Marriage is a contract for legalization of intercourse and the procreation of children

• Ameer Ali cites an ancient text defining its objects as:

• Marriage is an institution ordained for the procreation and in order that human beings may guard

themselves from foulness and unchastity

• It creates rights and duties between the parties to the marriage as also between each of them and

the children born from the union.

• Justice Mahmood in Abdul Kadir v. Salima observed:

• Marriage among Muhammadans is not a sacrament but purely a civil contract and though

solemnized generally with recitation of certain verses from the Qur’an, yet the Muhammadan law

does not positively prescribe any service peculiar to the occasion.

ESSENTIALS

• Offer (ijab) and acceptance (qubul)

• Reasonable certainty – intention to establish conjugal relation from the moment of acceptance

• At one meeting

• Rashida Khatoon v. S.K. Islam AIR 2005 Ori. 57 – proposal made at one meeting and an

acceptance at another meeting does not constitute a valid marriage.

• Witnesses

• Under Shia Law not necessary

• Under Sunni Law presence of two male or one male and two female witnesses who are sane, adult

and Muslims required.

• Free consent

• Hassan Kutti v Jianbha AIR 1928 Mad 1285 – free consent is absolutely necessary

• Capacity

• Muslim of sound mind and has attained majority/puberty – 15 years

• Guardian must consent in case of minor

• Option of puberty – repudiation must be confirmed by a court

DISABILITIES

• Absolute incapacity or prohibition

• Consanguinity (Qurabat)

• Affinity (Mushaarat)

• Fosterage (Rize)
• Relative incapacity

• Unlawful conjunction

• Marrying a woman during iddat

• Marrying fifth wife

• Absence of witnesses

IDDAT

• When a marriage is dissolved by death or divorce, the woman is prohibited from

marrying within a specified time

• If marriage is dissolved by divorce – duration of iddat is 3 months

• If marriage is dissolved by death – duration is four months 10 days

• To ascertain paternity

DISABILITIES (CONT’D)

• Religion

• Rule amongst Sunnis

• A man may marry a Muslim woman or a kitabiya

• A kitabi is a man believing in a revealed religion possessing a Divine Book

• Rule amongst Shias

• Whether male or female, cannot marry a non – Muslim

ABDOOL RAZAK V. AGA MAHOMED

• Abdool Razak claims to be the lawful son of Abdul Sadee by a Burmese woman, MahTai and,
therefore, to

a share in his Uncle’s estate.

• There is no sufficient proof of whether MahThai converted from Buddhism to the Muslim religion.

• Also, there is no proof that she professed the Mahomedan faith before or at the time of the
marriage

ceremony.

• The court did not raise the presumption in favour of marriage. The court found that neither Abdul

Hadee nor MahThai considered their pre-cohabitation ceremony to be a lawful and binding
marriage.

• The court observed that there was no acknowledgement in the legal and proper sense of the word,

although there may have been admission of paternity.

• Mere admission of paternity will not confer legitimacy on the child.

ACKNOWLEDGEMENT UNDER ISLAMIC LAW

• Legitimacy is a status which results from certain facts

• In certain cases where it is doubtful whether a person is the child of another, the

acknowledgment of the father confers on the child the status of legitimacy

• Acknowledgement is a declaration of legitimacy

• The rule as to acknowledgment of legitimacy arises only if the paternity of the child is

not certain

ACKNOWLEDGEMENT UNDER ISLAMIC LAW

• Acknowledgement of paternity takes place in Islam as follows:

• Where the paternity of a child is not known or established beyond a doubt

• It is not proved that the claimant is the offspring of zina (illicit intercourse)

• The circumstances are such that they do not rebut the presumption of paternity

ESSENTIALS (CONT’D)

• Dower/Maher

• Mulla defines “dower” as a “sum of money or other property which the wife is entitled to receive
from

the husband in consideration of marriage”

• Justice Mahmood defines dower as follows:

• Dower, under the Muhammadan law, is a sum of money or other property promised by the
husband

to be paid or delivered to the wife in consideration of the marriage, and even where no dower is

expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon

the wife.

• Its not a consideration but an obligation imposed by the law upon the husband as a mark of

respect to the wife

• Lord Parker of Waddington in Hamira Bibi v. Zubaida Bibi:

• Dower is an essential incident under the Mussulman law to the status of marriage; to

such an extent, this is so that when it is unspecified at the time of the marriage, the law

declares that it must be adjudged on definite principles. Regarded as a consideration for

the marriage, it is, in theory, payable before consummation, but the law allows its division

into two parts, one of which is called 'prompt', payable before the wife can be called upon

to enter the conjugal domicile; the other 'deferred', payable on the dissolution of the
contract by the death of either of the parties or by divorce.

• Amount of dower

CLASSIFICATION OF DOWER

• Specified dower

• Maher is fixed at the time of marriage and the qazi performing the ceremony enters the

amount in the register

• May be fixed at the time of marriage or later

• Prompt dower – is payable immediately after the marriage if demanded by the wife

• Deferred dower – is payable on the dissolution of marriage

• Unspecified dower

• Customary or proper dower is to be fixed with reference to the social position of her father’s

family and her own personal qualifications

• Increase or relinquishment of dower

• Husband may at any time after marriage increase the dower

• Woman can relinquish her dower

• Enforcement of dower

• Unpaid portion of mahr is an unsecured debt due to her from her husband or his estate

• Right to enforce payment arises only on death, divorce or the happening of a specified

event.

• Widow’s right of retention

ABDUL KADIR V SALIMA

• The husband filed a suit for restitution of conjugal rights.

• Contention: the right of cohabitation does not accrue to the husband at all until he has paid

the prompt dower.

• Can the wife raise a defence of non-payment of the dower for resisting a claim for RCR?

• The exact nature and effect of marriage under Muhammadan law upon the contracting parties

• It legalizes cohabitation

• Subjects the wife to the power of restraint

• Renders her dower, maintenance, and raiment obligatory on him

• Establishes on both sides the prohibitions of affinity and the rights of inheritance

• These legal effects of marriage come into operation as soon as the contract of marriage
is completed, and they are not dependent upon any condition precedent as to the

payment of dower by the husband to the wife.

• Prompt dower may be demanded at any time after the marriage, the wife is under no

obligation to make such demand at any specified time.

• The exact nature of the liability of the husband to pay the dower

• The lien of the wife for her dower, as a plea for resisting cohabitation, ceased to exit after

consummation

• It was held that after consummation of marriage, non-payment of dower, even though

exigible, cannot be pleaded in defence of an action for RCR.

• The matrimonial rights of the parties as to conjugal cohabitation

• A suit for restitution of conjugal rights, whether by the husband or by the wife, would be

maintainable upon refusal by the other to cohabit with him or her

CLASSIFICATION OF MARRIAGES

• Valid (Sahih) Marriage

• The word "sahih" in Urdu means "correct" or "valid".

• When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a

sahih nikah or valid marriage.

• It means if two Muslim persons (one being the man and the other a woman) enter into

an agreement by way of offer and acceptance and the groom has paid the mehr for the

marriage to the bride, it is a valid marriage.

VOID (BATIL) MARRIAGE

• An agreement between a prospective bride and a groom that does not meet all the essential

conditions of a Muslim marriage is a void agreement, and any marriage that takes place in

furtherance of a void agreement is called a void marriage or Batil nikah.

• When one or more of the prerequisites to a valid marriage mentioned above are not fulfilled

by the spouses before marriage, the marriage is void and not binding.

• Examples:

• When a marriage takes place between persons who are absolutely incapable (incapacity)

• When a person marries to the wife of another man when the marriage of the lady was subsisting.

• Marriage with a non-Muslim.

IRREGULAR (FASID) MARRIAGE

• When a marriage is temporarily prohibited and not certainly restricted, it is merely

irregular or fasid and not void.

• Irregular marriages exist only in the case of Sunni Muslims, whereas an irregular marriage,

under Shia law, is a void marriage.

• When a marriage is conducted by violating certain or partial conditions of a valid

marriage, it is called an irregular marriage.

• In general, an irregular marriage is voidable marriage and not void ab initio. If the

irregularity can be removed from an irregular marriage; the marriage becomes valid when

it is removed.

MUTA MARRIAGE

• Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims.

• To understand this marriage, it is essential to know the background of this marriage.

• Most of the Arabian countries such as Abu Dhabi, Dubai, etc. have Shia sect of Muslims.

• The people usually called the Sheikhs were involved in the business of oil-producing, refining

and exporting.

• Due to business agreements, they were required to travel far places and stay there for several

days or even months.

• During this period, the Sheikhs required to fulfil their sexual needs and desires but, however,

Islam does not allow cohabitation with any woman other than a person’s own wife.

• The Sheikhs used to marry the women temporarily till they were in that town, and at the

time of leaving, they got divorced, and the dower was paid as a consideration for

marrying.

• This concept of marriage was recognized in Muslim personal law by the Shia sect and is

called Muta marriage.

THREE ASPECTS OF MARRIAGE IN ISLAM LAW

• Legal

• Social

• Religious

MARRIAGE REGISTRATION UNDER VARIOUS ACTS

 CHRISTIAN MARRIAGE
• Christian marriages are performed under the Christian Marriage Act, 1872

• Marriage can be performed in accordance with the rules, rites, ceremonies,

and customs of the Church.

• Under the Christian Marriage Act, marriages between Christians and non-Christians are permitted.

• Marriages are regarded as sacramental

CONDITIONS FOR A VALID MARRIAGE – SEC. 60

• Age of the man intending to be married shall not be under 21 and the age of

the woman intending to be married shall not be 18 years

• Neither of the persons intending to be married shall have a wife or husband

still living

• Presence of two credible witnesses

WHO CAN SOLEMNIZE A CHRISTIAN MARRIAGE

• Section 5 gives five categories of persons by whom marriages of Christians

can be solemnized in India

• Marriage has to happen in accordance with the rules, rites, ceremonies and

customs of the particular Church to which the Minister belongs

LEELAMMA V DILIP KUMAR

• The wife consented to marry the husband, believing he was a Christian, born

of Christian parents, and belonging to an ancient Christian family.

• Husband was an Ezhava, baptized into Christianity recently, and his parents

were Ezhavas and not Christians

• Obtained her consent for marriage by fraud

• According to the customs of the community, converts were considered socially

inferior in status, and members of ancient families did not marry converts.

• One does not become a Christian unless he professes the Christian faith

• Baptism is not determinative

• Under Canon Law, a marriage will be invalid if there is an error concerning

the quality of a person – religious affiliation or faith.

• Consent must be free and voluntary.

• The court held that the consent signified by the wife is no consent, and the

marriage is null and void.

SUJATHA V JOSE AUGUSTINE

• The petitioner, a Hindu belonging to the Nair community, was made to undergo

a baptism ceremony. She was then taken to Church, and the marriage took

place without her consent.

• Sought for declaration of her marriage with the respondent as null and void

on the ground that her consent for the marriage was obtained by force, fraud,

coercion and undue influence

• The question before the court was whether there was a valid marriage.

• To be a Christian, one must truly profess the Christian faith

• Undergoing the ceremony of baptism may not by itself be sufficient to hold that one

has become a Christian

• Baptism, if duly administered and received, may be an important circumstance to

conclude that one has become a Christian.

• The person who is admitted to baptism must have manifested the intention to receive

baptism, must be adequately instructed in the truths of the faith and in the duties of

a Christian, and must be tested in the Christian life over the course of the

catechumenate.

• There is no sufficient evidence to say that the petitioner was duly admitted to

baptism.

• She never wanted to live as a true Christian.

• Held: Marriage between the petitioner and the first respondent is null and

void.

LAKSHMI SANYAL V SACHIT KUMAR DHAR

• Whether the marriage was invalid and void because the appellant was a

minor at the time the marriage was solemnized

• The court held that there is no provision in the Canon law that contains a

prohibition against the marriage of a minor in the absence of the consent of

his or her parents.

• Whether the parties were within the prohibited degree of consanguinity

• According to Canon 1020, a pastor who has the right to assist at the marriage shall

carefully investigate whether there is any obstacle to the celebration of the marriage
• The consanguinity between the parties to the marriage in the present case is of the

second degree and is an impediment to marriage unless dispensed

• Dispensation is a relaxation of law in a particular case

• Held: marriage is not null and void

MOLLY JOSEPH V GEORGE SEBASTIAN

• Divorce Act prescribes not only the grounds on which a marriage can be

dissolved but also provides the forum that can dissolve or declare the

marriage nullity.

• Power has been vested either in the District Court or the High Court

• The Ecclesiastical Tribunal (Church Court) does not have the authority to

decide on matters covered by the provisions of the Divorce Act.

 PARSI MARRIAGE
• Parsis consider their marriage as a contract

• Regulated under Parsi Marriage and Divorce Act, 1936

• Parsis also recognize divorce.

• Bigamy is prohibited under the Act

• Marriage should be compulsorily registered

SEC. 3 – REQUISITES OF A VALID MARRIAGE

• Marriage shall be valid if

• the contracting parties are not related to each other in any of the degrees of

consanguinity or affinity

• marriage should be solemnized according to the Parsi form of ceremony called

"Ashirvad" by a priest in the presence of two Parsi witnesses other than such priest or

• a male should have completed twenty-one years of age, while a female should have

completed eighteen

 MARRIAGE UNDER SPECIAL MARRIAGE ACT

• Under Special Marriage Act, - a ‘civil marriage’ can be performed between ‘any two persons’

• If they do so, then neither of them is governed by the law of the community to which he or she

belongs.

• Once the parties choose to marry under the Act, all matrimonial matters are regulated by the Act.

• Irrespective of the religion or community, marriage can be registered under Special Marriage Act.
• The effect of registration is that from the date on which a certificate of marriage has been finally

entered into in the Marriage Certificate Book, the marriage is deemed to be a marriage

solemnized under the Act

SAFIA SULTANA V STATE OF UP

Facts- Safia Sultana has converted to Hinduism and married her partner following Hindu

rituals.

Issue- The couple is of the opinion that the 30-day notice under the Special Marriage Act

(SMA) breaches their privacy and unjustifiably interferes with their freedom to

choose their partner.

• Unlike personal laws, SMA imposes such a requirement.

• The situation has become more critical with the introduction of anti-conversion laws.

• The Court discussed the history and development of civil marriages in India.

• The court emphasized that the publication of notice under Section 6 and

inviting objections under Section 7 is mandatory due to the severe

consequences under Section 46.

• However, in a progressive society, it is worth considering whether the

procedures outlined in Sections 5, 6, and 7 of the 1954 Act should still be

considered mandatory.

• Court took note of changes in social circumstances, progress in laws,

recommendations of the Law Commission of India, and judgments of the

Supreme Court.

• Court has a duty to review the interpretation of the procedure under

challenge as provided in the Act of 1954.

• The procedure contemplated under the Act should be to uphold the

fundamental rights and not violate the same

OBSERVATIONS

• If the procedure is made mandatory, it would infringe on the fundamental

rights of liberty and privacy.

• Personal laws do not require the publication of any notices.

• Any person can object to a marriage on the grounds that it violates any of the

conditions of Section 4 of the 1954 Act.

• If the parties want more information about their counterparts, they can choose

to publish a notice under Section 6.

• Court held that the requirement of publication of notice under Section 6 and

inviting/entertaining objections under Section 7 can only be read as directory

in nature, to be given effect only on request of parties to the intended

marriage.

• Procedure is optional for the parties

VIVAN VARGHESE V THE STATE OF KERALA

• Can a marriage between Indian citizen and a foreigner be solemnized in

India as per Special Marriage Act, 1954

• SMA does not contain any prohibition for solemnization of the marriage if one

of the parties is a foreigner

• Section 4 contemplates marriage between “any two persons”

DEEPAK KRISHNA AND ORS V DISTRICT REGISTRAR

• Whether Section 15 (f) and Section 16 of the SMA are mandatory or

directory provisions?

• In Giby George (2007), Kerala High Court ruled that a ceremonial marriage

can be registered, even if it was solemnized within 30 days of the application

for registration.

• Is it possible to waive a period that is mentioned under Section 15(f) and

Section 16?

• The court ruled that Section 15 (f) is a directory provision, and not following it

does not invalidate a marriage.

• However, the court emphasized that even if a provision is considered directory

in nature, it should still be substantially complied with, depending on the facts

and circumstances of each case.

• The court also examined whether the procedure laid down in Section 16 of

the Act is mandatory, directory, or discretionary.

 FOREIGN MARRIAGES ACT

• Foreign marriages act was enacted to make a provision relating to the marriage of

citizens of India outside India.

• The expression foreign country is defined by Section 2 (c) to mean a country or a

place outside India. Chapter 2 deals with the solemnisation of marriages, chapter 3

deals with registration of foreign marriages solemnised under other laws.

• The object of the legislation is not only to provide for solemnisation of marriages but

also, to enable the parties thereto to obtain proper matrimonial relief.

MAINTENANCE
INTRODUCTION

• The claimant does not have sufficient means to support

• maintenance generally covers the expenses for necessaries or essentials for

the substance of life

• intended to fulfil a social purpose

• The idea behind maintenance is to prevent the destitution of the wife

• The measure of social justice - specially enacted to protect women and

children

 MAINTENANCE UNDER HINDU LAW

• A Hindu wife may claim maintenance under the Hindu Adoption and

Maintenance Act 1956

• Hindu Marriage Act, 1955

• The nature and purpose of relief under each Act are distinct and independent.

MAINTENANCE UNDER HINDU MARRIAGE ACT

• Sections 24 and 25 provide maintenance to a party with no independent income sufficient for his
or her support and necessary expenses.

• This is a gender-neutral provision

• pre-requisite is that the applicant does not have independent income sufficient for her or his
support during the pendency of the dispute.

• Section 24 of Hindu Marriage Act -Maintenance pendente lite

• Order can be made in favour of the husband or wife

• Order can be passed in any proceedings under the Act

• Ample discretion is conferred on the court

• The order operates during the proceedings

Section 25 of Hindu Marriage Act

• Permanent maintenance

• May be a gross sum or in the form of monthly or other periodical payments

• Statutory right

• Order can be made in favour of husband or wife

• Discretion of the court

MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE ACT

Applies only in case of separation/desertion and not divorce.

• HAMA is a special legislation enacted to amend and codify the laws relating to

adoption and maintenance amongst Hindus during the subsistence of the

marriage.

• Under Section 18, a Hindu wife shall be entitled to be maintained by her husband during her
lifetime.

• She is entitled to make a claim for a separate residence without forfeiting her right to maintenance.

• Under Section 18 (2), the husband has the obligation to maintain his wife even though she may be
living separately.

• Not available if she is unchaste or has converted to another religion

• Husband is under a legal obligation to maintain his wife

• Power to order interim maintenance is implicit in this provision

• Right to separate residence and maintenance of wife

• Nagendrappa Natikar v. Neelamma, AIR 2013 SC 1541- Proceedings under Section 125 cannot
foreclose the remedy available under Section 18 of HAMA

• Section 19 of the HAMA provides that a widowed daughter–in–law may claim maintenance from
her father–in–law if she is unable to maintain herself out of her earnings or other property where
she has no property of her own and is unable to obtain maintenance;

a. From the estate of her husband, or her father or mother, or

b. From her son or daughter, if any, or his or her estate

MAINTENANCE OF CHILDREN AND PARENTS

• Section 20 of HAMA provides for the maintenance of children and aged parents.

• Obligation on a Hindu male or female to maintain their legitimate/ illegitimate

minor children and aged/ infirm parents, the amount of which is to be determined by the competent
court on the following factors-:

• Economic position and status of the litigating parties.

• Reasonable wants and needs of the parties.

• Dependence of the parties, etc.

• Section 20 casts a statutory obligation on a Hindu to maintain an unmarried daughter who is

unable to maintain herself out of her own earnings or other property.

• Section 22 provides for the maintenance of dependants.

• Section 23 provides that while awarding maintenance, the Court shall have due regard to the
criteria mentioned under this section.

• The distinction between maintenance under HMA and HAMA is that the right under Section 18 of
HAMA is available during the subsistence of a marriage.

• Once there is a divorce, the wife has to seek relief under Section 25 of HMA.

• Under HMA, either the wife or the husband may move for judicial separation, restitution of
conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and
permanent alimony under Section 25 of the Act.

• In contrast, under Section 18 of HAMA, only a wife may seek maintenance.

 SECULAR PROVISIONS
• These provisions are contained in the Criminal Procedure Code,1973, under Sections 125 to 128,

• Under the protection of women from the Domestic Violence Act 2005,

• The Maintenance and Welfare of Parents and Senior Citizens Act,2007.

• Sections 36 and 37 of the Special Marriage Act

MAINTENANCE UNDER SECTION 125 CR.P.C

• Applicable to all, irrespective of the religion of the parties

• Maintenance of wife, children and parents in summary proceedings

• The purpose of Section 125 is to provide immediate relief to an applicant

• Two conditions must be fulfilled

a. The husband has sufficient means; and

b. Neglects to maintain his wife, who is unable to maintain herself

• Maintenance is awarded on the basis of the financial capacity of the husband and other relevant
factors

• The wife includes a divorced wife.

• Only a lawfully wedded wife is entitled to maintenance under this section

• The wife may seek maintenance even without any matrimonial litigation

• She may stay separate if there are sufficient grounds to justify there must be neglect or refusal on
the part of the husband to maintain her

• Maintenance can be awarded either from the date of the order or the date of the application
• Application for maintenance must be disposed of as far as possible within 60 days.

• The court can grant interim maintenance also.

• The amount may be varied or cancelled if there is a change in circumstances

• a wife who has been divorced is entitled to claim maintenance from her husband provided that she
has not re-married.

• Where a man and a woman have cohabited for a long period, in the absence of legal necessities of
a valid marriage, such a woman would be entitled to maintenance – Chanmuniya v Virendra Kumar
Singh, (2011) 1 SCC 141.

• strict proof of marriage should not be a pre-condition for grant of maintenance under Section 125
Cr.P.C.

SPECIAL MARRIAGE ACT, 1954

• Section 36 provides that the wife is entitled to claim maintenance pendente lite if she does not
have sufficient independent income to support her and for legal expenses.

• The maintenance may be granted on a weekly or monthly basis during the pendency of the
matrimonial proceedings.

• The court would determine the quantum depending on the income of the husband.

• Section 37 provides for the grant of permanent alimony at the time of passing of the decree or
subsequent to it.

• Permanent alimony is the consolidated payment made by the husband to the wife towards her
maintenance for life.

MAINTENANCE UNDER D V ACT

• Protection of Women from Domestic Violence Act, 2005 provides relief to an aggrieved woman
who is subjected to “domestic violence.”

• Section 20 provides for monetary relief to the aggrieved woman

• Section 20 (1) (d) provides that maintenance granted under the D V Act to an aggrieved woman
and children would be given effect to, in addition to, an order of maintenance awarded under
Section 125 Cr. P.C. or any other law in force.

• Section 20 (2) provides that the monetary relief granted to the aggrieved woman or the children
must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved
woman was accustomed in her matrimonial home.

OVERLAPPING JURISDICTIONS

• The wife can claim maintenance under the D V Act and Section 125 Cr P C or under HMA.

• It is inequitable to direct the husband to pay maintenance under each of the proceedings,
independent of the relief granted in previous proceedings.

• If maintenance is awarded to the wife in previously instituted proceedings, she is under a legal
obligation to disclose the same in subsequent proceedings for maintenance, which may be filed
under another enactment.
• The court should make an assessment of the maintenance amount based on the pleadings filed by
both parties and the Affidavits of Disclosure of Assets and Liabilities filed by both parties.

• If, during the course of proceedings, there is a change in the financial status of any party, or there is
a change of any relevant circumstances, the party may submit an amended/supplementary affidavit.

• Any false statements or misrepresentations in pleadings – contempt of court

• If the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

RELEVANT FACTORS

• Status of the parties

• Reasonable needs of the wife and dependent children

• Education/professionally qualified

• Whether the applicant has any independent source of income

• Whether the income is sufficient to enable her to maintain the same standard of

living as she was accustomed to in her matrimonial home

• Whether the applicant was employed prior to her marriage

• Whether she was working during the subsistence of the marriage

• Child rearing and looking after adult members of the family

• Maintenance should be granted from the date of application

• The order or decree of maintenance may be enforced like a decree of a civil

court, including civil detention, attachment of property, etc.

 MAINTENANCE OF WIFE UNDER MUSLIM LAW

• Under Sharia

• Husband’s duty to maintain his wife

• Husband is bound to maintain his wife so long as she is faithful to him and obeys his

reasonable orders

• He is not bound to maintain a wife who is otherwise disobedient

• Order for maintenance

• If husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him
for maintenance

• Maintenance on divorce

• Muslim husband’s duty to maintain his divorced wife extends only up to the period of iddat.

Dissolution of Muslim Marriages Act, 1939

• Section 2 – Grounds for decree for dissolution of marriage

• (ii) that the husband has neglected or has failed to provide for her maintenance for a

period of two years

• Maintenance under Section 25 Cr.P.C

• Under Section 127 (3) – if a woman has received upon divorce a lumpsum amount

BAI TAHIRA V ALI HUSSAIN

(1979) 2 SCC 316

• Divorce by consent decree

• Paid mahr money of Rs. 5000 and iddat money of Rs. 180

• Subsequently wife filed a petition under Section 125 CrPC

• Whether payment of mahr money, discharges the husband from obligation

under Section 125

• Held: payment of mahr money is within the cognizance of Section 127 (3)

• Even if mahr amount is paid, husband is still under an obligation to pay

maintenance under Section 125

MOHD. AHMED KHAN V SHAH BANO

(1985) 2 SCC 556

• Does the Muslim Personal Law impose no obligation upon the husband to

provide for the maintenance of his divorced wife?

• Whether there is any conflict between the provisions of Section 125 and those

of the Muslim Personal Law on the liability of the Muslim husband to provide

for the maintenance of his divorced wife?

• Held:

• A divorced Muslim wife is entitled to apply for maintenance under Section 125

and that, Mahr is not a sum which, under the Muslim Personal Law is payable

on divorce

THE MUSLIM WOMEN (PROTECTION OF

RIGHTS ON DIVORCE) ACT, 1986

• Provisions of this Act are applicable only to divorced woman

• Section 3 Mahr or other properties of Muslim woman to be given to her at

the time of divorce

• Section 4 Order for payment of maintenance

• Section 5 Option to be governed by provisions of Section 125

DANIAL LATIFI V UNION OF INDIA

(2001) 7 SCC 740

• Questioned constitutional validity of the Muslim Women (Protection of Rights

on Divorce) Act, 1986

• Court upheld the constitutional validity of the Act

• It held

• A Muslim husband is liable to make reasonable and fair provision for the future

of the divorced wife which obviously includes her maintenance as well. 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)

DANIAL LATIFI (CONT’D)

• Liability of Muslim husband to his divorced wife arising under Section 3 (1) (a)

of the Act to pay maintenance is not confined to iddat period

• A divorced Muslim woman can proceed against her relatives under Section 4

and then against State Wakf Boards

• The provisions of the Act do not offend Articles 14, 15 and 21 of the

Constitution

• Shabana Bano v. Imran Khan, AIR 2010 SC 305

• Divorced muslim wife can seek maintenance even under Section 125

notwithstanding the provisions of the 1986 Act

• Petition under Section 125 is maintainable even after the iddat period.

MAINTENANCE UNDER PARSI LAW

• The Parsi Marriage and Divorce Act, 1936

• Section 39 – Alimony pendente lite

• Section 40 – Permanent alimony and maintenance

• Both husband and wife can claim interim maintenance or permanent

maintenance

• When the court is exercising jurisdiction under this Act

• There is a provision for modification of order

MAINTENANCE OF WIFE UNDER

CHRISTIAN LAW

• The Divorce Act, 1869

• Section 36 - Alimony pendente lite

• Section 37 – power to order permanent alimony

• Only wife can claim maintenance under these provisions.

Custody, Guardianship and Inter-country child custody disputes

Introduction

● Basic rights of children

● Children are not aware of their rights. Hence, it is the responsibility of

the adults to make them aware of their rights

● The future of every child depends on the care, facilities and

opportunities they get in their childhood

● Some basic needs are to be fulfilled as their right

○ Right to food

○ Right to clothing

○ Right to shelter

○ Right to education

○ Right to entertainment

○ Right to good health and proper nourishment

Custody and Guardianship

● The law governing custody of children is closely linked with that of

guardianship.

● The concept of custody is related to physical control over a person.

The concept of guardianship is akin to trusteeship.

● A guardian is a trustee in relation to the person of whom he is so

appointed.

● Guardianship refers to a bundle of rights and powers that an adult

has in relation to the person and property of a minor, while custody is

a narrower concept relating to the upbringing and day-to-day care

and control of the minor

Hindu law on custody and guardianship

● Classical Hindu Law did not contain principles dealing with

guardianship and custody of children.

● In the Joint Hindu Family, the Karta was responsible for the overall

control of all dependents and management of their property.

● Hindu Minority and Guardianship Act, 1956 –This Act provides

various provisions concerning the matters of guardianship and

custody of minor Hindu children.

● Hindu Marriage Act, 1955 – Section 26 of this Act authorizes courts to

pass interim orders in any proceedings under the Act, with respect to

custody, maintenance and education of minor children, in consonance

with their wishes

● 26. Custody of children.—In any proceeding under this Act, the court

may, from time to time, pass such interim orders and make such

provisions in the decree as it may deem just and proper with respect

to the custody, maintenance and education of minor children,

consistently with their wishes, wherever possible, and may, after the

decree, upon application by petition for the purpose, make from time

to time, all such orders and provisions with respect to the custody,

maintenance and education of such children as might have been

made by such decree or interim orders in case the proceeding for

obtaining such decree were still pending, and the court may also from

time to time revoke, suspend or vary any such orders and provisions

previously made

Custody of a Hindu child aged below 5 years

● The HAMA says that the custody of an infant or a tender-aged child

should be given to his/her mother unless the father discloses cogent

reasons that are indicative of the likelihood of the welfare and interest

of the child being undermined or jeopardized if the custody is retained

by the mother.

● It does not mean that the mother is disqualified from taking the child’s

custody after the child crosses the age of 5 years – Roxann Sharma v
Arun Sharma, (2015) 8 SCC 318.

Islamic law on custody and guardianship

● In Islamic law, the father is the natural guardian, but custody vests

with the mother until the son reaches the age of seven and the

daughter reaches puberty.

● The concept of Hizanat provides that, of all persons, the mother is the

most suited to have the custody of her children up to a certain age,

both during the marriage and after its dissolution.

● A mother cannot be deprived of this right unless she is disqualified

because of apostasy or misconduct and her custody is found to be

unfavorable to the welfare of the child.

Parsi and Christian Law

● Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section

41 of the Indian Divorce Act, 1936 and Section 41 of the Indian

Divorce Act, 1869, courts are authorized to issue interim orders for

custody, maintenance and education of minor children in any

proceedings under these Acts.

● Guardianship for Parsi and Christian children is governed by the

Guardians and Wards Act, 1890

Secular laws

● Guardians and Wards Act, 1890 – This Act is a secular law regulating

questions of guardianship and custody for all children within the

territory of India, irrespective of their religion.

● It authorizes the District Courts to appoint guardians of the person or

property of a minor, when the natural guardian as per the minor’s

personal law or the testamentary guardian appointed under a Will

fails to discharge his/her duties towards the minor.

● The Act is a complete code laying down the rights and obligations of

the guardians, procedure for their removal and replacement, and

remedies for misconduct by them.

● It is an umbrella legislation that supplements the personal laws

governing guardianship issues under every religion.

● Even if the substantive law applied to a certain case is the personal

law of the parties, the procedural law applicable is what is laid down

in the GWA.

● Section 7 of the GWA authorizes the court to appoint a guardian for

the person or property or both of a minor, if it is satisfied that it is

necessary for the ‘welfare of the minor.’

● Section 17 lays down factors to be considered by the court when

appointing guardians.

Section 17 of the GWA

● Section 17(1) states that courts shall be guided by what the personal law

of the minor provides and what, in the circumstances of the case, appears

to be for the ‘welfare of the minor.’

● Section 17(2) clarifies that in determining what is for the welfare of the

minor, courts shall consider the age, sex and religion of the minor; the

character and capacity of the proposed guardian and how closely related

the proposed guardian is to the minor; the wishes, if any, of the deceased

parents; and any existing or previous relation of the proposed guardian

with the person or property of the minor.

● Section 17(3) states that if the minor is old enough to form an intelligent

opinion, the court ‘may’ consider his/her preference.

Section 19 of the GWA

● Section 19 of the GWA deals with cases where the court may not

appoint a guardian.

● Section 19(b) states that a court is not authorized to appoint a

guardian to the person of a minor, whose father or mother is alive,

and who, in the opinion of the court, is not unfit to be a guardian.

● The earlier Section 19(b) prevented the court from appointing a

guardian in case the father of the minor was alive.

● This clause was amended by the Personal Laws (Amendment) Act,

2010 and was made applicable to cases where even the mother was
alive, thus removing the preferential position of the father.

Section 25 of the GWA

● Section 25 of the GWA deals with the authority of the guardian over

the custody of the ward.

● Section 25(1) states that if a ward leaves or is removed from the

custody of the guardian, the court can issue an order for the ward’s

return, if it is of the opinion that it is for the ‘welfare of the ward’ to be

returned to the custody of the guardian.

● At the same time, the implication of Section 19(b) is that, unless the

court finds the father or mother to be particularly unfit to be a

guardian, it cannot exercise its authority to appoint anyone else as the

guardian.

Special Marriage Act, 1954

● Special Marriage Act, 1954 – Couples who register their marriage

under Special Marriage Act can take resort to Section 38 of the Act for

the purposes of custody of children. Section 38 empowers the district

court to pass interim orders with respect to the custody, maintenance

and education of minor children.

● Where no specific remedy is provided under the HMGA, Section 2 and

5 (b) of the Act makes the provisions of the GWA applicable to such

cases. Section 2 of HMGA makes it clear that it is in addition to the

GWA – N Palanisami v A Palaniswamy, 1988 SCC OnLine Mad 305.

Section 4 of Hindu Minority and

Guardianship

● ‘Minor’ means a person who has not completed the age of eighteen

years

● ‘Guardian’ means a persons having the care of the person of a minor

of his property or of both his person and property, and includes –

i. a natural guardian,

ii. a guardian appointed by the will of the minor’s father or mother

iii. a guardian appointed or declared by a Court, and

iv. a person empowered to act as such by or under any enactment

relating to any Court of wards

Natural Guardian

● Section 6 of the HMGA provides who is the natural guardian of a

minor’s person in different cases.

● Section 6 (a) of the HMGA provides that:

a. In case of a minor boy or unmarried minor girl, the natural guardian is

the father, and ‘after’ him, the mother, and

b. The custody of a minor who has not completed the age of five years

shall ‘ordinarily’ be with the mother.

● The expression father and mother do not include a stepfather and a

stepmother

● Section 6 (c ) of HMGA stands impliedly repealed by the Prohibition

of Child Marriage Act, 2006. Therefore, an adult male who marries a

female child in violation of Section 3 of PCMA shall not become the

natural guardian of the female child – T Sivakumar v State of TN,

2011 SCC OnLine Mad 1722.

● Section 7 of the HMGA provides that natural guardian of the adopted

son who is a minor passes, on adoption, to the adoptive father and

after him to the adoptive mother.

Principles in relation to custody

● Section 13 of the HMGA declares that, in deciding the guardianship of

a Hindu minor, the welfare of the minor shall be the ‘paramount

consideration’ and that no person can be appointed as guardian of a

Hindu minor if the court is of the opinion that it will not be for the

‘welfare’ of the minor.

● The ‘welfare of the child’ is the major criterion in deciding whether a

particular guardian should be appointed or not, or custody should or

should not be granted to the petitioner.

● The word “welfare” used in Section 13 of the HMGA must be taken in

its widest sense. The moral and ethical welfare of the child must also
weigh with the court as well as the physical well-being. Court can

exercise parenspatriae jurisdiction in such cases – Gaurav Nagpal v

Sumedha Nagpal, (2009) 1 SCC 42.

Principles in relation to custody

● Section 6 cannot supersede the paramount consideration as to what

is conducive to the welfare of the minor – Surinder Kaur Sandhu v

Harbax Singh Sandhu, (1984) 3 SCC 698.

● Court while dealing with custody cases, is neither bound by statutes

nor by strict rules of evidence or procedure nor by precedents. The

court has to give due weight to a child’s ordinary comfort,

contentment, health, education, intellectual development and

favourable surroundings - Nil Ratan Kundu v Abhijit Kundu, (2008) 9

SCC 413.

Principles in relation to custody

● Twin objectives of the welfare principle – Vivek Singh v Romani

Sindh, (2017) 3 SCC 231.

● It is to ensure that the child grows and develops in the best

environment.

● The public interest stands served with the optimal growth of the

children.

Principles in relation to custody

● In addition to the principle of welfare of the child, principles laid down

in Section 17 of GWA are:

○ The law to which the minor is subject

○ The circumstances

○ Age, sex and religion of the minor

○ Character and capacity of the proposed guardian and his nearness of kin

to the minor

○ If the minor is old enough to form an intelligent preference, then the court

may consider that preference

Principles in relation to custody

● Better financial resources of either of the parents or their love for the

child may be one of the relevant considerations but cannot be the sole

determining factor for the custody of the child. Court must exercise its

discretion judiciously in the background of all the relevant facts –

Mausami Moitra Ganguli v Jayant Ganguli, (2008) 7 SCC 673.

● It is not the better right of either parent, but the desire of the child

coupled with the availability of a conducive and appropriate

environment for proper upbringing are some of the relevant factors –

Gaytri Bajaj v Jiten Bhalla, (2012) 12 SCC 471.

Principles in relation to custody

● In considering the question of welfare of minor, due regard has to be

given to the right of the father as natural guardian but if the custody

of the father cannot promote the welfare of the children, he may be

refused such guardianship – Rosy Jacob v Jacob A Chakramakkal,

(1973) 1 SCC 840.

● The principles laid down in proceedings under GWA are equally

applicable in dealing with the custody of a child under HMA and

HMGA.

● It is not the “negative test” that the father is not unfit or disqualified to

have custody of his son/daughter that is relevant, but the “positive

test” that such custody would be in the welfare of the minor is

material. It is on that basis that the court should exercise the power to

grant or refuse custody or guardianship – Nil Ratan Kundu v Abhijit

Kundu, (2008) 9 SCC 413.

● On an application under Section 7 of GWA, the court may appoint a

person as the guardian of the person or property of the minor.

● If an application is made in a court to appoint someone else instead of

the natural guardian, the court has first to decide whether the natural

guardian is unfit, for one or the other reasons and whether it would

be in the welfare of the minor that someone else, not the natural

guardian, should be appointed as the guardian,

● Under Section 6 (a) of HMGA and Section 19 (b) of GWA, a ‘fit’ father

being the natural guardian is also the custodian of the person of the minor.

The existence of a ‘fit’ father will bar the court from appointing any other

person as the guardian of the minor.

● a father may be declared unfit if he is

○ economically not well off, or

○ be a person of unsound mind, or

○ be harsh in his behaviour

○ or has been living separately for several years without taking any interest in the

affairs of the minor

Constructive custody

● Custody includes the actual as well as the legal or constructive

custody

● Even if the ward is in the actual physical custody of another person,

he or she may be deemed to be under the constructive custody of the

guardian.

● If a child has been removed from the custody of natural guardian,

Section 25 of GWA provides remedy to the guardian to have his right

declared for the custody of the minor.

Nature of custody and guardianship orders

● Custody orders are always considered interlocutory orders and by the

nature of such proceedings, custody orders cannot be made rigid and

final. They are capable of being altered and moulded keeping in mind

the needs of the child – Vikram Vir Vohra v Shalini Bhalla, (2010) 4

SCC 409.

● Guardianship or custody orders never attain permanence or finality

and can be questioned at any time, by any person genuinely

concerned for the minor child, if the child’s welfare is in peril – ABC v

State (NCT of Delhi), (2015) 10 SCC 1.

● Orders relating to custody of wards even when based on consent are

liable to be varied by the court - Rosy Jacob v Jacob A Chakramakkal,

(1973) 1 SCC 840.

Interim custody/Temporary custody

● Section 12 of GWA empowers the Court to make orders for

temporary custody and protection of the person or property of the

minor

● The factors that must be kept in mind while determining the question

of guardianship will apply with equal force to the question of interim

custody – Athar Hussain v Syed Siraj Ahmed, (2010) 2 SCC 654.

Examination of the child

● Examination by the court of the child in order to ascertain the wish as

to with whom he wants to stay is important and desirable.

● Such examination helps the court in exercising discretionary

jurisdiction and in deciding the delicate issue of custody of a tenderaged child – Nil Ratan Kundu v
Abhijit Kundu, (2008) 9 SCC 413.

Custody of a illegitimate child

● The mother possesses primary custodial and guardianship rights with

regard to her children and that the father is not conferred with an

equal position merely by virtue of his having fathered the child – ABC

v State (NCT of Delhi), (2015) 10 SCC 1.

Effect of remarriage on custody

● Second marriage of either of the parent is a factor to be considered

while granting custodial rights, but second marriage does not

disentitle him/her to the custody of his/her children – Athar Hussain v

Syed Siraj Ahmed, (2010) 2 SCC 654.

Visitation rights

● Where the custody is awarded to one parent, it is usual and proper to

permit the other parent to have reasonable access to the child.

● A visitation order means an order establishing the visiting times for a

non-custodial parent with his or her children.

● Visitation rights are different from custody orders. They enable the

parent who does not have custody to be able to meet the child
without removing him/her from the custody of the other parent -

Roxann Sharma v Arun Sharma, (2015) 8 SCC 318.

Other Conceptions of Guardianship

● Law recognizes legal capacity of an individual. It includes decisionmaking capacity.

● Right to individual autonomy recognizes the decision-making capacity

of all persons

● While a person has legal capacity, his decision-making capacity may

be impaired.

● Impairment of capacity occurs for a number of reasons like illness,

brain injuries and conditions such as dementia etc.

● When ability to make decision is impaired, legal intervention becomes

necessary

● interventions that allow decision-making on their behalf

● Law comes into picture when it recognizes that such persons do not

have capacity to make decisions about their lives

● UK National Health Service identifies persons in the following

situations as needing decision-making interventions

○ Dementia

○ Severe learning disability

○ Brain injury

○ Mental Health illness

○ Stroke

○ Unconsciousness caused by anesthetic or sudden accident

● 0.6 % of population have intellectual disabilities – National Health

Survey 2005

● Mental illness means a substantial disorder of thinking, mood, perception,

orientation or memory that grossly impairs judgment, behavior, capacity to

recognize reality or ability to meet the ordinary demands of life,, but does not

include mental retardation which is a condition of arrested or incomplete

development of mind of a person, especially characterized by sub normality

of intelligence.(Mental health care act 2017)

● Mental illness lie across a spectrum and capacity may not be impaired in all

situations

● Decision-making for persons in comatose state

● Decision-making issues for persons with impaired capacity often occur in

intimate, informal settings.

● There is little interaction with the law or state machinery

Type of decisions

● Access to financial resources of the person with impaired capacity

● Continuance of life-sustaining treatment

● Decisions relating to health care

● Finance or property

● Living arrangements

● Sending them to institutional care

● Decision making capacity is always decision and situation specific

● The legal capacity of persons with disabilities is strengthened as per

Section 14 of the Rights of Persons with Disabilities Act, 2016, by

provision of limited guardianship.

● Section 14 - Provision for guardianship

● (1) Notwithstanding anything contained in any other law for the time

being in force, on and from the date of commencement of this Act,

where a district court or any designated authority, as notified by the

State Government, finds that a person with disability, who had been

provided adequate and appropriate support but is unable to take

legally binding decisions, may be provided further support of a limited

guardian to take legally binding decisions on his behalf in

consultation with such person, in such manner, as may be prescribed

by the State Government:

Provided that the District Court or the designated authority, as the case may be,

may grant total support to the person with disability requiring such support or

where the limited guardianship is to be granted repeatedly, in which case, the

decision regarding the support to be provided shall be reviewed by the Court or the
designated authority, as the case may be, to determine the nature and manner of

support to be provided.

Explanation.-- For the purposes of this sub-section, "limited guardianship" means a

system of joint decision which operates on mutual understanding and trust between

the guardian and the person with disability, which shall be limited to a specific

period and for specific decision and situation and shall operate in accordance to the

will of the person with disability

(2) On and from the date of commencement of this Act, every guardian appointed

under any provision of any other law for the time being in force, for a person with

disability shall be deemed to function as a limited guardian.

(3) Any person with disability aggrieved by the decision of the designated authority

appointing a legal guardian may prefer an appeal to such appellate authority, as

may be notified by the State Government for the purpose.

● Each state has framed rules providing for according limited guardianship to

assist PwD to make legally binding decisions by the authorities.

● District Magistrates of the concerned districts are appointed as competent

authority of the purpose of appointment of limited guardianship for PwD and

the Divisional Commissioners of the concerned division have been notified as

the Appellate Authority to hear appeal.

NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM,

CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE

DISABILITIES ACT, 1999

Section 14 - Appointment for guardianship

(1) A parent of a person with disability or his relative may make an

application to the local level committee for appointment of any person of

his choice to act as a guardian of the persons with disability.

(2) Any registered organisation may make an application in the

prescribed form to the local level committee for appointment of a

guardian for a person with disability:

Provided that no such application shall be entertained by the local level

committee, unless the consent of the guardian of the disabled person is

also obtained.

(3) While considering the application for appointment of a guardian, the local level

committee shall consider--

(a) whether the person with disability needs a guardian;

(b) the purposes for which the guardianship is required for person with disability.

(4) The local level committee shall receive, process and decide applications received

under sub-sections (1) and (2), in such manner as may be determined by

regulations:

Provided that while making recommendation for the appointment of a guardian, the

local level committee shall provide for the obligations which are to be fulfilled by

the guardian.

(5) The local level committee shall send to the Board the particulars of the

applications received by it and orders passed thereon at such interval as may be

determined by regulations.

Section 15 - Duties of guardian

Every person appointed as a guardian of a person with disability

under this Chapter shall, wherever required, either have the care

of such person of disability and his property or be responsible for

the maintenance of the person with disability.

Section 16 - Guardian to furnish inventory and annual accounts

Must submit an inventory of movable and immovable property

all debts and liabilities due by such person with disability

Section 17 - Removal of guardian

If he abuses or neglects a person with disability; or

misappropriates or neglects the property

Inter-country child custody disputes

● Child custody disputes often spill across borders since

people are increasingly moving to different countries for

education and employment related opportunities.

● Cross-border inter-parental child removal refers to a

situation where a child is wrongfully removed or retained

by a parent across frontiers.

● Under international law, child removal connotes the

violation of certain parental rights that exist by virtue of

law, agreement, court order or other privileges.

Hague Convention on the Civil Aspects

of International Child Abduction

● Article 3 of the Hague Convention provides that child removal or retention in breach of

parental custodial rights under the laws of the place of habitual residence of the child

constitutes an internationally wrongful act.

● The person who has custodial rights as per the applicable family laws determines

habitual residence of the child.

● The Convention seeks to ensure the return of the child to the place of habitual

residence, in furtherance of the belief that the same would be in the best interests of

the child.

● India has not signed the said Convention

Hague Convention on the Civil Aspects

of International Child Abduction

● Under the Convention, any child below 16 years who had been

"wrongfully" removed or retained in another contracting State, could

be returned back to the country from which the child had been

removed, by application to a central authority.

Jurisdiction of family court

● Jurisdiction of Family Court qua petition for custody of minor children

is non-existent when children are foreign citizens not ordinarily

residing within the jurisdiction of the Family Court - Lahari

Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311

ADOPTION

CLASSICAL LAW

• Classical Hindu law of adoptions was developed by the ancient commentaries like

Dattaka Mimamsa and Dattaka Chandrika.

• It is peculiar only to Hindus and not recognized by other religions like Muslims and
Christians

• Adoption under Hindu law is both a secular and religious act.

• Significance attached to a son – every Hindu owes to his ancestors to provide for the

continuance of the line

• It is intended to confer spiritual benefit on the adopter

• Some of the rules were mandatory. Compliance with them was regarded as a condition of

the validity of the adoption.

WHO MAY ADOPT?

• Adoption may be by the man himself or by his widow on his behalf

• Hindu law does not recognize the right of an unmarried woman to take a child in

adoption.

• An adoption by a bachelor or by a widower is valid

• Where a man’s only son has entered a religious order, father can make an

adoption

• a person who is a minor under the Indian Majority Act can adopt or authorize his

widow to adopt when he was attained the age of discretion according to Hindu

law

PURPOSE OF ADOPTION

• To ensure spiritual benefit for a man after his death by offering of oblations

and rice and libations of water to the manes periodically

• Woman having no spiritual needs to be satisfied was not allowed to adopt

for herself

THE HINDU ADOPTIONS AND MAINTENANCE

ACT, 1956

• Act to amend and codify the law relating to adoptions and maintenance

• Made sweeping and radical changes in the existing Hindu law by Scrapping the

religious motive underlying the adoption and by bringing out the secular aspect

to the fore as the object for the adoption.

• Equality in status is recognized in matter of adoption

• Any adult woman-unmarried, widowed or divorced and a married woman is

given the right to adopt a child to herself

• Can adopt a girl child as well

• A minor under the age of 18 years cannot adopt

DOCTRINE OF RELATION BACK

• Under the old law, after the adoption, the doctrine of relation back was applied

and he was conferred the right of divesting other persons of their right in the

adoptive family.

• When the adoption was by a widow, the son adopted was considered to have

been adopted on the date of death of her husband all the rights of the adoptee

related back from that date of the adoptive father’s death.

• That is now taken away and according to the present Act, the adoptee would

have the right in the adoptive family from the date of adoption only and he

cannot divest persons of property already vested in them by the date of

adoption.

OVERRIDING EFFECT OF THE ACT – SEC. 4

• Act prevails over any text or rule of Hindu law or any custom or usage which

ceases to have effect with respect to any matter for which provision is made in

the Act

• Under Section 5, any adoption made after this Act must conform to its provisions

• If adoption is in contravention with any of the provisions of the Act, it shall be

void

• Custom relating to adoption had ceased to have any force after the

commencement of this Act.

• Section 30 saves adoptions made before the Act.

• Adoption performed before the commencement of the Act, its validity has to

be judged with reference to the law before the Act.

• Under ancient law, adoption of girl was not allowed. Hence, adoption of a

girl prior to commencement of the Act is invalid.

• Adoption to be made is mentioned as by or to a Hindu

SECTION 5 – ADOPTIONS TO BE REGULATED

• Adoption has to be made in accordance with the provisions of this law. If it is

in contravention, it shall be void. No legal consequences can flow from a

void adoption

• Adoption by or to a Hindu – the adoption envisaged under the Act is by a

Hindu and to a Hindu.

REQUISITES OF A VALID ADOPTION

• Section 6 lays down the essential conditions for a valid adoption

• These conditions are mandatory

• Other conditions for a valid adoption – Section 11

• Capacity of a male Hindu to take in adoption – Section 7

• Capacity of a female Hindu to taken in adoption – Section 8

• Persons who may be adopted – Section 10

SECTION 6 - REQUISITES

• No adoption shall be valid unless:

• The person adopting has the capacity, and also the right, to take in adoption;

• The person giving in adoption has the capacity to do so;

• The person adopted is capable of being taken in adoption; and

• The adoption is made in compliance with the other conditions.

• These four conditions are mandatory

SEC. 7 – CAPACITY OF A MALE HINDU TO

TAKEN IN ADOPTION

• Any male Hindu who is of sound mind and is not a minor has the capacity to

take a son or a daughter in adoption

• Proviso – if he has a wife living, he shall not adopt except with the consent of

the wife

• Such consent may be either oral or in writing, expressed or implied and has

to be proved by the person supporting the adoption.

• Consent contemplated in this section is not merely to the act of adoption but

also to the particular child to be adopted

• Wife – means a legally wedded wife

• Wife’s consent when not necessary

• Completely and finally renounced the world

• Wife ceased to be a Hindu

• Unsoundness of mind

• Where a male Hindu has more than one wife living he has to get the consent

of all such wives for the adoption.

SEC. 8 – CAPACITY OF A FEMALE HINDU TO

TAKE IN ADOPTION

• Any female Hindu who is of sound mind and is not a minor has the capacity

to take a son or daughter in adoption

• Proviso- if she has a husband living, she shall obtain the consent of the

husband

• If a woman completes the age of eighteen, she can adopt a child even if she

is not married.

• If she marries later, he husband will be the step father of the child

SEC. 9 – PERSONS CAPABLE OF GIVING IN

ADOPTION

• Father, mother or guardian of a child shall have the capacity to give the child

in adoption

• Guardian of the child may give the child in adoption with the previous

permission of the court

• Court while granting permission shall be satisfied that the adoption will be

for the welfare of the child

• Wishes of the child must be considered

SEC. 10 – PERSONS WHO MAY BE ADOPTED

• No person shall be capable of being taken in adoption unless

• He or she is a Hindu

• He or she has not already been adopted

• He or she has not been married, unless there is a custom or usage applicable to

the parties which permits persons who are married being taken in adoption

• He or she has not completed the age of fifteen years, unless there is a custom or

usage applicable to the parties which permits persons who have completed the

age of 15 years being taken in adoption.

SECTION 11 – OTHER CONDITIONS OF VALID

ADOPTION

• If the adoption is of a son, a person cannot adopt if he or she already has a

son or son’s son or son’s son’s son, whether natural or adopted

• These refer to legitimate children only

• Son – refers to son who is a Hindu. If a son has converted, then the person

can adopt

• Son – will not include a step-son

• If the adoption is of a daughter, the adoptive father or mother by whom the

adoption is made must not have a Hindu daughter or son’s daughter

(whether by legitimate blood relationship or by adoption) living at the time

of adoption

• Existence of a illegitimate daughter is no bar

• Age restrictions – to check any immoral relationship between adopted and

the adoptee

• Simultaneous adoption prohibited – clause v

• Giving and taking – clause vi

• There should be giving and taking the child in adoption.

• It is not essential that giving and taking should be in any particular form

• Not essential to have a formal ceremony. The natural parents shall hand over the adoptive

child and the adoptive parent shall receive the child.

• Giving and taking should be done with the intent to transfer the child from the family of

its birth to the family of its adoption.

• Hence, mere giving of the child to another family for upbringing the child does not

constitute adoption.

• Where the intent is missing the adoption is not valid.

SEC. 12 EFFECT OF ADOPTION

• Main effect of an adoption is to transplant the child adopted from the family of his birth to

the adoptive family

• All the ties with the original family will be severed

• Three exceptions

• that the adopted child cannot marry any person who he could not have married had he
continued in the original family

• that the adopted child is not deprived of the estate vested in him or her prior to his adoption

when he lived in his natural family subject to any obligations arising from such vesting of the

estate

• that the adopted child shall not divest any persons in the adoptive family of any estate vested in

that person prior to the date of adoption

ADOPTION UNDER MUSLIM LAW

• The Mahomedan law does not recognize adoption as a mode of filiation

• Muhammad Allahdad Khan v Muhammad Isamil, ILR (1888) 12 All 289

• Justice Mahmood remarked that, “there is nothing in the Mohammadan law

similar to adoption as recognized in Roman and Hindu system.

• In 1972, the Adoption of Children Bill was introduced in Parliament in order

to make a uniform law of adoption applicable to all regardless of religion –

bill could not be passed.

SECULAR LEGISLATION

• Juvenile Justice Act defines adoption as the process through which the

adopted child is permanently separated from his biological parents and

becomes the lawful child of his adoptive parents with all the rights,

privileges and responsibilities that are attached to a biological child.

• Socio-legal practice

• The adopted parents and the child have same mutual rights and obligations

that would exist between the child and her/her natural parents

• It completely severs the child’s bonds to its biological parents

• J J Act sought to utilize adoption as one of the many means to rehabilitate

and socially integrate children in need of care and protection.

• Allows adoption to a person irrespective of their marital status, existing

biological children, and the gender of these biological children.

• Allows person to adopt without any consideration of religions

• The Act provides for procedures to deal with in-country adoption

• Adoption process is regulated by the Central Adoption Resource Authority

(CARA)
ADOPTION REGULATIONS, 2022

• Fundamental principles governing adoption

• Child’s best interests shall be of paramount consideration

• Preference shall be given to place the child in adoption with Indian citizens

with due regard to the principle of placement of the child in their own sociocultural environments

• All applications for adoptions shall be registered on the Designated Portal

and confidentiality of the same shall be maintained by the Authority

CHILD ELIGIBLE FOR ADOPTION

• Any orphan or abandoned or surrendered child, declared legally free for

adoption by the Child Welfare Committee;

• A child of a relative

• Child or children of spouse from earlier marriage, surrendered by the

biological parents for adoption by the step-parent.

ELIGIBILITY CRITERIA FOR PROSPECTIVE

ADOPTIVE PARENTS

• The prospective adoptive parents shall be physically, mentally, emotionally

and financially capable, they shall not have any life threatening medical

condition and they should not have been convicted in criminal act of any

nature or accused in any case of child rights violation

• Any prospective adoptive parent, irrespective of their marital status and

whether or not they have biological son or daughter, can adopt a child

subject to certain conditions.

• Age restrictions

Domestic Violence

What amounts to domestic violence?

 Violence at domestic circle

 By close relation

 Reasons could be multiple – power imbalance, economic dependency,

 Could be in any form – physical, emotional, economical, sexual etc.

 Cycle of violence

 Consequences of violence
Reflecting on the data

 “86% women who experienced violence never sought help”

 WHO estimates that one in three women will experience domestic violence once in their

life

 National Family Health Survey India Report states:

 29% of women aged between 18-49 have experienced physical violence

 6% of women aged between 18-49 have experienced sexual violence

 32% of married women have experienced spousal physical, sexual and emotional

violence

DV Act – A Promise of NonDiscrimination

 Article 15 of the Constitution – prohibits discrimination based on sex

 The guarantee of non – discrimination, includes freedom from violence.

 Includes both direct and indirect discrimination

 It also requires due-diligence on behalf of the state to prevent the

occurrence of violence against women

 Limitations of adversarial system

 DV Act – judges exercise civil jurisdiction and play an active role

Legislation preventing domestic violence

 Protection of Women from Domestic Violence Act, 2005

 Domestic violence is recognized as a criminal offence under 498 A IPC

 The Act provides for civil protections to the victims of domestic violence

 The Act provides for appointment of protection officers to assist victims

 There is a collaboration between the government and external

organizations in protecting women

 Definition of domestic violence – multidimensional

 Other important definitions under the Act

 Aggrieved person

 Domestic relationship

 Shared household

Section 3 - Definitions of domestic

violence.
 For the purposes of this Act, any act, omission or commission or conduct of

the respondent shall constitute domestic violence in case it--

(a) harms or injures or endangers the health, safety, life, limb or well-being,

whether mental or physical, of the aggrieved person or tends to do so and

includes causing physical abuse, sexual abuse, verbal and emotional

abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a

view to coerce her or any other person related to her to meet any

unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person

related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the

aggrieved person.

 "physical abuse" means any act or conduct which is of such a nature as to

cause bodily pain, harm, or danger to life, limb, or health or impair the

health or development of the aggrieved person and includes assault,

criminal intimidation and criminal force;

 "sexual abuse" includes any conduct of a sexual nature that abuses,

humiliates, degrades or otherwise violates the dignity of woman;

 "verbal and emotional abuse" includes--

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially

with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the

aggrieved person is interested;

 (iv) "economic abuse" includes--

(a) deprivation of all or any economic or financial resources to which the aggrieved

person is entitled under any law or custom whether payable under an order of a court or

otherwise or which the aggrieved person requires out of necessity including, but not

limited to, house hold necessities for the aggrieved person and her children, if

any, stridhan, property, jointly or separately owned by the aggrieved person, payment of

rental related to the shared house hold and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or

immovable, valuables, shares, securities, bonds and the like or other property in which the

aggrieved person has an interest or is entitled to use by virtue of the domestic relationship

or which may be reasonably required by the aggrieved person or her children or

her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the

aggrieved person is entitled to use or enjoy by virtue of the domestic relationship

including access to the shared household.

Aggrieved person

 "aggrieved person" means any woman who is, or has been, in a domestic

relationship with the respondent and who alleges to have been subjected

to any act of domestic violence by the respondent;

Respondent

 "respondent" means any adult male person who is, or has been, in a

domestic relationship with the aggrieved person and against whom the

aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the

nature of a marriage may also file a complaint against a relative of the

husband or the male partner;

 The words "adult male" has been struck down the Supreme Court in Hiral P.

Harsora and Ors. v. Kusum narottamdas Harsora and Ors., (2016)

 the Respondent can also be a female in domestic relationship with the

aggrieved person.

Domestic Relationship

 "domestic relationship" means a relationship between two persons who live

or have, at any point of time, lived together in a shared household, when

they are related by consanguinity, marriage, or through a relationship in

the nature of marriage, adoption or are family members living together as

a joint family;

Shared Household

 "shared household" means a household where the person aggrieved lives

or at any stage has lived in a domestic relationship either singly or along

with the respondent and includes such a house hold whether owned or

tenanted either jointly by the aggrieved person and the respondent, or

owned or tenanted by either of them in respect of which either the

aggrieved person or the respondent or both jointly or singly have any right,

title, interest or equity and includes such a household which may belong

to the joint family of which the respondent is a member, irrespective of

whether the respondent or the aggrieved person has any right, title or

interest in the shared household;

Protection Officers

 Protection Officer – means an officer appointment by the State

Government.

 Section 8 – Appointment of Protection Officers

 (1) The State Government shall, by notification, appoint such number of

Protection Officers in each district as it may consider necessary and shall

also notify the area or areas within which a Protection Officer shall exercise

the powers and perform the duties conferred on him by or under this Act.

(2) The Protection Officers shall as far as possible be women and shall

possess such qualifications and experience as may be prescribed.

(3) The terms and conditions of service of the Protection Officer and the

other officers subordinate to him shall be such as may be prescribed.

Role of Protection Officers

 They provide assistance to the survivor and ensure that evidence is

collected and presented to the court without burdening the victim

 They ensure fair reporting

 They would meet the survivors, draft and file the petitions.

 Protection officers do not have right to appear before the court

 Duties and functions of Protection Officers are enumerated in Section 9

Service providers
 Any voluntary association

 With the objective of protecting the rights and interests of women by any

lawful means including providing of legal aid, medical, financial or other

assistance

 Shall register with the State Government as a service provider for the purposes

of this Act

 They are empowered to;

 Record the domestic incident report and forward a copy to Magistrate and PO

 Get the aggrieved person medically examined and forward a copy

 Ensure that the aggrieved person is provided shelter in a shelter home

 Action in good faith – no suit, prosecution or other legal proceedings shall lie

Reliefs provided under the Act

 Right to reside in a shared household

 Protection Order

 Residence Order

 Monitory Order

 Custody Order

 Compensation Order

 Interim and ex-parte orders

Whether the legislation is effective?

 Very less incidents of domestic violence are reported and cases are filed

 Lack of awareness

 Gaps in implementation of PWDVA

 Some judges focus only on maintenance ignoring the range of reliefs they

can grant under the Act

S.R. Batra and Anr. v. Taruna Batra

 Facts:

 In this case the respondent was married with the son of the appellant on 14/4/2000.

Respondent started living with her husband in the house of her mother in law on the

second floor.

 It was not disputed that the house belonged to her mother-in-law.

 Her son that is the husband of respondent had no share.

 Husband had filed a divorce petition against respondent/wife whereas wife filed a

criminal case under sections 406, 498A, 506 and 34 of Indian Penal Code.

 Wife shifted to her parents’ residence because of the dispute with her husband.

 When she tried to enter the house, she found the main entrance locked and hence, she

filed a suit to grant a mandatory injunction to enable her to enter the house.

 Trial court granted temporary injunction in favour of the respondent

 The appellant filed the appeal, which was allowed by dismissing the temporary

injunction.

 Respondent filed a writ petition which was allowed by single judge holding that

she entitled to reside in the second floor as that was her matrimonial home.

 Supreme Court held that since the house belongs to mother-in-law of the

respondent and does not belong to the husband, hence, she cannot claim

any right to live in the said house.

 Since the respondent was not residing in the premises in question, the court

observed that the house in question cannot be said to be a shared household

Interpretation of phrase “at any stage

has lived”

 The respondents stated that the definition of shared household includes a

household where the person aggrieved lives or at any stage had lived in a

domestic relationship. Since she had lived in the property in question in the past

hence the said property is her shared household

 The Supreme Court declined to accept the submission made by the

respondent. Supreme Court held that “If the aforesaid submission is accepted,

then it will mean that wherever the husband and wife lived together in the past

that property becomes a shared household. It is quite possible that the

husband and wife may have lived together in dozens of places example with

the husband’s father, husband paternal grandparents, etc. If the interpretation

canvassed by the learned counsel for respondent is accepted all those houses

of the respondent’s relatives will be shared household and the wife can well

insist on living in all those houses of her husband’s relatives merely because she
had stayed with her husband for some time in those houses in the past. Such a

view would lead to chaos and would be absurd.”

alternative accommodation

 The respondent also claimed that she should be given an alternative

accommodation. Supreme Court held that the claim for alternative

accommodation can only be made against the husband and not against

the husband’s in-laws or other relatives.

Definition of ‘shared household’

 Supreme Court held that the definition of ‘shared household’ in Section 2

(s) of the Act is not very happily worded and appears to be the result of

clumsy drafting, but we have to give it an interpretation which is sensible

and which does not lead to chaos in society.

 Court held that wife is only entitled to claim a right to residence in a

shared household and a shared household would only mean the house

belonging to or taken on rent by the husband, or the house which belongs

to the joint family of which the husband is a member.

Satish Chander Ahuja vs. Sneha Ahuja

 Question before the Court

 Whether shared household mean household of the joint family in which

husband of the aggrieved person ha a share?

 Whether Court in S R Batra has correctly interpreted the expression “shared

household”?

Interpretation of “at any stage has

lived”

 the expression “at any stage has lived” has been used to protect the woman from

denying the benefit of right to live in a shared household on the ground that on the date

when application is filed she was excluded from possession of the house or temporarily

absent.

 The use of the expression ‘at any stage has lived’ is for the above purpose and not with

object that wherever the aggrieved person has lived with the relatives of the husband, all
such houses shall become shared household, which is not the legislative intent.

 The shared household is contemplated to be the household, which is a dwelling place of

the aggrieved person in the present time.

 When we look into the different kinds of orders of relief, which can be granted on an

application filed by aggrieved person all orders contemplate providing protection to the

women in reference to the premises in which aggrieved person is or was in possession.

 The shared household referred to in Section 2 (s) is the shared household of aggrieved

person where she was living at the time when application was filed or in the past had

been excluded from the use or she is temporarily absent.

Interpretation of “at any stage has

lived”

 Court held:

 The words "lives or at any stage has lived in a domestic relationship" have

to be given its normal and purposeful meaning. The living of woman in a

household has to refer to a living which has some permanency. Mere

fleeting or casual living at different places shall not make a shared

household. The intention of the parties and the nature of living including

the nature of household have to be looked into to find out as to whether

the parties intended to treat the premises as shared household or not.

house belonging to or taken on rent

by the husband

 In S R Batra, Court held that wife is only entitled to claim a right to

residence in a shared household and a shared household would only

mean the house belonging to or taken on rent by the husband, or the

house which belongs to the joint family of which the husband is a member.

 Supreme Court in Satish Chander Ahuja held that the definition of shared

household is clear and exhaustive. The object and the purpose of the act

was to grant a right to aggrieved person, a woman of residence in shared

household.

house belonging to or taken on rent

by the husband
 Court held:

 (i) it is not requirement of law that aggrieved person may either own the

premises jointly or singly or by tenanting it jointly or singly;

 (ii) the household may belong to a joint family of which the Respondent is

a member irrespective of whether the Respondent or the aggrieved

person has any right, title or interest in the shared household; and

 (iii) the shared household may either be owned or tenanted by the

Respondent singly or jointly.

Concerns regarding adjudication

under DV Act

 While majority of aggrieved persons leave the shared household before

filing a case under the Act, courts often deny relief to a women on the

ground that she is no longer residing in the shared household.

 Complaints under the Act are routinely filed against female non-marital

relatives. Courts also often grant relief in such cases – going beyond the

scope of the Act

 Some judges tend to treat DV Act as primarily a maintenance law rather

than a comprehensive legislation on domestic violence

 Likely to grant monetary relief relating to the future maintenance of the

aggrieved person, rather than restitution for the losses incurred in the past.

Concerns regarding adjudication

under DV Act

 There is no recognition of women’s contribution towards the generation of

family income through their employment at home

 Services of Protection Officers are not utilized fully or even regularly

 In cases where parties reach a settlement, and the court orders a consent

decree, the services of Protection Officers can be utilized to determine

whether the terms of settlement are fair to both the parties.

 Judicial records are silent on service providers, shelter homes and medical

facilities. There is a lack of integration of these mechanisms with the

adjudicatory process.
SAME-SEX MARRIAGE AND

MARRIAGE EQUALITY IN INDIA

SUPRIYO V UNION OF INDIA

Dr. Sharada R Shindhe

Assistant Professor

NLSIU, BAngalore

RECOG N I TION OF RI G HTS OF LG BTQ COMMUN I TY – TRAC I N G

THE J OURN EY

• Right to sexuality, right to sexual autonomy, and the right to choice of a sexual

partner as a part of the rights guaranteed under article 21 of the Constitution

• In NALSA the Supreme Court held that the state must recognise persons who

fall outside the male-female binary as ‘third gender persons’ and that they are

entitled to all constitutionally guaranteed rights

• It directed the union and state government to grant legal recognition to the

self-identified gender of transgender persons, including when they identify as

male and female.

• In Puttaswamy, Supreme Court held that the Constitution protects the right of

a person to exercise their sexual orientation.

• In Navtej Singh Johar v Union of India, Supreme Court held that section 377 is

unconstitutional to the extent that it criminalises consensual sexual activities by the

LGBTQ community.

• It held that: Section 377 violated Article 14 because it discriminated between

heterosexual persons and non-heterosexual persons, although both groups engage

in consensual sexual activities

• while Article 14 permits reasonable classification based on intelligible differentia, a

classification based on an ‘intrinsic and core trait’ is not reasonable; Section 377

classified individuals on the basis of the court rate of sexual orientation

• Article 15 prohibits discrimination based on sex which includes within its meaning

sexual orientation as well

• LGBTQ+ Community faces violence and oppression, contempt and ridicule in

various forms every single day

• The state has done little to emancipate the community from the shackles of

oppression

• Lack of sensitisation and discrimination has pushed the members of the community

into a proverbial closet

• The discrimination faced by LGBTQA+ community in various forms is in so many

ways, a product of social morality

• stigma against the members of LGBTQA+ community did not end with a stroke of

the pen when this court decriminalised consensual homosexual activity

VIOLENCE AGAINST QUEER COMMUNITY

VIOLENCE AGAINST QUEER COMMUNITY

• Despite the court recognising that sexual orientation is a core innate trait of an

individual the members of queer community continue to face economic, social and

political oppression in both visible and invisible ways.

• They face oppression because of their inability to express their gender identity due

to the fear of public disapproval.

• They are socially economically marginalised group and are at a greater risk of being

subject to harassment

• All the service providers by the state including public washrooms, security

checkpoints and ticket counters at railway stations and bus deport are segregated

based on a strict gender binary.

• They feel very uncomfortable using these public facilities.

VIOLENCE AGAINST QUEER COMMUNITY

• Over time misgendering a person can have detrimental effects on their mental

health and negatively impact their ability to function in the world.

• Members of the queer community may be forced to quit their education.

• Employers are unwilling to employ them due to their gender nonconformity

• members of transgender community face difficulty in obtaining proper

identification documents which prevents them from accessing even those

opportunities which are available to them.

VIOLENCE AGAINST QUEER COMMUNITY

• At a very young age they face familial rejection. Families consider a queer
person’s desire of gender expression to be a mental illness which requires

cure.

• They are not treated in a dignified manner in the healthcare sector for reasons

which range from administrative formalities which are not gender inclusive to a

lack of knowledge about gender related diseases.

• It is very difficult for members of the queer community to rent a house.

• Police and prison officials exhibit violence towards the queer community.

TRANSGENDER PERSONS (PROTECTION

OF RIGHTS) ACT 2019

• Parliament enacted Transgender Persons (Protection of Rights) Act 2019 to protect

the rights of the transgender community

• to provide welfare measures for their betterment.

• The enactment aims to protect the transgender community from discrimination

and includes provisions for providing them with opportunities in the educational

and social sector.

• Even after this legislation, transgender community continue to be denied equal

citizenship.

• They are often forced to undergo sex reassignment surgeries before their rights as

transgender persons are recognised

CONTENTIONS

• The petitioners claim that they are discriminated on a more formal level.

• State through the operation of the current legal regime discriminates against

the queer community by impliedly excluding the queer community from a civic

institution: marriage.

• They claim that the state ought to treat them on par with the heterosexual

community.

• The Special Marriage Act violates the right to dignity and decisional autonomy

of LGBTQA+ persons and therefore violates Article 21.

CONSTITUTIONALITY OF SMA

• Excluding LGBTQA+ persons from the SMA discriminates against them on the
basis of their sexual orientation and the sex of their partner. This violates article 15

of the Constitution.

• SMA is violative of article 14 of the Constitution because;

i. non-recognition of same-sex and gender non-conforming marriage.

ii. there is no fair or reasonable justification to exclude LGBTQA+ couples from

the institution of marriage.

iii. the classification in the present case is based only on the sexual orientation and

gender identity of the parties to a marriage, which is constitutionally

impermissible.

RIGHT TO MARRY

• There is no legitimate state interest promoted or safeguarded by denying

LGBTQA+ individual is the fundamental right of marriage

• Every person is entitled to marry someone of their choice. Queer people are

equally entitled to the exercise of this right.

• Denial of the right to marry amounts to a deprivation of the entitlement to full

citizenship as well as denial of the right to intimacy.

• The SMA ought to be read in a gender neutral manner. Section 4 (1) (a) refers

to a spouse and Section 4 (1) (b) refers to a party.

INTERPRETATION OF SMA

• Dr Abhishek Manu Singhvi argued that

• The SMA authorises the solemnisation of same-sex marriages, when

interpreted consistent with the Constitution.

• It can be read down in the following manner to include the solemnisation of

marriages between non-heterosexual persons:

• The word ‘man’ in Section 2 (b) includes any person, and that correspondingly

the word ‘women’ includes any person

• The words ‘man’ and ‘woman’ include trans men and trans women, intersex

and non-binary individuals as the case may be

SECTION 2 (B) OF SMA

• (b) "degrees of prohibited relationship"-a man and any of the persons

mentioned in Part I of the First Schedule and a woman and any of the persons
mentioned in Part II of the said Schedule are within the degrees of prohibited

relationship.

SECTION 4 CONDITIONS RELATING TO

SOLEMNIZATION OF SPECIAL MARRIAGES.

• Notwithstanding anything contained in any other law for the time being in force relating to the

solemnization of marriages, a marriage between any two persons may be solemnized under

this Act, if at the time of the marriage the following conditions are fulfilled, namely:--

• (a) neither party has a spouse living;

• (b) neither party--

• (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

• (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a

kind or to such an extent as to be unfit for marriage and the procreation of children; or

• (iii) has been subject to recurrent attacks of insanity;

• (c) the male has completed the age of twenty-one years and the female the age of eighteen

years;

• 3[(d) the parties are not within the degrees of prohibited relationship:

• Provided that where a custom governing at least one of the parties permits of a marriage

between them, such marriage may be solemnized, notwithstanding that they are within the

degrees of prohibited relationship

ALTERNATIVE INTERPRETATIONS

• Section 4 ( c) enacts only an age based exclusion for persons otherwise eligible

to marry under the provisions of Section 4 and shall not be construed to

impose any disabilities based on gender, sexual orientation, or sexual identity of

the parties.

• For same-sex couples in particular, Section 4 ( c) can be read as a single age

restriction, be it 18 or 21.

• In the alternative, Section 4 ( c) may be read as prescribing the minimum age as

18 for both parties in the case of lesbian relationship and 21 for both parties in

case of gay relationship.

ALTERNATIVE INTERPRETATIONS

• For non-binary and intersex persons the SMA may be read as imposing no
restriction beyond that imposed by other laws which stipulate the age at which

persons become capable of binding themselves under law that is 18 years. In

the alternative, this court may lay down guidelines as an interim measure while

leaving it open to Parliament to fill the vacuum in due course of time.

• The reference to “widow” and “widower” In schedule II and III must be read

as “widow” or “widower” and “widower” or “widow” as the case may be,

and shall not be construed to impose any disability is based on gender, sexual

orientation or sexual identity of the parties.

• References to bride and bridegroom must be read as bride or bridegroom.

PRINCIPLE OF UPDATING

CONSTRUCTION

• the principle of updating construction ought to be applied to the SMA. Courts may

expand the existing words of a statute to further the march of social norms and

contemporary realities.

• statues regulating marriage in India must be right as inclusive of all gender identities

and sexualities

• Procreation is not the sole purpose of marriage. Marriage is not merely the

meeting and mating of two individuals but much more-it is the union of two souls.

• The SMA and the FMA are violative of Article 14 of the Constitution because they

deny LGBTQ+ persons the equal protection of laws, are manifestly arbitrary, and

fail the rational nexus test.

RESPONSE BY UOI

• The SMA is a species of the general marriage laws. Marriage is conceived to be a

union between heterosexual across all laws on marriage and procreation is an

essential aspect of marriage.

• The SMA is intended to regulate marriage between heterosexuals irrespective of

caste and religion.

• Thus, the omission of non-heterosexual unions from the purview of the enactment

would not render the enactment unconstitutional because of under inclusiveness.

• There would be no internal cohesion in the SMA if Section 4 is read in a gender

neutral manner.
• Such an interpretation would render the implementation of sections 19 to 21A

which link the SMA with other personal and non-personal laws difficult.

MARRIAGE IS THE CREATION OF

STATUTE

• Courts can use the interpretative tool of reading in only when the stated

purpose of the law is not achieved. Since the purpose of SMA is to regulate

heterosexual marriages, this court cannot read words into the enactment to

expand its purview beyond what is originally conceptualized.

• Marriage is the creation of statute. The state by virtue of entry 5 of list III of

seventh schedule has the power to regulate the institution of marriage. In

exercise of this power, the legislature has prescribed various conditions which

must be fulfilled before legal recognition can be given to a union.

• The state is not under an obligation to grant legal recognition to every type of

relationship.

COURT’S POWER

• Courts do not have the power to decide if legal recognition can be granted to

a union of non-heterosexual individuals.

• By declaring that non-heterosexual couples have a right to marry, this court

would be granting legal recognition to a new social relationship.

STATE RECOGNITION OF

HETEROSEXUAL RELATIONSHIPS

• Both father and mother have a significant and unique role in the bringing of children. In
nonheterosexual unions, the child born out of surrogacy or artificial reproductive technology or

adopted by the couple would feel the absence of either a father or a mother.

• The state cannot grant legal recognition to homosexual unions in the form of marriage to

protect the interest of children.

• Granting legal recognition to non-heterosexual unions would dilute heterosexual marriages.

• There is an intelligible differentia in classifying unions into heterosexual and non-heterosexual

partnerships because it was sexual couples to sustain a society through procreation.

• The constitutionality of a statute cannot be challenged on the ground of under inclusion.

• The SMA would become unworkable if it is read in a gender neutral manner.

JUDGEMENT OF CJI

• This court is vested with the authority to hear this case. It is amply clear from

both the plain reading of article 32 as well as the constituent assembly debates

• Judicial review and separation of powers

• The power of this court to enforce rights under Article 32 is different from

the power of the legislature to enact laws.

• The power of judicial review must be construed in terms of the Constitution

of India and not in terms of the position of law in other jurisdictions.

• The role of courts in the democratic process.

• courts contribute to the democratic process while deciding an issue based on

competing constitutional values or when persons who are unable to exercise

their constitutional rights through the political process knock on its doors.

• Queerness is a natural phenomena which is known to India since ancient

times.

• Queerness is not urban or elite – the incidence of greatness among the rural

and working-class communities has been documented in academic scholarship

as well as newspaper reports.

UNDERSTANDING THE INSTITUTION OF

MARRIAGE

There is no universal conception of marriage

• the procreation and the human desire to have a family constitute significant

characteristics of the institution of marriage.

• The inability of queer couples to procreate does not act as a barrier to the

entry of queer persons to the institution of marriage just as it does not

prevent hetero sexual couples who are unable or choose or not to procreate.

• Viewing marriage solely through the lens of sexual relations or procreation is a

disservice to married couples.

• The conception of marriage Is not static

MANNER IN WHICH THE STATE REGULATES

MARRIAGES
• The state: firstly, prescribes conditions with respect to who can enter into a

valid marriage;

• secondly, regulates the marital relationship during its sustenance;

• thirdly, regulates the repercussions of the breakdown of a relationship of

marriage.

• There is no prohibition against two queer persons holding a marriage

ceremony.

• However, they would not be recognized as married partners by state and nonstate entities for the
purposes of the law.

NON-RECOGNITION OF NONHETEROSEXUAL MARRIAGES

• The non-recognition of non-heterosexual marriages denies the petitioners the

social and material benefits which flow from marriage which captures the true

essence of marriage.

• Access to the institution of marriage is crucial to individual self definition,

autonomy, and the pursuit of happiness because of this expressive and material

benefits which flow from Marriage.

SCOPE OF THE STATE’S REGULATION OF THE

INTIMATE ZONE

• The state and the court have recognized that there is no state interest in regulating

the personal space.

• Supreme Court has recognized that Article 21 protects a women’s reproductive

choices which includes whether she wants to terminate her pregnancy.

• In a very narrow circumstances, the state regulates intimate choices about

childbirth and procreation.

• State regulates the intimate zone by prohibiting sex selection before and after

conception.

• The state recognizes that the interest in preventing female foeticide and infanticide

overrides the privacy interests and decisional autonomy of individuals.

• The argument that the state has an interest in regulating heterosexual

marriages only to sustain society through procreation is fallacious because the

state does not impose a compelled choice of procreation on married

heterosexual couples.

• Moreover, heterosexual couples need not be married to procreate nor is

marriage a criteria for procreation.

• The right to marry – The Constitution does not expressly recognize

fundamental right to marry.

CONSTITUTIONAL VALIDITY OF SMA

• If the SMA is held void for excluding same-sex couples, it would take India back

to the pre-independence era where two persons of different religions and

castes were unable to celebrate love in the form of marriage.

• Such a judicial verdict would not only have the fact of taking the nation back to

the era when it was clothed in social inequality and religious intolerance but

would also push the courts to choose between eradicating one form of

discrimination and prejudice at the cost of permitting another.

ON READING WORDS INTO PROVISIONS

OF SMA

• If this Court takes the second approach and reads words into the provisions of

the SMA and provisions of other allied laws such as ISA and HSA, it would in

effect be entering into the realm of the legislature.

• The court is not equipped to undertake an exercise of such wide amplitude

because of its institutional limitations.

• This Court would in effect be re-drafting the laws in the grab of reading words

into the provisions.

• It is a trite law that judicial legislation is impermissible.

LEGISLATIVE DOMAIN

• Whether a change should be brought into the legislative regime of the SMA is

for the Parliament to determine.

• Parliament has access to varied sources of information and represent in itself a

diversity of viewpoints in the polity.

• The court in the exercise of the power of judicial review must be careful not

to trend into the legislative domain.

THE RIGHT OF TRANSGENDER PERSONS TO

MARRY

• Transgender persons in heterosexual relationships can marry under existing

law

• The right against discrimination under the transgender persons act

DIRECTIONS TO UOI AND STATE

GOVERNMENTS AND UT

• Ensure that the queer community is not discriminated against because of their

gender identity or sexual orientation;

• Ensure that there is no discrimination in access to goods and services to the

queer community, which are available to the public;

• Take steps to sensitise the public about queer identity, including that it is

natural and not mental disorder;

• Establish hotline numbers that the queer community can contact when they

face harassment and violence in any form;

DIRECTIONS TO UOI AND STATE

GOVERNMENTS AND UT

• Establish and publicize the availability of safe houses in all districts to provide shelter to

members of the queer community who are facing violence or discrimination;

• Ensure that treatment offered by doctors or other persons which aim to change gender

identity or sexual orientation are ceased with immediate effect;

• Ensure that inter-sex children are not forced to undergo operations with regard only their sex,

especially at an age at which they are unable to fully comprehend and consent to such

operations;

• Recognize the self-identified gender of all persons including transgender persons, hijras, and

others which social cultural identities in India, as male, female, or third gender.

• No person shall be forced to undergo hormonal therapy or sterilization or any other medical

procedure either as a condition or prerequisite to grant legal recognition to their gender

identity or otherwise.

DIRECTIONS ISSUED TO THE POLICE

MACHINERY
• There shall be no harassment of queer couples by summoning them to the

police station or visiting their places of residence only to interrogate them

about their gender identity or sexual orientation;

• They shall not force persons to return to their native families if they do not

wish to return to them;

• When a police complaint is filed by queer persons alleging that their family is

restraining their freedom of moment, they shall on verifying the genuineness of

the complaint ensure that their freedom is not curtailed;

DIRECTIONS ISSUED TO THE POLICE

MACHINERY

• When a police complaint is filed comprehending violence from the family for

the reason that the complainant is queer or is in a queer relationship, they shall

on verifying the genuineness of the complaint ensure due protection; and

• Before registering an FIR against queer couple or one of the parties in a queer

relationship, they shall conduct a preliminary investigation to ensure that the

complaint discloses a cognizable offence