Family law in India: overview
A Q&A guide to family law in India.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the multi-jurisdictional guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
Marriage and divorce. India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion:
Hindu: Hindu Marriage Act 1955.
Muslim: Muslim marriage is a contract under Muslim law.
Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
Parsi: Parsi Marriage and Divorce Act 1936.
In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.
All these laws apply throughout India (except for in Jammu and Kashmir, and Goa).
Welfare of children. Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which applies in all communities.
The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minor children of any caste and creed. However, while approving and declaring a person as a minor's guardian, the court will also consider the minor's personal law. The Guardian and Wards Act 1890 aims to protect the minor child's person and property.
The Family Court Act 1984 provides for the establishment of Family Courts with a view to promoting conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges which undertake trials and review evidence. The Family Courts follow the Civil Procedure Code.
All Indian matrimonial statutes contain jurisdictional rules. Two matters are relevant regarding jurisdiction:
The place in which the petition or suit in a matrimonial cause is filed.
The court in which the petition or suit in a matrimonial cause should be filed.
Whether a court has jurisdiction depends on the:
Place of solemnisation of marriage.
Marital residence and the residence of the respondent (or, if the respondent resides outside India, where the petitioner resides).
Jurisdictional requirements are the same under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. A divorce petition can be presented to the district court within the local limits of whose original civil jurisdiction the:
Marriage was solemnised.
Respondent, at the time of the presentation of the petition, resides.
Parties to the marriage last resided together.
Wife resides on the date of presentation of the petition (if she is the petitioner).
Petitioner resides at the time of the presentation of the petition, in a case where the respondent, at that time, either:
resides outside the territories to which the acts extend; or
has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
The applicability of the Special Marriage Act is not restricted to Indians. The parties need not be domiciled in India to solemnise their marriage under the Special Marriage Act.
Under the Indian Divorce Act 1869, a petition in a matrimonial cause can be presented in the court of the district judge within the local limits of whose ordinary jurisdiction either the:
Husband and wife reside.
Husband and wife last resided together.
Where a number of courts have jurisdiction, a party can choose one of them. Where a court's jurisdiction is questioned, preference is generally given to factors that support its jurisdiction.
A women can claim "right to reside" in her matrimonial home under the Protection of Women from Domestic Violence Act 2005. Cases under this Act can be filed in the court of the place where the aggrieved woman resides.
Disputes over children are to be adjudicated by the courts which have closest contact with the child. Therefore, the courts of the place where the child resides assumes jurisdiction of disputes over custody and other children related issues.
Domicile and habitual residence
There are two types of domicile:
Domicile by origin. An individual automatically acquires the domicile of the country in which he is born. This remains his domicile until and unless they acquire a new domicile.
Domicile by choice. Domicile of choice is that which the individual has elected and chosen for himself to replace his domicile of origin.
In relation to domicile by choice, a man's domicile is the place in which he has decided himself and his family will live, with the intention of making it a permanent home. The Apex Court has acknowledged the concept of domicile as established under English law (Central Bank of India Ltd v Ram Narain AIR 1955 SC 36). It held that the two constituent elements that are necessary under English law for the existence of domicile are:
A residence of a particular kind. The residence need not be continuous but it must be indefinite and not purely fleeting.
An intention of a particular kind. There must be a present intention to permanently reside in the country where the residence has been taken up.
An intention of permanent residence proves a change of domicile (Kedar Pandey v Narain Bikram Sah  3 SCR 793). The test for establishing change of domicile is that a person acquires a new domicile when he settles in a new country with the intention of making it his permanent home and continuing to reside there permanently (Louis De Raedt v UOI and Ors. (1991) 3 SCC 554).
The Hindu Marriage Act 1955 extends to the whole of India, except the state of Jammu and Kashmir, and also applies to Hindus domiciled in the territories to which the act extends but who are outside of those territories (section 1(2), Hindu Marriage Act 1955). The Hindu Marriage Act 1955 applies to persons who are not residing in India but continue to be domiciled in India.
The concept of habitual residence is not defined but is recognised by Indian courts. However, statutes require residence as a ground of jurisdiction. The Supreme Court has held that residence, for the purposes of the application of Indian matrimonial statutes, does not mean a temporary residence but a habitual residence or a residence which is also intended to be permanent (Smt. Satya v Teja Singh  2 SCR 1971).
The concept of residence is important in India, as the courts to which a divorce petition under the matrimonial statutes can be presented include place where either the:
Parties to the petition last resided.
Respondent (or the petitioner if she is the wife) resides.
In the landmark judgment in Y. Narasimha Rao and Ors. v Y. Venkata Lakshmi and Ors. (1991) 3 SCC 451, it was held that marriages that take place in India can only be dissolved under either the customary or the statutory law in force in India. Therefore, the only law that can apply to matrimonial disputes is the one under which the parties are married.
However, confusion occurs where the parties are domiciled abroad and come to India for the sole purpose of solemnisation of marriage. When these parties enter into matrimonial disputes, it is unclear whether the divorce petition is maintainable in India. The Supreme Court of India has not adjudicated on the issue. The main view emerging from the views of the high courts is that held by the Bombay High Court that domicile in India is a necessary requirement for the application of Indian matrimonial statutes (Ms. Kashmira Kale v Mr. Kishore Kumar Mohan Kale Writ Petition No.1242 of 2010). However, this view does not bind other high courts. For the purposes of jurisdiction, Indian domicile of one of the parties is sufficient to confer jurisdiction on the Indian court.
In relation to child custody, the child's interests and welfare is of primary importance. The issues regarding child custody are adjudicated by the courts in whose jurisdiction the child and the person closest with the child resides. Indian courts can decide on the issue of the custody of a child who is a foreign citizen only if the child is within the territorial jurisdiction of the Indian courts.
The Supreme Court of India has held that even where a foreign court has taken a particular view on any aspect concerning the welfare of a minor, the Indian courts should objectively and independently review the matter (Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952). The foreign judgment should only be taken as input for its final adjudication. The Apex Court allowed the trial court to hear the mother's application for custody of the child.
Conflict of law
A party can apply for an anti-suit injunction against the other party to prevent it proceeding in any other jurisdiction. This can be applied for under Order 39 (3) of the Civil Procedure Code. A suit under Order 39 (3) can be filed as an independent case before the court of competent jurisdiction.
The jurisdiction of more than one court could be invoked where the husband and wife have started residing in different territories, either nationally or internationally. It must then be decided which court is best suited and therefore competent to exercise jurisdiction. The paramount aim should be to alleviate the human suffering involved in matrimonial disputes. Examples of this principle in application include:
Harmeeta Singh v Rajat Taneja 102 (2003) DLT 822. The parties were married in New Delhi in accordance with Hindu religious ceremonies. The parties departed for the United States (US) soon after their marriage. Subsequently, the wife was compelled to leave the matrimonial home and the husband filed for divorce in the US courts. The Delhi High Court in this case, restrained the husband from continuing with the proceedings in the US.
Nimitt Rai Tiwari v Nishma Ramesh Karia, CS (OS) 304/2010. The marriage between the parties was solemnised in India and the parties resided within the territory of India after the solemnisation. The relationship then broke down and the wife left India to reside in Kenya with her parents. Subsequently, the defendant wife filed a case for divorce in Kenya. The Honourable High Court of Delhi restrained the wife from continuing with the divorce case in the foreign country on the ground that the cause of action had arisen within the territory of India and if the husband was to pursue the case in Kenya, grave prejudice would be caused to him.
The Delhi High Court has held that the power vested in the court to grant an anti-suit injunction should be used sparingly because it amounts to interference with the process of administration of justice of the foreign court (Magotteaux Industries Pvt. Ltd. and Ors v AIA Engineering Ltd. 155 (2008) DLT 73):
The Honourable Supreme Court of India provided principles governing anti-suit injunctions in Modi Entertainment Network and Anr.V W.S.G. Cricket PTE. Ltd (2003) 1SCR 480. In exercising discretion to grant an anti-suit injunction, the court must be satisfied of the following aspects:
The defendant, against whom the injunction is sought, is amenable to the court's personal jurisdiction.
If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated.
The principle of comity (respect for the court in which the commencement or continuance of an action/proceeding is sought to be restrained) must be borne in mind.
In cases of multiple forums, the court considers the appropriate forum to be forum conveniens, having regard to the convenience of the parties and can grant an anti-suit injunction in relation to proceedings that are oppressive or vexatious, or in a forum non conveniens.
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
The law concerning pre- and post-nuptial agreements is still controversial and not fully evolved. Marriages are considered to be a sacred alliance that cannot be broken or dissolved as a civil contract, except with regard to the strict provisions of the personal laws and civil law.
The concept of a post-nuptial agreement is not defined in any of the personal laws. In India, a pre- and post-nuptial agreement is considered to fall into the category of a contract. Therefore, a legally binding pre-nuptial or post-nuptial agreement must satisfy the conditions of a valid contract under the Indian Contract Act 1872 (including that it must not be against public policy). Where an agreement envisages the breakdown of a marriage, it cannot be considered a valid contract, as it is against public policy. However, where the marriage has broken down and the parties enter into an agreement to amicably settle family issues, the courts uphold these agreements.
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
Indian courts recognise foreign marriages conducted under and in compliance with the laws of a foreign jurisdiction. Couples residing in India irrespective of their nationality can seek legal remedy under some statutes which provide protection to women against domestic violence or address custody related issues. However, they cannot divorce in India, as divorce is available under the personal matrimonial laws in India which are not applicable to foreigners.
Indian courts recognise divorce/annulment decrees granted by foreign courts. These decrees by foreign courts are considered to be valid and binding for all purposes, if they satisfy the conditions provided in section 13 of the Civil Procedure Code. Divorces granted by a foreign court are recognised in India if they satisfy the provisions of section 13 of the Civil Procedure Code. A foreign judgment is conclusive on any matter that has been directly decided on between the same parties or between parties who are litigating under the same title except where (section 13, Civil Procedure Code):
It has not been pronounced by a court of competent jurisdiction.
It has not been given on the merits of the case.
It appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which that law is applicable.
The proceedings in which the judgment was obtained are opposed to natural justice.
It has been obtained by fraud.
It sustains a claim founded on a breach of any law in force in India.
The Supreme Court has held that Indian courts will not recognise a foreign divorce decree if the divorce petition is not based on the substantive and jurisdictional grounds provided for divorce under the Hindu Marriage Act 1955 and one of the nine grounds of divorce which must be satisfied (Y.Narasimha Rao and Ors. v Y. Venkata Lakshmi and Ors. (1991) 3 SCC 451).
The Supreme Court held that a foreign divorce decree will not be recognised by the Indian courts where all of the following apply (Y.Narasimha Rao and Ors. v Y. Venkata Lakshmi and Ors. (1991) 3 SCC 451):
A party only technically satisfies the requirement of residence in a foreign country with only the purpose of obtaining the divorce.
That party is neither domiciled in that state nor has an intention to make it their home.
There is no substantial connection with the forum.
In Smt. Satya v Teja Singh  2 SCR 1971, the Supreme Court derecognised the decree of divorce of the foreign country on the ground that one party obtained the divorce decree by fraud on the foreign court by representing incorrect jurisdictional facts. The Apex Court held that the concept of residence does not include temporary residence for the purpose of obtaining a divorce.
It is held that marriages which take place in India can only be dissolved under either the customary or statutory law in force in India. Therefore, when a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is in defiance of the law and is unenforceable in India. For the same reason, such a judgment is also unenforceable under clause (f) of section 13 of the Civil Procedure Code, since such a judgment is in breach of the matrimonial law in force in India.
The Supreme Court has also held that "the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted, must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be:
Where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides, and the relief is granted on a ground available in the matrimonial law under which the parties are married.
Where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim, which is based on a ground available under the matrimonial law under which the parties are married.
Where the respondent consents to the granting of relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the "parties".
Civil partnerships are not recognised in India.
Muslim law (see also below, Fault and Mutual consent). Every Muslim who has attained puberty and who is of sound mind can enter into a marriage contract. A Muslim marriage can be dissolved by the parties without recourse to court or, on certain grounds, by recourse to court. There are three ways to dissolve a Muslim marriage:
By the husband. A Muslim husband of a sound mind can divorce his wife at his will (talak). He can divorce his wife whenever he desires without assigning any cause.
By mutual consent. Divorce can take place by mutual consent of the husband and wife (khula or mubara).
Divorce by delegation. Under Muslim law, only the husband can pronounce talak on his wife, not vice versa. However, the husband can delegate this power to the wife or any third person by an agreement. This is known as divorce by delegation (talak-e-tafweez).
Fault. Dissolution of marriage under all Indian personal laws is based on guilt or fault theory of divorce (although divorce by mutual consent is also available under some personal laws (see below, Mutual consent)).
Section 13 of the Hindu Marriage Act 1955 recognises:
Nine fault grounds of divorce. Any marriage solemnised, whether before or after the commencement of the Hindu Marriage 1955, can, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
is living in adultery;
has ceased to be a Hindu by conversion to another religion;
has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition;
has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy;
had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form;
has renounced the world by entering any religious order;
has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of them, had that party been alive;
has not resumed cohabitation for a period of two years or more after the passing of a decree for judicial separation against that party;
has failed to comply with a decree for restitution of conjugal rights for a period of two years or more after the passing of the decree.
Four additional fault grounds which are available to the wife alone under the Hindu Marriage Act, 1955 (section 13(2)).
Section 2 of the Dissolution of Muslim Marriages Act 1939 contains nine fault grounds on which the wife alone can sue.
For Christians, subsection 10 of the Indian Divorce Act 1869 contains grounds of divorce.
The Parsi Marriage and Divorce Act 1936 contains ten fault grounds of divorce on which either spouse may seek divorce.
Section 27 (1) of the Special Marriage Act 1954 contains ten fault grounds of divorce on which either spouse can seek divorce. Section 27 (1A) contains two fault grounds on which the wife alone can seek dissolution of marriage.
Mutual consent. Under the Indian personal laws, divorce by mutual consent is recognised under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and Divorce Act 1939, the Dissolution of Muslim Marriage Act 1939, and now also under the Divorce Act 1869.
The only requirement for divorce by mutual consent is that the parties should have been living separately for a period of one year or more. To provide a cooling-off period so that the parties can reconsider their decision to separate, the following procedure applies.
The parties must have been separated for a period of one year. The first motion is filed and presented. After six months and before 18 months, the parties must present the second motion. The court will record the parties' statements and only then grant the decree of divorce.
The Supreme Court of India held in Anil Kumar Jain v Maya Jain (2009)10SCC415 that the language of section 13 B of the Hindu Marriage Act 1955 is very specific in its intention that, on a motion presented by both of the parties made no earlier than six months after the date of presentation of the petition and not later than 18 months after that date (if the petition is not withdrawn in the meantime), the court must pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree (on being satisfied after hearing the parties and after making such inquiry as it thinks fit). It is held that only the Supreme Court can waive the mandatory period of six months. The six-month period is given to the parties so that they can reconcile and get back together if possible.
A marriage can be solemnised between any two Hindus if the following conditions are fulfilled (section 5, Hindu Marriage Act 1955):
Neither party has a spouse living at the time of the marriage.
Neither party is mentally impaired or insane at the time of the marriage.
The bridegroom is 18 years or over and the bride 15 years or over at the time of the marriage.
The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
The parties are not sapindas (that is, lineal ascendants of each other or have a common lineal ascendant as far as third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, unless the custom or use governing each of them permits a marriage between the two).
Where the bride is under the age of 18 years, the consent of her guardian in marriage, if any, has been obtained for the marriage.
Only the violation of the prohibition of bigamy and marriage within a prohibited relationship renders the marriage void. Being under age does not render the marriage void or voidable. Insanity renders a marriage voidable.
Under the Special Marriage Act 1954 and the Hindu Marriage Act 1955, there is a distinction between a void and voidable marriage. The Indian Divorce Act 1869 only provides grounds on which marriages are void, but provides no grounds on which a marriage is voidable. This is the same in the Parsi Marriage and Divorce Act 1936, although some of the traditional grounds on which a marriage is voidable have been made grounds of divorce.
Muslim law recognises only void marriages known as batil marriages (that is, a marriage that does not exist from the outset). There is no concept of voidable marriage. No court decree is necessary. Even when the court passes a decree, it merely declares the marriage null and void. Muslim law has a unique concept of irregular marriage called fasid marriage.
A voidable marriage is a valid marriage if it is not avoided. A voidable marriage can be avoided only on the petition of one of the parties to the marriage.
All matrimonial statutes, apart from those under Muslim law, contain a provision for judicial separation.
Hindu law. A wife or husband can file for judicial separation on any of the fault grounds for divorce stated in section 13(1) of the Hindu Marriage Act 1955, and a wife can sue for judicial separation on any one of the additional fault grounds in section 13(2) (section 10, Hindu Marriage Act 1955).
Special Marriage Act 1954. A husband or wife can file for judicial separation on any of the grounds specified in section 27 (other than the grounds specified in clause (I) and (j) of section 27 on which a petition for divorce might have been presented or on the ground of failure to comply with a decree for restitution of conjugal rights) (section 23, Special Marriage Act 1954).
Divorce Act 1869. The grounds on which a judicial separation decree can be obtained are adultery, cruelty and two years' desertion.
Finances/capital and property
Matrimonial laws are lacking in provisions relating to the settlement of the spouses' properties and the matrimonial home. Section 27 of the Hindu Marriage Act 1955 provides only for the settlement of property presented jointly to the husband and wife at or about the time of marriage. It does not address the settlement of property owned jointly or separately. This is because there is no concept of matrimonial property and therefore there is no division of assets.
Maintenance is available to the wife as well as the husband as a statutory right on the breakdown of marriage. The courts have very widely interpreted the term "maintenance", to allocate financial resources and property to the wife. The courts have powers under the personal laws, as well as under section 125 of the Criminal Procedure Code and section 20 of the Protection of Women from Domestic Violence Act 2005.
A wife or the husband is only entitled to be awarded maintenance, permanent or interim. The quantum of maintenance may vary from case to case and is determined by the spouse's income. It may usually be up to one-third of the husband's net income.
It has been held that while considering a claim for interim maintenance, the court must keep in mind the status of the parties, reasonable wants of the applicant, and the income and property of the applicant. The requirements of the non-applicant, the income and property of the non-applicant and the other family members to be maintained by the non-applicant must also be taken into account. While it is important to ensure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in a similar degree of comfort as in the matrimonial home, it should not be so exorbitant that the non-applicant is unable to pay.
Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar lifestyle that he or she enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.
While estimating the spouse's income or to get an idea of the income and lifestyle of the parties, the court can take into consideration the following factors, among others:
Lifestyle of the spouse.
The amount spent at the time of marriage and the manner in which marriage was performed.
Destination of the honeymoon.
Ownership of motor vehicles.
Facility of driver, cook and other help.
Bank account details.
Insurance premium paid.
Property or properties purchased.
Amount of rent paid.
Amount spent on travel/holiday.
Locality of residence.
Number of mobile phones.
Qualification of spouse.
School(s) where the child or children are studying when the parties were residing together.
Amount spent on fees and other expenses incurred.
Amount spent on extra-curricular activities of children when the parties were residing together.
Capacity to repay loan.
As there is no concept of matrimonial property, there is no concept of division of assets. However, the concept of "maintenance" has been widely interpreted by the Indian courts. The husband must provide for/maintain the wife in accordance with the same status that the wife enjoyed during the marriage (see also Question 13).
Maintenance is available as a statutory right by way of independent relief, both under civil and criminal laws, and also as an ancillary relief.
Maintenance to Hindus is provided for under:
Section 24 (maintenance pending suit) and section 25 (permanent alimony and maintenance) of the Hindu Marriage Act 1955.
Section 18 of the Hindu Adoptions and Maintenance Act 1956.
A wife is entitled to maintenance from her husband after the breakdown of the marriage. A divorced woman is entitled to (section 3, Muslim Women (Protection of Rights on Divorce) Act 1989):
A reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband.
If she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.
An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time after that according to Muslim law.
All the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.
Alimony pending the suit of divorce can in no case exceed one-fifth of the husband's average net income for the three years preceding the date of the order, and continues until the decree for dissolution of marriage or of nullity of marriage is made absolute or is confirmed (section 36, Indian Christian Marriage Act 1872). Section 37, regarding permanent maintenance, states that the court will order the husband to secure to the wife such gross sum of money, or such annual sum of money, for any term not exceeding her own life, to the satisfaction of the court, after holding in consideration all of the following:
The wife's fortune (if any).
The ability of the husband to pay.
The conduct of the parties.
There is a provision for interim and permanent maintenance. The right to claim maintenance extends until remarriage.
The Muslim Women (Protection of Rights on Divorce) Act 1989 was enacted to codify and regulate the obligations of the Muslim husband to pay maintenance to the divorced wife. However, a controversy arose as to the time period for which a Muslim husband is obliged to pay maintenance to the divorced wife. The Supreme Court in the judgment of Danial Laitifi v Union of India AIR 2001 SC 3958, held that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of section 3(1) (a) of the Muslim Women (Protection of Rights on Divorce) Act 1989.
The liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to the iddat period.
A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1989 against her relatives, who are liable to maintain her in proportion to the properties which they inherit on her death, according to Muslim law, including her children and parents. If any of the relatives are unable to pay maintenance, the magistrate may direct the State Wakf Board, established under the Act, to pay that maintenance.
The concept of maintenance has evolved. Previously, Indian courts awarded low maintenance and the concept was more of survival rather than the right to live in the same lifestyle as the husband. However, with changing times, the Indian courts have been awarding maintenance in accordance with the status and lifestyle.
In Vinny Parmvir Parmar v Parmvir Parmar (2011) 7 Scale 741, the Supreme Court held that the quantum of maintenance depends on the husband's status, among other things. It was held that the court must consider the:
Parties' status and respective needs.
Husband's capacity to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.
The courts must also take note of the fact that the amount of maintenance fixed for the wife should be such that she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. However, the amount cannot be excessive or affect the living conditions of the other party.
In Sh. Bharat Hegde v Smt. Saroj Hegde, 140 (2007) DLT 16 the Delhi High Court observed that the relevant considerations to be taken into account at the time of assessing maintenance claims are the:
Status of the parties.
Reasonable wants of the claimant.
Independent income and property of the claimant.
Number of persons the non-applicant has to maintain.
Amount that should aid the applicant to live in a similar lifestyle as he or she enjoyed in the matrimonial home.
Provision for food, clothing, shelter, education, medical attendance, treatment and so on of the applicant.
Payment capacity of the non-applicant.
Equally, as is often the case, some guesswork is used when estimating the income of the non-applicant, if there is undisclosed or incorrect disclosed information. It was held that maintenance awarded cannot be punitive but should aid the applicant to live in a similar lifestyle that he or she enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low as to make the order meaningless. Unfortunately, in India, parties often do not truthfully reveal their income. For self-employed persons or persons employed in the unorganised sectors (for example, in a family business), truthful income never surfaces and tax avoidance is the norm. Therefore, a determination of interim maintenance cannot be exact. The court must take a general view.
In Vimalben Ajitbhai Patel v Vatslabeen Ashokbhai Patel and Ors. (2008) 4 SCC 649, the Supreme Court of India held that it is the wife's right to be maintained by the husband.
Although statute provides no set formula for determining the quantum of maintenance, the Supreme Court of India in Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7, held that maintenance should be in accordance with the lifestyle of the parties.
The right to residence has also been recognised under the Protection of Women from Domestic Violence Act 2005 and by the Supreme Court in S.R. Batra v Taruna Batra (2007) 3 SCC169.
If a person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child (whether married or not) or neglects or refuses to maintain his legitimate or illegitimate child (not being a married daughter) who has attained majority, and the child is, by reason of any physical or mental abnormality or injury, unable to maintain itself, a magistrate can order him to make a monthly allowance for the maintenance of his child (section 125, Cr.P.C).
A Hindu father or a Hindu mother is under a statutory obligation to provide maintenance to their children (Hindu Adoptions and Maintenance Act 1956). The obligation to maintain the children is to be shared equally by the mother and father. However, with the social set up in India, the father is called upon to primarily maintain the children as he is still considered to be the primary breadwinner for the family. In a situation where the father has no means or insufficient means, the mother is under an obligation to provide for maintenance.
In State of Haryana & Ors. v Smt. Santra (2000) 5 SCC182, the Supreme Court held that maintenance would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain the children, besides being statutory in nature, is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother.
It has been held that, in determining the amount of maintenance to be awarded to children, regard must be had to the position and status of the parties, and the reasonable wants of the child.
Ordinarily, an order of maintenance would end when the child attains the age of majority, but if the welfare of the child requires it, it may be continued beyond it, particularly when the child is engaged in higher education.
In Jagdish Jugtawat v Manjulata and Ors. (2002) 5SCC422 it was held that a female child has a right to be maintained by her parents even after she attains majority.
Under the Mohammedan law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married.
Reciprocal enforcement of financial orders
Foreign orders/decrees/judgments cannot be directly executed in India unless they are the judgments of courts in "reciprocating territories". In all other cases, the only mode of giving effect to a foreign judgment is to file a suit on the judgment in an appropriate Indian court, which has to be tested by section 13 of the CPC.
Decrees passed by courts in a reciprocating territory may be executed in India, subject to the following conditions (section 44 A, CPC):
Where a certified copy of decree of any of the superior courts of any reciprocating territory has been filed in a district court, the decree may be executed in India as if it had been passed by the district court. "Reciprocating territory'' means any country or territory outside India which the central government may, by notification in the official Gazette, declare to be a reciprocating territory for the purposes of section 44. "Superior courts", with reference to any reciprocating territory, means such courts as may be specified in the notification.
Together with the certified copy of the decree, a certificate shall be filed from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted, and that certificate shall, for the purposes of proceedings under section 44, be conclusive proof of the extent of such satisfaction or adjustment. "Decree", with reference to a superior court, means any decree or judgment of such court under which a sum of money is payable (not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty), but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.
The provisions of section 47 shall, as from the filing of the certified copy of the decree, apply to the proceedings of a district court executing a decree under this section, and the district court shall refuse execution of any such decree if it is shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.
Financial relief after foreign divorce proceedings
There do not appear to be any decisions on the subject of the right of an Indian court to make orders following a foreign order of divorce or annulment of marriage. However, in our opinion, where a particular relief is available to a party under a matrimonial statute, and the same has been adjudicated by the foreign court, the party would not have a right to approach the Indian court again on the same issue. However, where the issue of financial orders has not been decided by a foreign court or the order of the foreign court is hit by the provisions of section 13 of the Civil Procedure Code, it may be adjudicated in appropriate proceedings in India.
There is no standard formula that is applied in relation to custody/parental responsibility following the breakdown of a relationship or marriage. The most important principle which governs the decisions of the courts in relation to children is the best interest and welfare of the child.
Generally speaking, the mother has a preferential right to custody of infants, children below the age of five years and female children. However, where the court upon substantial evidence reaches the conclusion that the mother cannot secure the best interest and welfare of the child, the primary custody of infants can be entrusted to fathers.
The courts in India are very favourable to permitting access/contact/visitation following the breakdown of a relationship or marriage to the parent who does not have custody of the child. It is settled law that a child should not miss out on the love and affection of both the parents as a result of breakdown of marriage. Depending on the facts and circumstances of the case, the courts may permit, weekly, fortnightly or overnight visitation. The court may also permit sharing of the holidays between the parents.
Recently, India has witnessed an alarming number of cases involving cross-border child abduction.
India, not being a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), is not under an obligation to return the child to the country from which the child had been wrongfully removed. However, recently the Supreme Court of India has held that, where children have been wrongfully removed from the jurisdiction of foreign countries to which they belong, the principle of comity of nations would apply and the parties should be sent back to the jurisdiction of the court that had the most intimate contact. The courts in that country should conclusively adjudicate the issue of custody.
The law laid down by the Apex Court of India has changed over time and this can be seen in its judgments. One of the earliest judgments is Surinder Kaur Sandhu v Harbax Singh Sandhu (AIR 1984 SC 1224), in which the Supreme Court held that the modern theory of conflict of laws recognises and prefers the jurisdiction of the state which has the most intimate contact with the issues arising in the case. The Supreme Court held that jurisdiction is not decided by incidental factors such as where the child was taken or is for the time being lodged. To allow the assumption of jurisdiction by another state in such circumstances will encourage forum shopping. Ordinarily jurisdiction must follow on functional lines. For example, in matters relating to matrimony and custody, the governing law is of that place which has the closest concern with the well-being of the spouses and the welfare of the offspring of the marriage
In Elizabeth Dinshaw v Arvand M. Dinshaw & Anr. (1987) 1 SCC 42, the Supreme Court of India held that, whenever a question arises before a court relating to the custody of a minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would serve best the interest and welfare of the minor.
Dr. V. Ravi Chandran v Union of India & Ors. [2009(14) SCALE 27] is a groundbreaking case fought by the author, where mother and father lived in the US and litigated in the US court, leading to a consent order regarding their child. Subsequently the mother came to India with the child in violation of the US court order and was untraceable. In this case, the Supreme Court directed the Central Bureau of Investigation (CBI) to find the child as the mother had been fleeing from the course of justice. The Supreme Court of India held that the US court was the only competent court to adjudicate any disputes relating to the child and, if the mother had any grievance, she could seek modification of the consent order in the US court. The Supreme Court explicitly ordered that if the parties did not return to the jurisdiction of the US courts within the stipulated time to settle their disputes regarding child custody, the child would be handed over to the petitioner father. However, the case continued. The mother sought an extension of time to return to the jurisdiction of the US courts for obtaining her visa, but thereafter was untraceable. The Honourable Supreme Court again directed the CBI to trace the child. This time after the child was traced, the Supreme Court directed the CBI to hand over the child to the father. The child was recovered by CBI in Chennai and handed over to the father and they returned to the jurisdiction of US courts.
In Shilpa Aggarwal v Aviral Mittal 2009(14) SCALE 511, both the parties, who were permanent residents of the UK, visited India with their three-year-old daughter. The wife refused to return to her matrimonial home in the UK with the daughter. The husband filed for the custody of his daughter. The Supreme Court of India held that matters of child custody should be adjudicated by the courts that had the most intimate contact with the issue in question. The Supreme Court placed reliance on the principle of comity of courts and the best interest of the child and directed that the final decision with regard to the custody of the child would be taken by the English courts where both the parents permanently resided.
While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, it has been held that the court in the country to which child has been removed must first consider the question of whether the court should either:
Conduct an elaborate enquiry on the question of custody.
Summarily order a parent to return custody of the child to the country from which the child was removed and that all aspects relating to child's welfare be investigated in a court in their own country.
Recently, in Ruchi Majoo v Sanjeev Majoo (2011) 6SCC 479, the Supreme Court clarified that the duty of a court exercising its Parens Patraie jurisdiction in cases involving custody of minor children is onerous. As welfare of the minor is the paramount consideration, the Supreme Court held that where a foreign court has taken a particular view on any aspect concerning the welfare of the minor, this is not enough for the Indian courts to avoid an independent consideration of the matter. Objectivity is key in these cases. That does not, however, mean that the order passed by a foreign court is not a factor to be kept in mind.
In Arathi Bandi V Bandi Jagadrakshaka Rao and Ors. 2013(9) SCALE 513, the Supreme Court followed its ratio in the judgment of Dr. V. Ravichandran. In that case, it was held that no relief could be granted to the parent whose conduct involves removing the child from the foreign country to India in defiance of the orders of the court of competent jurisdiction. The Supreme Court specifically approved the modern theory of conflict of laws, which prefers the jurisdiction of the state which has the most intimate contact with the issues arising in the case.
Leave to remove/applications to take a child out of the jurisdiction
Both of the parents are assumed to be the natural custodians of their child. Therefore, there is no bar against a parent removing the child from the jurisdiction against the wishes of the other parent. It is only necessary for a parent to seek permission of the court to remove the child from the jurisdiction where either:
Such action is objected to by the other parent.
There is a restraining order of the court.
The matter adjudicating child custody is pending in the court.
The court has passed an order granting one parent the exclusive custody of the child.
Matters relating to family and custody are considered to be of a civil nature. Therefore, even in a case of child abduction by one parent, the matter is considered to be of a civil nature and, unlike in Western countries, arrest warrants are not issued. In cases of child abduction, the other parent has remedy in the form of filing a writ of habeas corpus or by seeking relief of restoration under the Guardians and Wards Act 1890.
Surrogacy and adoption
The following types of surrogacy are permitted under the law:
Voluntary and gratuitous surrogacy.
Paid surrogacy, which is a commercial agreement between the commissioning couple and the woman who agrees to bear the child.
Altruistic surrogacy, where the surrogate receives no financial reward for bearing or relinquishing the child.
Surrogacy in India is legal but not governed by statutory law. Although the Indian Council of Medical Research (ICMR) has set "national guidelines" to regulate surrogacy, these are simply guidelines. These guidelines were made in 2005 and regulate assisted reproductive technology (ART) procedures.
The guidelines are limited in scope and although they provide that surrogate mothers must sign a "contract" with the childless couple, there are no provisions for an event where the "contract" is violated and what the rights of a child born from such arrangement would be. In August 2009, with the objective of further formalising the law on surrogacy, the Law Commission of India submitted the 228th Report on Assisted Reproductive Technology procedures. This discussed the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. With India fast emerging as a hotspot for surrogacy, the Union Health Ministry has finalised the Assisted Reproductive Technologies (ART) Regulation Bill 2010, which has been sent to the Law Ministry for its approval. The Union Cabinet will shortly examine the draft Assisted Reproductive Technologies (ART) Regulation Bill 2010, and then table it in Parliament.
Floated earlier in 2008, the Bill envisages a national framework for the regulation and supervision of ART. The new law will protect the rights of children born through surrogacy and preserve the social order where infertility can lead to breakdowns of marriages.
Salient features and highlights of the draft Bill are:
It legalises commercial surrogacy for single persons, married or unmarried couples.
When it becomes law, the surrogate mother will have to enter into a legally enforceable surrogacy agreement.
It details procedures for accreditation and supervision of infertility clinics (and related organisations such as semen banks) handling spermatozoa or oocytes outside of the body, or dealing with gamete donors and surrogacy, ensuring that the legitimate rights of all concerned are protected, with maximum benefit to the infertile couples/individuals within a recognised framework of ethics and good medical practice.
It only allows 21 to 35-year-olds to be surrogate mothers and says no woman can act as a surrogate for more than five successful live births in her life, including those of her own children. She will not be allowed to donate oocytes more than six times in her life.
It prohibits in vitro fertilisation (IVF) clinics from advertising for surrogates on behalf of infertile couples and seeks to create ART banks to do the advertising for commissioning parents. These banks will screen surrogate mothers and donated sperm and oocytes for infections while ART clinics will simply offer ART services.
It guarantees legal protection to parents, surrogate mothers and children, and mandates legally enforceable agreements between the stakeholders. Any violation would be a cognisable offence punishable with imprisonment and fine.
Foreign persons from countries that do not recognise commercial surrogacy will be barred from hiring surrogate mothers in India. Foreign persons' and NRIs can hire surrogacy services only if they give an undertaking that their country permits surrogacy and the child born will get citizenship of the foreign country.
It mandates foreign persons to hire local guardians to support the surrogate mother in their absence.
Once the ART Bill gets assent, it will become binding on a surrogate mother to relinquish all her filial rights over the baby. In addition, the birth certificate of the baby born through surrogacy will bear the name of the individual or individuals who commissioned the surrogacy as parents.
The commissioning parents could be a single man or woman, a married couple or an unmarried couple, who are in a live-in relationship.
No woman can be treated with gametes or embryos derived from the gametes of more than one man or woman during any one treatment cycle. An ART clinic cannot mix semen from two individuals before use.
It gives homosexual people and single people the legal right to have surrogate babies. It defines a couple as two persons living together and having a sexual relationship.
In the case of a single man or woman, the baby will be his or her legitimate child.
A child born to an unmarried couple using a surrogate mother and with the consent of both parties will be the legitimate child of both of them.
During the gestation period, the couple will bear the surrogate's expenses and give monetary help to her. The couple may enter into an agreement with the surrogate.
Foreign couples must submit two certificates: one on their country's surrogacy policy and the other stating that the child born to the surrogate mother will get their country's citizenship.
Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation.
ART banks, accredited by the government, will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor.
State boards will give accreditation to ART banks, both private and government. The board will have a registration authority which, in turn, will maintain a list of all IVF centres and monitor their functioning.
If Parliament passes the draft Bill, surrogacy arrangements for Indian and foreign couples is expected to become hassle-free.
The Law Commission of India (2009) described the ART industry as "a Rs 25,000-crore pot of gold". It recommended only altruistic surrogacy arrangements and not commercial ones, but the draft Bill legalises commercial surrogacy as well. The basis of commercial surrogacy is a surrogacy agreement which demarcates the liabilities and intentions of the parties concerned. A surrogacy agreement based on free consent and a meeting of the minds of the parties concerned towards a particular outcome, has been held to be valid in India and is interpreted in light of the provisions of the Indian Contract Act 1872.
The law relating to surrogacy is different in each country, so the legal consequence of breaching the surrogacy agreement depends on the statutory law and case law prevailing in each individual country.
In the landmark case of Baby Manji Yamada v Union of India (2008) 13 SCC 518, the view of the Supreme Court was not only pro-surrogacy, but also extremely pro-contract. Baby Manji was a surrogate child of a Japanese couple who were having legal difficulties getting a visa for the child born in Gujarat. The Supreme Court of India gave custody of the child to the surrogate grandmother. The Supreme Court of India held that commercial surrogacy is permitted in India, and therefore there is manifold increase in international confidence in surrogacy in India.
In another matter of Jan Balaz v Anand Municipality AIR 2010 GUJ 21, a German couple entered into a contract with a surrogate mother. Twin children were born. The question which arose was whether a child born in India to a surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India, by virtue of birth. This was a momentous question which had no precedent in India.
The High Court of Gujarat, keeping in view the findings of the Supreme Court in Baby Manji's case, held that this case is primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, the High Court is more inclined to recognise the gestational surrogate who has given birth to the child.
The facts of this case are unusual because the petitioner was a German national and was the biological father of two babies given birth to by a surrogate mother who was an Indian citizen. The petitioner's wife was a German national. The petitioner and his wife were both working in the UK at the time and wanted to stay there. The petitioner and his wife had entered into a surrogacy agreement with the surrogate mother. Further, the surrogate mother had also agreed that she would not take any responsibility for the wellbeing of the child, the biological parents would have a legal obligation to accept the child that the surrogate mother would deliver, and the child would have all inheritance rights of a child of biological parents under the prevailing law. The surrogate mother gave birth to two baby boys.
On birth, an application for passports was made in India: the petitioner's name was shown as the father and the surrogate mother's name was shown as the mother. The Regional Passport Office asked for the passports back and issued a certificate of identification. The father submitted that Germany would never recognise the babies as their citizens, so he filed a writ petition stating that the denial of passports to the children violated Article 21 (right to life) of the Indian Constitution.
The High Court held that this case was primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, we are more inclined to recognise the gestational surrogate who has given birth to the child as the natural mother. She has a right to privacy that forms part of right to life and liberty guaranteed under Article 21 of the Constitution of India. Nobody can compel her to disclose her identity. Babies born are not in a position to know who is the egg donor and they only know their surrogate mother who is real. The wife of the biological father, who has neither donated the ova, nor conceived or delivered the babies, cannot in the absence of legislation be treated as a legal mother and she can never be a natural mother. The Gujarat High Court held that, by providing ova, a woman will not become a natural mother, as life does not take place in her womb, nor does she receive the sperm for fertilisation. In the present legal framework, the High Court held that the courts have no other option but to hold that the babies born in India to the gestational surrogate are citizens of this country and therefore, are entitled to receive passports. It directed the Passport Authorities to release the passports immediately.
It is clear that in the case of Jan Balaz the contract proved to be insufficient in demarcating the rights of the parties and also brought out residual issues such as citizenship and identity that are matters of vital importance to the children but do not have a place in the surrogacy agreement.
In both the above cases, the Indian courts have taken a very pro-contract stand, possibly as a way of encouraging commercial surrogacy, which contributes millions of dollars to India's economy. However, it seems from the above that the Indian Contract Act in its current form is not able to quite comprehend the complex questions and requirements that surround surrogacy and surrogacy agreements. Unlike most contracts that deal with the inanimate, which indirectly has an impact on the lives of human beings, the main entity being given for consideration here is a human child. What actually defines breach of a surrogacy agreement is not provided anywhere in the Indian Contract Act, making it easier for certain parties to evade liability and accountability, which will leave the innocent child unprotected and vulnerable. In light of the above mentioned arguments it becomes clear that more than an issue of contract, commercial surrogacy is an issue of rights, mainly the rights of the intending parents, the rights of the donors, the rights of the surrogate mother and last but definitely not least, the rights of the child. It is also an issue of human rights because of the cramped and heavily controlled living conditions of the surrogate mother.
Issues such as whether the parent country of the commissioning couple recognises and accepts the citizenship of the surrogate child are of great importance, since the Citizenship Act of India does not accord citizenship to a child born out of surrogacy and such matters can leave the child without citizenship where citizenship is denied from both countries. For example, neither Japan nor Germany recognise surrogacy and therefore will not grant citizenship to surrogate children born in India. This was evidenced in the Baby Manji Yamada case and the Jan Balaz case (see above).
This is an important issue for consideration, since it directly harms the child who is not at fault and this factor should be a pre-requisite for surrogacy agreements. The Contract Act does not mention any such requirement, which is an important issue of international citizenship and identity of the surrogate child.
The absence of legislation to elaborate on certain issues that are peculiar to only the issue of surrogacy results in the courts of India handling these delicate and life-changing matters. One of the most distinguishing features of a surrogacy agreement from other agreements is that it directly deals with the exchange of a human child for consideration. In the event of a problem the matter is taken to court, which will take a long time to give a decisive verdict, and this will hamper and traumatise the child during its formative years because of the uncertainty and insecurity in its life.
The Assisted Reproductive Technologies (ART) Regulation Bill 2010 guarantees legal protection to parents, surrogate mothers and children, and mandates legally enforceable agreements between the stakeholders. Any violation would be a cognisable offence punishable with imprisonment and fine.
An adopted child, once all the legal formalities are satisfied, acquires the same rights as a biological child.
Since a large number of Indian children are available for adoption, a number of foreign countries started looking at India for adoption. The Guardian and Wards Act 1890 is a statute which protects the rights and interests of children, but this does not provide for adoption. This legislation provides that a person can become a guardian of a child, which for all purposes is akin to adoption, but not a parent. Adoption is also governed by the personal law of the parties.
Adoption of orphaned, abandoned and surrendered children in India is governed by a set of guidelines notified by the Government of India. The Central Adoption Resource Authority (CARA) is an autonomous body under the Ministry of Women & Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the HCCH Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (Hague Adoption Convention), ratified by the Government of India in 2003.
It primarily deals with the adoption of orphaned, abandoned and surrendered children through its associated/recognised adoption agencies.
By means of a progressive judgment by the Supreme Court, judicial guidelines were laid down in Lakshmi Kant Pandey v Union of India (UOI) 1985 Supp SCC 701, under which foreign persons could become guardians of Indian children and adopt them in accordance with the laws of their home country.
Lakshmi Kant Pandey's judgment provided that a Central Adoption Resource Agency (CARA) be set up by the Government of India with regional branches at a few centres which are active in inter-country adoptions. Every social or child welfare agency, taking children under its care could be required to send to the CARA the names and particulars of children under its care available for adoption, and the names and particulars of such children should be entered in a register to be maintained by the CARA for adoption.
In Lakshmi Kant Pandey v UOI (2012) 12 SCC 735, a writ petition was filed setting out the difficulties faced by adoptive parents coming from abroad and it was highlighted that many Indian courts were not accepting documents executed and authenticated abroad, with the result that the adoption of children by foreign parents was being delayed. The Supreme Court allowed the application and:
Directed the courts of competent jurisdiction dealing with adoption/guardianship cases to accept documents authenticated by officers competent to issue certification by apostille in the country of their execution, as provided and covenanted in the Hague Apostille Convention.
Directed the court of competent jurisdiction to hear and dispose of cases in accordance with the time frame fixed in Lakshmi Kant Pandey v Union of India 1985 Supp SCC 701.
In S. Banu v Raghupathy H.C.P. No. 1139/2006, the Madras High Court held that in cases of complaints, the District Social Welfare Officer should hold a public hearing into complaints and conduct an enquiry.
In cases of questionable documents relating to adoption, the District Social Welfare Officer should direct the parties to approach the police, if needed, to seek assistance from the Legal Services Authority of the concerned District.
The Madras High Court also observed that when a prima facie case is made out raising doubts as to genuineness of adoption and documents, the District Social Welfare Officer must refer the matter to the police for investigation.
In Stephanie Joan Becker v State & Ors. 2013 (2) SCALE 312, the Supreme Court restated the principles established in Lakshmi Kant Pandey v Union of India and also said that the 2006 and 2011 guidelines for adoption from India must be adhered to. The Apex Court also observed that if the adoption is in the best interest of the child it should be allowed without any hindrance.
In Craig Allen Coates v State and Anr. 2010 (8) SCC 794 it was held that for inter-country adoptions the procedure followed could include a reference to an expert committee on the lines constituted in the present case, to ensure that inter-country adoptions are allowed only after full and proper satisfaction is recorded by all the agencies (including a committee of experts wherever reference to such a committee is considered necessary).
Until very recently, there was a prohibition under the personal laws to adopt two children of the same sex. In addition, the Guardian and Wards Act was badly lacking, particularly in relation to delinquent, juvenile or "juvenile in conflict with law" children. A "juvenile" means a person who has not completed his 18th year and "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence (Juvenile Justice (Care and Protection of Children) Act 2000 (JJ Act)).
While the Juvenile Justice Act 1986 dealt with the care and protection of juveniles, it did not deal with adoption. This gap was filled by the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 (JJ Act), which contains specific provisions for adoption as one of the ways for rehabilitation and social reintegration of juveniles in conflict with the law.
The Juvenile Justice Act, being secular in nature, supersedes the Hindu Adoptions and Maintenance Act 1956, and does not impose restrictions on the number of adopted children from the same gender.
The Bombay High Court in In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak 2010(1) Bom CR 434 held that when the child to be adopted is orphaned, abandoned or surrendered, or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by section 11 (i) and (ii) of the Hindu Adoption and Maintenance Act does not bar adopting a child of same gender after having a biological child of that gender.
There is no legislation which governs the division of property for unmarried couples if the relationship breaks down. However, the Protection of Women from Domestic Violence Act 2005 (Domestic Violence Act) bestows all benefits on a woman living in a cohabitation arrangement as available to a married woman, as she is covered within the term "domestic relationship" under section 2(f).
The Supreme Court of India held in Savitaben Somabhai Bhatiya v State of Gujarat and Ors. (2005) 3 SCC 636 that a relationship "in the nature of marriage" is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
In D. Velusamy v D. Patchaiammal (2010)10SCC469, the Supreme Court observed that a "relationship in the nature of marriage" is akin to a common law marriage. Common law marriages require that although not being formally married, the couple must:
Hold themselves out to society as being akin to spouses.
Be of legal age to marry.
Be otherwise qualified to enter into a legal marriage, including being unmarried.
Have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
These conditions must be evidenced. Further, the Supreme Court has held that a "relationship in the nature of marriage" under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a "shared household" as defined in section 2(s) of the Act. Merely spending weekends together would not make it a domestic relationship.
In Chanmuniya v Chanmuniya Virendra Kumar Singh Kushwaha and Anr. (2011)1SCC141 the Supreme Court held that where a man has lived with a woman for a long time, despite not being married, he should be made liable to pay the woman maintenance if he leaves her. The man should not be allowed to benefit from legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.
Through the judgment in Chanmuniya, the Supreme Court has extended relief for maintenance under section 125 of the Cr.P.C to women in live-in relationships. It has been held that as monetary relief and compensation can be awarded in cases of live-in relationships under the Domestic Violence Act, they should also be allowed in a proceedings under section 125 of Cr.P.C. Sections 18 to 23 of the Domestic Violence Act provide a large number of reliefs as legal redress. An aggrieved woman can claim reliefs through the courts in the form of protection orders, residence orders, monetary relief, custody orders for children, compensation orders and interim/ex parte orders.
The benefits available to a woman under the Domestic Violence Act include a woman's right to reside in the shared household with her husband or a partner. If a husband/partner of the complainant violates protection orders, it will be deemed a punishable offence. Punishment for violation of the rights enumerated above could extend to one year's imprisonment and/or a maximum fine of INR20,000.
The Supreme Court in Indra Sarma Vs. V.K.V. Sarma AIR2014SC309 set out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the Domestic Violence Act. The guidelines, of course, are not exhaustive, but will definitely give some insight into such relationships:
Duration of period of relationship. Section 2(f) of the Domestic Violence Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending on the factual situation.
Shared household. This expression has been defined under section 2(s) of the Domestic Violence Act and, therefore, needs no further elaboration.
Pooling of resources and financial arrangements: supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, and shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
Domestic arrangements. Entrusting responsibility, especially on the woman, to run the home, do household activities like cleaning, cooking, maintaining or keeping up the house and so on, is an indication of a relationship in the nature of marriage.
Sexual relationship. Marriage-like relationship refers to a sexual relationship, not just for pleasure, but for an emotional and intimate relationship and for procreation of children, so as to give emotional support, companionship and also material affection, caring and so on.
Children. Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
Socialising in public. Holding out to the public and socialising with friends, relations and others, as if husband and wife, is a strong circumstance to hold that the relationship is in the nature of marriage.
Intention and conduct of the parties. Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.
The question which arose before the Supreme Court was whether a "live-in relationship" would amount to a "relationship in the nature of marriage" falling within the definition of "domestic relationship" under section 2(f) of the Domestic Violence Act and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to "domestic violence" within the meaning of Section 3 of the DV Act. The Supreme Court observed that a live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.
The Supreme Court distinguished between the relationship in the nature of marriage and marital relationship. Relationship of marriage continues, despite the fact that there are differences of opinions, marital unrest and so on, even if they are not sharing a shared household, being based on law. However, a live-in-relationship is purely an arrangement between the parties, unlike a legal marriage. Once a party to a live-in-relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression "in the nature of".
The Supreme Court referred to certain situations, in which the relationship between an aggrieved person referred to in section 2(a) and the respondent referred to in section 2(q) of the Domestic Violence Act, would or would not amount to a relationship in the nature of marriage, would be apposite. The following are some of the categories of cases which are only illustrative:
Domestic relationship between an unmarried adult woman and an unmarried adult male. A relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of section 2(f) of the Domestic Violence Act, and in case there is any domestic violence, the same will fall under Section 3 of the Domestic Violence Act and the aggrieved person can always seek relief provided under Chapter IV of the Domestic Violence Act.
Domestic relationship between an unmarried woman and a married adult male. Situations may arise when an unmarried adult woman knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship "in the nature of marriage" so as to fall within the definition of section 2(f) of the Domestic Violence Act.
Domestic relationship between a married adult woman and an unmarried adult male. Situations may also arise where an adult married woman knowingly enters into a relationship with an unmarried adult male. The question is whether such a relationship would fall within the expression relationship "in the nature of marriage".
Domestic relationship between an unmarried woman who unknowingly enters into a relationship with a married adult male. This may, in a given situation, fall within the definition of section 2(f) of the Domestic Violence Act and such a relationship may be a relationship in the "nature of marriage", so far as the aggrieved person is concerned.
Domestic relationship between same sex partners (gay and lesbian). The Domestic Violence Act does not recognise such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), and the Domestic Violence, Crime and Victims Act, 2004 (UK), have recognised the relationship between same sex couples and have brought these relationships into the definition of domestic relationship. The Supreme Court held that although section 2(f) of the Domestic Violence Act uses the expression "two persons", the expression "aggrieved person" under section 2(a) takes in only "woman", therefore the Act does not recognise the relationship of same sex (gay or lesbian), and therefore any act, omission, commission or conduct of any of the parties would not lead to domestic violence entitling any relief under the Domestic Violence Act.
The Supreme Court held that while determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence", there should be a common sense/balanced approach, after weighing up the various factors which exist in a particular relationship, and then a conclusion as to whether a particular relationship is a relationship in the "nature of marriage". Many times it is the common intention of the parties to that relationship as to what their relationship is to be, their involvement and their respective roles and responsibilities, that primarily governs that relationship. Intention may be expressed or implied and what is relevant is their intention as to matters that are characteristic of a marriage.
The expression "relationship in the nature of marriage", of course, cannot be construed in the abstract. We must take it in the context in which it appears and apply the same, bearing in mind the purpose and object of the Act as well as the meaning of the expression "in the nature of marriage". The plight of a vulnerable section of women in that relationship needs attention. Many times the woman has been taken advantage of, and the essential contribution of women in a joint household through labour and emotional support has been lost sight of, especially by women who fall in the categories mentioned in the first and fourth bullet points above. Women who fall under the second and third bullet points above, stand on a different footing. In the present case, the appellant falls under the second bullet point above, referred to in paragraph 37(b) of the judgment.
The Supreme Court held that to test whether a particular relationship would fall within the expression "relationship in the nature of marriage", certain guiding principles have to be evolved since the expression has not been defined in the Act. Section 2(f) of the Domestic Violence Act defines "domestic relationship" to mean, among others, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression "relationship in the nature of marriage" is also described as a de facto relationship, a marriage-like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) and so on.
Section 17 of the Protection of Women from Domestic Violence Act 2005 gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the "shared household". The same provision applies even if the woman does not have any right, title or beneficial interest in the same. The law provides that if an abused woman requires it, she has to be provided with alternate accommodation. The accommodation and her maintenance has to be paid by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency reliefs to be provided by the husband. She has the right to the services and assistance of the protection officer and service providers, shelter homes and medical establishments stipulated under the provisions of the law. A woman who is the victim of domestic violence will have the right to the services of the police. She also has the right to simultaneously file a criminal complaint under section 498A of the Indian Penal Code. Charges under section 498A can be framed by the magistrate. The offences are cognisable and non-bailable.
Family dispute resolution
Mediation, collaborative law and arbitration
There have been proactive attempts by the Indian judiciary in the past few years to have a formal framework which provides mediation and arbitration services to help litigants resolve their disputes in an amicable fashion. There have been numerous mediation and conciliation centres opened which run under the supervision of the High Courts of various states. The Supreme Court of India also has its own mediation and conciliation centre.
In family disputes, the medium for amicable settlement adopted is mediation. There is no legal recognition for "collaborative law" in India, but lawyers do participate in facilitating settlements. In India, family matters are not the subject matter of arbitrations.
The mediation and conciliation centre are governed by the rules formulated by the High Courts of various states from time to time. The agreements reached under the auspices of mediation and collaborative law have the sanctity of law. Parties who do not abide by the term and conditions are liable to be sued for breach of contract and may even be liable for contempt of court.
An attempt at reconciliation is mandatory under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. Other Indian matrimonial statutes do not provide for it and there is therefore no statutory mandate to attempt settlement in other cases.
Reconciliation is provided for under section 23(2) and section 23(3) of the Hindu Marriage Act. Section 23(2) of the Hindu Marriage Act states that before proceeding to grant any relief under it, the court has a duty in the first instance, in every case, to make every endeavour to bring about reconciliation between the parties where a divorce is sought on most of the fault grounds for divorce specified in section 13 of the Hindu Marriage Act. Section 23(3) of the Hindu Marriage Act makes a provision empowering the court on the request of parties, or if the court thinks it just and proper, to adjourn the proceedings for a reasonable period not exceeding 15 days to bring about reconciliation. It must be borne in mind that a Hindu marriage is a sacrament and not a contract. Even if divorce is sought by mutual consent, it is the duty of the court to attempt reconciliation in the first instance. Accordingly, Hindu law advocates reconciliation before dissolving a Hindu marriage.
The provisions of sections 34(2) and 34(3) of the Special Marriage Act are pari materia to the provisions contained in sections 23(2) and 23(3) of the Hindu Marriage Act. Even though the marriage contracted under the SMA does not have the same sanctity as marriage solemnised under the Hindu Marriage Act, the Indian Parliament retained the provisions for reconciliation of marriages in the same terms as they exist in the Hindu Marriage Act.
The provisions under both the statutes are almost identical and accordingly every endeavour to bring about reconciliation is mandatory.
The mediation and conciliation centres are established under the Rules of the High Courts within whose jurisdiction they are established.
The option of pre-litigation mediation is available to the parties. However, the parties are not required to attempt a family dispute resolution in advance of the institution of proceedings. It is a voluntary and consensual exercise.
Civil partnership/same-sex marriage
Civil partnership and same-sex marriage are not recognised within the territory of India. Homosexuality is a crime in India punishable under section 377 of the Penal Code.
In Naz Foundation v Govt. of NCT and Ors. 160 (2009) DLT277, the Delhi High Court took the first step towards dismantling the legal discrimination provided by section 377 of the Penal Code in its present form by interpreting the Constitution of India as requiring a "reading down" of the offence of "carnal intercourse against the order of nature" ("order of nature" refers to sexual intercourse between adults of the opposite gender). The Delhi High Court ruled that section 377 of the IPC insofar as it criminalises consensual sexual acts of adults in private, violates the fundamental rights of the citizens of India under the Constitution. It was held that if not amended, section 377 of the IPC violates Article 14 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before law. The High Court clarified that the provisions of section 377 of the IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. However, consensual intercourse between adults of any gender cannot be a criminal offence.
The judgment of the Delhi High Court has been challenged in the Supreme Court. The Supreme Court set aside the judgment of the Delhi High Court on 11 December 2013 and held that section 377 of the IPC is not unconstitutional and that the declaration made by the Division Bench of the Delhi High court was legally unsustainable. However, the Supreme Court held that competent legislature is free to consider the desirability and propriety of deleting section 377 of the IPC from the statute book or amending it as per the suggestion made by the Attorney General.
The Curative Petition against the Supreme Court's order is pending.
Controversial areas and reform
Section 377 of the Indian Penal Code criminalises even consensual sexual intercourse "against the order of nature". That provision in the Penal Code has not been amended since 1860. Therefore, for a country where even in the 21st century consensual intercourse between adults of the same gender is considered to be a heinous crime punishable with life imprisonment, decriminalisation of homosexuality would be a welcome change. The Supreme Court of India held that competent legislature is free to consider the desirability and propriety of deleting section 377 of the IPC from the statute book or amending it as per the suggestion made by the Attorney General. The Curative Petition against the Supreme Court's order is pending.
Today, a lot of Indians with different personal laws have migrated and are migrating to different countries, either to make foreign countries their permanent abode or their temporary residence. Concepts like domicile and habitual residence emerge as the necessary ingredients for the courts to assume jurisdiction of disputes within the domain of private international law. Domicile needs to be defined by statute. Habitual residence for a defined length of period needs to be incorporated as a condition for application of laws.
There are several cases of international abduction of children in cases of inter-country marriages. India should seriously consider being a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). Judicial guidelines need to be clearly set out in such cases.
The concept of division of matrimonial property needs to be incorporated in family laws.
*Natasha Sahrawat, advocate, assisted Ms. Anand in the compilation of this chapter.
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Pinky Anand, Senior Advocate
Chambers of Ms Pinky Anand
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Professional qualifications. Senior Advocate, India
Areas of practice. Constitutional law; food and environmental law; power and electricity matters; human rights issues; arbitration; corporate law; environmental matters; mining matters; property matters; public interest law; private international law; family law; intellectual property rights; information technology and telecom; representing financial institutions; coal companies; builders; governments of France and Belgium; multi-national companies; governments and government companies; insurance companies.
Non-professional qualifications. Doctorate of Law (Honoris Causa), KIIT University, 2012; LL.M (Inlaks Scholar), Harvard Law School, USA, 1980 to 1981; LL.B (All India Postgraduate Scholarship Awardee), University of Delhi, 1977 to 1980; B.A. (Hons.) in Economics, University of Delhi, 1974 to 1977; received French National Order of Merit by President of the French Republic, directly at the level of "Officer"
- Constitutional right of freedom and expression for South Indian Actress Khushboo. Supreme Court upheld the rights in a pathbreaking judgment and quashed 21 cases of defamation.
- Represented the French Government in the famous case of Clemenceau.
- Fighting against invidious GM food invasion.
- Legal battle for BJP Leader Arjun Munda to be made the Chief Minister of Jharkhand.
- Delimitation case in the Supreme Court leading to Implementation of the Delimitation Commission's orders in the country on the basis of the 2001 Census.
- V. Ravi Chandran vs. Union of India & Ors., private international law case.
Languages. English, Hindi, Punjabi
- Designate Senior Advocate.
- Additional Solicitor General of India.
- Vice President of the Bar Association of India.
- French National Order of Merit by the President of the French Republic.
- Core Committee Member of National Human Rights Commission.
- Arbitrator of Indian Council of Arbitration.
- Member of IAML.
- Alternate Country Councillor of LAW ASIA India (The Law Association for Asia and the Pacific).
- Executive member of All India Federation of Women Lawyers.
- Recipient of Women Achievers Award from the International Association of Lions Clubs.
- Awarded 19th Bharat Nirman Awards for Excellence in Law.
- Awards for excellence in law by Amity University & PHD Chambers.