
family or domestic context.
Spousal Support or Alimony: Family law includes provisions for spousal support or alimony,
which involves financial support provided by one spouse to the other during or after divorce to
help the recipient spouse maintain a standard of living similar to that during the marriage.
Property Division: When a marriage ends, family law specifies how property and assets
acquired during the marriage should be divided between the spouses. The principles of
equitable distribution or community property may apply, depending on the jurisdiction.
Surrogacy and Assisted Reproductive Technology (ART): As advancements in reproductive
technology have evolved, family law has adapted to address legal issues related to surrogacy,
in vitro fertilization, and other forms of assisted reproduction.
Guardianship: Family law deals with the appointment of guardians for minors or
incapacitated adults who are unable to make their own decisions, ensuring their welfare and
property is protected.

Family law matters are often emotionally charged and can be complex. Legal representation or
consultation is commonly sought to navigate these issues, as family law attorneys specialize in
providing legal advice and representation to individuals dealing with family-related legal
matters. Family courts are responsible for handling cases related to family law and ensuring
that the best interests of all parties involved, especially children, are taken into account.
Origin and Sources of Personal Laws
Prsonal laws in India are the laws that govern various aspects of personal and family life, such
as marriage, divorce, inheritance, and succession. These laws are primarily based on an
individual's religious or community affiliation, and they vary depending on the person's
religion or community. The origin and sources of personal laws in India are deeply rooted in
historical, religious, and cultural traditions. Here's an overview of the sources and origin of
personal laws in India:
Religious Texts and Traditions: The primary source of personal laws in India is religious texts
and traditions associated with various religions. For example:
Hindu Personal Laws: Hindu personal laws are primarily based on ancient Hindu religious
texts, including the Manusmriti, the Dharmashastras, and other texts that lay down principles
for marriage, divorce, and inheritance. These laws are largely influenced by the principles of
dharma (duty) and customs specific to the Hindu religion.
Muslim Personal Laws: Muslim personal laws in India are derived from the Quran and Hadith
(sayings and actions of Prophet Muhammad). These laws govern aspects of marriage, divorce,
maintenance, and inheritance according to Islamic principles.
Christian Personal Laws: Christian personal laws are based on Christian religious traditions
and canon law. They deal with matters related to marriage, divorce, and succession for
individuals of the Christian faith.
Customary Practices: In addition to religious texts, customary practices within specific
communities also influence personal laws. These customs are often passed down through
generations and may vary from one region or community to another.
Colonial Influence: During British colonial rule in India, the British introduced certain
uniform legal codes to address issues related to personal laws, particularly for Hindus and
Muslims. For example, the Hindu Marriage Act of 1955 and the Muslim Personal Law (Shariat)
Application Act of 1937 codified some aspects of personal laws.
Legislation: Independent India has also seen legislative efforts to reform and codify personal
laws. For example, the Special Marriage Act of 1954 allows individuals from different religions
to marry under a secular law, providing an alternative to religious personal laws. Additionally,
various other acts and amendments have been introduced to bring about reforms and changes
in personal laws.
Judicial Interpretation: Indian courts, particularly the Supreme Court, have played a
significant role in interpreting and evolving personal laws. Landmark judgments have
contributed to the development and reform of personal laws, often in response to changing
societal norms and values.
Reform Movements: Social and religious reform movements in India, such as those led by
Raja Ram Mohan Roy and Dr. B.R. Ambedkar, have advocated for changes in personal laws
to promote gender equality and social justice. These movements have influenced legislative
and judicial actions.

It's important to note that personal laws in India have been a subject of debate and reform due
to concerns related to gender equality and human rights. The Indian government has taken steps
to bring about changes in personal laws to address some of these concerns, but the process is
often complex and contentious, as it involves various religious and community considerations.
As a result, personal laws continue to coexist alongside certain aspects of secular law in India.

HINDU LAW:
Hindu law, also known as "Dharmashastra," is a system of personal laws that govern various
aspects of life for Hindus, including marriage, divorce, inheritance, and religious duties. The
sources of Hindu law are rooted in ancient Hindu religious texts and traditions. The primary
sources of Hindu law include:
Religious Texts:
a. Dharmashastras: Dharmashastras are ancient Hindu texts that lay down principles for
ethical and moral conduct. They provide guidance on personal laws, social norms, and religious
duties. The Manusmriti, Yajnavalkya Smriti, and Narada Smriti are among the most prominent
Dharmashastras.
b. Vedas: The Vedas are the oldest Hindu scriptures and are revered as the ultimate source of
knowledge in Hinduism. While they are primarily focused on rituals and religious practices,
they provide the foundation for many Hindu laws and customs.
c. Smriti Texts: Smriti texts are considered secondary scriptures and include a wide range of
texts that provide guidance on various aspects of Hindu law and ethics. Apart from the
Dharmashastras, other Smriti texts like the Manusmriti, the Narada Smriti, and the Yajnavalkya
Smriti, play an important role in shaping Hindu law.
d. Puranas: Hindu Puranas are a genre of ancient texts that include myths, legends, and
religious teachings. They are not legal texts per se but can contain moral and ethical principles
that influence Hindu law.
Judicial Precedent:
Hindu law, like many other legal systems, has evolved through judicial decisions and
interpretations. Over time, courts in India have played a significant role in interpreting and
applying Hindu personal laws in modern contexts.
Customs and Local Traditions:
Local customs and traditions within various Hindu communities can influence personal laws.
These customs often differ from one region to another and may affect issues related to marriage,
divorce, inheritance, and rituals.
Reform Movements:
Social and religious reform movements within Hinduism have led to changes in traditional
Hindu practices and personal laws. Prominent reformers, such as Raja Ram Mohan Roy and
Swami Dayananda Saraswati, have advocated for reforms in areas like the status of women,
caste discrimination, and rituals.
Legislation:
Legislation in India has also played a role in reforming certain aspects of Hindu personal laws.
For example, the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956 introduced
significant changes in marriage and inheritance laws for Hindus.
Legal Scholars and Commentaries:
Throughout history, legal scholars and commentators have written extensively on Hindu law,
providing interpretations and commentaries on the original texts. These writings have helped
in the understanding and application of Hindu law.

It's important to note that Hindu law is not a monolithic or unchanging system. It has evolved
and continues to evolve as societal norms and values change. Furthermore, different schools of
thought within Hinduism may interpret and apply these sources differently, leading to some
variations in practice.

MUSLIM LAW:
Muslim law, also known as Islamic law or Sharia, is a system of personal laws and principles
that govern various aspects of the life of Muslims, including matters related to marriage,
divorce, inheritance, and religious obligations. The sources and schools of Muslim law are
deeply rooted in Islamic traditions and jurisprudence. Here are the primary sources and schools
of Muslim law:
Primary Sources of Muslim Law:
Quran: The Quran is the holy book of Islam, believed to be the word of God as revealed to
the Prophet Muhammad. It serves as the primary source of Islamic law and provides
fundamental principles and guidelines for the life of Muslims.
Hadith: Hadiths are the recorded sayings, actions, and approvals of the Prophet Muhammad.
They provide detailed explanations and examples of how to practice the principles outlined in
the Quran. Hadiths are classified based on their authenticity and reliability.
Schools (Madhabs) of Muslim Law:
Islamic jurisprudence, or "fiqh," has historically been developed through the interpretation of
the Quran and Hadith by different schools of thought. There are several prominent schools of
Islamic jurisprudence, each with its own legal opinions and interpretations. The major Sunni
schools (Madhabs) are:
Hanafi School (Hanafite): The Hanafi school, founded by Imam Abu Hanifa, is one of the
oldest and most widely followed schools of Islamic jurisprudence. It is known for its flexibility
in adapting to different cultural contexts and for its reliance on reasoning and analogy (qiyas)
in legal interpretations.
Maliki School (Malikite): The Maliki school, founded by Imam Malik, is prominent in North
and West Africa and some parts of the Arabian Peninsula. It is characterized by its emphasis on
local customs and practices and its reliance on the practice of the people of Medina.
Shafi'i School (Shafi'ite): The Shafi'i school, founded by Imam Shafi'i, is prevalent in
Southeast Asia, East Africa, and parts of the Arabian Peninsula. It places a strong emphasis on
the Quran and Hadith and is considered to be more rigid in its interpretation of Islamic law.
Hanbali School (Hanbalite): The Hanbali school, founded by Imam Ahmad ibn Hanbal, is
the most conservative of the Sunni schools. It relies heavily on the Quran and Hadith and is
particularly influential in Saudi Arabia.
In addition to the Sunni schools, there is also the Shia school of thought:
5. Jafari School (Ja'fari or Ithna Ashari): The Jafari school is followed by Twelver Shia
Muslims and is named after Imam Jafar al-Sadiq. It has its own jurisprudential principles and
interpretations, distinct from the Sunni schools.
Each of these schools has its own legal opinions and interpretations of Islamic law, leading to
some variations in practice. While the core principles of Islam are common to all Muslims, the
specific applications and legal rulings may differ based on the school of thought and the local
customs and practices within the Muslim community. Sharia courts or Islamic scholars may
provide legal guidance based on these schools' interpretations of Islamic law

Marriage
Evolution of the Institution of Marriage
The institution of marriage has evolved significantly throughout human history and continues
to evolve in response to changing social, cultural, and legal norms. Here is a brief overview of
the evolution of marriage:
Hunter-Gatherer Societies: In early human societies, marriage likely began as a way to
establish social and economic bonds. It provided a means for securing resources, forming
alliances, and protecting offspring. These marriages were often informal and lacked the
elaborate ceremonies and legal frameworks seen in modern times.
Agricultural Revolution: The shift from nomadic hunter-gatherer lifestyles to settled
agriculture brought changes to marriage. With the development of property and inheritance,
marriage became a way to transfer land and wealth to the next generation. Patriarchal systems
emerged in many cultures, where men played a dominant role in marriage.
Religious Influence: Many societies began to incorporate religious elements into marriage
ceremonies. These rituals and beliefs often sanctified the union and made it a moral and
spiritual commitment. The exact religious significance of marriage varies between cultures and
religions.
Arranged Marriages: In many traditional societies, arranged marriages were common.
Families played a significant role in choosing a spouse for their children, often based on
economic, social, or political considerations. Love and personal choice were secondary factors
in these unions.
Industrialization: The Industrial Revolution brought about significant social changes. People
moved from rural areas to cities, and the economic dynamics of marriage shifted. Marriages
based on romantic love began to gain popularity as individuals had more freedom to choose
their partners.
Women's Rights and Gender Equality: The women's rights movement in the 19th and 20th
centuries challenged traditional marital norms. This led to legal changes, such as allowing
women to own property and have more control over their lives. It also contributed to changing
perceptions of marriage, emphasizing equality between spouses.
No-Fault Divorce: The introduction of no-fault divorce laws in the 20th century made it easier
for couples to end their marriages without proving fault. This had a significant impact on the
institution of marriage, as it reduced the social stigma associated with divorce.
Same-Sex Marriage: In the 21st century, many countries have legalized same-sex marriage,
expanding the definition of marriage to include LGBTQ+ couples. This represents a significant
shift in societal attitudes and legal recognition of marriage.
Changing Family Structures: The traditional nuclear family (a married couple with children)
is no longer the only recognized family structure. Cohabitation, single-parent families, and
other arrangements have become more accepted and legally recognized.
Technology and Long-Distance Marriages: Advancements in communication technology
have made it easier for couples to maintain relationships across long distances, leading to the
emergence of long-distance and transnational marriages.
Marriage Trends: Some people are choosing to delay or forgo marriage altogether.
Cohabitation without marriage has become more common, and non-traditional marital
arrangements, such as polyamorous relationships, are gaining visibility.
Legal and Cultural Diversity: Marriage laws and customs vary widely around the world.
Some cultures and religions continue to practice arranged marriages, while others have
embraced secular and individualistic approaches to marriage.

The institution of marriage is likely to continue evolving as societal norms, legal frameworks,
and cultural attitudes change over time. It remains a complex and multifaceted institution, with
diverse expressions and meanings in different societies and eras.

Hindu Marriage under Hindu MarriageAct, 1955

The most significant institution in human society is marriage. It is a common occurrence. The
foundation of human civilization has come into the picture because of marriage. New social
ties and reciprocal rights between spouses are created through marriage. When children are
born, their rights and position are established. Every community recognises specific steps for
establishing these relationships and rights. Real marriage is the acceptance of a new status with
new responsibilities that are acknowledged by others. Every society recognises marriage as a
socially accepted universal institution. One of the most profound and intricate human
partnerships is marriage. In 1955, the laws governing Hindu marriage were formalised and put
into effect. The laws governing Hindu marriage, restitution of conjugal rights, judicial
separation, divorce, annulment of marriage, maintenance, and guardianship are included in
the Hindu Marriage Act, 1955, which was passed by the legislature. Sections 5 and 7 of the
Hindu Marriage Act of 1955 address the requirements for a legally binding union among
Hindus. The present article gives an overview of the Hindu Marriage Act, 1955, alongside
explaining current developments in the same.
Structure of the Hindu Marriage Act, 1955
The Hindu Marriage Act is an Act of the Indian Parliament that was approved on May 18,
1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and
the Hindu Adoptions and Maintenance Act, 1956 were all enacted at this time as part of
the Hindu Code Bills. The Hindu Marriage Act, 1955 was passed to protect the legal rights of
Hindu brides and grooms who are joined by the holy bond of marriage. The type of ceremony
that must take place has not been specified by law because there are numerous methods by
which a man and woman can be wed in accordance with Hindu tradition.
The Act of 1955 is spread across six Chapters, consisting of 29 Sections in total. The layout of
the same has been provided hereunder:
1. Chapter I: Preliminary
2. Chapter II: Hindu Marriages
3. Chapter III: Restitution of conjugal rights and judicial separation
4. Chapter IV: Nullity of marriage and divorce
5. Chapter V: Jurisdiction and procedure
6. Chapter VI: Savings and repeals

Purpose of the Hindu Marriage Act, 1955

The Act’s principal goal was to update and codify the law governing marriage between Hindus.
It contained divorce and separation, both of which are already covered by Sastrik Law (old
Hindu Law), in addition to modifying and codifying Sastrik Law. The law became uniform for
all Hindu groups as a result of this enactment. In India, certain different religions have their
own civil rules that regulate their followers separately.
Essential features of the Hindu Marriage Act, 1955

1. Forbidding bigamy: The law forbids a man from having multiple wives at the same
time. Section 5 of the Act specifies that it is illegal to have two living wives at once,
which is known as bigamy. It implies that one cannot get married to someone else
without first divorcing their spouse (divorce). If he does the act, it is unlawful and
he will be penalised in accordance with Sections 494 and 495 of the Indian Penal
Code, 1860.
2. Marriageable age prescribed: The time frame for getting married is set forth by
legislation. According to Section 5 (iii) of the Hindu Marriage Act of 1955, the
bridegroom must be at least 21 years old and the bride must be at least 18 years old
when they get married. If a marriage is not carried out, it is void and has no legal
standing.
3. Act of 1955 intends to protect the party’s marriage: The restitution of conjugal
rights is provided for in Section 9 of the 1955 Act. Restitution of conjugal rights
refers to the right to remain together. Conjugal rights are defined as rights deriving
from a marital tie. The main idea of Section 9 is that a spouse has the right to
cohabitate in order to safeguard their union and preserve its sanctity.
4. Focus on the mental stability of parties getting married: A person’s marriage
will be null and void if they were mentally unfit when they were hitched. The
individual must also offer legally binding consent before becoming married. The
prerequisites of Hindu marriage related to mental health and capacity are stated in
Section 5(ii)(a),(b),(c).
5. Significance of ceremonies involved in marriage: The law states that if two
people get married using the customary rituals and rights, their marriage is lawful.
The father must take care of and safeguard any children born after marriage because
they are legally entitled to exist.
Changes brought in by Hindu Marriage Act, 1955 in the Indian territory
The following changes were brought in by the Hindu Marriage Act, 1955 concerning the way
marriages in India were perceived during the time of colonialism under the Britishers:

1. Hindu marriages today are less focused on religion. In contrast to being sacramental,
it is more the outcome of mutual accord [Sections 5(ii), (iii), 11 to 13, and 7].
2. Hindu, Jains, Sikh, and Buddhist unions are now legally recognised as legitimate
Hindu unions (Section 2).
3. The difference between the Mitakshara and Dayabhaga schools about the
phrase “prohibited degrees of relationship” for the purpose of marriage has been
eliminated per Section 3. The Smritis’ strong prohibition on marriage inside the
bounds of a Sapinda relationship has been greatly loosened. There have also been a
few new degrees of kinship added. So, one can no longer wed someone who was the
wife of the other’s brother.
4. The Act marks the first time monogamy has been practised among Hindus. The
Indian Penal Code, 1860 currently has a penalty for bigamy. The provisions of
Sections 5 and 17 of the 1955 Act show how significantly the rules and prerequisites
for a legitimate marriage have been simplified.
5. Now that caste factors for inter-caste and inter-community marriages have been
rendered irrelevant, all prohibitions thereto have been lifted.
6. Although the ancient Hindu law did not specify an age limit for marriage, it is now
a requirement that both the bridegroom and the bride have reached the age of 18.
(Section 5).
7. The Act now establishes requirements for legal marriage and does not recognise any
specific type of Hindu marriage (Section 5).
8. The Act does not specify a specific ceremony for a legal Hindu marriage. According
to Sections 5 and 7, such a marriage may be performed in line with the customary
rights and rituals of either one of the parties.
9. For the first time, a provision for registering Hindu marriages has been made
(Section 8).
10. Before the Act, a variety of marital arrangements were popular. They are now
irrelevant, and the only type of marriage recognised by the parties as being prevalent
in their culture will be marriage (Section 7).
11. The Act provides for judicial separation, divorce, and marriage annulment while
removing prohibitions based on gotra, pravara, and Sapinda relationships (Sections
10 to 14).
12. Provisions for recovery of the parties’ marital rights (Section 9).
13. Following a legal divorce, either spouse may remarry (Section 15).
 14. Provisions for the validity of children born from unions may later be deemed null,
void, or voidable (Section 16).
15. Provisions for spousal maintenance pendente lite and for court costs (Section 24).
16. Lifetime alimony and support (Section 25).
17. The care, support, and instruction of young children while legal processes are
pending as well as after a ruling has been made (Section 26).
18. The Act no longer distinguishes between a maiden’s marriage and a widow’s
marriage.
Applicability of the Hindu Marriage Act, 1955
Section 2 of the Hindu Marriage Act of 1955 provides that the Act applies:

1. To anyone who practises Hinduism in any of its manifestations, including

Virashaivas, Lingayats, and adherents of the Brahmo, Prarthana, or Arya Samaj;
2. To anyone who practises Buddhism, Jainism, or Sikhism as a religion; and
3. Unless it is demonstrated that any such person would not have been subject to Hindu
law or to any customs or usages that are part of that law in respect of any of the
matters dealt with herein if this Act had not been passed, it shall apply to any other
person residing in the territories to which this Act extends who is not a Muslim,
Christian, Parsi, or Jew by religion.
The Act was considered conservative because it included other religions (Jains, Buddhists, or
Sikhs) as defined under Article 44 of the Indian Constitution while applying to everyone who
is Hindu by religion in any of its manifestations. However, Sikhs now have their own unique
law regarding marriage thanks to the 2012 passage of the Anand Marriage (Amendment) Bill.
Therefore, unless it is proven that such persons are not covered by the Act under any custom
or usage, this Section applies to Hindus by religion in any of its forms, as well as Hindus within
the extended meaning, such as Buddhists, Jains, or Sikhs. In fact, it applies to all such persons
domiciled in the country who are not Muslims, Christians, Parsis, or Jews. The Act only applies
to Hindus who are residents of Indian territory and who are not otherwise.

Hindus by religion

Hindus by religion signify the following:

1. Those who practise the original religions of Buddhism, Judaism, Hinduism, or

Jainism.
Any person who is a Hindu, Jain, Buddhist, or Sikh by religion is a Hindu if:

• He practises, professes, or follows any of these religions; and

• He continues to be a Hindu even if he does not practise, profess, or follow the tenets
of any one of these religions.
This was correctly stated by the Supreme Court in Chandrasekhar v. Kulandaivelu (1962).
Therefore, a person does not stop being a Hindu if they become atheist, disagrees with or
departs from the core principles of Hinduism, falters in their observance of orthodox customs,
adopts a western lifestyle, or consumes beef.

2. Those who had previously converted to the religions of the Hindus, Jain, Sikhs, or
Buddhists.
A person who loses their Hindu identity by converting to a non-Hindu religion will regain their
Hindu identity if they revert to one of the four Hindu religions.

It is also to be noted that a non-Hindu can become a Hindu by means of conversion in the
following ways:

1. If he goes through the official conversion or reconversion ritual required by the caste
or group to which he converts or reconverts.
2. If he exhibits a sincere desire to convert to Hinduism and acts in a way that makes
that desire clear, as well as if he is accepted as a member of the group he was
welcomed into.
Furthermore, if a person genuinely says that he adheres to the Hindu faith without any ulterior
motives or intentions, this amounts to his acceptance of the Hindu understanding of God. When
he converts, he becomes a Hindu.

Hindus by birth

A person shall be a Hindu by birth under contemporary Hindu law if:

1. He was raised as a Hindu by one of his parents who is a Hindu or

2. Both of his parents are Hindus.
Regardless of whether the child is legitimate or not, they are Hindu.

If both or one of the parents convert to a different religion after the child is born, the child will
still remain a Hindu unless the parents decide to exercise their parental rights and also convert
the child to the new faith.

In Maneka Gandhi v. Indira Gandhi (1984), the Apex Court determined that Sanjay Gandhi
was a Hindu for the following reasons:

1. His mother was a Hindu, one of the parents, and

2. He was raised as a Hindu openly.
If the Central Government does not specify differently by publication in the official gazette,
nothing in this Act shall apply to members of any Scheduled Tribe (even if they are Hindus).
The majority of the scheduled tribes still follow their traditional laws.

Guardianship under the Hindu Marriage Act, 1955

The guardianship for marriage is outlined in Section 6 of the Hindu Marriage Act, 1955. When
a bride is required by this Act to get a guardian’s consent for marriage, the following
individuals are qualified to do so:

1. The bride’s mother,

2. Father,
3. Paternal grandpa,
4. Paternal grandmother,
5. Brother by full blood,
6. Brother by half-blood, etc.
Following the passage of the Child Marriage Restraint Amendment in 1978, guardianship for
marriage was abolished. In order to discourage child marriages, this amendment raised the legal
minimum age for marriage.

Registration of marriages under the Hindu Marriage Act, 1955

According to Section 8 of the Hindu Marriage Act of 1955, a marriage is instantly recorded by
the Registrar of Marriage on the same working day. All documents are verified on the
application date, and the marriage is then registered by the registrar of marriage appointed by
the Government of India on the following working day, and a marriage certificate is provided.

According to Section 8 of the Act, state governments may establish regulations for the
registration of Hindu marriages, allowing the parties to any such marriage to have details about
their marriages entered in the Hindu Marriage Register in the manner and under the conditions
that may be prescribed. This registration is being done to make it easier to prove Hindu
marriages. The state legislature may be presented with any rules created under this provision.
The Hindu Marriage Register shall be accepted as proof of the statements made therein and
should be available for inspection at all appropriate times.

Nullity of marriage under the Hindu Marriage Act, 1955

Any marriage is voidable and subject to annulment for the following reasons:

1. Failure to consummate the union due to impotence, which may be complete or

partial (for instance, impotence quoad hoc conditions);
 2. Violation of the valid consent mental illness condition specified in Section 5; or
3. Respondent’s pregnancy by someone other than the petitioner at the time of the
union.
A husband or wife may file for divorce under certain circumstances, such as a continuous
period of desertion lasting two years or longer, conversion to a faith other than Hinduism,
mental aberration, venereal illness, and leprosy. If a husband marries a second time after
starting their first marriage or if he has committed rape, sodomy, or bestiality, the wife may
also file a petition for the dissolution of the marriage. Within the first year of marriage,
newlywed couples are unable to sue for divorce.

Essentials of a valid marriage under the Hindu Marriage Act, 1955

The conditions for a valid marriage under Hindu law have been provided hereunder:

Both the parties to the marriage should be Hindu

Section 5 of the Hindu Marriage Act of 1955 specifies the prerequisites for a lawful Hindu
marriage, which provides that both parties must be Hindus. If one of the parties to the marriage
is a Christian or a Muslim, the marriage will not be considered a genuine Hindu marriage under
the Hindu Marriage Act of 1955. Therefore, under the Act of 1955, a lawful marriage cannot
be solemnised if both parties are not Hindus. In Yamunabai Anant Rao Adhav v. Anant Rao
Shivaram Adhav (1988), it was made clear that Section 5 of the Act only permits marriages to
be performed between two Hindus.

The parties to the marriage should not suffer from unsoundness of mind, mental disorder, or
insanity

In a Hindu marriage, a person must be able to give legally binding consent, according to Section
5(ii)(a) of the Act of 1995. The other party has the option to declare the marriage null and void
if neither of the parties is competent to offer legally binding consent to the union due to mental
incapacity.

According to Section 5(ii)(b) of the Act, a marriage may be dissolved at the discretion of the
other party if one of the parties, even though they are capable of giving legal consent, has been
experiencing a mental condition that renders them unfit for marriage and for having children.

In Alka Sharma v. Chandra Sharma (1991), the woman felt extremely chilly, anxious, and
frigid on the first night of the marriage. She was unwilling to participate in the sexual act. She
did not attend to the family members’ requirements and was unable to explain why she had
urinated on the verandah in front of the whole family. Thus, the husband initiated legal action
to dissolve the union. The marriage was declared null by the court.
It is also to be noted that, according to Section 5(ii)(c) of the Act, if one partner has experienced
repeated episodes of insanity, the other party may choose to have the marriage annulled.
The Marriage Laws (Amendment) Act, 1999 altered this clause of the Hindu Marriage Act of
1955, and the phrase “epilepsy” has been removed. Because of this, in modern times, if a party
to a marriage experiences frequent seizures, the marriage is still legal and the party cannot
choose to annul it.

The marriage should be monogamous

Section 5(i) of the Hindu Marriage Act, 1955 specifies that neither party had a spouse who was
still alive at the time of the marriage. The marriage is deemed null and void if any of the parties
had a spouse who was still alive at the time of the union. A bigamous marriage is therefore
invalid. A second marriage can be legally consummated after the first one has been ended by
death or divorce.

Any marriage between two Hindus that is solemnised before the commencement of legislation
is void if either party was married or already had a spouse at the time of the marriage, according
to Section 17 of the Act, which deals with the penalties for bigamy. Also, if a person solemnised
a second marriage while the original marriage is still in effect, they may be prosecuted and
punished in accordance with the requirements of Sections 494 and 495 of the Indian Penal
Code, 1860.

The parties to the marriage have attained the majority

The bride must be at least 18 years old and the husband must be at least 21 years old at the time
of the marriage, per Section 5(iii) of the Act. Any marriage that is performed in contravention
of these standards shall neither be null nor voidable. Additionally, anyone who solemnised
such a marriage could be prosecuted under Section 18 of this Act with a harsh sentence of up
to two years in jail, a fine of up to one lakh rupees, or both.

A marriage solemnised in contravention of the age requirements under Section 5(iii) was found
to be neither void nor voidable in the case of P. Venkataramana v. State (1977). However,
Section 18 of the Hindu Marriage Act of 1955 makes violating the terms illegal.

The parties to the marriage should not be related as Sapindas

A marriage between two people who are associated as Sapindas is void, according to Section
5(v) of the 1955 Act, if it is solemnised. To put it another way, the husband and wife shouldn’t
share the same ancestry. According to Section 3 (f) of the Hindu Marriage Act of 1955, a
Sapinda relationship is one in which a person extends as far as the third generation (inclusive)
in the line of descent through the mother and the fifth generation (inclusive) in the line of
descent through the father, the line in each case being traced upward from the individual in
question, who is to be counted as the first generation.

Even though the marriage between the Sapindas is null, it may still be lawful if there is a valid
custom or usage that governs each of them and allows for such a union. By virtue of Section
18 of the Act, a marriage solemnised between two parties related to Sapindas is void and the
parties are subject to punishment, which may include both simple imprisonment for a month
and a fine of Rs. 1,000.

The parties should not come under the degree of prohibited relationships

The parties should not be considered to be in a banned relationship under Section 5(iv) of the
Act unless their respective cultures’ traditions allow for marriage between them. According to
Section 3(g) of the Act of 1955, two people are considered to be in a banned relationship if
they are:

• If one is the other’s lineal ascendant or

• If one was married to or had a descendant from the other’s lineal ascendant;
• If one was the spouse of the other’s brother, father, mother, grandpa, grandmother,
or any other relative; or
• If one of the two is a brother or sister, an uncle or niece, an aunt or nephew, a child
of a brother or sister, or the children of two brothers or sisters.
A marriage between two people is void if it falls within the parameters of a banned relationship.
However, marriage is legitimate if it is governed by a valid custom or usage that applies to both
parties. It is crucial that the usage or custom being practised be certain, reasonable, and not in
conflict with public policy. Various traditions that validate marriage in the context of banned
partnerships can be found all over India. For instance, it’s usual practice in Kerala to marry off
siblings’ offspring.

In the case of Balu Swami Reddiar v. Balakrishna (1956), the court determined that it was
improper and against public policy, for one to marry his daughter’s daughter in accordance
with a Reddiar custom that was well-known among them in the state of Madras. A marriage
solemnised between two persons that fall under the definition of a forbidden relationship is
void pursuant to Section 18 of the Act, and the parties are subject to a fine of INR 1,000 or one
month’s simple imprisonment, or both, depending on the severity of the offence.

The marriage should be solemnised in accordance with the customary rites and
ceremonies

According to Section 7 of the Act, a Hindu marriage is lawful under the 1955 Act if it is
performed in conformity with the traditional rites and ceremonies of either party. If such rituals
and ceremonies involve the saptapadi and binding, when the seventh step is taken, the marriage
is considered to be complete.

In the case of Bibba v. Ramkall (1982), the court determined that performing certain
ceremonies merely with the goal of considering the couples married does not constitute
performing the legal rituals. Depending on each person’s customs, the ceremonies may differ.
For instance, a significant customary rite used by the Nair caste in Kerala is the presentation of
a piece of cloth by the bridegroom to the bride (pudava kodukal).

Live-in-relationship under the Hindu Marriage Act, 1955

The current issues of India’s recent generation, as associated with Hindu marriages are live-in
relationships. “Marriages are formed in heaven” refers to the belief that God or another kind
of divinity decides who gets married and when. Live-in relationship is regarded as a liability-
free way of living because it raises a fuss about the institution of marriage, which is deeply
ingrained in our culture. Additionally, the institutional and legal obligations to address this
issue fall short. There is no reform to the Hindu marriage laws of 1955 for this system.

The circumambulation around the Agni and the seven-step ceremony are acknowledged as the
essential elements of Hindu weddings in India, as per the Hindu Marriage Act of 1955. The
sentiment described here captures the core of the wife’s role in the marriage in the traditional
Brahma culture. The groom says “Vivaah” to the bride and makes seven wishes for their future
together, repeating “become one with me in thought and action, may we be blessed with many
offspring, and may they enjoy a long life” after each desire.

The world continues to view India as a nation where marriage holds a sacramental status on
both a philosophical and practical level. However, as the contemporary world has evolved, so
has the conventional idea of marriage, and now we can see a shift in our society from forced
marriage to live-in relationships and now to gay nuptials. Despite all these advancements and
the legalisation of some gay or live-in relationships, these relationships are still
overwhelmingly seen as immoral in our culture. The partners in these types of relationships
frequently experience difficulties because there is no specific legislation in India dealing with
live-in relationships. Finally, the judiciary was considered the last line of defence to resolve
these matters.

Void and voidable marriage under the Hindu Marriage Act, 1955
A marriage is null and void under Section 11 of the Act of 1955 if either party is already
married to another person. Only the second wife may file a petition under Section 11 in cases
where the marriage is nullified because the groom has taken a second wife. Only one of the
parties may file the petition to dissolve the marriage. If a husband remarried without first
getting a divorce decree because his first wife had left him and moved in with another man,
that second marriage would be null and void. A divorce decree issued by an experienced court
is necessary. The second marriage would also be null and void if the woman was unable to
demonstrate the practice of divorce through the assistance of a reputable member of society.
There is no provision in the 1955 Act that allows a woman to get an injunction stopping her
husband from getting a second marriage, even if she learns that he is considering it.

According to Section 12 (1), a declaration of nullity may be issued to declare a marriage null
and void for the following reasons:

1. Unsoundness of mind (is a violation of Section (5)’s clause (ii)).

2. The petitioner’s consent was coerced or gained fraudulently.

Unsoundness of mind

The 1955 Act particularly prohibits those with severe, incapacitating, and persistent mental
illnesses from getting married since they would be unsuited for marriage and childbearing.
Additionally, it states that the person must be unable to provide legal permission as a result of
mental disease. A marriage that deviates from the norm, however, can only be annulled at the
request of the other party, who must file a petition for nullity and bear the burden of establishing
the other person’s mental condition.

Consent obtained by means of fraud

According to Section 5 clause (i)(c), the marriage is voidable if the petitioner’s consent was
obtained under duress or by fraud with regard to the nature of the ceremony or any significant
event involving the respondent. Consent-voiding force includes both the threat of using force
and the actual use of force. Fraud’s primary component is deception. Relevant information
includes all relevant facts and situations that could persuade or otherwise affect a party’s
decision to give or withhold consent to marry. Consequently, a simple lie is not a fraud.
Similarly, not every lie or misrepresentation constitutes fraud. Thus, Section 12’s grounds for
annulling a marriage do not include just hiding the knowledge that the husband has been
married to another woman.

Divorce under the Hindu Marriage Act, 1955

Divorce is a term that requires no introduction. It alludes to a difficult and ugly breakdown of
a marriage. Although divorce has been described as the formal dissolution or termination of a
marriage, it actually involves much more than that. Today, unfortunately, a lot of marriages
end in divorce, and it’s startling to learn that most of them do so quite early on. Early Vedic
Hindu civilization viewed marriage as a ritual rather than a binding agreement between two
people. The union was perceived as being so pure, as having some sort of divine origin, and as
being predetermined. Therefore, divorce or separation of the partners in a marriage was not
permitted under ancient Hindu law.
The Hindu Marriage Act, which was passed in 1955, was the first piece of Hindu law to ever
allow for divorce. Prior to the statute, there was no divorce-related law. It outlines the
conditions under which any spouse may seek the dissolution of their marriage after establishing
the grounds. No one is eligible for divorce under Hindu law unless the court has allowed it.
Under the Hindu Marriage Act of 1955, there are separate remedies for judicial separation and
divorce. It was determined that some marriages were null and voidable in accordance with
Sections 11 and 12 due to the marriages’ failure to satisfy the necessary requirements set forth
in this Act for the legitimacy of marriage and the presence of the flaws or defects specified in
Section 12 respectively.

Section 13 of the Hindu Marriage Act of 1955 lists nine grounds for divorce that are fault-
based. Some of these grounds, like adultery, desertion, cruelty, insanity, leprosy, venereal
disease, and conversion or rejection of the world, are often founded on guilt theory and are
referred to as divorce fault grounds. Either party must establish at least one legal reason for
divorce in order to receive a divorce decree.

Marriage dissolution on fault grounds is a matrimonial relief provided by Section 13(1). The
opposite party may file for divorce if they can demonstrate any sort of fault or flaw on the side
of the other party. The Hindu Marriage Act, 1955, was revised in 1964 with the addition of
provision 13(1-A), giving both parties access to the remedy of divorce. The laws governing
marriage were changed in 1976, making the grounds for judicial separation and divorce
comparable.

Additionally, Section 13-B of the Marriage Laws (Amendment) Act of 1976 allowed for
divorce by mutual consent, giving the parties to the marriage the option of filing for divorce
without having to establish blame on either party’s part. Therefore, it is important to research
how legislation on marriage and divorce affects those two legal processes. We have been forced
to consider the relevance and significance of the idea of irretrievable breakdown of marriage
in divorce law as a result of its introduction.

Grounds for divorce

A matrimonial relationship (marriage) cannot be ended or dissolved for a reason not included
in the Hindu Marriage Act of 1955, the Court said in Rajender v. Anita (1992). The grounds
for divorce under the Hindu Marriage Act, 1955 have been provided hereunder:

Cruelty

According to the shifting social and economic conditions, the legal definition of cruelty has
changed over time and from society to society. Cruelty is a significant basis for divorce under
Section 13 of the Hindu Marriage Act, which also lists other grounds. Cruelty is one of the 12
grounds for divorce listed in the Special Marriage Act of 1954 and one of the eight grounds
listed in the Muslim Marriage Dissolution Act of 1939 for a woman who has been married to
a Muslim male to receive a divorce. The Supreme Court noted in the case of Ravi Kumar v.
Julmi Devi (2005) that cruelty has no definition and cannot be defined. It can come in an
unlimited variety, much like in marital situations. In other words, the definition of cruelty is
highly individualised. It may change depending on the setting, the time, and the economic and
social circumstances of the people.

Desertion

Desertion is defined as the willful permanent forsaking and abandonment of one spouse by the
other without the other’s permission and without reasonable cause by sub-section (1) of Section
13 of the Hindu Marriage Act of 1955. It is a complete rejection of the marriage’s
responsibilities. In order to commit the crime of desertion, the deserting spouse must meet two
requirements:

1. The Factum of Separation, and

2. The intention to bring cohabitation permanently to an end (Animus Deserendi)

Conversion

Under the Hindu Marriage Act of 1955, conversion implies that one has adopted some other
major religion that cannot be regarded as a Hindu religion. Only a divorce order based on one
of the grounds listed in Section 13 of the Act may dissolve a legally binding marriage, whether
it was performed before or after the Act’s implementation. The other person “has ceased to be
a Hindu by conversion to another religion” is one of the grounds under Section 13 (1) (ii). A
marriage consummated in accordance with the Act may not be annulled other than on the
grounds permitted under Section 13 of the Act.

Insanity

In Sona v. Karambir (1995), a board of doctors stated that the wife had intermediate-range
mental retardation, that her mental unsoundness was incurable, that she was unable to fulfil her
marital responsibilities, and that she offered completely false and nonsensical responses to
questions. Her case was determined to be covered by Section 13 (1) (iii) of the Hindu Marriage
Act of 1955.

Leprosy

In accordance with the Hindu Marriage Act of 1955, one spouse may seek a divorce on the
grounds that the other suffers from “virulent and incurable” leprosy. The duration of “virulent
and incurable leprosy” has now been removed by means of the 1976 Amendment to the Hindu
Marriage Act, 1955. According to Section 13(1) (iv), it is not essential for the petitioner to
demonstrate that the respondent had been affected by the incurable and virulent type of leprosy
for three years (or one year, as the case may be), prior to the petition for matrimonial relief.

Venereal disease

Venereal diseases are conditions that have a high likelihood of spreading from one person to
another through sexual activity, such as anal sex, oral sex, and vaginal sex. In accordance with
the matrimonial laws of the majority of Indian groups and in accordance with the Hindu
Marriage Act, venereal disease is a reason for divorce and judicial separation. It consists of
several infectious disorders that are most frequently contracted during sexual activity.

Concept of divorce with mutual consent

The Hindu Marriage Act of 1955 was amended in 1976 to include Section 13B, which added
the basis for divorce by mutual consent. According to Section 13 B (1), the parties seeking a
divorce must jointly present the petition for divorce to the court. Similar to Section 13 B (2),
which states that both parties must present the motion for hearing.

It should be noted that under Section 13 B of the Hindu Marriage Act of 1955, a petition for
divorce filed under Section 13 of the said Act may be changed to a plea for divorce by
permission of the parties. Even at the appellate level, the court may permit the divorcing parties
to amend a petition for relief under Section 13 or any other section to be turned into a petition
for divorce by mutual consent. These conversions of petition cases include Padmini v. Hemant
Singh (1993) and Dhiraj Kumar v. State of Punjab (2018).

Renunciation of world

According to Section 13(1)(vi), if one spouse joins a religious order and renounces the world,
the other spouse may submit a petition for divorce. For filing for divorce on this ground, the
following two requirements must be met:

1. The respondent must have given up on life in general (Sanyasa),

2. He must have joined a religious organisation.
A person is considered to have joined a religious order when they participate in certain rituals
and ceremonies that are required by their religion, according to the ruling in the case of Sital
Das v. Sant Ram (1954).

Presumption of death

According to the 1955 Act, if a person has not been reported as being alive for at least seven
years, they are deemed to be dead. Under all matrimonial laws, it is the petitioner’s
responsibility to show that the respondent’s whereabouts have not been known for the required
amount of time. Sections 107–108 of the Indian Evidence Act of 1872‘s presumption of death
premise serve as the foundation for this clause. In Nirmoo v. Nikkaram (1968), it was decided
that if a person marries someone else without obtaining a divorce decree after supposing their
husband has passed away, their spouse may later contest the validity of the second marriage.

Wife’s special grounds for divorce

Under the Hindu Marriage Act of 1955, a wife has been given some extra grounds for divorce
or judicial separation in addition to the ones that are open to both the husband and the wife.
Two special reasons for divorce were first offered to wives under Section 13(2) of the Hindu
Marriage Act of 1955. Two new grounds for blame were added for wives under the Marriage
Laws (Amendment) Act of 1976. As a result, a Hindu woman can only file for divorce under
one of four unique grounds.

1. Pre-Act polygamous marriage.

2. Rape, sodomy or bestiality.
3. Non-resumption of cohabitation after a Decree/Order of Maintenance, and
4. Repudiation of marriage.

Irretrievable breakdown of marriage under Hindu Law

When a married couple no longer loves each other and has no more positive or negative feelings
toward one another, their marriage has irretrievably broken down. There is no longer any sense
of acceptance, love, concern, or respect. When neither party to a marriage wishes to live
together, when there is no longer any connection between them, and when there is no hope of
reconciliation, the marriage is said to have irretrievably broken down. Hinduism as a religion
has long opposed the idea of divorce, but the passage of the Hindu Marriage Act in 1955
transformed both religious doctrine and the sacramental nature of Hindu marriage.

Now, everyone who is married has the legal right to file for divorce on one of the recognised
grounds. The reasons for divorce include those based on fault, marital incompatibility, and
mutual consent. However, the issue at hand is the irretrievable breakdown of a marriage, which
is a no-fault ground. This ground is covered under Section 13(1-A) of the Hindu Marriage Act
on the grounds of judicial separation and non-resumption of cohabitation. It has not yet been
included as a distinct basis for divorce.

“We are absolutely convinced that the marriage between the parties has irretrievably broken
down because of incompatibility of temperament,” the court stated in Sangamitra Ghose v.
Kajal Kumar Ghosh (2007 2 SCC). In fact, the emotional foundation of the marriage has
completely vanished. Because there is no possibility of saving the marriage and the
matrimonial link between the parties is beyond repair, it is in everyone’s best interests to
acknowledge this truth and proclaim what is already defunct de facto defunct de jure.

In the case of Navin Kohli v. Neelu Kohli (2006), the Supreme Court argued for the legislature
to include an irretrievable breakdown of marriage as a basis for divorce under the Hindu
Marriage Act. It stated, “undoubtedly, it is the obligation of the Court and all concerned that
the marriage status should, as far as possible, as long as possible, and whenever possible, be
maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to
save it. The emotional foundation of the marriage has completely disappeared in the current
instance. The marriage is beyond repair, and it is in everyone’s interests and the public’s to
acknowledge this truth and declare what is already defunct de facto to be defunct de jure.
Maintaining the fake encourages immoral behaviour and may harm the public interest more
than dissolving the marriage contract does.”

Exercising of inherent powers under Article 142 of the Indian Constitution by the Supreme
Court on matters of divorce

According to Article 142 of the Constitution, the Supreme Court has the inherent authority to
see that justice is served, and no court is barred from rendering justice to parties that come
before it due to a lack of jurisdiction or legal authority.

In many cases, the Supreme Court has used its inherent authority. For example, in Manish Goel
v. Rohini Goel (2010), the court declared that “the marriage is totally unworkable, emotionally
dead, beyond salvaging, and has broken down irretrievably even if the facts of the case do not
provide the ground in law in which the divorce could be granted.”

In Rishikesh Sharma v. Saroj Sharma (2006), the court held that there was no point in
compelling the appellant and respondent, a married couple, to live together if they had been
apart for more than 17 years.

The husband and wife in Sukhendu Dass v. Rita Mukherjee (2017) were district judges in the
state of West Bengal. The husband’s request for a divorce was denied because he was unable
to establish his wife’s cruelty. Aside from dismissing the appeal, the top court ruled that an
irretrievable breakdown of a marriage cannot provide grounds for divorce. After filing a written
statement, the wife did not show up in front of the trial court. She did not show up either for
the High Court or the Supreme Court hearings. The Court noted the aforementioned behaviour
from her and stated that it suggested she was not interested in cohabitating with her husband.
Referring to the Samar Ghosh v. Jaya Ghosh (2007) case, the Bench stated that refusing to take
part in the divorce process and compelling the appellant to remain in a dead marriage would
both be considered acts of mental cruelty.
The Supreme Court alone has the authority to grant a divorce order based on the irretrievable
dissolution of a marriage, and no other court has this authority, the court further held. It is clear
from the judgments above that the Supreme Court of India and the Law Commission of
India have periodically advised the legislature to change the Hindu Marriage Act of 1955 to
include an irretrievable breakdown of marriage as a reason for divorce.

From 28th September, 2022 onwards, the 5-Judge Bench headed by Justice S.K. Kaul and with
Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari commenced with the
hearing of Shilpa Sailesh v. Varun Sreenivasan (2022), where its indulgence is requested to
evaluate the scope of its authority to dissolve marriages under Article 142 of the Constitution
of India, 1950. The case remains ongoing.

Restitution of conjugal rights under the Hindu Marriage Act, 1955

Section 9 of the Hindu Marriage Act of 1955 provides for the restoration of conjugal rights.
Section 9 of the aforementioned Act recognises and protects one aspect of conjugal rights, the
right to the consortium, by allowing a spouse to file a lawsuit to defend the right. The capacity
to request maintenance under Section 25 of the Hindu Marriage Act, 1955 is one of the
significant consequences offered to an aggrieved party under Section 9 of the Hindu Marriage
Act, 1955.

The significance of conjugal rights in a marriage is recognised by numerous provisions of

Indian personal law. In the strictest sense, marriage rights refer to the freedom to cohabit and
have a sexual relationship with one’s spouse. The wife and husband must respect each other’s
rights and live together, which is one of marriage’s most basic obligations. “Restitution of
Conjugal Rights” is a legal clause that enables the offended party to restore cohabitation with
a spouse who withdrew without cause. It’s frequently thought of as a strategy to keep a
marriage intact. Marriage imposes various marital obligations and grants each spouse legal
rights under all matrimonial laws. The Act’s contested clause has a lengthy history due to its
constitutional legitimacy.

Although it was designed to safeguard the interests of those involved in a marriage bond, this
clause has faced challenges and criticism for a number of reasons. The provision’s
constitutionality was contested in the T. Sareetha v. T. Venkatasubbaiah (1983) case before the
Andhra Pradesh High Court. According to the plaintiff in this lawsuit, Section 9 of the Hindu
Marriage Act breaches fundamental rights protected by Articles 14 and 21 of the Constitution.
The Court felt that this clause was particularly unfriendly and barbaric toward women. Her
right to her own body is violated as a result of this forced cohabitation, and she loses her free
choice regarding her sexual autonomy. As a result, a decree of restitution of conjugal rights
will offend her right to privacy protected by Article 21. Since sexual cohabitation is a private
decision between a husband and wife, the abovementioned provision was initially ruled illegal
by the Court in 1983. Accordingly, the state should not intervene in such private decisions.
The Delhi High Court, however, held a different viewpoint. The Court noted that there are
various misunderstandings about Section 9 that have sparked discussions about its
constitutionality and given rise to such discussions. Marriage is a religious ceremony,
according to the Court, and efforts have been taken by the law to maintain its sanctity.
Therefore, the restitution of the conjugal rights clause was implemented to prevent either the
husband or the wife from ending their cohabitation without a good reason. The true purpose of
the regulation, which is to uphold the marriage tie between two people, must therefore be taken
into account when determining whether it is constitutional. As a result, the Court determined
that Section 9 does not contravene Articles 14 and 21 because it was included as a new
justification for filing for divorce. Sexual activity should not be viewed as the summum bonum
because it is one of the components of the institution of marriage, which is founded on
cohabitation and consortium.

The Supreme Court’s ruling in the case of Saroj Rani v. Sudarshan Kumar Chadha in 1984 put
an end to all disputes. The Delhi High Court’s judgment was accepted in this instance, and the
Andhra Pradesh High Court’s decision was overturned. According to the Court, the relevant
clause “serves a societal purpose as an assistance to the avoidance of marriage
breakdown” and functions as a remedy. Although this remedy may be antiquated in nature, its
purpose is to serve as a basis for divorce should the parties in question refuse to make such
reparation. In addition, the Court believed that it was up to the legislature to repeal Section 9
as a remedy, not the courts. Thus, in this historic decision, Section 9 was found to be
constitutionally legitimate.

Maintenance under Hindu Marriage Act, 1955

According to the 1955 Act, spousal maintenance is a highly intricate subject. It is frequently
claimed that asking for lifetime alimony is a way to take advantage of the husband. According
to Section 24 of the Hindu Marriage Act of 1955, either the husband or the wife may request
maintenance pendente lite, or support while legal action is pending. Additionally, Section 25
of the Act outlines the prerequisites for permanent alimony. The payments that a husband is
obligated to make to his wife under certain conditions are referred to as maintenance. Payment
of maintenance may be required both during the marriage’s continuation and after its
divorce. The first consideration in maintenance is whether the party receiving it lacks an
independent source of income to support themselves. With the exception of the Divorce Act,
none of the Indian matrimonial statutes specify the amount of maintenance or the costs
associated with the process.

Section 24 of the Hindu Marriage Act, 1955

1. Section 24 of the Hindu Marriage Act, 1955 talks about maintenance pendente
lite and expenses of proceedings. If either spouse is unable to support themselves
while the case is pending, relief may be given under Section 24 of the Hindu
Marriage Act of 1955 in the form of maintenance and court costs.
 2. Section 24 gives the court the authority to order either spouse who is unable to
sustain themselves independently to pay for the costs of the proceedings as well as
interim maintenance. It may be asserted in any Act procedure, including one to
obtain a decree of nullity pursuant to Section 11 of the 1955 Act.
3. The costs associated with the proceedings include the cost of the attorney’s services
and money to cover the costs of postage, clerical work, and travel. Before issuing
an order pursuant to Section 24, the court shall take into account the income of both
spouses. Whether or not such a spouse appears as the main proceeding’s originator,
this rule nevertheless applies. The only factor to be taken into account when
assessing whether to grant maintenance pendente lite is whether the claimant is or
is not able to support themselves.
4. As was observed in the case of Chitra Lekha v. Ranjit Rai (1976), the purpose of
Section 24 is to give financial support to the indigent spouse so they can maintain
themselves (or themselves) while the proceedings are ongoing and have enough
money to defend or continue the litigation so that the spouse does not
disproportionately suffer in the conduct of the case due to a lack of funds.
5. Under Section 24 of the Act of 1955, the court cannot refuse to award interim
maintenance and the cost of the proceedings on the grounds that the applicant is
unlikely to prevail in the dispute. Section 24 envisions a brief investigation rather
than a thorough trial. According to the proviso attached to Section 24, the
application for the payment of interim maintenance and proceeding expenses must,
in most cases, be resolved within sixty days of the date notice was served on the
party.

Section 25 of the Hindu Marriage Act, 1955

1. If a decree of restitution of conjugal rights, judicial separation, divorce, or

annulment of marriage is issued under the Act, 1955, both the husband and wife
may be granted maintenance and permanent alimony if they are unable to support
themselves, under Section 25 of the Hindu Marriage Act, 1955.
2. A court order of the type contemplated by Sections 9 to 13 of the Hindu Marriage
Act, 1955 must be issued in order to be eligible for alimony and maintenance under
Section 25. In Chand Dhawan v. Jawaharlal Dhawan (1993), the Supreme Court
ruled that the language “making any decree” indicates that an order for perpetual
alimony can be obtained whenever a judgment is passed under the Act providing
any substantive relief, not when the main petition is dismissed or withdrawn. The
term “decree” refers to a ruling made pursuant to Sections 9-13 of the Act that causes
the parties’ marital status to be disrupted.
3. The relief of alimony and maintenance cannot be provided under Section 25 if the
relief under either of these sections is denied. If the main proceedings are
unsuccessful and a spouse is not granted any relief under Section 25 as a result, the
 spouse may pursue maintenance under Section 18 of the Hindu Adoption and
Maintenance Act.
4. According to Section 25(2) of the Act, the court may alter or revoke any order for
permanent alimony upon showing that the parties’ circumstances have changed.
However, a gross-sum payment order is a straightforward payment, thus it cannot
be changed or modified. In addition, Section 25(3) provides that in the event of the
following two events, maintenance under Section 25(1) may be revoked if the party
in whose favour the order is granted has:

• Got married again.

• In the case of the wife, she has broken her vow of celibacy.
• In the case of the husband, he has engaged in sexual activity with any woman not
related to him.
Landmark judgments surrounding the Hindu Marriage Act, 1955
Courts across India have time and again interpreted the provisions of the Hindu Marriage Act,
1955 so as to make the legislative intent clear, thereby achieving the purpose behind the statute.
Some of the landmark rulings alongside ratio decidendi have been discussed hereunder.

Lily Thomas v. Union of India (2006)

In the matter of Lily Thomas v. Union of India (2006), a Supreme Court petition was brought
up about the status of the first marriage in a situation where a non-Muslim converted to the
‘Muslim’ faith without actually changing his or her beliefs or divorcing the first wife. It was
decided that unless a divorce decree was acquired, a couple’s marriage would not be dissolved
under Hindu law just because they changed their religion. The issues that came up before the
Apex Court in this case were:

1. If non-Muslim converts to the ‘Muslim’ faith without experiencing any real

change in faith or belief and only in order to avoid an existing marriage or enter
a second marriage, will the marriage he enters after such conversion be void?
Any marriage solemnised by the husband during the course of that marriage, despite his
conversion to a different religion, would be a crime that could be tried under Section 17 of the
Hindu Marriage Act, 1955, read with Section 494 of the IPC, as bigamous marriage is against
the law and has been made into an offence. Any marriage between two Hindus is deemed null
and void if the following criteria are met:

• If either partner had a spouse who was still alive at the time of the marriage and
• The ceremony took place after the Act’s implementation.

2. Is the Respondent subject to bigamy prosecution under Section 494 of the IPC?
A person could face prosecution under Section 494 of the IPC if they enter into a second
marriage while their first marriage is still active. This second marriage would also be illegal
under Sections 11 and 17 of the Hindu Marriage Act, 1955. The case of Robasa Khanum v.
Khodadad Irani (1946) was also brought up, in which the learned Judge ruled that the behaviour
of a spouse who converts to Islam must be evaluated in accordance with the principles of
justice, right, or equity, as well as a good conscience.

3. Whether having a Uniform Civil Code would be a good idea?

Even though uniform legislation is highly desired, the nation’s unity and integrity may suffer
if it is enacted all at once. It should bring about progressive change and order over time in a
democracy under the rule of law. Because of this, it would be unrealistic and unjust to believe
that all laws could be rendered uniform at once. However, the legal system can address
mistakes or flaws that develop over time. Regarding the Uniform Civil Code, R.M. Sahai, J.
the other honourable judge who made up the Bench recommended certain actions the
government should take to prevent the misuse of religion by dishonest people who, while
claiming to have converted, were discovered to be polygamists in reality.

Revanasiddappa v. Mallikarjun (2011)

In Revanasiddappa v. Mallikarjun (2011), a Special Bench of the Supreme Court composed of

Justices G.S. Singhvi and Asok Kumar Ganguly made the observation that regardless of the
relationship between parents, the birth of a child out of such a relationship must be viewed
independently of the relationship between the parents. There is no doubt that a child born from
such a relationship is innocent and is entitled to all the rights and privileges accorded to a child
born from a legally binding marriage. Section 16 of the Hindu Marriages Act of 1955
(amended) is based on this principle.

While noting that Section 16 of the Hindu Marriage Act of 1955 declares children of a void or
voidable marriage to be legitimate but expressly states that they are only entitled to claim the
property of their parents and not of any other relation, the Supreme Court ruled that such
children shall be considered on an equal footing with the legitimate offspring of valid marriages
without any discrimination and be entitled to all rights in the property. The only restriction is
that such children are not permitted to request partition prior to their parents’ passing.

Joydeep Majumdar v. Bharti Jaiswal Majumdar (2021)

In the recent case of Joydeep Majumdar v. Bharti Jaiswal (2021), the Supreme Court noted
that the wife was making accusations that were harming the husband’s reputation and job,
which would undoubtedly qualify as mental cruelty. The respondent, a professor at the
Government P.G. College, Tehri, with a Ph.D., and the appellant, an Army officer with an
M.Tech., were married on September 27, 2006, and they cohabited for a short time in
Visakhapatnam and Ludhiana. But from the beginning of their marriage, disagreements arose,
and as of September 15, 2007, the couple no longer lived together.

In the divorce proceedings, the appellant claimed that the respondent had made multiple false
allegations against him that had hurt his profession, destroyed his reputation, and caused him
mental cruelty. The respondent, on the other hand, claimed that her husband had abandoned
her without a valid reason in her case for the restoration of conjugal rights, and as a result, she
pleaded with the appellant for guidance in order to resume married life.

According to the Supreme Court, for a marriage to be considered for dissolution at the request
of a spouse who claims mental cruelty, the outcome of the mental cruelty must be such that it
is impossible to maintain the married relationship. In other words, it is unreasonable to expect
the victim of a wrong to support the behaviour in question while maintaining a marital
relationship.

The High Court’s verdict was challenged, and the Court ruled that there was sufficient evidence
to overturn it and reinstate the order made by the Family Court since the respondent had treated
the appellant cruelly. As a result, the respondent’s request for restitution of conjugal rights was
denied and the appellant was declared to be entitled to a divorce.

Muslim Marriage
Marriage under Islam is a matrimonial relation and an institution which legalizes the sexual
activities between a male and female for the object of procreation of kids, promotion of love,
mutual support and creation of families which are considered an essential unit in a society. Just
like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception
of marriage differs from the Hindu conception according to which marriage is not a mere civil
contract but a sacrament. According many philosophers, marriage in Islam is a religious duty.
Everyone must marry in order to fulfil one’s desire of procreation of kids legally.
Muslim law has been derived from various codified and uncodified sources like- Quran, Ijma,
Qiyas, customs, urf, precedents, equity and various legislations. There are 4 major sunni school
of thoughts- hanifa, hamabli, maliki and shafai. These four schools recognize each other’s
validity and they have interacted in legal debate over the centuries. In India, Hanifa school of
Islamic law is dominant.

The general essentials of a Muslim Niqah are:

• Parties must have capacity to marry.
• Proposal (ijab) and acceptance (qubool).
• Free consent of both the parties.
• A consideration (mehr).
• No legal Impediment.
• Sufficient witnesses (different in shia and sunni)
Classification of Marriage
Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then
the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case
of permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the
marriage is irregular.
Effects of a valid marriage
• The cohabitation between the husband and the wife becomes lawful.
• The children born out of a valid marriage are legitimate and they have right to inherit
their parent’s properties.
• Mutual rights of inheritance between husband and wife are established. That is to say,
after the death of the husband, the wife is entitled to inherit the husband’s properties
and after the wife’s death, husband may also inherit her properties.
• Prohibited relationship for purposes of marriage is created between the husband and
wife and each of them is prohibited to marry the relations of the other within prohibited
degrees.
• The wife’s right to claim dower is fully established just after the completion of marriage.
• The marriage gives to the wife also the right of maintenance from her husband with
immediate effect.
• After the dissolution of the marriage, the widow or the divorced wife is under an
obligation to observe the Iddat, during which she cannot remarry.
Void (Batil)
The marriage being void ab initio creates no rights or obligations and the children born out of such
marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or
fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddah
period is also void.
Irregular (Fasid)
Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage
becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus,
the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage
in such circumstances or with following prohibitions are called ‘Fasid’.
1. A marriage contracted without required number of witnesses;
2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when such consent is
considered necessary;
4. A marriage prohibited on account of difference of religion;
5. A marriage with a woman who is pregnant, when the pregnancy was not caused by
adultery or fornication;
6. A marriage with a fifth wife.
Muta or Nikah mut’ah
The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited
time period, upon which both the parties agreed. There is no prescribed minimum or maximum
time limit, it can be for a day, a month or year(s). The marriage dissolves itself after the expiration
of the decided period, however if no such time limit was expressed or written, the marriage will be
presumed permanent. This type of marriage is seen as prostitution by the Sunni Muslims and thus,
is not approved by Sunnis.
However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and
constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from time to time
utilized and this practice is called ‘sigah’. The rules for sigah are fixed for eg- the contract for
temporary marriage can be attracted for one hour to 99 years; it can’t be for an indeterminate period.
This provision distinguishes mut’a from nikah or lasting marriage, which has no time limit.
However, just like in nikah, in sigah too, the bride must get some monetary benefit.
No witnesses are required for mut’ah. And just like in any other contract, the woman being a party
can lay down conditions for her sexual union throughout this time limit, this can also include her
daily maintenance. Her temporary husband must respect these conditions. The marriage
automatically dissolves at the end of the stated period. No matter how short the duration was, the
woman has to practice abstinence lasting up to two menstrual cycles.
Interesting part is that, the temporary husband and wife can renew the contract but the husband
must regardless of this pay the amount to the bride. Husband has a unilateral right to revoke the
marriage-mark of his superior position in the relationship. But the woman can refuse to be intimate
with him or even leave him, but in such case, she must return back the amount she received from
him.
India is a country that has partially approved live-in relationships; However, it will still be quite
difficult for the Supreme Court to constitutionally invalidate this form of marriage. In modern day
era, where feminists all across the globe see this arrangement equivalent to prostitution. There are
many advocates of Nikah mut’ah who believe that being a contract, this arrangement is superior to
the live- in relationships.
Registeration of Marriage under Muslim Law
Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is treated
as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981- “Every
marriage contracted between Muslims after the commencement of this Act, shall be registered as
hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama
is a type of legal document in Muslim marriages which contains the essential conditions/details of
the marriage.
According to this act, a Nikahnama contains:
1. Place of marriage (with sufficient particulars to locate the Place.)
a. Full name of the bridegroom
b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether – Unmarried
Widower Divorced Married, and if so, how many wives are alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the
Nikah was performed in person by the bridegroom or through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address
Dissolution of Marriage
There are 2 categories of divorce under Muslim law:
• Judicial
• Extra-Judicial
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:
1. By husband- talaaq, ila, and zihar.
2. By wife- talaaq-i-tafweez, lian
3. By mutual agreement- khula and mubarat
A divorce falls into 2 categories:
Talaaq-i-sunnat
It can further be divided into two categories:
i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the period of purity between
two menstrual cycles), followed by abstinence from sexual intercourse during the period of iddat.
Here, the divorce can be revoked at any time before the completion of iddat, thus preventing hasty
and unreasonable divorces.
ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times, during three successive tuhrs.
It is important that pronouncements are made when no intercourse takes place during any period
of tuhr. The marriage is dissolved irrevocably, regardless to the period of iddat.
Talaaq-i-Biddat
It is a form of Islamic divorce which is instant in nature. It allows any Muslim man to legally
divorce his wife by stating the word “Talaaq” three times in oral, written, or more recently,
electronic form. This is prevalent among the Muslims in India, especially among the adherents
Hanafi school of Islam. This is also known as “Triple Talaaq” and has been a subject to debate and
controversy.
In Shayara Bano V. Union of India and Ors. It was submitted that:
“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women like chattel
is neither harmonious with modern principles of human rights and gender equality, nor an integral
part of Islamic faith, according to various noted scholars. Muslim women are subjected to such to
such gross practices which treats them as chattel, thereby violating their fundamental rights
enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice also wreaks havoc to the
lives of many divorced women and their children, especially those belonging to the weaker
economic sections of the society.”
There have been many cases in High courts and the supreme court, where the court invalidated the
instant triple talaaq. In Shamim Ara V. State of U.P, the court observed that:
The correct law of Talaaq as ordained in Holy Quran is that:
1. There must be a reasonable cause for the divorce.
2. The declaration of divorce must be preceded by attempts of reconciliation between
husband and wife by 2 arbitrators. If the attempts fail, then only the divorce will come
into effect.
Supreme court in August 2017 declared Triple Talaaq as “unconstitutional”. The Modi Government
introduced a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and
presented it in the Parliament which was passed on 28 December 2017 by the Lok Sabha. The bill
makes moment triple (talaq-e-biddat) in any structure spoken, recorded as a hard copy or by
electronic methods, for example, email, SMS and WhatsApp unlawful and void, with as long as
three years of imprisonment for the husband.
However, one of the principle conflicts against the proposed enactment has consistently been its
acknowledgment of a common offense as a cognisable and non-bailable offence.
The notions of Muta marriage can be evidently seen in our country. In India, temporary marriage
is not recognized, although there exists few who contract Muta marriage but such marriages are not
enforceable in court. Hyderabad is considered to be the epicentre of the practice where marriage
can be instituted for time span as short as one or two days. In a Hyderabad case it was held that
there is no difference between muta for an unspecified period and a muta for life; a permanent
nikah marriage for life can be contracted by the use of word muta also; specification of the period
for which a muta marriage is contracted alone makes a marriage a temporary marriage for the period
specified.
The practice of Temporary “Muta” marriage is widespread in the modern times and often arranged
by Imams and other Islamic leaders in Europe, America (Shia parts of Dearborn, Michigan), and
in the Middle east. It is commonly the destitute widows and orphaned girls that are within the
clutches of temporary marriage who are often sold to old men. For the women, there is no desire
or pleasure that drives them into such misery; it is the extreme means to pay the rent and feed
themselves and their children. As a result, this arrangement has received widespread criticism by
various countries as it impliedly encouraging legalization of prostitution.
The conflicts over the rights of minority women are best dealt with by creating new representative
bodies which have special provisions to ensure that women are sufficiently represented. In the Shah
Bano case, this would have meant creating a new mechanism to administer Muslim personal law
instead of simply recognizing the Muslim Personal Law Board as the legitimate representative of
the Muslim community. Creating a new mechanism is more sensitive to the political reality of
Muslims in India, which is that they consist of widely dispersed groups characterized by significant
differences. It would also make some provision to ensure that Muslim women have some access to
the institutions which make the rules which govern their lives.

Christian Marriage
According to the Canon Law, marriage is a conjugal union of a man and a woman which arises
from a free consent of each spouse. A Christian Marriage in India is a contract and is usually
solemnized by the Minister of Religion licensed under the Indian Christian Marriage Act, 1872.
It can also be solemnized by the Marriage Registrar. In this article, we shall study different
conditions for valid Christian marriage.
In Hyde v. Hyde, (1860) 1 and D 130 at 133 case, Lord Penzance defined a marriage as ” I
conceive that marriage as understood in Christiandom may be defined as the voluntay union
for life of one man and one woman to the exclusion of all others”. This definition has flaw
because it emphasizes on the indissolubility aspect of the marriage.
In Nachimson v. Nachinsom, (1930) 1 and D p. 271 case, the Court observed that it should be
the intention of the parties when they enter into marriage that it should last for life. Though,
later on, it may be dissolved on any ground available to the parties including the irretrievable
breakdown of marriage.
The conditions for a valid Christian Marriage are as follows:
One of the parties to the marriage must be Christian:
According to Section 4 of the Act, every marriage between persons, one or both of whom is or
are a Christian, or Christians, shall be solemnized in accordance with the provisions of the next
following section; and any such marriage solemnized otherwise than in accordance with such
provisions shall be void.
In David v. Nilamuni Devi (AIR 1953 Ori 10) case the Court held that persons who are
followers of the Christian religion are “Christians” and that baptism is not a condition precedent
for professing the Christian religion. Hence a person who is not baptized can be a Christian
with reference to the Indian Christian Marriage Act, 1872.
Marriageable Age:
According to Section 60(1) of the Indian Christian Marriage Act, 1872, the age of the bride
and groom, just like other marriage laws, has been set as eighteen and twenty-one respectively
within the Act.
The Child Marriage Restraint Act, 1929-78 apply to all communities and prohibit child
marriages. But the Acts do not affect the validity of child marriage, which is governed by
personal law of parties to marriage. The Act is a penal legislation and provides for punishment
for the violation of the provisions of the Act.
Authorities to Solemnize Christian Marriage:
According to Section 60(3) of the Act, the marriage under the Act becomes valid only when it
is solemnized by the licensed person/authority under the Act.
According to Section 5 of the Indian Christian Marriage Act, 1872, a Christian Marriage can
be solemnized by any person
o who has received episcopal ordination. And it should be solemnized according to the
rules of the Church of which he is a minister.
o by any Clergyman (a male priest especially in a church) of the Church of Scotland given
that such a marriage is solemnized according to the rules, rites, ceremonies, and
customs of the Church of Scotland
o can be solemnized by a Minister of Religion licensed under this Act. The minister of
Church is any person who have received Episcopal Ordination of the Church of which
he is a Minister.
o can be solemnized in the presence of a Marriage Registrar appointed under this Act
o by any person licensed under this Act to grant certificates of marriage between Indian
Christians
Time of Marriage:
According to Section 10 of the Indian Christian Marriage Act, 1872, all the marriages under
this Act shall be solemnized between the stretch of 6 am in the morning and 7 pm in the
evening.
Place of Marriage:
According to Section 11 of the Indian Christian Marriage Act, 1872, no Clergyman of the
Church of England shall solemnize a marriage in any place other than a church unless there is
no church within five miles distance by the shortest road from such place OR unless he has
received a special license that authorizes him to do so under the hand and seal of the Anglican
Bishop of the Diocese or his Commissary.
Free Consent to Marriage:
The agreement between the two parties must be free and voluntary and without compulsion,
undue influence, or threat of violence.
No Living Spouse:
According to Section 60(2) of the Act, neither of the persons intending to be married shall have
a wife or husband still living. Bigamy is not permitted under the Act.
Witnesses:
According to Section 60(3) of the Act, the presence of at least two credible witnesses other
than person who is solemnizing the marriage is mandatory.
Prohibition of Consanguinity or Affinity:
The Indian Christian Marriage Act, 1872 does not specify the degrees of prohibited relationship
but merely lays down that a marriage which is forbidden by the personal law of the parties is
not valid. This includes prohibitions such as prohibited degrees of consanguinity or affinity.
The Divorce Act lays down that the parties should not be within the prohibited degrees of
consanguinity (whether natural or legal) or affinity.
Registration of Marriage:
Registration of the marriage is mandatory. According to Section 61 of the Act, the Marriage
Officer / Authority shall issue Certificate of Marriage in the form contained in the Second
Schedule of the Act. This certificate is conclusive evidence of the marriage.
A Christian Marriage in India is a contract and is usually solemnized by the Minister of
Religion licensed under the Indian Christian Marriage Act, 1872. It can also be solemnized by
the Marriage Registrar. The main conditions for valid Christian marriage are as follows: The
age of the bride and groom has been set as eighteen and twenty-one respectively within the
Act. All the marriages under this Act shall be solemnized between the stretch of 6 am in the
morning and 7 pm in the evening in church only. There must be at least two witnesses. The
marriage should be with free consents of the parties to marriage. Registration of the marriage
is compulsory

Marriage under Special Marriage Act

Marriage has traditionally held a sacred place in Indian society, with people placing the union of
two individuals as a couple on a very high pinnacle. Throughout history, the practice of
marriage has accumulated so many norms and ethics that it has resulted in a union of two
families rather than two individuals. When picking partners for marriage, there is frequently a
significant level of social involvement. In many regions of India, for example, marriage
between members of the same social status or caste has become a norm, while inter-caste
marriages are strongly prohibited. Inter-religious marriages, on the other hand, are frowned
upon, with individuals being outcasts or socially boycotted simply for marrying someone of
their choice who does not share their religious beliefs and customs. Various vigilante
organisations have further exacerbated the couples’ troubles to the point where they must
engage in a protracted battle to guarantee that their lives and safety are not jeopardised.

As one of independent India’s most significant secular initiatives, the Special Marriage Act,
1954 was brought into the Indian legal system in 1954. The Act was intended to be a piece of
legislation that controls weddings that could not be solemnised due to religious traditions. The
Act applies to all Indian nationals, whether they live in India or outside. The State of Jammu
and Kashmir is not included in the scope of this Act, although persons domiciled in other states
but residing in Jammu and Kashmir would be eligible for these provisions.
It is a piece of law that establishes a special type of marriage by registration. Marriage is unique
in that there is no requirement to convert or reject one’s religion. Unlike conventional arranged
weddings, which include two families from the same caste or community, the Act aspires to
legalise interreligious or inter-caste marriages. The Act’s Certificate of Registration has been
regarded as universal evidence of marriage. As stated in the Preamble, the Act allows for a
special form of marriage in specific circumstances, registration of such and other marriages,
and divorce.

Objectives of the Special Marriage Act, 1954

The following are the key goals that may be derived from the Act’s Preamble:
• A specific type of marriage,
• documentation of certain marriages,
• separation.

Purpose of the Special Marriage Act, 1954

The purpose of the Act is to establish consistent legal measures to protect those who want to marry
across castes or religions. By establishing a system for inter-faith marriages, the Act serves the
interests of all Indian people.
The Act includes provisions for lawful marriage, prerequisites for a valid marriage, dissolution of
an inter-faith marriage, marriage registration, and other regulations. As a result, the enactment of
the aforementioned legislation intended to protect people’s basic rights and enable them to pick
their married partners. The Act also intends to reduce the threat of societal ills such as honor killing
and love jihad, as well as to acknowledge the rights of children born out of such marriages.

Elements of the Special Marriage Act, 1954

The Act, via the use of the following elements, drastically revolutionised society’s perception of
inter-caste and inter-faith marriages in the following ways:
• Unlike the previous marriage legislation, this Act applies to all Indian citizens,
regardless of religion or caste. As a result, any individual desirous of marrying another
individual might do so under the aforementioned Act.
• Since the Act considers marriage to be a legal transaction, no rituals or ceremonies are
conducted. The marriage is carried out in accordance with the law i.e, through court
marriage.

Applicability of the Special Marriage Act, 1954

The Special Marriage Act, 1954 extends to all Indian states as well as Indian nationals living in
other countries. Individuals of diverse faiths, such as Muslims, Hindus, Parsis, Sikhs, or Christians,
can marry under this Act. The Act applies not only to interreligious or inter-caste marriages or love
marriages but also to intra-faith marriages and provides an option to register marriages performed
in accordance with the couple’s personal laws. The fulfillment of customs and ceremonies to
solemnise the marriage is a requirement of personal laws, whether Hindu or Muslim law, however,
the Special Marriage Act, 1954 does not demand the performance of any rituals or ceremonies;
rather, the single requirement for being married is two persons having permission.
It applies to the whole of India except the State of Jammu and Kashmir and applies also to citizens
of India domiciled in the territories to which this Act extends who are (in the State of Jammu and
Kashmir). Marriages between Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists are all
covered under the statute. As a result, there is no distinct court marriage for different faiths; rather,
it is a uniform process of being married regardless of religion.

Requirements
Since Indians believe in marriages with proper rituals, customs, and ceremonies that include pomp
and show & extravagant celebrations, none of them is required by the Special Marriage Act. The
fundamental requirement under this Act for a valid marriage is the consent of both parties to the
marriage. If both parties to the marriage are willing to marry each other, that’s enough; caste,
religion, race, etc. can’t act as a barrier to their union here. For marriage under this Act, the parties
must file with the district’s Marriage Registrar a notice stating their intention to marry each other
in which at least one of the parties to the marriage has lived for at least 30 days prior to the date on
which such notice is filed. After the expiry of 30 days from the date that such notice was published,
the marriage is then said to be solemnized. But if any person related to the parties objects to this
marriage and the registrar finds that it is a reasonable cause of objection, on such grounds he can
cancel the marriage. For a valid marriage, the parties must also give their consent to the marriage
before the marriage officer and three witnesses. These are the basic requirements for a valid
marriage under the Special Marriage Act that every Indian must know about.

Important Sections of the Special Marriage Act,

1954
Section 4 of the Special Marriage Act, 1954 addresses the numerous requirements for a lawful
marriage. It specifies four basic requirements for a legitimate marriage:
1. It forbids polygamy and declares a marriage null and void if neither party had a spouse
living at the time of the marriage.
2. The married partners must be in a sound state of mind. The parties must be able to make
their own decisions and be sane at the moment of marriage.
3. Both parties to the marriage must have reached the legal age of majority. The female
party must be at least eighteen years old at the time of marriage application, and the
male party must be at least twenty-one years old.
4. The parties going into marriage should not be in close proximity to one another and
should not be in a forbidden connection with each other.
The degree of banned relationship is determined by the conventions of the persons involved and
differs from one tradition to the next. Schedule one of the legislation outlines the degrees of banned
connections; nonetheless, in typical circumstances, the norms governing persons take precedence.
The marriage will only be lawful if all of these prerequisites are met. Other prerequisites for a
lawful marriage include the permission of the parties, with both parties entering into the marriage
providing acceptable consent. The willingness of both parties is taken into account. The caste or
religion of either party is not taken into account and will not operate as a barrier.
Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of
the District and that at least one of the parties must have lived in the district for at least 30 days
immediately before the date of such notification. The application must be filed in accordance with
the required format, which is listed in schedule two of the act.
According to Section 6 of the Act, the original and genuine copy of the notification must be
submitted in the ‘Marriage Notice Book.’ After the Marriage Officer receives the application, he
or she will publish a thirty-day public notice to see whether there are any objections to the marriage.
Non-compliance with any of the Act’s criteria or requirements is one of the most common
objections dealt with.
Section 8 of the legislation stipulates that anybody may object to the intended marriage after the
notice is published. When a Marriage Officer receives an objection, he or she must do the necessary
investigation and deal with it correctly.
According to Section 11 of the Act, the declaration of marriage must be signed by the parties to the
marriage and three witnesses, and it must be checked and signed by the Marriage Officer.
According to Section 12 of the Act, the marriage may be solemnised in the Marriage Officer’s
office or within a reasonable distance of the office. If the marriage takes place outside of the
Marriage Officer’s office, there should be additional costs paid.
Section 13 of the Act deals with marriage certification. The marriage officer enters the marriage in
the ‘Marriage Certificate book’ and issues a Marriage Certificate when the marriage is solemnised.
There are no religious rites necessary under Section 16 of the Act which defines the procedure for
registration of marriage. The marriage under this Section is solemnised by a Marriage Officer
designated by the Government, and the relevant parties to the marriage must provide notice to the
Marriage Officer in the appropriate way.
Section 26 of the Act recognizes the validity of children born to people who married under the
Special Marriage Act, 1954. They retain ownership of the property even after the marriage is
declared null and void. The offspring of such marriages are not entitled to ancestral property. They
can only obtain a share of their parents’ self-owned or inherited property.

Conditions of the Special Marriage Act, 1954

Under the Special Marriage Act, 1954 of 1954, certain circumstances must be met before a marriage
can be solemnised. These qualifications are outlined in Chapter II, Section 4. The prerequisites for
this particular sort of marriage are not dissimilar to those for regular customary marriages and are
fairly comparable to Section 5 of the Hindu Marriage Act, 1955.
To begin with,
1. Firstly, both parties should be monogamous at the time of marriage; that is, neither party
should have a living spouse at the time of marriage.
2. Second, both parties must be mentally fit and in a position to make their own decisions;
that is, neither party should be of unsound mind, suffer from any mental ailment, or
have been subject to recurrent outbreaks of insanity.
3. Third, the man must be at least twenty-one years old and the female must be at least
eighteen years old at the time of marriage.
4. Fourth, the parties must not be within the degrees of forbidden kinship; that is, they
should not be blood relatives.
As a result, any violation of any of the conditions stated in Section 4 of the Act will render the
union null and void.

Changes with the Emergence of Special

Marriage Act in India
Succession to the Property
Another important point that why every Indian should have knowledge of SMA (Special Marriage
Act) is that the succession to the property of persons married under this act or any marriage
registered under this act and that their children will be governed under the Indian Succession Act.
But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain religions, then the Hindu
Succession Act will govern the succession to their property.
In 2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage can be
registered in India either under the Hindu Marriage Act, 1955 or under the Special Marriage Act,
1954. The Hindu Marriage Act is relevant to Hindus, although the Special Marriage Act is suitable
for all Indian residents regardless of their religion applicable to the Court marriage.

Registration of Marriage under the Special Marriage

Act in India
In India, all marriages can be registered either under their respective personal laws (Hindu Marriage
Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. A marriage under
the Special Marriage Act, 1954 enables people from two distinct religious backgrounds to unite in
the marriage bond. Unlike personal laws, the Special Marriage Act’s applicability extends to all
Indian citizens regardless of their religion. Although marriage laws allow only the registration of
an already solemnized marriage under personal laws, the Special Marriage Act provides for both
solemnizations and legal registration. The Special Marriage Act has designed a simple means of
legally registering a marriage between two people of different religions, but even if both the
concerned parties belong to the same religion, they may choose to register the marriage under this
Act. This is a step-by-step procedure to apply in India for a Special Marriage Act.
Notice of Proposed Marriage
Any couple wishing to make use of the fruits of this Act is required to issue a written notice to the
district’s “Marriage Officer” where for the last thirty days at least one of the parties to the marriage
has resided. The marriage is usually scheduled to take place within three months from the date of
issue of notice. The notice thus received will be published by displaying it in a noticeable place in
the office of the Marriage Officer. A copy of the notice must also be attached to a “Marriage Notice
Book” that anyone can inspect.

Period of Objection
Any objections to marriage regarding age, consent capacity, incest, etc. may be addressed to the
Marriage Officer within 30 days of the notice being published. The Marriage Officer is mandated
to conduct an inquiry into its validity within a 30-day window period of time, during which the
marriage can not be solemnized in case of any objections. If the marriage officer finds that the
objection is valid and decides against the marriage of the parties concerned, the bride or groom
may, within thirty days of such refusal, appeal to the district court. If all the objections concerned
are dealt with, a declaration must be signed by the bride, groom, and any three witnesses in the
presence of the Marriage Officer, who would then countersign it. The marriage will be solemnized
upon the cessation of the objection period in the absence of any objections.

Power of Enquiry
In receiving an objection, marriage officers are granted the following rights:
1. Summoning and enforcing witnesses’ attendance.
2. Examining the witnesses on oath.
3. Demanding documents to produce.
4. Demanding the evidence on affidavits.
5. Issue of commissions for the witness scrutiny.

Unreasonable Objections
If the marriage officer believes that the objection he/she has received is not reasonable and is not
made in good faith, the person making the objection may be on the receiving end of objective costs
of up to Rs. 1,000. The sum received will be awarded to the parties of the proposed marriage for
this purpose.

Objections in Jammu & Kashmir

Any objections regarding a proposed marriage made in Jammu and Kashmir State will be addressed
by the respective Marriage Officer to the Central Government. The Central Government inspects
the case on its own conditions and communicates its decision to the Marriage Officer, who then
implements the decision ordered by the governing body.

Solemnization of Marriage
After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any field.
The notice is valid for 3 months. Before the marriage is solemnized, the parties and three witnesses
should sign declarations in the prescribed form in the presence of the marriage officer.
In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages can
be solemnized either within a reasonable distance from the office of the marriage officer or at such
other place as the parties may wish.

Procedure for solemnisation of marriage

The Special Marriage Act, 1954 of 1954 mandates various preliminaries and civil requirements
before marriage may be solemnised. Both intending parties to the marriage must send a written
notification to the Marriage Registrar of the district in which at least one of the parties to the
marriage has lived for a minimum of 30 days. When the Marriage Registrar obtains the notice of
marriage, he must publish it by affixing a copy to a prominent location in his office. The Marriage
Registrar is required to maintain all notices with records in his office and to register a genuine copy
of each such notice in the ‘Marriage Notice Book,’ which is available to everybody for examination
without charge. Any individual may object to the marriage before the expiration of thirty days from
the date of publication on the grounds that it violates the requirements established in Section 4 of
the Act.
Following the completion of the thirty-day objection period, the marriage will be solemnised,
unless it has already been opposed to by any individual. In any case, if an objection is raised against
an intended marriage, the Marriage Registrar cannot solemnise the marriage until he has
investigated the matter of objection and reached a decision that the earlier raised objection will not
prevent the marriage from being solemnised, or the prior objection is withdrawn by the individual
raising it. However, if the marriage officer validates the objection and refuses to solemnise the
marriage, any of the intended parties may file an appeal with the district court within the local limits
of the marriage officer’s office within thirty days, and the decision of the district court on such
appeal will be binding, and the marriage officer must act in accordance with the court’s decision.
Before the marriage may be solemnised, the intended parties and three witnesses must sign a
statement in the prescribed form in the presence of a Marriage Officer, and the declaration must
also be notarized by the Marriage Registrar himself. Following this, the marriage can be solemnised
in the Marriage Registrar’s office or wherever else the parties prefer. In front of the Marriage
Officer and three witnesses, each party must state to the other partner in any language known by
the parties, “I, (X), accept the (Y), to be my lawful wife (or husband).” After the marriage is
solemnised, the Marriage Officer writes the facts on a certificate which he keeps in a ‘Marriage
Certificate Book’ also called the Marriage Registration Record which has to be duly signed by the
newlyweds along with the three witnesses and serves as definitive proof of the marriage.
Before the expiration of 30 days from the date on which any such notification has been published
under sub-section (2) of Section 6, any person may object to the marriage on the grounds that it
would violate one or more of the requirements mentioned in Section 4.

Registration of Marriage Celebrated in Other Forms

Any marriage celebrated, with the exception of those solemnized in accordance with these
provisions, may be registered by a marriage officer under Chapter III of the Act, subject to the
condition that a marriage ceremony has been conducted for the parties under any of the Acts and
that the couple has since led a marital life. Besides that, the conditions for the conduct of marriage
specified in this Act shall apply.

Implications on Family Membership

Any member of an undivided family who professes the religion of Hinduism, Buddhism, Sikhism
or Jainism would be forced to separate from such a family, i.e. a family member married under this
Act would not be considered a part of the family hierarchy after the marriage proceedings under
this Act were terminated.

Restitution of Conjugal Rights

On marriage, it is the parties ‘ primary duty to live together in order to fulfill their marital
obligations. This right to cohabit with one another is called the’ consortium’ right. Husband and
wife have the right to each other’s society, comfort, and affection. The origin of the action seems
to lie in the husband’s early concept of law having a quasi-proprietary right over the wife. It
included the society of his wife as well as its services. The consortium notion presumed a distinct
footing of mutuality with the passage of time. Conjugal rights can not be enforced by either party’s
actions, and by force, a husband can not seize his wife and detain her. If a spouse makes an
infringement of this obligation without any justifiable cause, the other may go to court to restore
his conjugal rights.
Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under which a
petition for restitution of conjugal rights would be based.
22. Restitution of conjugal rights – When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply to petition to the district court for restitution of conjugal rights, and the court, on
being satisfied of the truth of the statements made in such petition, and that there is no
legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.
Explanation: Where a question arises as to whether there was a reasonable excuse for withdrawal
from society, the burden of proving a reasonable excuse is on the person who withdrew from
society.
The section’s elements are as follows:
1. The respondent withdrew from the petitioner’s society.
2. Without reasonable cause, the respondent has withdrawn.
3. The burden of proving a reasonable cause lies with the respondent.
In the district court, the petition is filed.
The court is satisfied with the truth of the statement, and there is no other reason to deny the relief.

Corresponding Law
This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the Parsi
Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the
Matrimonial Causes Act, 1965.

Withdrawal from Society

The word ‘society’ that occurs in the section means the same thing as consortium or cohabitation,
i.e. living together as husband and wife in a place called ‘matrimonial home’. It is therefore evident
that withdrawal from the other’s society would mean withdrawal from the matrimonial home by
either spouse that would involve a total loss of consortium such as desertion. Society withdrawal
involves two elements: animus and factum. This means that the withdrawing spouse intends to put
an end to the cohabitation and, secondly, the mere intention of withdrawal would not amount to
withdrawal unless it is combined with the factum of separation on the part of spouse’s withdrawn.

Cohabitation
Cohabitation does not necessarily mean that parties live together under the same roof, but there
may be cohabitation states where they see each other as much as they can and yet are not separated.
Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or on business
because it does not determine the conjugal relationship in any form.
G v. G, (1930), A husband can not be considered to have deserted his wife without reasonable cause
because he is forced to live away from her because of his work in life.

Matrimonial Home
Shastri law was based on the principles that the wife is bound to live with her husband and submit
herself to his authority. This rule of law that gave the husband the right alone to set up a matrimonial
home in preference to the wife was based on a custom that reflected the condition of the age in
which the custom was practised. Moreover, the husband’s right to establish a matrimonial home is
not a law proposition; it is simply a proposition of ordinary good sense arising from the fact that
the husband is usually the bread earner and has to live near to his work. It becomes quite natural in
such circumstances that the husband should have the right to choose a matrimonial home. India’s
Constitution gives both sexes equal status, so both have equal rights to pursue their careers. Now
the casting vote on the choice of the matrimonial home is not with the husband or wife, but it is a
matter that has to be decided in a friendly manner between them.

Case Reference
In several cases, the question as to what amounts to withdrawal from society came to our courts in
an interesting way: does the refusal of the wife to give up her job in the husband’s case amount to
withdrawal from the husband’s society? In several cases, the question came before the Punjab High
Court for consideration and in the affirmative, it was answered. In the cases Tirath Kaur v. Kirpal
Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v.
Ayodhya Prakash 1977 HLR 175, The courts held that the husband had the right to decide the
matrimonial home and that the wife had to resign and live with him. The other view, which is
contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the
wife can not be prevented from taking up employment in the present social scenario and can not be
forced to live in the same place where her husband lives. None of the parties shall have a casting
vote, and the matter shall be settled by agreement between the parties, by process of giving and
taking and by reasonable accommodation.

Without Reasonable Excuse

The burden of proving that he/she has withdrawn with a reasonable excuse would be on the
respondent once the petitioner proves that the respondent has withdrawn from his/her society. A
restitution petition will fail if the respondent is found to have withdrawn from the petitioner’s
society with a reasonable excuse to do so.
It will be a reasonable excuse or reasonable cause under the modern matrimonial law:
If there is a reason for this, the respondent may claim any matrimonial relief. So if the petitioner is
found to have another wife (Parkash v. Parmeshwari, AIR 1987 P & H 37), is guilty of cruelty
(Bejoy v. Aloka, AIR 1969 Cal 477), or is adulterous (Laxmi Malik v. Mayadhar Malik, AIR 2002
Ori. 5) the petition will fail.
If the petitioner is guilty of any matrimonial misconduct, then it is not sufficient to be the ground
for matrimonial relief but sufficiently weighty and serious.
If the petitioner is guilty of such an act, omission or conduct that makes a living with him impossible
for the respondent.

Jurisdiction
The jurisdiction under the section to entertain a petition for restitution of conjugal rights rests with
the district court. The District Court has been defined in S. 2(e) the Act. It means the principal civil
court of original jurisdiction and a civil court of the city where such court exists. An aggrieved
party may invoke the jurisdiction of a district court if any of the following qualifications are
fulfilled:
1. The marriage has been solemnized within that court’s local limits.
2. The husband and wife both live together within that court’s local limits.
3. Both the husband and wife last lived together within that court’s local limits.

Judicial Separation
Under English law, before the Reformation, the church considered the marriage as a sacrament
which made it impossible to obtain a divorce. The ecclesiastical courts in the case of a marriage
validly contracted granted ‘divorce a men’s et thoro,’ i.e. divorce from bed and board, which did
not allow the parties to remarry. This solution was not divorce, i.e. it didn’t dissolve the marriage.
This solution is now called judicial separation, allowing the parties to live separately from each
other, without dissolving the marriage bond, with the option of re-uniting and re-living together if
conditions change subsequently.
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the husband
or the wife:
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on which
a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and the Court,
on being satisfied of the truth of the statements made in such petition, and that there is no legal
ground why the application should not be granted, may decree judicial separation accordingly.
(2) Where the Court grants a decree for judicial separation, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the Court may, on the application by petition of either
party and on being satisfied of the truth of the statements made in such petition, rescind the decree
if it considers it just and reasonable to do so.

Corresponding Law
This section is in accordance with Section 10 of the Hindu Marriage Act, 1955, Section 34 Parsi
Marriage and Divorce Act, 1936, Section 22 of the Divorce Act, 1869 and Section 12 of the
Matrimonial Causes Act, 1965.

Grounds for Judicial Separation

A district court shall lodge a petition for judicial separation from either the husband or the wife on
any of the grounds that the respondent:
1. Has committed adultery.
2. Has deserted the spouse for a period of two years immediately prior to the petitioner’s
submission without cause.
3. Is imprisoned for an offence as described in the Indian Penal Code for seven years or
more.
4. Has the petitioner treated with cruelty?
5. Has been of unsound mind incurably.
6. Has been suffering from the communicable form of venereal disease.
7. Has suffered from leprosy that the petitioner has not contracted.
8. Has not been heard for at least seven years as being alive.
Where the petitioner is the wife, on the additional ground, she can file a petition for judicial
separation:
That since the solemnization of marriage her husband has been guilty of Rape, Sodomy, or
Bestiality; or
That there has been no cohabitation between her and the husband for not less than one year after
passing a decree or maintenance order against her husband in her favour, or
That her husband has failed to comply with a decree to restore conjugal rights.
The aforementioned grounds are similar to divorce grounds under Section 27 of the Act.

Power of the Court

The District Court must be satisfied with the truth of the statements made in such petition upon
presentation of the petition. If the court is satisfied, a judicial separation decree will be passed. The
parties are free to live apart from one another after the passing of the decree. However, if it
considers it fair and reasonable to do so, the court may rescind the decree of judicial separation
upon subsequent application by either party. In a petition for divorce, if the petitioner fails to
establish the alleged ground for divorce, although facts establish a ground for judicial separation,
the court has the power to pass a decree for judicial separation, even though no such prayer has
been made in the petition, as held in Bhagwan v. Amar Kaur, AIR 1962 Punj 144.

Effect of Decree
The decree of judicial separation entitles the parties to live separately, and cohabitation is not
compulsory on either party as the essential of the marital relation. But it does not break husband
and wife’s marital status. No one is able to remarry until the divorce decree. Each party may submit
a divorce petition to the district court on the ground that there has been no resumption of
cohabitation as between the parties for a period of one year or upwards after passing a judicial
separation decree.

Nullity of Marriage
The law of nullity refers to impediments to premarriage. The subject matter of impediments to
marriage is covered under the capacity to marry. If there are certain impediments, parties are unable
to marry each other. If they get married, despite impediments, their marriage may not be valid.
These impediments are generally split into two:
1. Absolute impediments: If there are absolute impediments, a marriage is void ab initio,
i.e. from the start it is an invalid marriage.
2. Relative impediments: If there are relative impediments, a marriage is voidable, i.e. one
of the parties to the marriage may avoid it if he or she wishes.
These impediments classify the marriage into Void and Voidable Marriages.
Void Marriage
A void marriage is not marriage, i.e. from the beginning, it does not exist. It is called marriage
because there are two people who have undergone ceremonies of marriage. Since they absolutely
lack the capacity to marry, they can not become husband and wife just by undergoing marriage
ceremonies. In other words, avoid marriage does not give rise to any legal consequences. No court
decree is required in respect of void marriages. Even when a decree is passed by the court, it simply
declares the marriage to be null and void. It is not the court’s decree that makes such a marriage
void. It is an existing fact that the marriage is void and the court is merely making a factual judicial
statement. In accordance with Section 24 of the Special Marriage Act, 1954, either party can make
a petition for nullity to marriage.
24. Void marriage- (1) Any marriage solemnized under this Act shall be null and void and
may, on a petition presented by either party thereto against the other party, be so declared
by a decree of nullity if –
(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been fulfilled,
or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the
suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under
this Act within the meaning of Section 18, but the registration of any such marriage under Chapter
III may be declared to be of no effect if the registration was in contravention of any of the conditions
specified in clauses (a) to (e) of Section 15:
Provided that no such declaration shall be made in any case where an appeal has been preferred
under Section 17, and the decision of the District Court has become final.
Corresponding Law
This section corresponds to Section 11 of the Hindu Marriage Act, 1955, Section 18 and 19 of the
Indian Divorce Act, 1869 and Section 9 of the Matrimonial Causes Act, 1965.
Grounds for Void Marriage
A marriage may be declared void by a decree of nullity on the following grounds:
1. Any of the conditions stated in clauses (a), (b), (c) and (d) of section 4 of the Act have
not been fulfilled. Such conditions are as follows:
2. At the time of marriage, neither party has a spouse living. The first marriage ought to
be a valid marriage.
3. Neither party is unable to give valid consent.
4. The male should have 21 years of age, and the female should have 18 years of age.
5. The parties are not within the degrees of prohibited relationship.
6. The defendant was impotent at the time of marriage and at the time of the institution of
the suit. The initial responsibility in the case of impotency is on the petitioner’s wife to
prove the respondent husband’s impotence.
Voidable Marriage
So long as it is not avoided, a voidable marriage is perfectly valid. Only one of the parties to the
marriage may request it to be avoided. If one of the parties refuses to demand the annulment of the
marriage, the marriage will remain valid. If one of the parties dies before the annulment, no one
can challenge the marriage, and it will remain valid forever. All the legal implications of a valid
marriage flow as long as it is not avoided. The grounds for voidable marriages are set out in Section
25 of the Special Marriage Act.
25. Voidable marriage: Any marriage solemnized under this Act shall be voidable and may
be annulled by a decree of nullity if:
(i) the marriage has not been consummated owing to the willful refusal of the respondent to
consummate the marriage, or
(ii) the respondent was it the time of the marriage pregnant by some person other than the petitioner,
or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the
Indian Contract Act, 1872 (9 of 1872);
Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is
satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) those proceedings were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery
by the petitioner of the existence of the grounds for a decree.
Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:
(a) proceedings have not been instituted within one year after the coercion has ceased or, as the
case may be, the fraud had been discovered, or
(b) The petitioner has with his or her free consent lived with the other party to the marriage as
husband and wife after the coercion had ceased or, as the case may be, the fraud had been
discovered.
Corresponding Law
This section corresponds to Section 12 of the Hindu Marriage Act, 1955, Section 19 of the Divorce
Act, 1869, Section 32 of the Parsi Marriage and Divorce Act, 1936 and Section 9 of the Matrimonial
Causes Act, 1965.
Grounds for Voidable Marriage
Non-consummation of marriage: Due to the respondent’s willful rejection, the marriage has not
been consummated. In Sunil K. Mirchandani v. Reena S Mirchandani, where the parties had lived
together for about 5 months, and a letter written by a husband to wife indicates his satisfactory
sexual relationship with her, there could be no basis for an annulment of marriage under Section
25(1) of the Act.
Pre-marriage pregnancy: The presumption of law is that a child born during the continuity of a
valid marriage or within the gestation period of 280 days after the dissolution is legitimate unless
there is strong evidence to prove otherwise. The petitioner’s right is somewhat limited to initiate
proceedings on this ground of the respondent’s pregnancy at the time of marriage by an individual
other than the petitioner. In such cases, the court shall not issue a nullity declaration unless it is
satisfied:
1. That at the time of marriage, the petitioner was quite unaware of the fact of pregnancy.
2. The proceedings were initiated within a year of the date of the marriage.
3. That no marital intercourse has happened with the petitioner’s consent since the alleged
facts were discovered.
Coercion or fraud: if either party’s consent to the marriage has been obtained by coercion or fraud
as described in Section 15 and 17, respectively, of the Indian Contract Act 1872, the marriage can
be avoided.
Section 15 describes coercion as committing or threatening to commit, any act forbidden by the
Indian Penal Code or any unlawful detention or threat of detention of any property, to the prejudice
of any person, with the intention of causing an individual to enter into an agreement.
Section 17 of the Indian Contract Act describes fraud, which implies and involves any of the
following acts committed by a party to a contract or his connivance, or by his agent, with the
intention of deceiving or inducing another party or his agent to enter into the contract:
1. A statement as to a fact that is not true by anyone who does not believe that it is true.
2. The deliberate concealment of a fact by someone who has knowledge or belief of the
fact.
3. A promise made without any intention to perform it.
4. Any other deception-fitting act.
5. Any such act or omission as stated by law to be specifically fraudulent.
In Gitika Bagchi v. Subhabrota Bagchi, AIR 1999 Cal 246, where the wife concealed the fact that
she was 3 years older than her husband, it amounted to fraud as provided in Section 25(iii) of the
Act. In Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263, hiding of fact by the wife that she was
previously married and widowed at the time of the second marriage is a material fact, and as such,
it amounts to fraud committed on her second husband, he is entitled to a decree of nullity.
The court should not issue a decree of nullity in case of coercion or fraud unless proceedings were
not initiated within one year after the coercion had ended or the fraud had been detected.
The petitioner lived with the respondent with his or her free consent after the coercion been ended
or the fraud had been detected.
In such cases, the petitioner’s acquiescence to such an act or omission will be assumed, and the
petitioner’s right to such scores will be waived.
The legitimacy of Children of Void or Voidable Marriages
Section 26 aims to give the children begotten a status of legitimacy before the nullity decree is
passed. Where a decree of nullity is issued for void or voidable marriage, it shall be considered to
be a decree of dissolution for the specific purpose of conferring the status of legitimacy on the
children begotten before the decree is issued. But the child from such a union shall have right on
the parents’ property but no rights in or to the property of any person. In those cases, the child is
considered not to be a legitimate child of his parents by a legal fiction.

Divorce
Divorce puts an end to marriage; the parties return to their unmarried status and are free to marry
again. The grounds for divorce are set out in Section 27 of the Act.

Grounds for Divorce

The District Court is the proper forum for filing a divorce petition on any of the following grounds:
Adultery
The respondent to the case has committed adultery since the solemnization of the marriage.
Adultery is the matrimonial offence in which a married person and a person of the opposite sex,
other than the wife, have consensual sexual intercourse during the subsistence of the marriage, as
held in Dawn Henderson v. D Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl.
(1) of s. 27 of the Act, a single act of adultery may constitute an adequate ground for divorce. As
required in Section 13 of the Hindu Marriage Act, 1955, it is not necessary to prove that the
respondent was ‘living in adultery’.
In the case of adultery, the court must be satisfied that adultery has been committed, beyond a
reasonable doubt. But adultery can, if ever, be proven very rarely by direct evidence of the witness.
Therefore, in most cases, the evidence must be circumstantial in nature and depends on the
probabilities of the situation. However, as in the case of Jyotish Chandra Guha v. Meera Guha, AIR
1970 Cal 266 (DB), in the absence of wife’s reciprocity, the mere production of love letters written
by a person to a wife will not prove adultery.
Desertion
The respondent must have deserted the petitioner without cause for at least 2 years before the
petition was submitted. In essence, desertion means intentional permanent forsaking and
abandonment of one spouse by the other without the consent of the other and without reasonable
cause. It is a complete repudiation of the marriage obligations. Desertion is not a withdrawal from
a place, but from a state of things that are necessary for marital life. It is a continuing offence and
must exist for two years immediately before the petition is presented. The essential elements of
desertion are factum or intention to desert or physical separation and animus. All these ingredients
must remain in place during the statutory period. The Doctrine of Constructive Separation is one
when one spouse is compelled to leave the matrimonial home by the conduct of the other. The
spouse that drives out is guilty of desertion. There is no significant difference between the case of
a man who intends to stop cohabitation and leaves his wife and the case of a man who compels his
wife to leave him with the same intention through his conduct.
In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the husband
had inadequate income, the wife had abandoned him after seven months of marriage. She began to
live with her parents and gave birth to a child. She did not attempt to rejoin the husband and
continued her job as a teacher. She knew about the husband’s income status before marriage.
Desertion on her part has been proved under the circumstances. Due to the unpalatable atmosphere
in the matrimonial home, the wife left the matrimonial home in Sunil Kumar v. Usha, AIR 1994
MP 1, and the reign of terror that prevailed there drove her out. She was held not guilty of desertion.
Imprisonment
The respondent is subject to a seven-years or more imprisonment decree for an offence laid down
in the Indian Penal Code. On this ground, however, no decree for divorce shall be granted unless
the respondent has already been imprisoned for at least three years out of the said period of seven
years or more prior to the petition being presented.
Cruelty
Since the marriage solemnization, the petitioner must have been treated with cruelty by the
respondent. The term’ cruelty’ was not defined in the Act and could be attached to it as such a
broad meaning. Russell v. Russell, [1897] AC 395, laid down the legal position of cruelty in divorce
proceedings. The legal concept of cruelty is usually described as the conduct of such a character as
to have caused risk to life, limb or health (physical or mental) or to give rise to a reasonable
apprehension of such danger.
In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the respondent has
behaved in such a way that the petitioner can not be called upon to endure in the circumstances and
that misconduct has caused injury to health or a reasonable apprehension of such injury. The
standard of proof required is the preponderance of probability and not beyond all reasonable doubt
as in criminal proceedings.
Unsoundness of mind
The respondent must be of unsound mind, which is incurable. The burden of proof lies with the
petitioner that the respondent is of unhealthy mind or has suffered from such a kind of mental
disorder continuously or intermittently and to such an extent that it is not reasonable to expect the
petitioner to live with the respondent. The petitioner will also need to prove that the unsoundness
of mind is incurable. If the court finds that the respondent’s unsoundness of mind is incurable, it
does not interfere with the degree of unsoundness of mind for decision-making purposes, as stated
in Lock v. Lock, [1958] 1 WLR 1248.
Venereal Disease
The respondent must be suffering from venereal disease in a communicable form. Where it is not
contracted from the petitioner who provides evidence that he or she has not had any intercourse
with any person other than the respondent, it is a prima facie case that the respondent had committed
adultery. It is then up to the respondent to refute the prima facie case against him by calling for
medical evidence to demonstrate that:
1. The respondent did not suffer from the disease, or
 2. The respondent innocently contracted the disease, or
3. The respondent had not committed adultery.
4. The doctor who examined the respondent personally can only provide evidence to this
effect.
Leprosy
The respondent should have been suffering from leprosy and the disease must not be contracted
from the petitioner. Proving the disease have a communicable nature is not necessary.
Not heard as being alive
The respondent has not been heard by people who are closely related to the respondent as being
alive for not less than seven years. If the person is not heard of for 7 years by those people who
would naturally have heard of him being alive, then it is presumed that the person is dead. The
burden of proving that the respondent is alive lies with the person who asserts it.
Husband is guilty of Rape, Sodomy or Bestiality
The wife can make a petition at the District Court on the ground that her husband has been guilty
of rape, sodomy, and bestiality since the solemnization of marriage. These are also grounds for
prosecution on criminal charges. However, the husband’s conviction on these grounds of criminal
offence is not enough to grant a divorce decree. The commission of the offense must be proven de
novo either by the petitioner calling witnesses or by the respondent admitting guilt; the court will
decide whether any evidence is desirable to be corroborated.
Decree or order of maintenance obtained by the wife
The wife can also file a divorce petition on the ground that she has obtained a decree or maintenance
order and since the passing of such decree or order, she has been living apart and has no resumed
the cohabitation between her and her husband.
No resumption of cohabitation after a decree of judicial separation
The parties have not resumed cohabitation for at least one year after the passing of a decree of
judicial separation. The legislature’s intention to give such space and time to the parties so there
would be a possibility of reconciliation between the parties. In the absence of any such change of
mind of the parties, the legislature believes that for any further period there is no justification for
keeping the right of cohabitation available to the parties. Based on their peculiar facts and
circumstances, each case has to be decided. A single act of cohabitation does not mean the
resumption of cohabitation.
Non-compliance with a decree for restitution of conjugal rights
There has been no restitution of conjugal rights between the parties for a period of not less than one
year after the decree of restitution of conjugal rights has been passed.
Divorce by Mutual Consent
Under section 28 of the Act, which deals primarily with provisions relating to obtaining a divorce
by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition
for divorce may be filed with the District Court by mutual consent. The following are some key
points to consider when seeking a divorce by mutual consent:
1. Both parties must present a petition for divorce to the District Court together.
2. There must be a petition on the grounds,
They lived separately for a period of one year or more.
That they were not able to live together.
That they agreed to dissolve the marriage mutually.
3. Only after one year from the date of entering the wedding certificate in the Marriage
Certificate Book then only the petition can be presented. However, in instances where
the petitioner suffers extraordinary hardship or in instances of extraordinary depravity
on the part of the respondent, relaxation may be provided.
4. The petition seeking divorce by mutual consent could be submitted to a district court
within its jurisdiction, either,
The marriage was solemnized.
The respondent resides, or where the wife resides, in the case where the wife is the petitioner.
The parties to the marriage last resided together. or
The petitioner resides, in cases where the respondent is residing outside the territories to which the
Act extends.
5. Between 6 months after and within 18 months, the date of filing of the petition for
seeking divorce by mutual consent, both parties must make a motion together for
seeking a decree of divorce.
6. Among other aspects, the District Court considers the following, before passing a
divorce decree,
• That the petition has not yet been withdrawn.
• That under the Act, marriage has been solemnized.
• That the petitioner’s averments are true.
• The divorce consent was not obtained through force, fraud or undue influence.
• That there was no unnecessary or inappropriate delay in commencing the proceedings.
Thus, the provisions and procedures under the Special Marriage Act for acquiring divorce by
mutual consent are relatively straightforward and fairly simple.
However, parties wishing to obtain a divorce by mutual consent must bear in mind that the Act also
contains provisions dealing with the granting of alimony and maintenance, both permanent and
during the pendency of the proceedings. In cases of divorce by mutual consent, the parties may
agree on the terms relating to the payment of alimony or maintenance and the same may be
incorporated in the pleadings before the Court. However, care must be taken to incorporate the
appropriate provisions in the pleadings in order to avoid future misunderstandings or litigation.
Therefore, while discussing the various issues related to seeking a divorce by mutual consent with
their advocates, it is advisable that the parties should specifically discuss their arrangement and
alimony and maintenance arrangements, and take appropriate steps to ensure that their interests are
safeguarded.

Restriction on Divorce during 1st year of the marriage

Any person who is married under the Special Marriage Act must be aware of this important
provision of the Act. Unless and until one year has expired from the date of their marriage as
recorded in the marriage books, the parties may not apply for divorce in the District Court.
However, in cases where the court considers that the petitioner has suffered exceptional hardship
or the respondent has shown exceptional depravity on his part, a request for divorce would be
retained, but if there is any misrepresentation on the part of the petitioner to apply for divorce before
the expiry of 1 year, the court may, if any order has been passed, state that order to take effect only
after the expiry of 1 year, as mentioned in Section 29 of the Act.

Can they remarry?

Speaking of the option of remarriage available for marriages of persons registered under the Special
Marriage Act, 1954, one important thing to bear in mind is that, where the marriage has been
dissolved, and there is no right of appeal available, or there is no petition for it within the required
period, or where the appeal is dismissed, the parties may remarry as provided by the parties.

The General and Legal understanding

The general understanding is that only marriages are sacred and auspicious which are done in one’s
own caste, whereas the legal aspects of it as discussed above doesn’t make marriages any less
sacred or valid under this act. Our Law, under its provisions, gives every citizen the right to marry
and have a happy life with any person of their choice. But many support this opinion and criticize
it. Some people think it’s valid; some don’t. The effect of arranged marriages on love marriage has
brought about this situation which, even after judgments and laws have been passed more
frequently in this regard, has not brought about a major change in the mindsets of people who
support marriages within religion and caste.

Difference between the Hindu Marriage Act

and Special Marriage Act
The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to
all Indian citizens.
The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage
Act allows for an already solemnized marriage to be registered. It does not provide for Registrar
for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose
jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the
marriage has resided for at least six months immediately before the date of marriage. Both parties
must appear with their parents or guardians or other witnesses before the Registrar within one
month from the date of marriage. There is a provision for the Registrar, and subsequently, the
District Registrar concerned to condone delay for up to five years.
The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the citizens
of India and all Indian nationals in foreign countries with a special form of marriage, regardless of
the religion or faith practised by either party. The Special Marriage Act provides for marriage
solemnization as well as registration by a marriage officer. The parties to the intended marriage
must notify the marriage officer in whose jurisdiction at least one of the parties has resided for at
least 30 days prior to the date of the notice. It should be put in his office at some conspicuous place.
If either party lives in another Marriage Officer’s area, a copy of the notice for similar publication
should be sent to him. If no objections are received, the marriage may be solemnized after the
expiry of a month from the date of publication of the notice The Marriage Officer has to enquire
into them if any objections are received and make a decision either to solemnize the marriage or to
refuse it. Registration will be made after the marriage has been solemnized.
Any marriage already celebrated, subject to certain conditions, may also be registered under the
Special Marriage Act after giving a 30-day public notice.
Maintenance For Wife & Children: Under Special Marriage Act, 1954
Alimony During The Pendency Of The Case In The Court
Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District Court
that the wife does not have enough independent income for her support and the required expenses
of the proceeding, the wife may, at the request of the court, order the husband to pay her the costs
of the proceeding and, in the course of the preceding proceeding, weekly or monthly, such amount
should regard to husband’s income, which the court may seem reasonable.

Permanent Alimony and Maintenance

Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the time of the
passing of any decree or at any time after the decree, order the husband to secure the wife’s
maintenance and support, if necessary, by charge on the property of the husband, such gross sum
or such monthly or periodic payment of money for a period of time not exceeding her life.
If the District Court is satisfied that there is a change in the circumstances of either party at any
time after it has rendered an order pursuant to subsection (1), it may, in either party’s case, alter,
adjust or cancel any such order in such a manner as it may appear to the Court to be reasonable.
(3) Where the District Court is satisfied that the wife for whom an order has been made pursuant
to this section has remarried or has not lived a chaste life, it may, in the case of the husband, change,
alter or cancel any such order and in such a manner as the Court may deem appropriate.

Amount of Maintenance
The maintenance amount shall be purely the Court’s discretion. The court shall take due account
of the following factors in deciding the amount of maintenance, namely:
• The position and status of the parties;
• The fair preference of the claimant;
• If the claimant resides separately, whether the claimant is justified in doing so;
• The value of the claimant’s estate and any income derived from that property or from
the claimant’s own income or from any other source; or
Any other relevant facts and circumstances.
By its very nature, the captioned subject is complex. In such cases,after reviewing the relevant
provisions of the law, i.e. the Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The
Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other Acts
& Judgments and Citations of the Hon’ble Supreme Court of India and the High Courts. Even
otherwise, the question of how rules, decisions, and quotations are to be applied is rather more
complicated as it requires a thorough examination of substantive laws, procedural laws and
precedents of the Court in a given set of facts and circumstances.

Offences and punishment under the Special

Marriage Act, 1954
Section 43 of the Special Marriage Act, 1954 discusses the penalty for a married person marrying
again under this Act, which states that anyone who, while married, procures a marriage of himself
or herself to be solemnised under this Act shall be deemed to have committed an offence
under Section 494 or Section 495 of the Indian Penal Code, 1860 as the case may be, and the
marriage so solemnised shall be void.
Section 44 of the statute further highlights the penalties for bigamy. It states that anyone whose
marriage is solemnised under this Act and who contracts any other marriage during the lifetime of
his or her wife or husband shall be subject to the penalties provided in Sections 494 and 495 of the
Indian Penal Code, 1860 for the offence of getting married again during the entire life of a husband
or wife, and the cohabitation so contracted shall be void.
The punishment for signing a fraudulent statement or certificate is detailed in Section 45 of the
Special Marriage Act, 1954. It says that anybody who makes, signs, or attests any declaration or
certificate required by or under this Act that contains a false statement that he either knows or
believes to be false or does not believe to be true commits the offence stated in Section 199 of the
Indian Penal Code, 1860.

Benefits of the Special Marriage Act, 1954

The Special Marriage Act, 1954, along with its implementation, has provided significant benefits
to the two individuals who are marrying, and these benefits are as follows:
• Marriage does not require the spouses to alter their caste.
• Since caste and religion have not been altered, the rights to ancestral property also
remain unchanged. Personal laws manage the succession of property, which is governed
by people’s beliefs. As a result, despite marrying outside the religious fold, the rights of
inheritance and succession granted by the particular faith continue to exist.
• The property obtained by the married couple is devolved to their offspring under the
secular law of succession, the India Succession Act, 1925.
• Because of the age requirements, the Act inhibits child marriage.
• Polygamy is discouraged.
• It protects the womens’ right to refuge and support.
• Unlike the earlier Marriage Act of 1872, the present Special Marriage Act, 1954 allows
for divorce. It also emphasises on mutual consent to divorce. It registers marriage with
the government, legalising it in a court of law, and allows for marriage under unusual
situations.
• When determining a maintenance amount, the wife’s income is taken into account (i.e.
alimony).
Drawbacks of the Special Marriage Act, 1954
Although the Special Marriage Act, 1954 of 1954 permits couples to reject society’s traditional
conventions and marry outside the human-made limits of caste, religion, and faith, certain aspects
of the Act appear to cause trouble and limit an individual’s freedom to marry a partner of his or her
own choice.
The Special Marriage Act, 1954 of 1954 permits citizens of India and Indian nationalities in foreign
countries to marry beyond man-made boundaries of religion, caste, and community, but it also
regards such weddings with caution by applying criteria that do not apply in interfaith marriages.
There is no option for a quick procedure for instant marriage; instead, the couple must wait 30 days
from the day the notification was issued. If there have been no previous objections to such
notification, the union can be solemnised at the conclusion of the thirty-day period.
In addition, the Act compels intended spouses to wait one month following the publication of the
notice, which is believed to be the time of objection. This interval, however, appears to be too
prolonged for people who are constantly threatened by their relatives and communities. The Act
gives family, caste, and society ample time and space to harass persons who intend to use it. Despite
the fact that it allows two consensual adults to marry without regard for the faiths to which they
belong, the law does not make it simpler in practice, since it appears that such couples still want
community acceptance to confer validity to their marriage.
It is difficult to understand how couples married under the Special Marriage Act, 1954 of 1954
differ from those marrying under their own laws. There appears to be a misalignment between the
goal intended by this Act and the methods taken to attain it through its provisions.
Due to the exposure in the local registration office, family members who are opposed to the union
may try to halt it by pressure. In such circumstances, the candidates’ lives may be jeopardised.
There have been instances of right-wing organisations opposing interfaith weddings while keeping
an eye on marriage office notice boards and taking down the data of the parties in order to pressure
them into abandoning the notion.
As a result, it appears that the Act’s negative features exceed its beneficial aspects. Some changes
to the Act must be made in light of the problems that have been identified in order to accomplish
the vision of secularism and to encourage those couples who wish to marry under this Act by
providing them with legislation that is just, fair, and reasonable, and that does not bend with age or
socio-cultural oppression. Only then can couples of all religions and groups be encouraged to marry
under this Act, allowing the country to attain its ideal of secularism in its genuine sense.
Judicial perspective on the Special Marriage
Act, 1954

The Supreme Court in the landmark decision of Lata Singh v. State of UP, 2006 directed the state
governments to establish a framework to protect individuals marrying under the Special Marriage
Act, 1954. In the current instance, the petitioner sought to have the petition filed by her furious
brother dismissed since the petitioner had an intercaste marriage. As a result, the Supreme Court
determined that the petitioner, at the age of 24, is of legal age and can choose her spouse.
In Kuldeep Singh Meena v. State of Rajasthan, 2018 the Rajasthan High Court confirmed this
rationale, holding that the Special Marriage Act, 1954 simply requires a notice to be shown on the
display board at the Marriage Officer’s office. The High Court makes it very apparent that
authorities cannot impose extra obligations on spouses in addition to the conditions established in
the Special Marriage Act, 1954.
The Delhi High Court in case of Pranav Kumar Mishra v. Govt. of NCT of Delhi, 2009 held that
“the Special Marriage Act, 1954 was intended to permit a special form of marriage for any Indian
person professing multiple faiths or preferring a civil form of marriage.” Unwarranted exposure of
marital arrangements by two individuals authorised to solemnise it may undermine the marriage
itself in certain circumstances. Due to parental meddling, it may potentially jeopardise one or both
parties’ life or limb in some cases. In such circumstances, if such a method is taken by the
authorities, it is wholly arbitrary and without legal power.
The question of marrying without interference came up before the Supreme Court of India in the
case of Shafin Jahan v. Asokan K.M. and Others, 2018 in which the Court declared, “The
constitution respects the freedom and sovereignty which inheres in each individual.” This involves
the ability to make choices about parts of one’s personality and identity. The choice of a partner,
whether within or outside of marriage, is entirely up to the person. Marriage intimacies exist within
the fundamental zone of privacy, which is impenetrable. The ultimate right of a person to choose a
life partner is unaffected in the least by religious considerations.
In the case of Sufiya Sultan and Ors. v. State of U.P. and Ors, 2021 the Allahabad High Court
stated that, while giving notice under Section 5 it is up to the couple to request in writing to the
concerned Marriage Officer if they want to publish a public notice under Section 6 and follow the
objection procedures under Section 7
In Indian society, the caste system is not a fresh notion. History demonstrates that massive empires
lost their hold owing to the prevailing caste system. The beginning of which could not be
determined, but the conclusion of which may be near. Individuals would be able to marry the person
of their choice regardless of caste, community, religion, or cultural taboos if a competent version
of the Special Marriage Act, 1954 was enacted. Bearing in mind the community’s wrath, the Special
marital Marriage is meant to safeguard the couple to the greatest extent feasible. The Act has
established laws for lawful marriage, invalid marriage, voidable marriage, registration procedure,
reasons for divorce, support, child status, and remarriage. The goal was to develop a universal code
that would minimise the gap running deep in the society and devouring it like a termite

Parsi Marriage

The Parsi marriage is also considered important for its validity to be a contract via an Ashirvad
religious ceremony. The word ‘Ashirvad’ literally means blessings. A prayer or God’s call to the
parties to comply with their marital duties of trust. The marriage and divorce are stated in a separate
act for Parsis, known as the Parsi Marriage and Divorce Act, 1936. The same will be discussed
below in the given article.

The Parsi Marriage and Divorce Act, 1936 (hereafter referred to as “the Act,” “the said Act” or
“this Act” as appropriate) is one of the most intriguing pre-independence laws of the Indian legal
system. The Parsi Marriage and Divorce Act, 1865, was repealed by the aforementioned Act, which
went into effect on June 22, 1936, and amended the law governing marriage and divorce among
Parsis. The 1936 Act was last amended by the Parsi Marriage and Divorce (Amendment) Act, 1988.

Who are Parsis

The Bombay High Court, in the case of Sir Dinshaw Manockji Petit v. Sir Jamsetji Jeejeebhoy
(1908) observed that the Iranies from Persia who come to India, either temporarily or permanently,
and profess the Zoroastrian religion, along with the children of Parsi fathers by alien mothers who
have been duly and properly admitted into the religion, make up the Parsi Community. These
people are all descended from the original Persian emigrants. The Parsis in India are descended
from a group of Persians who were forced to abandon their homeland around 1200 years ago as a
result of Mahomedan religious persecution. After seeking refuge in Kohistan and the Isle of Ormus,
this group of Persians ultimately settled in India; at the moment, Bombay serves as their main
administrative centre.
In another judgement by the Bombay High Court, Jamshed Irani v. Banu Iarni (1967), it was
observed that long before 1936, Zoroastrians from Iran and India were referred to as Parsis, and
this usage was widespread in both countries. Consequently, the Act’s use of the term “Parsi” refers
to both Iranian and Indian Zoroastrians.
It was observed in the case of Sarwar Merwan Yezdiar v. Merwan Rashid Yezdiar (1950) that a
Zoroastrian who temporarily lives in India while being registered as a foreigner and whose
residence remains Persian does not magically transform into a Parsi just because they share the
same racial heritage. An Iranian can only become a Parsi by residing in India, and that is at least a
necessary prerequisite. As a result, the Parsi Chief Matrimonial Court, which was established in
accordance with the Parsi Marriage and Divorce Act, 1936, lacks the authority to hear an action for
dissolution of marriage brought against him. Section 29 of the Parsi Marriage and Divorce Act,
1936 designates the appropriate court where a complaint may be filed. It assumes that the lawsuits
filed have jurisdiction, but that by itself, that jurisdiction cannot be granted in cases when the court
lacks jurisdiction.

Parsi Marriage and Divorce Act 1936

Important definitions
Section 2 of the Parsi Marriage and Divorce Act,1936 states the important definitions given below-
1. “Chief Justice” includes senior Judge;
2. “Court” means a Court constituted under this Act;
3. to “desert” together with its grammatical variations and cognate expressions, means to
desert
4. the other party to marriage without reasonable cause and without the consent, or against
the will, of such party;
“grievous hurt” means—
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any member or joint;
(f) permanent disfiguration of the head or face; or
(g) any hurt which endangers life;
“husband” means a Parsi husband;
“marriage” means a marriage between Parsis whether contracted before or after the commencement
of this Act;
a “Parsi” means a Parsi Zoroastrian;
“priest” means a Parsi priest and includes Dastur and Mobed; and
“wife” means a Parsi wife”.

Applicability
• Marriage shall not apply if, in any degree of consanguinity that is both contracting
parties relate to each other and share the same ancestry.
• Marriages are not valid in Parsi Law when marriages are not solemnized by the priest
with two Parsi witnesses in attendance.
• A marriage shall not be accepted if the husband is 21 years old and the wife is 18 years
old.
• When marriage is not valid as set out above, a child born out of that marriage will be
illegitimate.

Marriage between Parsis

Requisites of a valid marriage
No Marriage shall be valid if—
(a) the Contracting Parties, in the presence of two other Parsi witnesses other than that priest, have
a relationship with each other at any level of consanguinity or affinity as defined in Schedule I; or
(b) such marriage shall be solemnized by any Parsi form of a ceremony called “Ashirvad” by a
priest or (a) any Parsi (if that Parsi has changed).
Punishment for bigamy
Any Parsi, who has been married during his or her life, is subject to the penalties provided for by
the India Penal Code for an offence to return to marriage during the lifetime of a Parsi or not,
without being legally divorced by a wife or husband or having his or her previous marriage declared
invalid or dissolved.
Remarriage when unlawful
(1) No Parsi shall, in the lifetime of a wife or a husband, marry, whether or not a Parsi, except after
he has divorced or married that wife or husband legally, or after marriage to that wife or husband
has been declared null, or is void of or is dissolved and, if so, whether he or she has been legally
made null and void or dissolved.
(2) Any marriage which does not agree to the above-stated provision will be considered void.
Registration of divorce
In the case of a court decree concerning divorce, nullity or dissolution, the Court shall transmit to
the Registrar of Marriages within the jurisdiction referred to in Section 7 a copy of that decree for
registration; the Registrar shall enter the same in a registry for the purposes of its preservation and
shall apply the provisions of Part II which are applicable to Registrars and marriage registers,
The penalty under the Act:
• The Priest, in his or her opinion, shall be penalized by the single prison for a term of six
months, or by a fine that may amount to two hundred rupees, or for both, on conviction
of any priest who wilfully and knowingly celebrates marriage contrary to and in
violation of Section 4.
• Any priest who fails to comply with any provision found in Section 6 shall be punished
with a single sentence of imprisonment or with a fine extending to one hundred rupees
or with both, on conviction of such an offence.
• Any other person to subscribe to, or authorize the certificate in compliance with section
6 who willfully fails to do so or fails to do so may, on conviction, be punished with a
fine of no more than one hundred rupees for all such offences.
• Each person making, signing or attesting to a false declaration that he knows or thinks
is false shall be punished for the period extending to 3 months by simple imprisonment
or by an additional penalty extending into 1000 rupees, or by both; and if the act is
equivalent in counterfeiting, as specified in the Indian Penal Code ( Act 45 of 1860).
• Any officer who has not entered such a certificate under paragraph 6 shall be disciplined
for a period of one year or one thousand rupees or with all of them with simple
imprisonment.
• Any person sealing the register, destroying it, or altering it in any section, unlawfully,
or fraudulently shall be punished with imprisonment for a period of five years, which
may extend to five years, of either category as specified in the Indian Penal code (45 of
1860), or, where he is registered, of the Indian Penal Code (45 of 1860).

Requisites of a valid marriage

Degree of prohibited relationship in Parsi law
The Parsi law forbids or discourages marriages between specific relatives through consanguinity
and affinity, just like all other personal laws. Schedule I of the Act has a table that lists all the
prohibited degrees of relationship. These connections are made through the parents, the children,
the spouse or husband, the sister, and the brother.

The Ashirwad ceremony

Ashirvad simply translates to “blessing.” It has to do with calling on God to bless the union of
spouses. The Parsi priest carries out the ritual. Dastur and Mobed are the two types of Parsi priests
that are mentioned in Section 2(8). Any of them may perform “Ashirvad.” In addition to the priest,
there is a requirement for two Parsi witnesses. Section 6 mandates that the priest performing the
ceremony must certify the union using the template provided in Schedule II of the Act.

Legal age of marriage in Parsi law

The provision of legal age to marry in Parsi Law was added by the 1988 Amendment Act. At the
time of marriage, the male must be at least 21 years old, and the female must be at least 18 years
old. Even if they switch their religion or place of residence, the Parsis must abide by this marriage
requirement. Now, if the agreement of his or her father or guardian was gained, as it was in the Act
of 1965, the marriage of a Parsi who has not reached the required age could not be a lawful one.

Child born in a void marriage

This provision was also added by the 1988 Amendment Act. The child born of a void marriage is
just as legitimate as if he had been the result of a valid marriage, even if the marriage was void
because it violated the standards outlined in Section 3(1) of the Act. The clause applies both going
forward and going back. The Parsi Act does not limit the inheritance rights of children of invalid
marriages to parents solely, in contrast to Hindu law and the Special Marriage Act, 1954.

Parsi Matrimonial Courts

In each of the Presidency towns of Calcutta, Madras and Bombay, and in certain other locations
within the territories of the various State government agencies, a Special Court shall be formed for
the purposes of the hearing suits pursuant to this Act.
The Parsi Chief Matrimonial Court of Calcutta, Madras, or Bombay, as the case may be, is so
founded in each Presidency-town.
• Chief Matrimonial Courts-The local limits of the Parsi Matrimonial Court
competence shall correspond with the local limits of the High Court’s ordinary original
civil competence, alimony and maintenance, both continuous and pendiente lite, shall
be supported by a Chief Justice of the High Court or by any other judges of the Supreme
Justice from time to time appointed by the Judge of that Matrimonial Court, and, when
dealing with cases under this Act, by one [five delegates, except in relation to —
(a) interlocutory applications and cases of proceedings;
(b) care, protection and education of children and
(c) matters and prosecutions other than routine trials of cases; and
(d) other cases and other prosecutions.
• District Matrimonial Courts-The Parsi District Matrimonial Court of this place is the
title of a court so constituted in a place other than President Itself. The geographical
 limits of the jurisdiction of the Tribunal shall correspond with the limits of the district
in which it is located, subject to the provisions of section 21. (a) The Judge of the main
Court of original civil jurisdiction shall be the Judge of that Marriage Court and in
proceedings against cases under this jurisdiction. (b) alimony and care, both the
pendente lite and the permanent one; (c) custody of children, care and training; (d) all
matters and procedures other than the usual hearing of cases.
Any district which the State government finds inappropriate to include in the jurisdiction of any
District Matrimonial Court because of the insufficient existence of the Parsi residents shall be
included within the jurisdiction for those Territories in which that Court applies, under the
jurisdiction of the Parsi Chief Matrimonial Court. Unless the delegate is dead, is over, refuses to
give up, or is unable or unable to work, or ceases to be a Parsi, or is convicted of a violation under
the Indian Penal Code (45 of 1860) or other law for a period 1 (including a moral tort), then and so
often State Government can be considered as insolvent.
The delegates chosen by the State Government pursuant to Sections 19 and 20 for assistance with
the administration of the suits under this Act are, by the orders of the President Judge of the Court,
taken from delegates designated by the State Government in accordance with Section 24, under
proper rotation.
Any suit brought in pursuant to this Act shall, at the time of commencement of proceedings, be
brought to trial under its jurisdiction [or where a wedding has been solemnized in compliance with
this Act]. When the accused has at that time left (the jurisdictions protected by this law) the case
shall be brought before the Court where the complainant and the accused have lived together for
the last time.
The way the trials are conducted is one of the Act’s most distinctive elements. In addition to being
presided over by a judge, the trial is also performed in the presence of ‘five delegates’ who serve
as the jury, and with their aid. Although the word ‘jury’ is not used in the Act, the delegates’
function is somewhat comparable to that of a jury. In India, the jury system was eliminated in all
procedures by 1960. With the exception of cases handled in accordance with this Act, the K.M.
Nanavati case (1961) may have been the end of the jury system. Notwithstanding the fact that the
Act’s jury system has been the subject of several discussions about its benefits and drawbacks, the
focus of this part of the article is strictly on the approach and process that is often used to appoint
delegates under the Act. Yet, it would be vital to comprehend the purpose and range of the
delegates’ powers under the Act before moving on to analyse the procedure.

Role of the delegates and their functions

 1. The Parsi Matrimonial Courts are designated as “Special Courts” by the Act and are
established to hear cases. According to Sections 19 and 20 of the Act, the presiding
Judge will preside over the trial of cases before these Special Courts, the Parsi Chief
Matrimonial Courts (for the Presidency towns for Calcutta, Madras, or Bombay), or the
Parsi District Matrimonial Courts (for districts or areas other than the Presidency
towns).
2. Although the Act does not define the phrase “regular hearing of cases,” judicial rulings
have construed the phrase to cover those matters that are under dispute by the relevant
parties. They include matrimonial lawsuits governed by Section 30 (suits for
nullity), Section 32 (divorce), Section 36 (restitution of conjugal rights), etc., where the
factual basis must be established. Apart from the limitations stated in Sections 19 and
20, the Bombay High Court in the case of Minoo Rustomji Shroff v. Union of India
(2005) has ruled that delegates are not required to support the presiding judge in non-
contentious proceedings like divorce by mutual consent under Section 32-B of the Act.
3. It was observed by the Bombay High Court in the case of Rohinton Panthaky v. Armin
R. Panthaky (2014) that the Presiding Judge’s and the delegates’ responsibilities are
carefully segregated. According to Section 46 of the Act, all questions of law and
procedure must be decided by the Presiding Judge, but the decision regarding the facts
of the case must be made by a majority of the delegates present at the trial unless there
is an equal division of opinion among the delegates, in which case the Presiding Judge
will make the decision. Factual determinations are only required when they are in
dispute between the parties. The Judge makes decisions on matters of law and
procedure, but the delegates’ findings of fact are definitive and are not appellate in
nature.
4. According to Section 27 of the Act, the delegates designated under Section 24 by the
State Government shall be replaced by the delegates chosen under Sections 19 and 20
in accordance with the orders of the Presiding Judge of the court. The proviso of the
Section allows each party to the marriage dispute/suit to challenge any two of the court-
invited delegates without giving a reason before such delegates are chosen, and no
delegate who has been so challenged can be chosen.

Power and procedure for appointing delegates

1. Under the Act, the State Government has sole authority to name delegates. According
to Section 24 of the Act, the local Parsis must be given an opportunity of expressing
their opinion in such a manner as the respective Government may think fit before the
 State Government appoints delegates in the Presidency towns and the district of the
State under the jurisdiction of their respective Governments. Only Parsis may be
appointed as delegates, and the names of those chosen must be published in the Official
Gazette in accordance with subsection (2). Within the local bounds of a High Court’s
ordinary civil jurisdiction, no more than thirty Parsis may be appointed, and no more
than twenty Parsis may be appointed in a district.
2. One of the Act’s most noticeable features is the lack of any mechanism or procedure for
delegate nomination, even though the State Government has the authority to do so. If
one were to examine the overall structure of the Act and the Statement of Objectives
and Reasons of Amendment Act 5 of 1988, the omission of such a provision would
appear to be deliberate. It would be reasonable to presume that, in the absence of any
system specified by the Act, the Parsi community members in a given area or
jurisdiction are left to their own devices and are free to decide the process and manner
in which the delegates are to be nominated. This leads to a lack of uniformity, therefore
the process used would vary depending on the location.
One of the most prominent cases that dealt with the issue of delegate nominations was Delforooz
Darius Dorabjee v. State of Maharashtra (2006) by the Bombay High Court. In this case, in Pune,
the petitioner-wife had served the respondent-husband with a divorce petition. The petitioner filed
a writ petition in the Bombay High Court while the matrimonial proceedings were still pending,
asking for a writ of certiorari to overturn and annul a government notification dated 10-2-2005 that
had appointed 11 people as delegates for a period of 10 years to assist in the adjudication of cases
arising under the provisions of the Act in the Parsi Matrimonial Court in Pune. One of the additional
requests was to reverse and annul the District Court of Pune’s order, which served as the Parsi
Matrimonial Court’s order dated 13-7-2005, which overruled the petitioner’s objection to the notice
of delegates’ appointments on the grounds that they intended to contest their appointment as a result
of a government notification dated 10-2-2005.
The Hon’ble High Court acknowledged that no regulations or guidelines establishing a process for
the appointment of delegates have been issued pursuant to the Act, but emphasised the significance
of providing the local Parsis with a forum to voice their opinions, as provided for in Section 24 of
the Act. The Court’s reasoning is based on the freedom to express one’s viewpoint. Therefore, the
ultimate inference that can be drawn from the Court’s reasoning is that the procedure followed need
not necessarily be uniform in its application and may differ from place to place as long as the local
Parsi community is given the opportunity to voice their opinion in the process of the appointment
of delegates.
Matrimonial suits
In Parsi Divorce Act one of the partners may dissolve marriages by three means:
Nullity cases: Unless the consummation is unlikely because of natural causes, the marriage may
be declared null or void.
Grounds for divorce:
1. Any married person may sue for divorce on one or more of the following grounds, under
the Parsi Law Act of divorce: Marriage has not been consummated within 1 year of its
officialization on grounds of the defendant’s deliberate failure to conduct it.
2. The defendant at the time of the marriage was mentally ill or of unsound mind and has
been habitually so up to the date of the suit.
3. That the defendant was at the time of the marriage pregnant by some person other than
the plaintiff: Provided that divorce shall not be granted on this ground, unless the
plaintiff was at the time of the marriage unaware of the fact alleged, the suit has been
filed within 2 years of the date of marriage, and marital intercourse has not taken place
after the plaintiff came to know of the fact.
Reasons for marriage dissolution: When a husband or wife are separated from one another for a
period of seven years.
The complainant shall take the co-defendant in any proceedings in relation to adultery divorce
unless otherwise directed by the Court, and the Court shall, in all other proceedings in connection
with which the adultery is supposed to have been committed, order the adulterer to pay the whole
or part of the proceedings’ costs. If a husband has abandoned his cohabitation with his wife,
deserted or, without a valid reason, has ceased to co-exist with his spouse, the party so deserted or
with whom co-existence so stopped may, if satisfied with the truth of the claim in the plea, sue for
reimbursement of his or her conjugal rights and the Court.

Children of the Parties

In any proceeding under the present Act, the Court may from time to time pass these interim orders
in respect of the custody, maintenance and training of children under 6 years of age (till 18 years)
in a definitive judgment which it finds fair and proper to marry the parent to which the case relates,
and may, upon request, apply for the final order.
If it has been made to the Tribunal that a wife has a right to any possession or reversal of property,
the Court may order a settlement of that right which it finds it fair to make of any part of that
property not exceeding one-half of it for the benefit of thin any case in respect of which a decree
of divorce or judicial separation for the adulteries of a wife is given.
Maintenance
Maintenance laws have been adopted as a social justice measure to give dependant spouses and
children financial assistance, preventing them from sliding into destitution and vagrancy.
Maintenance is, when a marriage is dissolved, certain rights become available to the parties. In
rare instances, the woman is permitted to request maintenance from her husband in order to
protect herself and her kid. It is offered to cover the wife's living expenses and to provide her
with comfort by reducing the loss. Certain laws in India, such as the Hindu Marriage Act of
1955, provide both the husband and wife the right to claim support; the Hindu Adoption and
Maintenance Act, which only applies to Hindus, gives the woman certain extra privileges.
Definition of Maintenance Law:
The term "maintenance" has a broad definition. The best apt and precise definition
of Maintenance Laws In India has been given under Section 3 (b) of the Hindu Adoption &
Maintenance Act, 1956, which reads as under:
"in all cases, provisions for food, clothing, residence, education and medical attendance and
treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to
her marriage." The laws regarding maintenance laid down the duty of a man to provide
maintenance to his parents, wife, and children. The general meaning of maintenance means to
support or sustenance. The term maintenance is not defined in the marriage laws of any of the
religious communities.
PERSONS ENTITLED TO MAINTENANCE
I) Maintenance of Wife
II) II) Maintenance of Children
III) III) Maintenance of Parents, and
IV) IV) Other relations
The marriage is valid and the wife is capable to render marital intercourse it‘s the husband‘s
duty to maintain his wife even though she may have means to maintain herself. But if she
unjustifiably refuses to cohabit with her husband then she loses her right for maintenance. The
right of maintenance would also be lost if the wife refuses to obey the reasonable commands
of the Husband but not so if disobedience is justified by circumstances or if she is forced to
leave husband‘s house on account of cruelty, so that of the husband refuses to maintain his wife
without any lawful reasons/causes the wife may sue him for maintenance. She is not however
entitled to past maintenance. Maintenance is payable from the date of the decree unless the
claim is based on specific agreement. Where a wife is turned out or ill treated so as to make her
impossible to stay or live together with her husband, or where the breach between the wife and
husband is irremediable she is entitled to maintenance by living separate from him whether the
question arises u/s. 125 of the Code of Criminal Procedure 1973. To summaries, the wife loose
the right to maintenance in the following circumstances:-
a) She is minor, incapable of consummation.
b) Refuse free access to the husband at all reasonable times.
c) Is disobedient.
d) Never visited his house.
e) Refuses to cohabit with him without reasonable excuse.
f) Abandon conjugal home without reasonable reasons.
g) Deserts him.
h) Elopes with another person.
The husband and wife or their guardian may enter into agreement whereby the wife is
entitled to recover maintenance from her husband, on the happening of some special event
such as ill- treatment, disagreement, husband‘s second marriage etc. but the agreement in
the marriage contract that the wife would not be entitled to maintenance is void.The key
consideration is that the agreement should not be opposed to the public policy and Muslim
Law. An agreement between a Muslim and his first wife, made after his marriage with a
second wife, providing for certain maintenance for her if she could not in future get on with
the second wife, was held not void on the ground of the public policy.
Followings are the valid conditions for an agreement:
a. If the husband treats the wife with cruelty then the wife has a right to separate residence
and maintained to meet it.
b. If he brings subsequent wife and the previous wife is unable to with her, she will get
maintenance allowance to live separately or even at her father‘s house.
c. If he brings his other wife to the matrimonial home, she will reside at her father‘s home
and he will give her maintenance. This view was reiterated by the Karnataka High Court.
d. In case of disagreement with each other, he will give her maintenance for her separate
residence. After divorce the Mahomedan wife is entitled to maintenance during the time
period of Iddat and also for the time, if any, that elapsed after the expiry of the period of
Iddat and her receiving notice of Talak. After expiry of the period Iddat the enforceability
of the order of maintenance ceases.
The wife is entitled to sue for maintenance at her normal place of residence at the time of
divorce and the place where she receives the notice thereof. Suit by divorced for Hiba-
 jewels lies where the wife resides. A widow is not entitled to maintenance out of the estate
of her late husband in addition to what she is entitled to by inheritance or under his will.
(I) MAINTENANCE OF CHILDREN In case of Legitimate Children the maintenance of
the children is rest upon the father. In Hedaya, the following verse of the Koran, namely --
The maintenance of woman who suckles an infant rests on him to whom the infant is born.
The maintenance an infant child is rest upon the father, because, as maintenance is decreed
to the nurse on account of her sustaining the child with her milk, it follows that the same is
due to the child himself a fortiori. ―
Thus a father is bound to maintain his sons until they attain puberty and his daughter until
they are married. He is also responsible for the upkeep of his widowed or divorced daughter,
or a child in the custody of the mother. The father is not bound to provide separate
maintenance for a minor or an unmarried daughter who refuses to live with him without
reasonable cause. An adult son need not to be maintained unless he his infirm. The father
is not bound to maintain a child who is capable of being maintained out of his or her own
property.
In India, marriage and divorce laws constitute personal laws that vary from religion to
religion. While there are some uniform civil laws applicable to all citizens, certain aspects of
divorce like custody and maintenance are largely dictated by the religion practised by the
spouses in question. Let’s further check out the Maintenance Rights under Various Personal
Laws in the blog.
Maintenance is essentially financial support given by order of the court by one spouse to
another, to support their living expenses. Generally, it’s not just the financially weaker
spouse, but also the children who are equally entitled to receive such financial help. Below,
we have attempted to explain the various laws applicable to separating spouses of various
religions, with regard to maintenance.
Maintenance rights as per Hindu laws:
A divorced Hindu (includes Buddhists, Jains and Sikhs) woman is provided with the right to
claim maintenance under both the Hindu Marriage Act of 1955 and the Hindu Adoption and
Maintenance Act, 1956. The quantum and other specifics as to the maintenance will be
decided by the family courts on a case to case basis.
The provision for maintenance under Hindu laws is relatively more straightforward as
compared to other personal laws.
Maintenance rights as per Christian laws:
In the case of Christian Law, the topic of maintenance is governed by the Indian Divorce Act:
The quantum of maintenance is restricted by the act to not more than 1/5th of the husband’s
income. However, the wife would only be eligible for this maintenance amount if she does
not remarry and ‘remains chaste ‘. Other factors that courts may take into account include
income and property of each spouse, behaviour of each spouse, the reason for divorce, etc.
Maintenance rights as per Muslim laws:
Under Muslim laws, a husband is liable to maintain his wife as well as family. The concept of
maintenance under Muslim Law is referred to as nafaqa, and is deemed to include expenses
associated with food, sustenance, and lodging. Usually, the wife is entitled to maintenance
from the husband, even if it is established that she has adequate means to maintain herself.
If the couple has a child during the time of separation, the wife may claim maintenance for
the child till the time she remarries or for as long as the child remains dependent. Moreover,
if during the period of divorce the wife is pregnant, she is entitled to claim maintenance for a
period of at least two years from the date on which the child is born.
The maintenance of Muslim women is predominantly governed by the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
Maintenance rights as per Parsi law:
In Parsi Law, the concept of maintenance is largely similar to that under Christian laws, with
one significant difference. In the case of Parsis, husbands may also claim maintenance. The
precondition of chastity is applicable to Parsis as well, and the maintenance amount may not
be beyond 1/5th of the relevant spouse’s income.
Apart from the religion-specific provisions mentioned above, it may be noted that a
separating wife may also claim maintenance under Section 125 of the Code Of Criminal
Procedure, 1973.

Purpose of Maintenance Laws In India

The legal sense of the scope of the Maintenance act is intended to fulfill a social purpose. These
provisions are contained in the Criminal procedure code,1973 under sections 125 to 128, under
the Hindu marriage act 1955, under the Hindu Adoption and Maintenance act,1956. Under the
protection of women from Domestic Violence Act 2005, The Maintenance and Welfare of
Parents and Senior citizens Act, 2007.
ARTICLE 39 of the constitution also state inter-alia that the state shall, in particular, direct its
policies towards securing that the citizens, men, and women equally, have the right to an
adequate means of livelihood, that children are given opportunities and facilities to develop in
a healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.
Factors Affecting Right To Maintenance:
• the relationship of the husband is and wife should be proved,
• she must be unable to maintain herself,
• the husband must be having sufficient means and
• it should be proved that the husband has neglected or has refused to maintain a wife.
• Even a wife who has been divorced is entitled to claim maintenance from her
• the husband provided that she has not re-married.
Maintenance under different laws in India
• Maintenance under Hindu Law.
• Maintenance under Muslim Law.
• Maintenance under Christian Law.
• Maintenance under Parsi Law.
• Maintenance under Code of Criminal Procedure 1973.
• Maintenance under Protection of women from Domestic violence Act, 2005.
• The Maintenance and Welfare of Parents and Senior citizens Act, 2007.
Maintenance Under Hindu Law:
The relief of maintenance is considered an ancillary relief and is available only upon filing for
the main relief like divorce, restitution of conjugal rights or judicial separation, etc. Further,
under matrimonial laws, if the husband is ready to cohabit with the wife, generally, the wife's
claim is defeated. However, the right of a married woman to reside separately and claim
maintenance, even if she is not seeking a divorce or any other major matrimonial relief, has
been recognized in Hindu law alone. A Hindu wife is entitled to reside separately from her
husband without forfeiting her right of maintenance under the Hindu Adoptions and
Maintenance Act, 1956. The Act envisages certain situations in which it may become
impossible for a wife to continue to reside and cohabit with the husband but she may not want
to break the matrimonial tie for various reasons ranging from growing children to social stigma.
Maintenance Under Muslim Personal Law
All those things which are necessary to support life, such as food, clothes, and lodging; mainly
confine too solely to food. Nafaqa literally means which a man spends over his children, in law
it means feeding, clothing and lodging; in common use it signifies food. Maintenance
Comprehend Food, raiment, lodging, though in common parlance it is limited to first. The main
principles of maintenance may be recounted thus: (i) A person is entitled to maintenance if he
has no property, (ii) is related to the obligor in prohibited degrees, or is the wife or child, and
(iii) the obligor is in position to support him. The obligation of maintenance is also hedged by
the factor of their economic condition.
(II) MAINTENANCE OF WIFE It is incumbent on a husband to maintain his wife, whether
she is Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However the
wife is too young for matrimonial intercourse she has no right to maintenance from her
husband, whether she is living in his house or with her parents.
Maintenance Under Code Of Criminal Procedure 1973
S.125.Order for maintenance of wives, children, and parents
• If any person having sufficient means neglects or refuses to maintain-
• His wife, unable to maintain herself, or
• His legitimate or illegitimate minor child, whether married or not, is unable to maintain
itself, or
• His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is by reason of any physical or mental abnormality or injury
unable to maintain itself, or
• His father or mother is unable to maintain himself or herself.
Refusal On Neglect To Maintain:
It has been held that the refusal or neglect to maintain may be expressed or implied, it may be
by words or by conduct and action. Sometimes refusal or neglect may be constituted by
something more, than more failure and omission. However, in relation to a person who has
volition of his or her own, like in the case of a child mere failure or omission shall constitute
refusal or neglect to maintain.
The term ‘maintenance’ has been generally interpreted to include food, clothing, and lodging.
However, in recent times maintenance should be gender-neutral and should be applicable both
for husband and wife respectively for the greater perspective of the society but still many
women are being denied to claim their rights of maintenance. Proper implementation is
necessary to abide by the Law of the Land and ultimately to make it a grand success. it has
been held that any other requirements, i.e., necessary for a person to remain fit, healthy, and
alive is also to be included within the periphery of the term ‘maintenance’.
Maintenance and Welfare of Parents and Senior citizens Act, 2007
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Section 4 Of the Act
deal with the Maintenance of Parents and Senior Citizens.
 • A senior citizen including a parent who is unable to maintain himself from his own
earning or out of the property owned by him, shall be entitled to make an application
under Section 5 in case of-
o Parent or grand-parent, against one or more of his children, not being a minor;
o A childless senior citizen, against such of his relative, referred to in clause (g)
of Section 2.
• The obligation of the children or relative, as the case may be, to maintain a senior citizen
extends to the needs of such citizens so that senior citizens may lead a normal life.
• The obligation of the children to maintain his or her parent extends to the needs of such
parent either father or mother or both, as the case may be, so that such parents may lead
a normal life.
• Any person being a relative of a senior citizen and having sufficient means shall
maintain such senior citizen provided he is in possession of the property of such senior
citizen or he would inherit the property of such a senior citizen: Provided that where
more than one relative is entitled to inherit the property of a senior citizen, the
maintenance shall be payable by such relative in the proportion in which they would
inherit his property.
Maintenance should be neutral in every aspect and should be applicable both for husband and
wife respectively for the better understanding of the community but still many women are being
completely ignored to claim their rights of maintenance. Proper implementation is compulsory
to abide by the Law of the Land and ultimately to make it a major achievement.

Spousal Maintenance: Alimony, Interim & Permanent Maintenance

Divorce procedures always include a discussion of maintenance, child custody, alimony, and
other related matters. Maintenance & Alimony are the terms that come in between the divorce
proceedings. Child Custody also comes but it is simple to understand. So we are starting with
alimony and maintenance here.
Maintenance is the financial assistance provided by one spouse to the other if he or she is
unable to maintain themselves. There is, however, much more to it, but for the time being, we
should at least be clear with the differences between these two terms.
It is the sum paid to one spouse regularly or during a court action. Alimony, on the other hand,
is a one-time payment made to a spouse after a divorce. On the one hand, alimony payments
can be made in both property and cash, whereas maintenance payments must be made in cash
alone.
Stay with us till the very end, we will resolve every doubt of yours about the maintenance in
divorce.
Maintenance is the amount set by the court (in case of contested divorce) to the spouse for the
fulfillment of basic needs like housing, shelter, food, and clothing. The main motive behind
such maintenance is to secure the right of the divorced partner who doesn't have financial
support to live a better life. The reason for mentioning contested divorce here is pretty simple.
In the proceedings of mutual divorces , all these matters are resolved before court proceedings.
Whereas all the legal decisions are sorted in the courtroom in a contested divorce.
There could be a lump sum amount, annual amount, or a monthly amount for that. Depending
upon that, it is divided into three types:
1. Alimony
2. Interim Maintenance
3. Permanent Maintenance
Before proceeding with the type of maintenance and their details, we should have a look at the
laws regarding maintenance for spouses in India.
Types of Maintenance: Alimony, Interim & Permanent Maintenance
Alimony:
Alimony, Interim Maintenance, and Permanent Maintenance all are the same financial support
that the court orders one partner to pay the other.
But one thing that differentiates them from each other is the time period of providing such
support. Like when one spouse gets financial support during the court proceedings of divorce,
it is interim maintenance. Similarly when court orders for periodic maintenance to one partner
after divorce, it is permanent maintenance.
And Alimony also is the financial support but once alimony is paid to the partner, he/she is not
eligible for permanent maintenance by the partner. Additionally, alimony is paid before the
final dissolution of marriage in court. In short after divorce, no alimony is given to the partner.
Alimony is financial support and a one-time payment at the time of divorce. Unlike interim &
permanent maintenance, alimony can be paid by both physical cash or property method.
Interim Maintenance
Interim Maintenance is the amount given to one partner for fulfilling the needs and necessities
of another partner during the whole proceedings of the divorce. This amount is set by the court.
The motive of any such allowance is that one party should not be on the weaker side to contest
their case. The interim maintenance is only allotted after filing the petition for it in court.
Generally, the wife files for the interim maintenance but there is no such rule that the husband
can’t file for it. In case the husband is not able to support himself or the child, he may seek
interim maintenance as well.
Permanent Maintenance
On one side where interim maintenance is allotted at the time of proceedings, permanent
maintenance is ordered to be provided after divorce at the regular interval of time set by the
court. The permanent maintenance should only be provided in form of cash, no property can
be availed for this purpose. Various aspects need to be checked for deciding the permanent
maintenance amount.
Now till time, we have understood the types of maintenance. It’s time to know about the laws
related to maintenance in India.
There are different laws for divorce and other related decisions. Just like the provision for
marriage is differently mentioned for different religions, maintenance is also the same case.
• As per Section 125 of CrPC, 1973 the court can order maintenance in cases when the
person neglects or refuses it to his wife. It also states that if the husband is married to
another woman, then he can refuse to provide maintenance to the first divorced wife.
• Section 25 of the Hindu Marriage Act gives the right to file a petition for interim as
well as permanent maintenance in the court for the person following Hindu religion
only. Both the partner, husband, or wife can file for maintenance under the Act.
• Section 18 of the Hindu Adoptions and Maintenance Act, 1956 that the wife is
entitled to get maintenance by her husband throughout her life.

The process for claiming maintenance in divorce is quite simple with Litem.All you have to do
is just follow our simple 3 step process:
1. Fill our short form and receive a call back from our team of experienced
professionals.
2. Provide us with all necessary details and documents related to your case.
3. Our team of legal experts will handle that for you.
Our legal advisors and advocates have the deepest understanding and expertise in this area
especially related to specific laws applied in divorce & maintenance cases. So, when you are
in need of any kind of legal representation and have already decided to choose one, you can
avail the services of Litem, one of the best law firms in the country with dedicated
representatives precisely to deal with divorce and related cases.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Nurturing is not complex. It’s merely being tuned in to the thing or person before you and
offering small gestures toward what it needs at that time” (Radmacher 58). As we see today’s
scenario, as generation is growing there are many cases in which children don’t care about their
parents or grandparents when they get old, and they suffer from different type of inabilities be
it physical or mental, sometimes they don’t even get a place to live and they aren’t in a position
to support themselves financially. “As per 2011 census, citizens over the age of 60 years
comprise 8.6% and that may increase to 21% by 2050”[1], and as the population of old citizens
was growing at that pace and the problems they were facing was a major concern so because
of that, Ministry of Law and Justice came with a legislature titled “Maintenance and welfare
of parents and senior citizens Act, 2007”, so that this act will ensure that those senior citizens
gets sufficient means for their maintenance. This act will provide financial security and will
require their children to provide maintenance to their parents and grandparents.
Who Can Avail Maintenance Under This Act?
Parents or grand-parents or senior citizens can avail maintenance under this act from their
children or relatives. A parent can be father or mother or both, inconsequential of whether they
are biological or step parents or whether they come under the criteria of senior citizen or not.
“A childless step-mother may claim maintenance from her step-son provided she is a widow
or her husband, if living, is also incapable of supporting and maintaining her”.[2]
Senior citizen comprises persons who are citizen of India and comes under the category of age
bar 60 years and above, it will also include parent who is not able to maintain themselves from
their own earning or out of the property owned by them. If the senior citizen who does not have
any means to maintain themselves, and they are also not having any children to maintain them,
then they can get maintenance from their relative. Relative means any legal heir who is in
possession of his property (of any kind whether movable or immovable, ancestral or self-
acquired, tangible or intangible) or would inherit his property after his death. If there is a
condition that there are more than one relative who are entitled to inherit the property of senior
citizen then maintenance payable by them will be in accordance of the proportion in which they
will inherit the property.
If a maintenance order is made against more then one person then if one of them dies it will
not affect the liability of others. But if the senior citizen is entitled to claim maintenance under
both the Acts i.e, Chapter IX of Code of Criminal Procedure and Maintenance of Senior
Citizens Act, 2007 then he can claim under either of them not under both.

Who Shall Be Liable To Maintain

This Act states that children will be liable for the maintenance of their parents or grandparents.
So, the term children actually comprises son, daughter, grandson and grand-daughter but they
should not be minors. It will be their responsibility to take care of the basic amenities of their
parents and grand parents. They have to take care of their food, clothing, residence, medical
attendance and treatment, things that will help them to lead a normal life.
Procedure
• Senior citizen or parent whoever is not able to fulfil their needs from their own earning
or out of the property that they own they can make application for maintenance under
Section 5[3] and if they are not able to file application then that can be filed by any
other person or organization authorized (any voluntary association registered under the
Societies registration Act, 1860) by them or the tribunal can take the case on “suo
moto”[4].
• After the filing of application, notice will be sent to children or relative regarding that,
so that they will get an opportunity to be heard and to hold an enquiry regarding the
amount of maintenance.
• An application for monthly allowance shall be disposed within 90 days and can be
extended only in some exceptional cases for 30 days.
• The expenses shall be paid from the date of order. Court can also order to pay the
amount from the date of application, if necessary. When an order is made then the
amount shall be paid within 30 days from the date of order.
• If children or relatives fail to comply with orders then they should give sufficient
reasons to do so otherwise Tribunal may for every breach issue a warrant or issue fine
or may sentence imprisonment to that person which may extend to one month or till the
time payment is done. No warrant shall be issued by Tribunal to levy such amount until
and unless three months time has been passed.
• The Tribunal will have jurisdiction to proceed if children or relative resides or last
resided in the jurisdiction of the tribunal or if children or relative resides in the
jurisdiction of the tribunal.
 • Evidence shall be taken in the presence of children or relative against whom the notice
has been issued.
• If tribunal is satisfied that children or relative are wilfully neglecting to attend the
proceeding then, court may give ex-parte decision. If children does is residing out of
India then summon will be issued in the form that is specified by the Central
Government in the Official Gazette.
• The maintenance amount which Tribunal can order shall not exceed the limit prescribed
by State Government or it shall not exceed ten thousand rupees per month.
• If any senior citizen is not satisfied by the order i.e, aggrieved by order of tribunal may
file an appeal to appellate tribunal within 60 days from the date of order. No appeal will
be rejected unless a proper opportunity has been given to both the parties of being heard
by a duly authorized representative.
• If the person who has responsibility of taking care leaves the person in any place with
intention of abandoning him then he will be liable for imprisonment which may extend
to three months of fine which may extend to five thousand rupees or with both.
Responsibility Of Government
• This Act ensures that Government has to build and take proper care of hospitals fully
or partially funded which provide proper arrangement of beds for all senior citizens,
facility for treatment of chronic diseases. In public places or hospitals, there should be
arrangement of separate queue.
• The State government may impose such duties on District Magistrate to ensure that the
provisions of this Act are properly carried out.
• If after the commencement of this Act, any senior citizen has transferred his property
by way of gift or by any other method then it will be responsibility of the transferee to
provide basic amenities and basic physical needs of the transferor and if the transferee
denies then it will be considered that such transfer has been made under coercion or
under undue influence and shall be declared as void.
• State government may establish and maintain old age homes at places which are
accessible to many people and may also prescribe to manage those age old homes.

In this Act it is written that State Government may establish age old homes i.e, Act is not
making it as compulsion. Act should make it as a compulsion because this is the most essential
thing for the maintenance of old age people because if government is not properly taking
responsibility of these helpless people then how can they expect from people to take care about
those people.
The main point is that parents will never go to court to pressurize their children to fulfil their
needs, so rather than focusing on how children has to maintain their parents, the Act should
focus on how a system can be created in which schemes should be implemented in such a way
that these old age people can get pensions or money directly in their back account to maintain
themselves. More awareness related programmes should be run across the country to make
these people understand their rights and that they should not suffer just thinking about their
children, they also have right to live a healthy life.
• What is Maintenance and Welfare?
• In general terms, maintenance means to provide financial assistance to an individual
who is dependant upon them and is also unable to maintain himself/herself financially.
According to the Hindu Adoption and Maintenance Act 1956, maintenance (Section
3b), apart from financial assistance, also includes food, clothing, shelter, residence,
education, medical assistance etc. Similarly, Section 2b of the Maintenance and Welfare
Of Parents And Senior Citizen Act 2007, includes food, clothing, residence, medical
attendance and treatment.
• Connect with an expert lawyer for your legal issue

• Maintenance under Personal Laws in India

•

1. Hindu Laws
• The Hindu Adoption and Maintenance Act 1956 (HMA) obligates children to maintain
their parents. The liability or duty to maintain parents lies on both daughters and sons.
Only those parents that are not able to maintain themselves from any source have the
right to seek maintenance under HMA.

• 2. Muslim Laws
• As per Muslim principles, children have a duty to provide maintenance to their parents
since they have a right to be maintained by their parents. However, only when children
are financially sound and the parents are poor, they are bound to maintain their parents.
 Even under Muslim personal laws, both sons and daughters (jointly and equally) have
the obligation to maintain the parents. If the child can support only one parent out of
the mother and father, the mother gets priority over the father to be maintained.

• 3. Christian and Parsi Law

• No definitive personal laws are there to provide for maintenance for parents under
Christian and Parsi laws. If parents/grandparents/senior citizens need maintenance, they
could approach the courts/authorities under Cr.P.C. or under the Maintenance of Parents
and Senior Citizens Act.
• Consult: Top Family Lawyers in India

• Maintenance under Code of Criminal Procedure; Section 125 Cr.P.C.

• The Code of Criminal Procedure also lays down rules regarding maintenance for
parents, along with wife and children. It states that if any individual having sufficient
means neglects/ refuses to maintain his parents (mother or father) who are unable to
maintain themselves, the magistrate may (based upon proof of neglect/refusal), order
such individual to make monthly allowance for maintenance of (wife or child or)
mother or father at such monthly rate as the Magistrate thinks fit and to pay the same
to such person as directed by the Magistrate.

The two main conditions required for claiming maintenance are that:
• 1. the father or the mother should not be able to maintain themselves, and
• 2. the individual against whom an order under Section 125 is passed, should
himself/herself have enough means to provide for the maintenance and welfare of
his/her parents and yet refuses or neglects to to do.

Under Section 125 of Cr.P.C , both mother and father (natural or adoptive) can claim
maintenance from their child, including from daughters. Married daughters may also
be liable to pay maintenance if they are dependant on her entirely. A step mother can
also seek maintenance if she is a widow and does not have any natural born
sons/daughters.
 An application for maintenance against any individual who is liable to pay the same
can be filed in any district where parents reside or where the child resides. The Judicial
Magistrate of First Class, after presiding over the proceedings, and scrutinizing the
evidence and facts and circumstances of the case, may pass an order for maintenance.

In case the individual against whom the order for maintenance has been passed fails to
obey the order of the court, the court can issue a warrant against such individual in order
to collect the due amount. The Court can also attach such individual’s immovable
property or salary, in case of default.
• Connect with an expert lawyer for your legal issue

• The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
The objective of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to
legally obligate the legal heirs to provide maintenance to senior citizens. The states under the
said Act have the authority to set up maintenance tribunals and appellate tribunals in order to
decide matters related to maintenance of the elderly.

It also allows the State Govts. to establish old age homes district wise. Senior citizens and
parents have the right to approach the appropriate maintenance tribunal seeking a monthly
allowance from their children or legal heirs for their maintenance and welfare.

Under the said Act, maintenance can be claimed by parents, grand parents and senior citizens.
Mother, father (whether biological or adoptive or step) can claim maintenance. In case of
parents, it is not essential as per the Act for them to be senior citizens. Both maternal and
paternal grandparents can also claim maintenance under the Act. However, a condition in order
to claim maintenance by parents or grandparents is that they should be unable to maintain
themselves.
Consult: Top Family Lawyers in India

Applying for Maintenance under the Act

The procedure for applying for maintenance under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 has been stated below:
1. Application: A senior citizen or parent can make an application under Section 4 of the Act,
to the tribunal constituted for resolving maintenance claims. Details of person from whom
maintenance is sought shall be included in this application. Maintenance proceedings are
required to be initiated in any district where such citizen i.e. child or relative resides.

An Application can be made by the person seeking the maintenance. However, in case he/she
is unable to do so, the application can also be made by any other person or registered
organisation that is authorised by such parent/grandparent/senior citizen to do so.

2. Notice by Tribunal: A notice shall be issued to the children/grandchildren/relatives after

which it conducts the hearing and if the tribunal deems fit, it will pronounce a maintenance
order.

3. Re-approaching the Tribunal: If the child/grandchild/relative fails in making the payment of

maintenance (without any sufficient reasons) as ordered by the tribunal, for a period of 3
months from the due date, then, in such cases, the senior citizen or parent can approach the
tribunal again.

If delay is caused by the child/grandchild/relative in question, he/she may be punished with

fine or imprisonment up to 1 month which may extend till the amount of maintenance is paid.
Connect with an expert lawyer for your legal issue

Liability to Pay Maintenance to Parents or Grandparents under the Act

In case of grandparents, adult grandchildren and in case of parents, adult children are liable to
pay maintenance to respective grandparents or parents.

Maintenance can also be claimed from relatives if the parents or grandparents do not have
children or grandchildren. However, certain conditions for this must be fulfilled. The relative
must be above 18 years of age and should have sufficient means to provide maintenance. Such
relative should either be in possession of the senior citizen’s property or should be in a position
to inherit their property after the death of such person(s).
Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018
The said Bill has been introduced by the government in order to expand the ambit of social
security for senior citizens by a number of ways including making distant relatives responsible
for their maintenance, increasing the fine amount and the imprisonment duration in case of
abandoning of parents, etc. The financial cap of 10,000 Rs. of maintenance per month in the
2007 Act has been sought to be removed.
Consult: Top Family Lawyers in India

Landmark Judgments for Maintenance and Welfare of Parents

1. Dattatrey Shivaji Mane vs. Lilabai Shivaji Mane & ors.
In this case, the court observed that where a house is self-acquired by the parents, son married
or unmarried has no right to live with them. And even if he wants to live with them he has to
live in the mercy of his parents until they allow him to live with them. No son has a right to be
a burden on his parents throughout his life. Also, it is observed by the court that if children or
grandchildren abusing their parents or grandparents are not allowed to stay with him. In this
case, the court also points out some objective of the Maintenance And Welfare of Parents And
Senior Citizens Act 2007. The court observed that the Act provides the inexpensive, simple,
and speedy provision to claim. Also, this Act cast obligation on the citizens to maintain older
people also propose provision for setting up old age homes for their proper maintenance. This
Act also proposes better medical facilities for old people.

What is adoption?
Adoption is the permanent legal transfer where all parental rights get transferred from one
individual to another or a couple. Adoptive parents possess the same rights as biological
parents, and adopted children enjoy the same social, legal, emotional, and familial benefits as
biological children.
Adoptions Laws in India
Adoption has been practised and customised in India from ancient times. Adoption was
predominantly seen as a sacramental act. Though the goal of the act has changed, the act of
adoption has not.
Muslims, Christians, and Parsis are among those who must go to court under the Guardian and
Wards Act of 1890. They may only take one child into foster care at a time. Once a kid achieves
the age of majority, i.e., 18 years old, he or she is free to dissolve any ties. In addition, such a
child is not legally entitled to inherit.
Hindus, Jains, Sikhs, and Buddhists in India are permitted to adopt a kid legally. As part of
the Hindu code bills, India adopted the Hindu Adoption and Maintenance Act 1956. It led to
the implementation of some measures that liberalised the adoption process.
Child Adoption Under Hindu Law
Adoption is a sacramental rather than a secular act, according to Hindu Law. The adoption
object can get divided into two parts:
To ensure one’s descent’s continuance.
To guarantee that his/her funeral rights get carried out.
Because of the idea that a son was necessary for the family’s spiritual and material well-being,
Hindu law is the only legislation that treats an adopted kid as equal to a natural child.
Previously, Hindu law stipulated that only males could be adopted, with limits based on Caste
and Gotra. So, female children could not get adopted under Hindu law. In addition, only the
man had the right to adopt, and his wife’s objections were irrelevant.
Such limitations have evolved with time. In today’s contemporary culture, gender prejudices
have been eliminated. Under current Hindu law, any Hindu man or female who has reached
the age of majority and possesses a sound mind has the legal competence to adopt. The Hindu
Adoptions and Maintenance Act, 1956, enumerates most of these laws, norms, and regulations.
Essentials of a valid adoption under Hindu Adoptions and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act 1956 got established after independence as part of
the process of codifying and reforming Hindu law. By embodying the ideals of equality and
social justice, this act eliminates numerous gender-based discriminatory elements. There are
many procedures for the adoption of a child within a family in India.
The Hindu Adoption and Maintenance Act, Sections 6 to 11, spell forth the adoption rules in
India:
Section 6 of the Act, entitled “Requisites of a Legitimate Adoption,” declares that no adoption
is valid unless it meets the following criteria:
The adopting person has the capacity and the right to do so, as does the person who is adopting.
Adoption is a possibility for the adopted individual. The other criteria make the adoption of the
legislation.
Sections 7 and 8 define a Hindu’s competence to adopt a child.
Unsoundness of the mind gets linked to general mental health. Unsoundness of mind will
encompass all forms of insanity, including epilepsy, stupidity, and lunacy.
A Hindu man or woman who has been married under the Special Marriage Act has the right to
adopt. Whether a bachelor, widower, divorcee or married person, a significant Hindu male of
sound mind can adopt.
A married Hindu man must seek his wife’s approval. If he has more than one wife, the
permission of all spouses is required.
Without the agreement of the wife, adoption is null and invalid. The adoption is equally invalid
if the wife’s permission to live with the husband is obtained but not the wife who lives apart.
Similarly, in the instance of adoption by wife, the act deviates significantly from previous law
by allowing a Hindu female who is not a married woman to adopt herself in her own right.
A Hindu unmarried woman, widow, or divorcee is eligible to adopt under the legislation. In
the case of Vijaya Laxman against V.B.T Shankar, the court decided that when a widow adopts
a kid, she does not require the agreement of the co-widow since she adopts the child on her
right.
Adoption is impossible for a married lady without her husband’s permission. As a result, under
the following circumstances, a married woman cannot adopt:
If her spouse is no longer a Hindu.
If he has finally and entirely given up the world
If he is mentally ill by a court of competent jurisdiction
The person capable of providing for adoption gets mentioned in Section 9 of the legislation. It
stipulates that no one other than the child’s father, mother, or guardian has the authority to
place the kid for adoption.
In the case of adoption, the father or mother must have an equal right to give the son or daughter
in adoption. It further states that such rights may not be exercised by one of them without the
agreement of the other unless one of them has ceased to be a Hindu or pronounced to be of
unsound mind by a court of competent jurisdiction.
Both the father and mother are deceased, forsaken the world, abandoned the child, or declared
insane by a court of competent jurisdiction. In that situation, the kid’s guardian may put the
child up for adoption with the court’s consent.
While giving in adoption, the relevant property must guarantee that the child’s adoption is
entirely for the child’s welfare and that suitable consideration for this purpose is given to the
child’s request having respect to the kid’s age and undertaking, etc.
Section 10 identifies the person who may get adopted. The following are the child’s adoption
conditions:
It’s bound to be a Hindu child.
An unadopted child
He/she is not married unless the parties have a custom or usage that allows married or adopted
individuals to marry.
Unless there is a custom or usage relevant to the parties enabling persons who have completed
15 years of age to get adopted in adoption, the kid has not reached the age of 15.
Other requirements for a legal adoption get outlined in Section 11. So, as per the section, it’s
essential to meet the following criteria for a valid adoption:
If the adoption is for a boy, the adoptive father or mother must not have a Hindu son living at
the time of the adoption by any relation (whether by genuine blood tie or adoption).
If the adoption is for a girl, neither the adoptive father nor the adoptive mother must have a
Hindu daughter alive at the time of the adoption.
The age gap between the adoptive father and the daughter must be twenty-one years if a male
adopts a female.
The age gap between the adoptive mother and the son must be twenty-one years if a male
adopts a female.
Two or more people cannot adopt the same child at the same time.
The adoption must be given and adopted by the parents or guardians involved, or under their
authority, to transfer the child from the birth family to the adoptive family.
Who can adopt?
Some requirements are:
Mentally, physically, and emotionally stable adoptive parents are required.
The adoptive parents should have a good financial situation.
There should be no life-threatening illnesses among the adoptive parents.
Couples with three or more children are not eligible for adoption, except special needs children.
A single female can adopt a kid of either gender; but, a single guy cannot adopt a girl child.
A single parent’s maximum age restriction should be 55 years.
The combined age of a couple should not exceed 110 years.
Parent’s ages should be by CARA criteria at the time of registration.
Who can give a child for adoption?
The following persons are allowed to provide a kid for adoption under the Hindu Adoption and
Maintenance Act, 1956:
The father, with the mother’s permission (if she is alive)
Only the father if the wife has totally and publicly forsaken the world, has left Hinduism, or
been pronounced insane by the court.
Only mother:
if her marriage gets annulled, or
if her husband has died, or
if he has entirely and openly forsaken the world, or
if he has quit Hinduism, or
if he has been pronounced insane by the court.
With the consent of the relevant court, the legal guardian:
if both the child’s father and mother are deceased, or
have entirely forsaken the world
abandoned the kid, or
pronounced unsound in mind by the concerned court
The court must get convinced that the adoption is justified in terms of the child’s welfare. And
the adoptive parents will meet all of his/her wants and requests with relation to his/her age and
age comprehension.
Who can be adopted?
The Hindu Adoption and Maintenance Act of 1956 allows for the adoption of a child or person
on meeting the following condition:
He or she is a follower of Hinduism.
He/she hasn’t been adopted yet.
He or she is single (not married) unless he or she has a usage or custom that allows him or her
to be adopted while married.
He/she has not attained the age of 15 unless he/she has a use or custom that allows him/her to
get adopted after 15 years of age.
The Guardian and Ward Act, 1980
India’s personal laws, such as Muslim Law, Christian Law, and Parsi Law, do not recognise
full adoption. Non-Hindus in India do not have a legal right to adopt a child; they may only
acquire a ‘guardianship’ under the Guardian and Ward Act, 1980.
Guardianship, on the other hand, does not provide the same status as a biological child. As
previously stated, an adopted kid has no legal right to inherit property under the Hindu
Adoption and Maintenance Act of 1956. This Act only acknowledges a guardian-ward
relationship that lasts until the ward reaches the age of 21.
Adoption – Muslim Law
Adoption does not exist in Islam; Muslim law does not recognise it. It was stated in the
landmark case Mohammed Allahabad Khan v. Mohammad Ismail that there is nothing in
Muslim law that is equivalent to adoption as recognised by the Hindu system.
Under Muslim Personal Law, the closest thing to adoption is ‘Acknowledgement of Paternity.’
The distinction between the two is that in adoption, the adoptee is the known son of another
person, whereas one of the requirements for acknowledgement is that the acknowledged is not
the known son of another.
However, the courts under the Guardian and Ward Act of 1980 permits the adoption from an
orphanage. Guardianship of a minor person entails overall control over the minor’s disposition.
It involves the responsibility for the child’s care and well-being and the obligation to do so. It
is more than just the child’s custody at a certain age. It is called Guardianship in Muslim Law.
Adoption in Parsi and Christian Law
In India, Parsis do not recognise the adoption, although, under the Guardian and Ward Act of
1980, they can adopt a kid from an orphanage with the consent of the appropriate court.
Adoption is also not acknowledged in Christianity.
Adoption is a personal law issue since it is a legal affiliation of a kid. Under the Guardian and
Ward Act of 1980, Christians, like Muslims and Parsis, can adopt a kid from an orphanage with
the consent of the relevant court.
According to the Act, a Christian can only take a kid into foster care. When the kid reaches the
age of 21, he or she has the option of continuing to live with the guardian or severing all ties.
Furthermore, such a child has no legal claim to inherit the property.
Case study regarding Adoption in India
Case: In Re: Adoption Of Payal @ Sharinee Vinay Pathak And His Wife Sonika Sahay @
Pathak Vs. High Court of Bombay (India)
Facts
The first and second petitioners, both Hindus, married on June 29, 2001. Both are actors by
trade, albeit the Second Petitioner is on sabbatical due to the care of two young children. The
First Petitioner was born on July 27, 1967, and the Second Petitioner was born on January 19,
1977. They both have a daughter, who was born on February 4, 2003.
On April 13, 2005, the Petitioners sought appointment as guardians of a girl child in a
Guardianship Petition Indian Guardianship Petition 83 of 2001 filed before this Court under
the Guardians and Wards Act, 1890.
The child was born on November 12, 2004, to a woman whose identity will not get revealed
for reasons of her privacy. On November 16, 2004, four days after the kid was born, the mother
and her spouse signed a statement documenting the circumstances that led to their decision to
surrender the child at the nursing facility where the child was born.
According to the declaration, a social worker at Bal Vikas, a placement agency recognised by
the Government of India, counselled the mother and her spouse. They willingly consented to
relinquish the kid.
At the bottom of the declaration, an Indian Council for Social Welfare Scrutiny officer
endorsed having counselled the parents on the document’s contents and informing the mother
that she had two months to reclaim the child, failing which the child would get placed in either
adoption or guardianship.
The child’s parents have not stepped forward to claim him or her. On April 13, 2005, the
managing trustee of Bal Vikas submitted an affidavit before this Court confirming the facts
and expressing an opinion that it would be in the child’s best interests to place her under
guardianship.
Judgement
The Hindu Adoptions and Maintenance Act, 1956, and the Juvenile Justice (Care and
Protection of Children) Act, 2000, are interpreted differently in the Petition before the Court.
The Hindu Adoptions and Maintenance Act of 1956 modifies and codifies the legislation
governing Hindu adoptions and maintenance and defines the requirements for legal adoption.
If the child is a female, the father or mother must not have a Hindu daughter (or a son’s
daughter) living with them at the time of the adoption.
The Parliament passed The Juvenile Justice (Care and Protection of Children) Act of 2000 to
govern the law’s interaction with children in conflict with the law, to provide for the
rehabilitation and social integration of orphaned, abandoned, or surrendered children.
Adoption is one of the methods approved by Parliament for assisting a rehabilitated person.
The Juvenile Justice Act does not include a restriction prohibiting parents from adopting
another child of the same gender if they already have one. Regardless of the number of live
biological sons or daughters, the Act recognises the right of parents to adopt children.
The question before the Court is whether a Hindu spouse has their kid, as defined by the Hindu
Adoptions and Maintenance Act of 1956, can adopt a child of the same gender under the terms
of the Juvenile Justice Act of 2000. The problem highlighted has important implications for
people and couples in India who want to adopt children from various religious and
socioeconomic backgrounds.
The Juvenile Justice Act of 2000 is a secular piece of law. Orphaned and abandoned children’s
human tragedies cut beyond socioeconomic and religious lines. The desire to adopt is a delicate
manifestation of human nature.
Again, religious identification does not limit this need. The Court must reconcile personal law
with secular law.
Adoption is a good endeavour since it provides happiness to children who have been abandoned
or orphaned. Adoption allows humanity’s more compassionate side to come through.
Furthermore, it is a good programme where the kid gets treated as a natural-born child and
lavished with love, care, and attention. It also fills the gap in the hearts of parents who long for
children, their laughter and mischief booming off the walls of a home.
Even today, a few adjustments could be made to make all adoption laws more consistent.

RULES FOR THE ADOPTION OF THE JUVENILE JUSTICE ACT

Juvenile Justice (Care and Protection of Children) Amendment Act, 2021
• The Bill amends the Juvenile Justice (Care and Protection of Children) Act of
2015.
• The amendment Act contains provisions related to children in conflict with the law and
children in need of care and protection.
• The Act provides that the Juvenile Justice Board will inquire about a child who is
accused of a serious offence.
o Serious offences are those for which the punishment is imprisonment
between 3 to 7 years.
• The Act prescribes the procedure for the adoption of children by prospective adoptive
parents from India and abroad.
• The Act provides that instead of the court, the District Magistrate (including the
Additional District Magistrate) will issue adoption orders.
o Any person unsatisfied with an adoption order passed by the District
Magistrate may file an appeal before the Divisional Commissioner, within
30 days from the date of passage of such order.
o Such appeals should be disposed of within 4 weeks from the date of filing of
the appeal.
 • Additional functions of the District Magistrate: These include:
o Supervising the District Child Protection Unit.
o Conducting a quarterly review of the functioning of the Child Welfare
Committee (CWC).
• The Act provides that states constitute one or more CWCs for each district for dealing
with children in need of care and protection.
Other laws on guardianship and adoption
• In the case of guardianship of a minor child, Indian laws accord superiority to the father
o Under the religious law of Hindus, or the Hindu Minority and Guardianship
Act, (HMGA) 1956, the natural guardian of a Hindu minor is the father, and
after him, the mother.
• The HAMA which applies to Hindus, Sikhs, Jains and Buddhists allows men and
women to adopt if they are of sound mind and are not minors.
• The Muslim Personal Law (Shariat) Application Act, 1937 says that the Shariat or the
religious law will apply in case of guardianship.
o According to the law, the father is the natural guardian, but custody vests
with the mother until the son reaches the age of 7 years and the daughter
reaches puberty.
o Muslim law states that the welfare of the child is supreme to all. This is the
reason why Muslim law gives preference to the mother over the father in
matters of custody of children in their emotive years.
• In 1999, in the Githa Hariharan vs Reserve Bank of India case, which challenged the
HMGA for violating the equality of sexes under Article 14 of the Indian Constitution?
o The Supreme Court held that the term “after” should not be taken as “after
the lifetime of the father “, but rather “in the absence of the father”.
o The judgment failed to acknowledge both parents as equal guardians,
subordinating a mother’s role to that of the father.
• The Adoption Regulations, 2017 is quiet on adoption by LGBTQI people and
neither bans nor allows them to adopt a child.
o It set the eligibility criteria for adoptive parents saying that they should be
physically, mentally and emotionally stable, financially capable and should
not have any life-threatening medical condition.
o Single men can only adopt a boy while a woman can adopt a child of any
gender.
 o A child can be given for adoption to a couple only if they have been in a
marital relationship for at least 2 years.
• Central Adoption Resource Authority (CARA) is a statutory body under the Ministry
of Women and Child Development.
o It was set up in 1990.
o It became a statutory body under the Juvenile Justice (Care and Protection
of Children) Act, of 2015.
o It is the nodal body for the adoption of Indian children and is mandated to
monitor and regulate in-country and inter-country adoptions.

CARA Guideline

Age
• A parent has to be minimum 25 years of age to adopt
• The age difference between the parent and the child to be adopted has to be at least
25 years
• A single parent of age up to 45 years, and a couple of composite age up to 90 years
can adopt a child up to 4 years of age
• A single parent of age between 45 to 50 years, and a couple of composite age
between 90 to 100 years can adopt a child between 4 to 8 years of age
• A single parent of age between 50 to 55 years, and a couple of composite age
between 100 to 110 years can adopt a child between 8 to 18 years of age
• Maximum age for a single parent to adopt is 55 years, and maximum composite age
for a couple is 110 years.
• Maximum age of child that can be adopted is 18 years.
The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
Gender
• A single male parent can adopt only a male child
• A single female parent can adopt a child of any gender
• A married couple can adopt a child of any gender, whether or not they already have
a child of any gender
Marital Status
 • Any person whether married or single, can adopt a child. Refer to the Gender column
to understand the kind of child they can adopt as a single parent.
• No child shall be given in adoption to a couple unless they have at least two years
of stable marital relationship
Other eligibility conditions:
• The prospective adoptive parents shall be physically, mentally and emotionally
stable, financially capable and shall not have any life threatening medical condition.
• Couples with three or more children shall not be considered for adoption except in
case of special need children, adoption from Immediate Placement category, in case
of relative adoption and adoption by step-parent.
This article is based on “All states must be brought into the mainstream of family
laws” which was published in The Indian Express on 29/10/2020. It talks about the
implementation and issues related to Uniform Civil Code.
Article 44 of the Indian Constitution states that “the State shall endeavour to secure for the
citizens a uniform civil code (UCC) throughout the territory of India.” The desirability of a
uniform civil code is consistent with human rights and the principles of equality, fairness and
justice.
After the revocation of Article 370, the central family law Acts were extended to Jammu and
Kashmir. Although, this is another step towards implementing UCC throughout India, still a
long distance is to be covered in this pursuit.
What is UCC?
▪ The Uniform Civil Code (UCC) calls for the formulation of one law for India, which
would be applicable to all religious communities in matters such as marriage, divorce,
inheritance, adoption.
▪ The code comes under Article 44 of the Constitution, which lays down that the state
shall endeavour to secure a Uniform Civil Code for the citizens throughout the
territory of India.
Background of Uniform Civil Code
▪ The origin of the UCC dates back to colonial India when the British government
submitted its report in 1835 stressing the need for uniformity in the codification of
Indian law relating to crimes, evidence, and contracts, specifically recommending that
personal laws of Hindus and Muslims be kept outside such codification.
▪ Increase in legislation dealing with personal issues in the far end of the British rule
forced the government to form the B N Rau Committee to codify Hindu law in 1941.
 ▪ Based on these recommendations, a bill was then adopted in 1956 as the Hindu
Succession Act to amend and codify the law relating to intestate or unwilled
succession, among Hindus, Buddhists, Jains, and Sikhs.
o However, there were separate personal laws for muslim, chirstian and Parsis.
▪ In order to bring uniformity, the courts have often said in their judgements that the
government should move towards a uniform civil code.
o The judgement in the Shah Bano case is well known, but the courts have made
the same point in several other major judgements.
▪ By arguing that practices such as triple talaq and polygamy impact adversely on the
right of women to a life of dignity, the Centre has raised the question whether
constitutional protection given to religious practices should extend even to those that
are not in compliance with fundamental rights.
UCC and Implications
▪ Protection to Vulnerable Section of Society: The UCC aims to provide protection to
vulnerable sections as envisaged by Ambedkar including women and religious
minorities, while also promoting nationalistic fervour through unity.
▪ Simplification of Laws: The code will simplify the complex laws around marriage
ceremonies, inheritance, succession, adoptions making them one for all. The same
civil law will then be applicable to all citizens irrespective of their faith.
o When enacted the code will work to simplify laws that are segregated at
present on the basis of religious beliefs like the Hindu code bill, Sharia law,
and others.
▪ Adhering to Ideal of Secularism: Secularism is the objective enshrined in the
Preamble, a secular republic needs a common law for all citizens rather than
differentiated rules based on religious practices.
▪ Gender Justice: India has separate sets of personal laws for each religion governing
marriages, divorce, succession, adoption and maintenance.
o However, the rights of women are usually limited under religious law, be it
Hindu or Muslim. The practice of triple talaq is a classic example.
o If a uniform civil code is enacted, all personal laws will cease to exist. It will
do away with gender biases in Muslim law, Hindu law and Christian law that
have been often challenged by women on the ground that they violate the right
to equality.
Challenges To UCC
 ▪ Exceptions in Central Family Laws: The preliminary sections in all central family
law Acts enacted by Parliament since Independence declare that they will apply to
“the whole of India except the state of Jammu and Kashmir.”
o A Second exception was added in 1968 in all these Acts, pronouncing that
“nothing herein contained shall apply to the Renoncants in the Union Territory
of Pondicherry.”
o A third exception, none of these Acts applies in Goa, Daman and Diu.
o A fourth exception, relating to the north-eastern states of Nagaland and
Mizoram, emanates from Articles 371A and 371G of the Constitution,
decreeing that no parliamentary legislation will replace the customary law and
religion-based system for its administration.
▪ Communal Politics: The demand for a uniform civil code has been framed in the
context of communal politics. A large section of society sees it as majoritarianism
under the garb of social reform.
▪ Constitutional Hurdle: Article 25 of Indian constitution, that seeks to preserve the
freedom to practise and propagate any religion gets into conflict with the concepts of
equality enshrined under Article 14 of indian Constitution.
Live-in-relationship
The concept of a live in relationship was a practice avoided by Indian society for a long time.
Living together before tying the knot is an offence or crime to the Indian culture previously.
Most importantly, the Hindu Dharma prefers ‘One man, one wife’ as the most sacred form of
matrimony. But as people start to evolve mentally, the successive generations are ready to
accept a few refusing practices.
Living together For example, cohabitation is a situation in which two people choose to live
together for an extended period of time or permanently while maintaining an emotionally
and/or sexually involved connection. The phrase is most usually used to refer to unmarried
couples.
For instance, let’s take the case of decriminalisation of homosexual cohabitation. The recent
judgements, like the decriminalising section 377 and 497 of the IPC, shows how the Indian
laws have also evolved along with society.
One need not follow strict rules while in a live-in relationship. Statistics reveal that 80% of
Indians now support the concept of live in relationship and less than half percent prefer living
in this form of life.
What is the meaning of a Live-in Relationship?
The idea of live in relationship evolves from the broadened mindset of the people who started
to crave for a relationship with no-strings-attached.
A living relationship couple are the ones who cohabit, with no expectations being the bottom
line. However, there is no legal definition to describe the concept in Indian law. It is more of
a westernised theory with very less relevance with the Indian tradition.
So the Supreme Court, at various instances, took the liberty to elaborate on the concept
through their judgements. It is different from a marriage. (Marriage or wedlock or
matrimony, is a socially/ritually knowledgeable union of a couple). Live in relationship
partners don’t force on obligations.
When asked if a live-in relationship is good or bad, there is no proper explanation on if it is
good or bad. It merely depends on the person and one’s personality on looking from a
different perspective.
People ought to believe that when living together, they can understand each other better and
also for many other reasons, which cannot be denied. You Can Register Marriage Online.
What Does Indian Law Mean to Say?
In a typical marriage, the partners are given certain rights and duties to be performed by
either of them. There are several personal laws such as Hindu laws, Muslim laws, Christian
Laws, etc. that govern and protect the marital bond of a recognized couple. Live In
Relationship, being an alien concept to the Indian legislature, does not have any legal
implications for couples who live together without marriage involved in the relationship.
Since living relationships also support pre-marital sex, there are high chances of a child being
born. These children, unlike the successors born out of wedlock, do not have any rights over
the inheritance. Besides this, society treats them as illegitimate children, which is
unacceptable. However, the Hon’ble Supreme Court cleared them of this ill-fated. And
granted them the status of a legitimate child along with the right to property.
Live in relationships were legally considered void-ab-initio. But in a judgement in 1978, such
relationships are valid for the first time because of the Supreme Court. If the requisites of a
marriage such as mental soundness, the fulfilment of the legal age of marriage, consent, etc.
are all satisfied, the couple is considered to be in a legal live-in relationship. The couple is
also regarded as married if they live together for a considerably long period until proven
otherwise.
The apex court has given five different types of living together in the excellent judgement of
Indra Sarma Vs V.K.V.Sarma in 2013. It also stated that such relationships fall within the
ambit of Section 2(f) of the Protection of Women Against Domestic Violence Act,2005 that
provides an insight into the said concept. In living relationships, the facets of the relationship
might come to a conclusion, irrespective of any decision made by the couple.
Legal Provisions for the Protection of Women in a Live in Relationship:
Couples wanted to explore various types of living, nowadays. live in relationships has
become common since they know that the perception of understanding might vary. Though
Indian couples widely accept the concept, the patriarchal mindset has partially not been
eradicated from society. Women were taken for granted and mistreated by the male partner
on various occasions. But did not have any hope for legal remedies in Indian laws. However,
as cases of harassment and violence started increasing, the Supreme Court provided the
victims with the relief, produced under the Domestic Violence Act. This act does not specify
marriage but as a ‘relationship in the nature of marriage’.
The right to maintenance is also a provision exclusively provided for married women in the
existing personal laws. Still, as these laws do not govern anything less than a marriage, the
women in a live in relationship cannot, at any instance, ask for maintenance from the male
partner.
The courts later gave this a remedy by widening the scope of support under section 125.
From the Code of Criminal Procedure, criminalising any man who does not provide proper
maintenance to the woman is questionable.
Legal Provisions for the Protection of Children Born in a Live in Relationship:
Mental trauma affects children who are born out of such a relationship. There could be
custody problems or maintenance problems as the child grows. The courts have declared such
children to be legitimate.
Additionally, they have the right to property, not just ancestral but also self-bought property.
Since there is no special law for the maintenance of children born out of such relationships,
the law decides to provide children with protection. Thus, evolved section 125 of the CrPC.
The section includes provision for all children who cannot claim remedies in their laws. The
Indian law also does not allow the couples living together to adopt a child as per the terms
laid down by CARA.
Position Of Live-In Relationships Abroad
Live-in relationships, also known as cohabitation or de facto relationships, refer to unmarried
couples living together in a committed, long-term relationship, similar to marriage but
without the legal formalities. The acceptance and legal recognition of live-in relationships
vary significantly from country to country, and even within different regions of a country.
 1. Western Countries: In many Western countries, live-in relationships have become
increasingly common and widely accepted. The legal rights and protections for
cohabitating couples have also improved over time. Some countries, like the
Netherlands and Sweden, have even recognized cohabitation as a legal status with
similar rights and obligations as marriage.
2. North America: In the United States and Canada, live-in relationships are
prevalent, especially among younger couples. Cohabitation has become a social
norm, and many states and provinces have laws that address certain aspects of
cohabitation, such as property rights and child custody.
3. Asia: The acceptance of live-in relationships varies widely across Asian countries.
In more liberal and urbanized areas, cohabitation may be common and tolerated,
while in more conservative or rural regions, it might be frowned upon or even
illegal. For example, India has seen an increase in live-in relationships among the
younger generation, but the legal status is still somewhat ambiguous.
4. Middle East: Cohabitation is generally not widely accepted in many Middle
Eastern countries due to cultural and religious reasons. In most cases, it is not
recognized legally, and unmarried couples may face societal pressure or legal
consequences.
5. Africa: Acceptance of live-in relationships in Africa varies from country to country
and largely depends on cultural and religious influences. In some regions, it is
more common and tolerated, while in others, it may be frowned upon.
6. Oceania: Countries like Australia and New Zealand have relatively progressive
attitudes towards live-in relationships, and they provide certain legal protections
for de facto couples in areas such as property, inheritance, and welfare.
Position Of Live-In Relationships In India
In India, cohabitation was considered taboo since British rule. However, attitudes have
changed, particularly in big cities, where live-in relationships are now more accepted.
Nonetheless, in rural areas with conservative values, cohabitation is still often frowned upon.
Under the Protections of Women and Domestic Violence Act, 2005, female live-in partners
have certain economic rights. The Maharashtra Government approved a proposal in October
2008, suggesting that a woman involved in a live-in relationship for a ‘reasonable period’
should be granted the status of a wife. The determination of what constitutes a ‘reasonable
period’ is based on the specific facts and circumstances of each case.
The National Commission for Women recommended to the Ministry of Women and Child
Development on 30th June 2008 that the definition of ‘wife’ as described in section 125 of
Cr.P.C. (Criminal Procedure Code) should be amended to include women involved in a live-
in relationship. The purpose of this recommendation was to bring the protection of women
from domestic violence in line with that of legally married couples. The Justice Malimath
Committee, set up by the Supreme Court, supported this view and stated that if a man and a
woman live together as husband and wife for a reasonable long period, the man should be
deemed to have married the woman.
The Malimath Committee also suggested amending the word ‘wife’ under Cr.P.C. to include
a ‘woman living with the man like his wife,’ making a woman in a live-in relationship
entitled to alimony. On 16th September 2009, the Supreme Court, in a case, observed that a
woman doesn’t need to strictly establish a formal marriage to claim maintenance under
section 125 of Cr.P.C. This means a woman in a live-in relationship can also claim
maintenance under this section.
In another case, the Allahabad High Court ruled that a woman of about 21 years of age, being
a major, has the right to live with a man even without getting married if both parties so wish.
The Supreme Court further observed that if a man and a woman are involved in a live-in
relationship for a long period, they will be treated as a married couple, and any child born to
them would be considered legitimate.
Pros And Cons Of Live-In Relationships
The Supreme Court’s controversial statement regarding live-in relationships and pre-marital
sex has sparked intense debate across the country. This historic observation has upset many
conservative groups who fear that it may undermine the sanctity of marriage. A fragment of
society, including notable social activists and prominent figures, has expressed their views on
this matter.
Maa Ghara Foundation Trustee, Rutuparna Mohanty, expressed concerns over the potential
adverse effects of the ruling. She hopes that the government will take appropriate steps to
safeguard the rights and dignity of Indian women and protect society from potential chaos.
Mohanty believes that such a ruling could lead to increased instances of child pregnancies
and spread HIV/AIDS despite its aim to restrict multiple partners. She also worries that
children born out of live-in relationships may not receive proper upbringing.
Some social scientists have identified serious social issues such as adolescent girls’ early
pregnancies, drug abuse, violence, and juvenile delinquency. They argue that the
controversial ruling could legalize objectionable social behavior, leading to a more spoiled
new generation that prefers live-in relationships over arranged marriages.
BJP spokesperson Shaina raises concerns about the amendment’s implications on the Hindu
Marriage Act, which does not provide for a second wife among Hindus. She believes that
granting the status of a legally married wife to a mistress, including property, inheritance, and
maintenance rights, goes against both the Act and Hindu customs.
Those in favor of the freedom to choose live-in relationships see the recent observations as a
positive step emphasizing individual freedom. They believe that such relationships allow
partners to understand each other better without legal complexities, making it easier to walk
out of the relationship if needed. They argue that people should be free to live as they wish as
long as their actions do not harm others.
Women from various walks of life welcome the progressive moves regarding live-in
relationships, viewing them as a reflection of societal changes and pragmatism. Some feel
that the younger generation is becoming more realistic and should have the freedom to make
informed choices about their relationships.
It is important to note that live-in relationships have been a subject of debate for a long time,
with discussions revolving around whether such relationships can be legally recognized.
While it is legal for unmarried individuals to live together in many places, the law
traditionally favors marriage and reserves certain rights and privileges for married
individuals.
Despite legal recognition, the law does not actively promote live-in relationships, as it
traditionally supports the institution of marriage. However, in some cases, the law seeks to
protect women from patriarchal power dynamics that can exist even in live-in relationships.
Legitimacy Of The Child Born Out Of A Live-In Relationship
In a previous case involving the legitimacy of a child born out of wedlock, the Supreme
Court made a significant ruling stating that if a man and a woman are in a long-term live-in
relationship, they will be treated as a married couple, and any child born from this
relationship will be considered legitimate. Moreover, the recent amendments to the Domestic
Violence Act, 2005, provide protection to women engaged in such relationships for a
‘reasonable long period’ and grant them the status of wives. A Supreme Court Bench, led by
Justice Arijit Pasayat, emphasized that children born from such relationships will no longer
be labeled as illegitimate. The law now favors legitimacy and rejects the terms ‘whoreson’ or
‘fruit of adultery.’
Inheritance Rights
The Supreme Court ruled that a child born out of a live-in relationship is not entitled to claim
inheritance in the Hindu ancestral coparcenary property (in the case of an undivided joint
Hindu family) but can only claim a share in the parents’ self-acquired property. This decision
overturned a Madras High Court judgment that presumed marriage due to the long
relationship and allowed children born from live-in relationships to have a share in ancestral
property.
The Bench, comprising Justices B.S. Chauhan and Swatanter Kumar, reiterated a previous
ruling that considers illegitimate children, for practical purposes including succession to their
parents’ properties, to be treated as legitimate under the legal fiction contained in Section 16
of the Hindu Marriage Act, 1955 (which deals with legitimacy of children of void and
voidable marriages). However, the scope of this rule is limited to the properties of the
parents, and they cannot inherit properties from any other relatives based on this provision.
A child born out of a live-in relationship may only make a claim on the person’s self-acquired
property. Some argue that this interpretation may also allow the child to claim a share in the
parents’ ancestral property, as Section 16 permits a share in the parents’ property. Thus, it can
be debated that the person is entitled not only to self-acquired property but also a share in the
ancestral property.
The Apex Court clarified that while a legal marriage exists, a spouse cannot claim a live-in
relationship with another person and seek inheritance for the children from the property of
that other person. Such a relationship with another person while the spouse is living is
considered ‘adultery,’ not a ‘live-in relationship.’ It is important to note that ‘live-in
relationships’ are permissible in unmarried heterosexual couples. However, if one of the said
persons is married, the man may be guilty of adultery, and it would be considered an offense
under Section 497 of the Indian Penal Code.
The Surrogacy
Surrogacy, in simpler terms, is a legal arrangement between parents intending to have a child
and the surrogate mother. In India, surrogacy is an accepted practice in society and it also finds
mention in mythological texts such as the Mahabharata.[i] Medical reasons or medical threats
to the body of the intended mother are the most common reasons for choosing surrogacy. For
example, a woman who has had a hysterectomy (removal of the uterus) cannot carry a
pregnancy herself, but she may still want to have a biological child. In such cases, a surrogate
mother could carry a fertilized embryo created with the woman’s egg and her partner’s sperm.
Types of Surrogacies
There are two types of surrogacies: one is the traditional method and the other is the gestational
method. In traditional surrogacy, the surrogate mother uses her egg, so there is no need for an
egg from a different person. This makes the process simple and doesn’t require the surrogate
mother to undergo many fertility treatments. The sperm is placed inside the surrogate mother’s
uterus using a process called intrauterine insemination. The intended mother does not need to
go through any procedures to get her eggs since they are not used here. However, in gestational
surrogacy, the in vitro fertilization method is used, commonly known as the IVF technique.
Only this method is legal in India. Gestational surrogacy is usually preferred by surrogates
because they are not biologically related to the child. This means that they do not have a genetic
connection to the baby and are less likely to develop an emotional attachment. Gestational
surrogacy can be more costly than traditional surrogacy because both the intended mother and
the surrogate need to undergo fertility treatments and egg retrieval procedures. The intended
mother or a donor must provide the eggs, which requires hormone injections and careful
monitoring. The surrogate must also undergo medical testing, hormone treatments, and the
implantation procedure.
The Legality of Commercial Surrogacy in India
Surrogacy is helpful for people who can’t have a baby on their own, but it can also lead to
problems. Commercial surrogacy, where people pay for someone to have their baby, is banned
in India for a few reasons. The woman who carries the baby is often treated poorly and not paid
fairly.[ii] This can cause problems for her physically, mentally, and financially. Child
trafficking has also increased because of surrogacy.[iii] Surrogacy can also make babies seem
like things that people can buy, which raises ethical questions. There are also psychological
problems with surrogacy.[iv] These were the common reasons why the Government of India
banned commercial surrogacy entirely and regulations to govern more than 3000 IVF clinics
were passed.[v]
Legal Provisions in India
• The Surrogacy Regulation Act, 2022
• The Surrogacy Regulation Rules, 2022
• Recent Amendments
The Surrogacy Regulation Act, 2021
The Act allows only altruistic surrogacy, which means that the surrogate mother cannot receive
any compensation apart from the medical expenses incurred during pregnancy including
insurance coverage. Commercial surrogacy, where the surrogate is paid in cash or kind, is
banned. Before the intended couple can proceed with the surrogacy, they need to obtain two
certificates – a certificate of essentiality and a certificate of eligibility – from a competent
authority. To obtain a certificate of essentiality, certain conditions must be met. The couple
must provide a certificate of infertility from a District Medical Board confirming that they are
unable to conceive. The Magistrate Court must also pass an order regarding custody of the
child. Additionally, insurance for the surrogate mother must be provided to cover postpartum
complications for 16 months after delivery.
Further, the Act prohibits any kind of advertisement for commercial surrogacy. The penalty for
these offenses can be up to ten years of imprisonment and a fine of up to ten lakh rupees. It
requires all clinics providing surrogacy treatment to be registered and for practitioners to meet
certain criteria. The intending couple must be legally married, meet age requirements, and have
no other children through surrogacy or adoption.
The Surrogacy Regulation Rules, 2022
The Surrogacy Regulation Rules, 2022 were notified by the central government to set forth the
necessary criteria and regulations applicable to registered surrogacy clinics. These clinics are
required to have a minimum staff composition consisting of at least one gynecologist,
anesthetist, embryologist and counselor. Additional personnel may be employed from ART
Level 2 clinics. The gynecologist must hold a post-graduate degree in gynecology and
obstetrics, and possess experience in performing ART procedures. Surrogacy clinics must
undergo registration with the appropriate authority and pay the prescribed fees. Upon approval,
a certificate of registration is granted, which must be prominently displayed within the clinic
premises. In the event of application rejection, cancellation or suspension, the applicant has the
right to appeal within a 30-day timeframe using the designated appeal form. Authorized entities
are empowered to conduct unannounced inspections of surrogacy clinics, including their
facilities, equipment, and records, with the caveat that such inspections do not endanger stored
gametes or embryos. The surrogate mother’s voluntary consent, as specified in the guidelines,
is mandatory for the surrogacy procedure. The number of attempts for surrogacy is capped at
a maximum of three. Normally, the gynecologist is expected to implant only one embryo, but
in exceptional cases, up to three embryos may be allowed. If the surrogate mother wishes to
terminate the pregnancy, the process must adhere to the guidelines outlined in the Medical
Termination of Pregnancy Act, 1971. Additionally, it is mandatory for the intending couple or
woman to procure health insurance covering a duration of 36 months for the surrogate mother’s
protection.
Recent Amendments and Development
The first amendment to the Rules, which was notified on 10 October 2022, modified Rule 5(2)
regarding insurance coverage for surrogacy. According to the revised rule, the intending couple
must purchase insurance coverage for 36 months and guarantee it by signing an affidavit.
Previously, the affidavit had to be sworn before the Metropolitan or the Judicial Magistrate of
the First Class. The 2022 Amendment introduced flexibility in this process by allowing the
affidavit to be sworn before either of two additional classes of authorities, namely an Executive
Magistrate or a Notary Public. This change is expected to streamline the process and make it
easier for intending couples to apply for surrogacy. By expanding the list of authorized
authorities who can swear the affidavit, the amendment provides more options for the intending
couple to comply with the insurance coverage requirement. This is likely to result in a quicker
and smoother surrogacy application process.
The second amendment to the Rules, which was announced in March 2023, disallows intending
couples from using donor gametes for surrogacy. Earlier, the rule stated that surrogacy
treatment could include fertilization of donor oocyte by the husband’s sperm, which was
interpreted by some to mean that using donor gametes was allowed. However, the 2023
Amendment replaces this provision with a new one that explicitly prohibits the use of donor
gametes, whether for couples or single women (widows or divorcees). The amendment also
clarifies that surrogate mothers cannot provide their gametes. Thus, intending parents who have
medical issues with their gametes and need donor gametes to conceive a child may face
difficulties in opting for surrogacy in India. The amendment restricts the pool of eligible
persons who can commission surrogacy, along with other restrictions based on age, marital
status, and medical requirements.[vi]
Landmark Judgements
1. Jan Balaz v. Anand Municipality [2009 SCC OnLine Guj 10446]: This is a
landmark case in Indian surrogacy law. In 2008, the Petitioner, a German national,
entered into a surrogacy agreement with an Indian woman to have a child. The child
was born in Gujarat, India, and the Petitioner obtained a birth certificate for the child.
However, when the Petitioner tried to leave India with the child, he was prevented from
doing so by the authorities. The Petitioner filed a petition in the Gujarat High Court
seeking permission to leave India with the child. The Court initially denied the petition,
citing concerns about the child’s welfare and the legality of commercial surrogacy in
India. However, the court ultimately granted permission to the Petitioner to leave with
the child, subject to certain conditions. The case brought attention to the issue of
commercial surrogacy in India and the need for clearer laws and regulations around
 surrogacy agreements. It also highlighted the need to ensure the protection and welfare
of children born through surrogacy arrangements.
2. Baby Manji Yamada v. Union of India [(2008) 13 SCC 518]: This case involved a
surrogate baby born to a Japanese couple through a surrogate mother in India. The
couple later divorced, and the mother refused to take custody of the child, while the
father was unable to obtain a visa to enter India to collect the child. The case raised
questions about the legal status and rights of surrogate children and the responsibilities
of surrogacy clinics and intended parents. Ultimately, the Supreme Court directed the
Japanese consulate in India to issue travel documents for the child so that she could be
taken to Japan and recommended that the Indian government create regulations to
govern surrogacy in India.
Conclusion
In conclusion, surrogacy laws vary across different countries and regions and are constantly
evolving. India has a comprehensive legal framework for surrogacy with the Surrogacy
Regulation Act, 2021, and its associated Rules regulating all aspects of surrogacy. However,
recent amendments to the Rules have brought new restrictions and may pose challenges to
those who require donor gametes to conceive a child. The laws of surrogacy aim to balance the
rights and interests of all parties involved, and individuals considering surrogacy should seek
legal advice to ensure compliance with relevant laws and regulations.
Forced conversion law.
Anti-Conversion Laws During Colonial Era
The research papers in this regard enlighten us that the princely states started ordinances
against religious conversions. Hindu royal households ruled these princely states during the
British colonial rule. To be precise, it was between the later half of the 1930s and 1940s.
There were particular states with anti-conversion laws in India. These laws were enforced to
protect the identity of the Hindu religion. Some princely states with these laws were Jodhpur,
Patna, Bikaner, Surguja, Kalahandi, Udaipur, and Kota.

Trial for a National Law

Post India’s independence, many anti-conversion bills were introduced in the Parliament.
But unfortunately, none got enforced. The first bill was introduced in 1954 and was called the
Indian Conversion Bill. The idea behind this bill was to license the missionaries, and anybody
who gets converted should be registered with the Government officials. However, the bill did
not get the required support in Lok Sabha.
The next bill or anti-conversion law was brought to Parliament in 1960 and was called
Backward Communities Bill. This bill stated Christianity, Islam, Zoroastrianism, and Judaism
as non-Indian religions. And it aimed to discover the conversion of Hindus to these non-
Indian religions.
This bill was followed by the Freedom of Religion Bill in 1979. This bill also crashed in
Parliament by not gather enough support. It aimed at curbing inter-religious conversions.
Finally, in 2015, the union law ministry said that it is not possible to enforce a bill on
fraudulent religious conversions at the national level. Since these matters come under the
states, the states are free to enact state anti-conversion laws in India as per the constitution.

State Laws
Many states have passed the ‘Freedom of Religion’ ordinance to restrict or reduce forceful or
fraudulent religious conversions. Such laws are presently enacted in eight states for years.
These states, in order of enactment, are,
• Odisha in 1967
• Madhya Pradesh in 1968
• Arunachal Pradesh in 1978
• Chhattisgarh in 2000 and 2006
• Gujarat in 2003
• Himachal Pradesh in 2006 and 2019
• Jharkhand in 2017
• Uttarakhand in 2018
Interestingly, the anti-conversion laws in HP and Uttarakhand declare a marriage to be void if
the main reason behind marriage was conversion. States like Tamil Nadu in 2002 and
Rajasthan in 2006 and 2008 also passed similar clauses. But unfortunately, for Tamil Nadu, it
got repealed in 2006 due to protests by Christian minorities. And for Rajasthan, the State
Governor and the President of India did not pass their consent on it.
Due to rising cases of fraudulent or forceful religious conversion in Uttar Pradesh, the state
government had to bring up a new anti-conversion law to regulate conversions.

What Does the Anti-conversion Law Hold?

Most states have common anti-conversion law characteristics, like a ban on forceful or
fraudulent conversions. However, for states like Uttarakhand, Himachal Pradesh, and Uttar
Pradesh, there is a ban on conversion via marriage.
Conversion Notice: The most lenient legislation in place is by Arunachal Pradesh. It
mandates the priest who has performed conversion to issue a notice to the District Magistrate
or similar kind of authority post-conversion. However, no such declaration from the
converted person is required.
In the rest of the states, an advance notice by the converted person and priest is required. In
Uttar Pradesh, the person who wants to convert has to provide a notice 60-days prior to
conversion. In Uttarakhand, it’s 30-days for both parties.
Punishment: Madhya Pradesh and Odisha have the oldest laws. But still, they have the lowest
imprisonment time, which is 1-year imprisonment on forceful conversion. However,
Uttarakhand and Himachal Pradesh have 5-years of jail for forceful conversion. If the
converted person is a minor or a woman, the punishment is longer in all states.

Loopholes in the Law

According to a report submitted by the USCIRF in 2016 and 2018, the surveyors have found
out that these laws do not require any evidence to prove someone guilty of their wrongdoing.
So many times, there have been unnecessary arrests and violent processions against religious
minorities. A recent report by USCIRF states that in 2017, religious minority leaders and
their followers had to face intimidating threats and arrests due to these laws.
Also, a Catholic nun and four tribal women were detained in June 2017 just on the basis of
suspicion. In April 2017, 3 Christians were arrested in Madhya Pradesh just on baseless
allegations that they were converting people.
In 2017, Sultan Masih (pastor of the Temple of God Church) was murdered in public just on
the belief or a rumour that he was converting people. Christians had protested in Punjab and
Ludhiana against this act.
The Indian Constitution provides us with the right to choose our religion as per our liking.
However, for political benefit and constant religious clashes, some unusual events occur
where the law has to take its course. Despite major trials to impose a National anti-conversion
law in India, it could not make it. However, to protect religious rights, states have enacted
laws for their regional population. Hopefully, these laws are efficient in avoiding any major
incidents against religious conversions.