Consultation

Jurisdiction and conflict of law

 

Regulatory framework. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

 

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 to 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.

 

Court system

The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, 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.

 

Jurisdiction

 

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

 

Divorce

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:
  • Parties’ domicile.
  • 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.

 

Property

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.

 

Children

Disputes over children are adjudicated by the courts with the closest contact with the child. Therefore, the court of the place where the child resides will assume jurisdiction for any disputes over custody and other children-related issues.

 

Domicile and habitual residence

 

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

 

Domicile

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 [1965] 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.

 

Residence

The concept of habitual residence is not defined but is recognised by Indian courts. Indian statutes require residence as a ground for 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 [1975] 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.

 

Divorce

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 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 in relation to parties who are domiciled abroad but came to India for the sole purpose of solemnisation of marriage. When these parties, who are domiciled abroad but were married in India under Indian laws, enter into matrimonial disputes, it is unclear whether the divorce petition is maintainable in India.
The Supreme Court of India has not adjudicated on this 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 held to be 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.

 

Children

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. In Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952, it was held by the Supreme Court of India that the judgment by a foreign court should only be taken as input for its final adjudication. In this case, the Apex Court allowed the trial court in India to hear the mother’s application for custody of the child.
Indian courts believe in the comity of law. However, priority is given to the welfare of the child.

 

Conflict of law

 

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

 

Procedure

A party can apply for an anti-suit injunction against the other party to prevent him/her from 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.

 

Factors

The jurisdiction of more than one court could be invoked where the husband and wife start to reside 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 divorce 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 wife filed a case for divorce in Kenya. The 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 Supreme Court of India provided principles governing anti-suit injunctions in Modi Entertainment Network and Anr V WSG 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.
In Padmini Hindupur v Abhijit S Bellur 2015 (220) DLT (CN) 14, the High Court of Delhi held that the courts of India (like the courts of England) are courts of law and equity. The principles governing the grant of an anti-suit injunction are essentially an equitable relief: Indian courts can therefore issue an anti-suit injunction to a party over whom it has personal jurisdiction in the appropriate case. This is because courts of equity exercise jurisdiction in personam. However, such powers must be exercised sparingly in order to avoid any interference with the proper administration of justice.
On the facts of Padmini Hindupur, it was observed that the Delhi Court should be the proper forum, as the plaintiff had not resided in Maryland, USA for longer than a single day, and during her two short periods of stay in the US (between 11 June 2013 and 3 August 2013) she was met with non-cooperation from the husband, who had not met her at all during her stay, and who had disregarded all of her communications. The husband had surrendered the lease of their house on 3 June 2014 and moved on to a new job without passing any information on to the plaintiff, having set up a plea that he is a resident of Maryland only for the purpose of obtaining a relief appears to be a litigation which is both prejudicial and vexatious to the interest of the plaintiff. The Delhi High Court stayed the proceedings in Maryland USA.

 

Pre- and post-nuptial agreements

 

Validity of pre- and post-nuptial agreements

 

5. To what extent are pre- and post-nuptial agreements binding?

 

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 pre- or 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).
A prenuptial agreement may be an agreement which sets out terms of settlement outlining the distribution of assets, liabilities and issues relating to the custody of children, in the event that the marriage breaks down, which can maybe be relied upon to put an end to the dispute and for the parties so that they can part ways amicably. Other matters that are addressed could include:
  • Permanent alimony and maintenance to be provided to wife or husband in case the marriage fails.
  • The issue of custody of the children, including the care and maintenance by both parties and the proportional distribution of responsibility, and the liabilities of both for any children born to them out of wedlock.
  • The terms and conditions relating to the financial contribution of self as well the other partner in marriage.
However, pre-nuptial agreements in India are not binding or executable in a court of law. The courts may take a prenuptial agreement into consideration for understanding the intention of the couple and this may help the courts in reaching a proper settlement in cases for divorce.
Courts uphold such agreements where the parties enter into an agreement post-breakdown of marriage, in order to amicably settle family issues.
However, the above view is only applicable for marriages under Hindu law. Muslim marriages are in the form of legal contract and mahr, which is offered as consideration to the bride at the time of marriage, and can be viewed in the same light as a pre-nuptial agreement.

 

Divorce, nullity and judicial separation

 

Recognition of foreign marriages/divorces

 

6. Are foreign marriages/divorces/civil partnerships recognised?

 

Marriages

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.

 

Divorces/annulment

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.

 

Case law

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 [1975] 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

Civil partnerships are not recognised in India.

 

Divorce

 

7. What are the grounds for divorce?

 

Divorce

In India, divorce can be obtained by alleging fault of the other party and/or by mutual consent.
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.
Section 13B of the Hindu Marriage Act 1955 provides for divorce by mutual consent where the parties have been separated for a period of one year. Thereafter, the first motion for mutual divorce must be filed and presented. After a period of between six months and 18 months, the parties must present the second motion. The court will record the parties’ statements to ensure that the divorce is being obtained of free will and only then will it 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 13B 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.
In Amardeep Singh v Harveen Kaur (2017) SCC Online SC 1073, the Supreme Court held that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under section 13B(2), it can do so after considering the following:
  • The statutory period of six months specified in section 13B(2), in addition to the statutory period of one year under section 13B(1) of separation of parties is already over, before the first motion itself.
  • All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts.
  • The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.
  • The waiting period will only prolong their agony.
It was held that the waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. Furthermore, if the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned court. Further, the period of six months mentioned in section 13B(2) is not mandatory but directory: it is open to the court to exercise its discretion based on the facts and circumstances of the case where there is no possibility of the parties resuming cohabitation and where there are chances of alternative rehabilitation.

 

Islamic law

Under Islamic law, divorce is classified into three categories:
  • Talaq. This is divorce at the instance of the husband.
  • Khula. This is divorce at the instance of the wife.
  • Mubaraat. This is divorce by mutual consent.
Under Islamic 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).
Divorce by the husband. There are three types of Talaq:
  • Talaq-e-ahsan. This is a single pronouncement of talaq by the husband, followed by a period of abstinence (iddat). The duration of the iddat is 90 days or three menstrual cycles (where the wife is menstruating). Alternatively, the period of iddat is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of iddat, the pronouncement of divorce is treated as having been revoked. Therefore, talaq-e-ahsan is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of iddat, the divorce becomes final and irrevocable after the expiry of the iddat period. It is considered irrevocable because the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh nikah (marriage) with a fresh mahr (that is, a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom’s father, to the bride, at the time of marriage, which legally becomes her property). However, on the third pronouncement of the talaq, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through talaq (divorce) or death) can the couple remarry. Among Muslims, talaq-e-ahsan is regarded as the most “proper” form of divorce.
  • Talaq-e-hasan. This is pronounced in the same manner as talaq-e-ahsan (see above). However, instead of a single pronouncement there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure must be followed after the expiry of the first month (during which marital ties have not been resumed). Talaq is then pronounced again: after the second pronouncement of talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is important to note that the first and the second pronouncements can only be revoked by the husband. If he does so (either expressly or by resuming conjugal relations) the talaq pronounced by the husband becomes ineffective, as if no talaq had been expressed. However, if a third talaq is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third tuhr (period of purity), as soon as the third declaration is made, the talaq becomes irrevocable, and the marriage stands dissolved, after which the wife must observe the required iddat (the period after divorce, during which a woman cannot remarry: its purpose is to ensure that the male parent of any offspring can be clearly identified). After the third iddat, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry.
    The distinction between talaq-e-ashan and talaq-e-hasan is that, in the former, there is a single pronouncement of talaq followed by abstinence during the period of iddat, whereas, in the latter there are three pronouncements of talaq, interspersed with abstinence.
  • Talaq-e-biddat. The third type of talaq is talaq-e-biddat. This is effected by one definitive pronouncement of talaq (such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq“, uttered at the same time, simultaneously. In talaq-e-biddat, divorce is then effective from this point onwards. Unlike the other two categories of talaq, the instant talaq is irrevocable the very moment it is pronounced. The Supreme Court in a recent landmark decision by five judges in the case of Shayara Bano vs Union of India 2017 SCC OnLine SC 963 (with a majority of 3:2) held that the act of divorce by a Muslim man by way of uttering the words talak three times is unconstitutional and illegal. It was held that triple talaq “is not integral to religious practice and violates constitutional morality”.
Divorce by the wife. In 1937, the Muslim Personal Law (Sharait) Application Act 1937, was passed. Section 5 of the Shariat Act provided that a Muslim woman could seek dissolution of her marriage on grounds recognised under the Muslim “personal law”. Section 5 of the Shariat Act was subsequently deleted, and replaced by the Dissolution of Muslim Marriages Act 1939.
The Dissolution of Muslim Marriages Act 1939 sets out the grounds on which a Muslim woman can seek dissolution of marriage. Section 2 of the Act provides for grounds for decree for dissolution of marriage, namely that the:
  • Whereabouts of the husband has not been known for a period of four years. (However, any decree passed based on this ground cannot take effect until six months have passed since making the decree, and if the husband appears (either in person or through an authorised agent) within this period, and satisfies the court that he is prepared to perform his conjugal duties, the court will aside the decree.)
  • Husband has neglected or has failed to provide for her maintenance for a period of two years.
  • Husband has been sentenced to imprisonment for a period of seven years or upwards. (However, no decree can be passed until the sentence has become final.)
  • Husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
  • Husband was impotent at the time of the marriage and continues to be so. (However, before passing a decree on this ground, the court will, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree will be passed based on this ground.)
  • Husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease.
  • Wife, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years.
  • Marriage has not been consummated.
  • Husband treats the wife with cruelty, for example, the husband:
    • habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment;
    • associates with women of evil repute or leads an infamous life;
    • attempts to force her to lead an immoral life;
    • disposes of her property or prevents her exercising her legal rights over it;
    • obstructs her in the observance of her religious profession or practice;
    • if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; or
    • carries out any other ground recognised as valid for the dissolution of marriages under Muslim law:
However, where a decree is passed based on the third ground above, no

 

Nullity

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 under 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.

 

Judicial separation

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

 

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

 

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 issue of 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 to award maintenance 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.

 

9. What factors are relevant to the exercise of the court’s powers?

 

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.
  • Household facilities.
  • Facility of driver, cook and other help.
  • Credit cards.
  • Bank account details.
  • Club membership.
  • Insurance premium paid.
  • Property or properties purchased.
  • Rental income.
  • 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.

 

10. What is the court’s current position on the division of assets?

 

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).

 

Finances/maintenance

 

11. How does ongoing spousal maintenance operate following marital breakdown?

 

Maintenance is available as a statutory right by way of independent relief, both under civil and criminal laws, and also as an ancillary relief.

 

Hindus

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.

 

Muslims

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.

 

Christians

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.

 

12. Is it common for maintenance to be awarded on marital breakdown?

 

Maintenance is commonly awarded in favour of the wife or the husband as the case may be on marital breakdown.

 

13. What is the court’s current position on maintenance on marital breakdown?

 

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 which the parties lived prior to the commencement of marital dispute.
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 also takes 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.
  • Non-applicant’s liabilities.
  • 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 during court proceedings often do not truthfully reveal their income. In the case of 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. In which event, the courts 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 SR Batra v Taruna Batra (2007) 3 SCC169.
In Shamima Farooqui v Shahid Khan (2015) 5 SCC 705, the Supreme Court of India held that the husband is under a higher obligation when the question of providing maintenance to the wife and children arises. In the case it was held that it is the obligation of the husband to maintain his wife. The husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

 

Child support

 

14. What financial claims are available to parents on behalf of children within or outside of the marriage?

 

In India, the obligation of a parent to maintain a child outside the marriage is same as the obligation to maintain the child born within the marriage. The law does not differentiate between a legitimate and an illegitimate child.
The parent with custody of the child can file for maintenance on behalf of the child in the capacity as legal guardian. Such parent can seek maintenance in the form of monthly allowance, which would cover the child expenditure on education, food, clothing and clothing. Maintenance is usually awarded on a monthly basis. The parent can also seek maintenance in form of a lump sum figure, which is usually deposited in the form of a fixed deposit in the bank for the purposes of the child’s higher education or marriage expenses.
To further a claim of maintenance, financial claims in the form of capital (to include transfer of property) can be made. The courts may grant security of property to secure the claim of maintenance.

 

15. On what basis is child maintenance calculated?

 

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.
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.
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.
In Manjula v KR Mahesh 2006 (5) SCC 461, the Supreme Court held that though the marriage between the parents has irretrievably broken down and that there is no point in making effort for conciliation, the welfare of parties’ daughter is of paramount importance. Therefore, the Supreme Court issued directions to the respondent father to make certain deposits in favour of the daughter to secure her future. These directions were in the nature of the following:
  • A sum of INR500,000, which will be kept in fixed deposit in an Indian national bank, initially for a period of five years with monthly interest withdrawal to meet the educational expenses of the child.
  • A sum of INR360,000, which will be deposited in the name of the child represented by the mother guardian in a bank account in a Unit Linked Policy for a period of 12 years. In Anu Kaul v Rajeev Kaul 2009 (13) SCC 209, the Supreme Court declined to increase the maintenance order to the wife, and directed that a monthly sum be paid towards education of the child (keeping in mind the exorbitant fee structure in good schools and the cost of living).

 

16. What is the duration of a child maintenance order (up to the age of 18 years or otherwise)?

 

Ordinarily, an order of maintenance would end when the child attains the age of majority, but if the welfare of the child so requires, 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.
In Amarendra Kumar Paul v Maya Paul and Ors 2009 (8) SCC 359, the Supreme Court held that an application for grant of maintenance under section 125 of the Cr.P.C., can be continued up until the child reaches majority. Therefore, once the child attains majority, section 125 would cease to apply.

 

17. Can children make direct claims against their parents?

 

A minor, in his/her individual capacity, can make a claim against his/her parents. However, the minor child must approach the court through a legal guardian.
A child who has attained the age of majority (that is, over the age of 18 years), can make a claim directly against his/her parents. However, a claim for maintenance would only be successful if made for the purposes of higher education or marriage expenses. A child whose has attained the age of majority may, however, seek civil remedy in the form of seeking his share in the joint family property (as applicable).
In India, a Hindu child (male or female) acquires a right in the undivided family property, by virtue of birth. The child is entitled to such share in the property by virtue of being a coparcenar and can therefore seek his/her share in the undivided family property.

 

Reciprocal enforcement of financial orders

 

18. What is the legal position on the 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 will, 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 must 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

 

19. What powers are available to the court to make orders following a foreign divorce?

 

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.
Independent legal remedies are available to parties seeking financial relief under the Hindu Adoptions and Maintenance Act 1956.

 

Children

 

Custody/parental responsibility

 

20. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

 

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 governing 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 the 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.

 

21. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

 

The courts in India are very favourable in 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.

 

International abduction

 

22. What is the legal position on international abduction?

 

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 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.
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.
In the recent case of Jitender Arora v Sukriti Arora 2017 (3) SCC 726, the dispute involved the custody of a 15 year old girl who was brought to India by her father. The mother seeking custody of the child filed a habeas corpus petition in India seeking the child’s return to the UK. The Supreme Court, keeping in mind the wishes of the child, rejected the petition of the mother seeking the child’s return on the ground that the child was a mature girl of 15 years of age and was competent to make the decision for herself. It was observed that she unequivocally and without any reservations expressed her desire to be with her father and more importantly, she had very categorically said that she does not want to go to UK, keeping in the mind the wishes of the child.
In Nithya Anand Raghavan v State of NCT (2017) SCC Online SC 694, the Supreme Court dismissed a petition seeking the child’s return to the foreign country. The Court held that Indian courts are not prohibited from declining the relief to return a child to his/her native state merely due to a pre-existing order from a foreign court of competent jurisdiction. However, this should be considered on a case-by-case basis (whether by a summary inquiry or an elaborate inquiry). The Supreme Court reiterated that the exposition in the case of Dhanwanti Joshi is good law and has been quoted with approval by a three-judge bench of this Court in Dr V Ravi Chandran. The Court also approved the view taken in the case of Dhanwanti Joshi, which was for countries that are not signatory to the Hague Child Abduction Convention, the applicable law will be the law of the country to which the child is removed, while taking into account the welfare of the child as paramount importance. Therefore, the order of the foreign court will only be one factor (among others) to be taken into consideration.
Summary jurisdiction to return the child can only be exercised where the child had been removed from his/her native land and removed to another country where (as applicable):
  • The child’s native language is not spoken.
  • The child gets divorced from the social customs and contacts to which he has been accustomed.
  • The child’s education in his native land is interrupted and he/she is being subjected to a foreign system of education,
In addition, summary jurisdiction can only be exercised if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.

 

Leave to remove/applications to take a child out of the jurisdiction

 

23. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

 

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

 

Surrogacy agreements

 

24. What is the legal position on surrogacy agreements?

 

The following types of surrogacy are practiced in India:
  • 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.
In India, surrogacy is permitted for lack of legislation on the subject yet. 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 2005 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.

 

Case law

The Supreme Court, as seen in its line of judgments, has been pro-surrogacy and also pro-contract.
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 and two 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, the Courts were 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 (Baby Manjhi and Jan Balaz), 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 a surrogate children born in India. This was evidenced in the Baby Manji Yamada case and the Jan Balaz case (see above).
It should be noted that the judgment in Jan Balaz has been appealed to the Supreme Court of India.

 

Legal instruments for surrogacy

There have been a series of legal instruments towards the enactment of a statute on surrogacy law in India, commencing with Indian Council of Medical Research (ICMR) Guidelines on Surrogacy of 2005 which was further developed into Assisted Reproductive Technologies (Regulations) Bill 2008 with necessary changes of modifications the draft Assisted Reproductive Technologies (Regulation) Bill 2010 (ART Bill 2010) and then the draft ART Bill 2013.
The 2005 Guidelines provide that a surrogate mother cannot be genetically related to the child. She is legally and psychologically counselled that she will not have any rights over the child. Her rights and obligations towards the intended parents and the child are formulated in the gestational surrogacy agreement. Moreover, a child born through surrogacy will be presumed to be the legitimate child of the intended parent(s) and the intended parent(s) have all the legal rights to parental support, inheritance and all other privileges which a child born naturally to the intended parent(s) would have had.
However, in August 2009 the Law Commission of India delivered a Report on the issue and,upon considering suggestions from the Law Commission, the government introduced the, which was also the primary attempt to plug the loopholes prevailing under the 2005 guidelines and ensure protection for surrogate mothers and children born through surrogacy. The salient features of the ART Bill 2010 are as follows:
  • If a foreign national or foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, although born in India, will not be an Indian citizen.
  • The surrogate mother can receive monetary compensation for carrying the child in addition to healthcare and treatment expenses during pregnancy (section 34(3)).
  • The surrogate mother will relinquish all parental rights over the child once the amount is transferred.
  • The prescribed age limit for a surrogate mother is between 21 and 35 years and no woman can act as a surrogate mother for more than five successful live births in her life, including her own children.
  • Both the couple and individuals seeking surrogacy and the surrogate mother must enter into a surrogacy agreement, which will be legally enforceable.
  • If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian will be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child.
  • The Constitution of Authorities will regulate assisted reproductive technologies and a National Advisory Board will be established, which will set out the:
    • complete procedures for registration of clinics and complaints;
    • duties of an assisted reproductive technology clinic;
    • rights and duties of patients, donors, surrogates and children;
    • offences and penalties for violation of the rules of this Act.

 

Surrogacy (Regulation) Bill 2016

In November 2016, the Surrogacy (Regulation) Bill 2016 was introduced in the Indian Parliament, which seeks to completely abolish commercial surrogacy. The cabinet-approved Bill, however, has not yet been passed. The 2016 Bill defines commercial surrogacy as “surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage” and is intended to crack-down on the inside businesses of surrogacy, which encourages exploitation. The Bill intends to only allow altruistic surrogacy, where the surrogate mother is a close relative of the commissioning parents. The couple must also prove their infertility. Under the Bill, all surrogacy clinics must be registered, the surrogate mother cannot be paid directly and there will be national and state surrogacy boards which will be the regulating authorities for the practice. Commercial surrogacy, abandoning the surrogate child, exploitation of the surrogate mother, and the selling/import of human embryo are listed as violations punishable by law. In addition, all registered clinics will have to maintain records of surrogacy for 25 years. One provision in the 2016 Bill (also present in the ART Bill 2010) is the prohibition of single parents, homosexuals, and live-in couples from becoming commissioning parents. The 2016 Bill also disallows childless or unmarried women to be surrogate mothers. While the ART Bill 2010 recognised commercial surrogacy and provided for its regulation, the 2016 Bill takes into account the extensive exploitation that is a product of commercial surrogacy.
The highlights of the Surrogacy (Regulation) Bill are as follows:
  • Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.
  • The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. The surrogate mother must be a close relative who has been married and has had a child of her own.
  • No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.
  • Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. These authorities will also regulate surrogacy clinics.
  • Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for ten years and a fine of up to INR1 million.
The 102nd Parliamentary Committee Report on the Surrogacy (Regulation) Bill 2016 made some of the recommendations for the Surrogacy (Regulation) Bill. The recommendations are as follows:
  • Commercial v altruistic surrogacy. Where the 2016 Bill provides that altruistic surrogacy should involve no compensation for the surrogate mother other than the medical and insurance expenses related to the pregnancy. The Parliamentary Committee recommends a surrogacy model based on compensation rather than altruistic surrogacy. Such compensation must take care of several things (including the wages lost during the pregnancy, psychological counselling, and post-delivery care). It also noted by the Parliamentary Committee that the economic opportunities available to surrogates through surrogacy services should not be dismissed entirely. Under altruistic surrogacy, permitting women to provide reproductive labour for free without them being paid is unfair and arbitrary.
  • Implications of the surrogate being a “close relative”. Under the Bill, the surrogate can only be a close relative of the intending couple. The Parliamentary Committee notes that altruistic surrogacy by close relatives will always be out of compulsion and coercion, and not because of altruism. Thus such an arrangement within the family may cause:
    • a detrimental psychological and emotional impact on the surrogate child;
    • parentage and custody issues; and
    • inheritance and property disputes.
  • The Committee recommended that the criteria of being a close relative therefore should be removed to allow both related and unrelated women to become surrogates. It recommends that the 2016 Bill must unambiguously state that the surrogate mother will not donate her own eggs for the surrogacy.
  • Persons who can use surrogacy services. The 2016 Bill limits the option of surrogacy to legally married Indian couples. The Committee notes that this overlooks other sections of society who may want a surrogate child. The Committee recommended that the eligibility criteria be widened and include live-in couples, divorced women, and widows. Furthermore, this facility must be extended to Non-Resident Indians, Persons of Indian Origin, and Overseas Citizen of India card holders but not to foreign nationals.
  • Five year waiting period. Under the 2016 Bill, the intending couple can undertake a surrogacy arrangement following the inability to conceive after five years of unprotected coitus or other medical conditions preventing conception. The Committee recommended that the definition of “infertility” in the Bill should be as per the World Health Organization’s definition, where it is the inability to conceive after at least one year of unprotected coitus. It observed that the requirement of a five year waiting period violates the right to reproductive autonomy.
  • Gamete (sperm and egg) donor. Under the 2016 Bill, intending couples can only commission a surrogacy by proving infertility. Therefore, gametes from the couple may not be a possibility due to infertility. In such cases, the gametes will be required to be donated by others. The Committee noted that there is no mention of an egg or sperm donor in the Bill. It recommended that the provision for gamete donation should be incorporated in the Bill.
  • Abortion. Under the 2016 Bill, the approval of the appropriate authority (appointed by the central or state government) is required to undertake an abortion during the surrogacy. The Committee recommended a review of this requirement considering the existence of the Medical Termination of Pregnancy Act 1971 which regulates abortions. It noted that time is crucial in medical emergencies during pregnancy. In such cases, there may not be enough time to seek permission from an authority for performing an abortion to save the life of the surrogate mother.
The Report of the Parliamentary Committee is likely to lead to a debate now, in the House of Parliament.

 

Adoption

 

25. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

 

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 HCP 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.

 

Cohabitation

 

26. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

 

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 v VKV 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 Domestic Violence 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. In Badshah v Urmila Badshah Godse and Anr (2014) 1 SCC 188, the Supreme Court held that the expression “wife” in section 125 of the Code of Criminal Procedure, includes a woman who had been duped into marrying a man who was already married. It was held that at least for the purpose of claiming maintenance under section 125 Code of Criminal Procedure, a woman duped into marrying a marrying a man already married is to be treated as the legally wedded wife.

 

Family dispute resolution

 

Mediation, collaborative law and arbitration

 

27. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through 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.

 

28. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

 

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

 

29. What is the status of civil partnership/same-sex marriage? What legislation governs 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 Indian Penal Code (IPC).
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.

 

Media access and transparency

 

30. What is the position regarding media access to and press reporting of family law cases?

 

Section 11 of the Family Court Act 1984 provides that in every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and will be so held if either party so desires. “In camera” proceedings mean that the proceedings are conducted only among the presence of the judge, the parties and their lawyers. Such proceedings are not conducted in open court and therefore have no audience and the proceedings are recorded (on camera). The press has no access to such in camera proceedings. Such proceedings include all proceedings emanating out of the Hindu Marriage Act 1955 and may include divorce, child custody, maintenance proceedings.
In the recent judgment of the Supreme Court in Santhini v Vijaya Venketesh (2017) 4 SCC 150, it was held that in view of the scheme of Family Courts Act 1984 and in particular section 11, the hearing of matrimonial disputes may have to be conducted in camera. It was further held that, when settlement fails and when a joint application is filed, or where both the parties file their respective consent memorandum for hearing the case through videoconferencing before the concerned Family Court, the Court can exercise the discretion to allow the request. After the settlement fails, if the Family Court considers it appropriate, having regard to the facts and circumstances of the case, that videoconferencing will sub-serve the cause of justice, it may so direct.
Family cases in India are generally heard in open court. The media has access to proceedings and can report family law cases in the press. However, the parties may move an application before the court and seek the relief in order to have a hearing in private.

 

Controversial areas and reform

 

31. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

 

Section 377 of the Indian Penal Code (IPC) criminalises even consensual sexual intercourse “against the order of nature”. That provision in the IPC 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.
In the recent landmark judgment by nine judges of the Supreme Court in Justice KS Puttaswamy (Retd) v Union of India 2017 SCC OnLine SC 762, it was ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and therefore comes under Article 21 of the Indian Constitution.
This judgment on the right to privacy refers to the 2013 judgment in the Naz Foundation case on homosexuality (see Question 29), and says that sexual orientation is an essential attribute of privacy. The observations from the nine-judge Constitution bench are obiter dicta (not legally binding, but could have a significant impact when the court hears the curative petition challenging section 377). It was observed that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. The court noted that sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Furthermore, the fact that a tiny fraction of India’s population constitutes lesbians, gays, bisexuals or transgender individuals is not a sustainable basis to deny such people the right to privacy. 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 Hague Child Abduction Convention. Judicial guidelines need to be clearly set out in such cases.
The concept of division of matrimonial property also needs to be incorporated in family laws.