India is a country with numerous beliefs, customs and values. The recognition
of all these beliefs and cultures led to the emergence of personal laws which
have also led to the complexity and multiplicity of its proceedings in courts
only due to the fact that they differ from other laws by ages-old religions and
their long standing principles. Those principles are, usually, either strict in
its values or very slowly reactive to social changes and modernization.
Due to the change in mindset and approach of younger generations towards
personal laws regarding marriage, divorce, maintenance etc., homosexual and
live-in relationships have started to become a common sight in Indian
society. The strict adherence to values and traditions have led the society to
expose itself to disastrous and barbaric incidents of Dowry Death and Honour
Killings in India.
The proceedings to protect the institution of marriage like restitution of
conjugal rights, nowadays, are directed extensively to victimize the parties
rather than providing a remedy to them. The same approach of victimization was
followed in Talaq-ul-biddat where women were divorced according to the wishes of
their spouses which were justified by religious connotations, now being
unconstitutional. Redefining the grounds for divorce in this paper is necessary
due to the dynamic changes in societal attitude.
This paper would suggest reforms for custody and maintenance in line with
modernization and rising modern interpretations of relationships and personal
laws and would also discuss about Uniform Civil Code and its power to bind
people across all communities to abide by it without any injury to their ancient
values and principles and also its capacity to redress all the impediments and
shortcomings present in today's personal laws to administer and render justice.
India is a multicultural country with various beliefs, customary practices and
the value systems that are being followed. The recognition of all these beliefs
and cultures led to the emergence of personal laws which have also led to the
complexity and multiplicity of its proceedings in courts only because they
differ from other laws by age old religions and their long standing principles.
Justice Deepak Mishra quoted, Do not take marriage for granted. There has to
be an effort there has to be an endeavor, there has to be a constant attempt to
sustain it. The moment people take marriage for granted, there is a disaster
The country follows age old practices and it is believed to change the way of
the younger generation. But in today's generation no individual is recognizing
and accepting the old practices or the traditions that are being followed. Most
of today's younger generation do not follow the concept of marriage or one man,
one woman concept or the power of living together as husband and wife or the
responsibility of raising a child.
Whereas they are more inclined towards live-in relationship, homo-sexual
relationship, divorce and running away from the family for the purpose of
withdrawing from the society of the other. Even today, in our country there are
a lot of cases where the women of the family still commits suicide or killing
done by the husband on demanding dowry from the women's family because of their
dissatisfaction with the dowry given. There are also a lot of instances where
the Honor killing of the person has also increased in the modern world.
There was a time where the world used to look live-in as a downgraded form of
relationship. And many people were opposing towards the live-in and started to
haunt the partners who were involved in the live-in relationship .But today,
most of the taboo that used to haunt and oppose these kind of relationship are
fading away and this is gaining a lot of power and importance in the society.
Most of today's generation are willing to perceive live-in relationship than
getting married to one another.
The couples are more interested in getting to know each other better in this
kind of relationship than getting to know after marrying a complete stranger
without knowing anything about the other person. So the present generation finds
it better, this way, than the other way.
The biggest drawback of live-in is that if the couples are not interested in the
relationship anymore they can simply withdraw from their relationship. Whereas,
this is not the case in marriage where the parties have to file an application
to the court for separation i.e. divorce and they cannot get separated without
getting a formal notice from the court. There is no law binding the live-in
relationship. The personal laws do not specify the maintenance of the child born
in this kind of relationship, but Section 125 of Criminal Procedure Code (CrPC)
lays down that the maintenance of child can be claimed. So any child born out of
live-in relationships are legitimate children.
With women in live-in relationships experiencing various kinds of harassment and
violence, the Supreme Court came to their rescue with remedies provided under
the Domestic Violence Act, 2005. The act does not specify marriage but a
‘relationship in nature of marriage' and was deemed to be applicable to live-in
Similarly, the scope of claiming maintenance under Section 125 of the Code of
Criminal Procedure, often resorted to by abandoned wives, was also considered
wide enough to initiate criminal proceedings against a man who does not provide
proper maintenance or deserts a woman with whom he was in a live-in
But the Supreme Court in a case in which it held that a live-in relationship
between two consenting adults of heterogenic sex does not amount to any offence.
This has downgraded the concepts and values of marriage, both as a sacrament and
as a contract and this has to be considered as a detour from our traditions on
which India and its values still stand even today in this dynamic, contemporary
Maintenance And Custody
Maintenance means the obligation of the husband to maintain his wife and taking
care of his children. Under section 125 of the Code of Criminal Procedure, it
talks about the rights and the order that a person has to maintain his family
and his dependent children. The child may be legitimate or illegitimate but it
is the duty of the father to take care of the children. The Section also refers
to the maintenance of the old aged parents who are not about to maintain
themselves and are dependent on their son.
But in all these circumstances the monthly amount for the maintenance cannot be
more than five-hundred rupees and it should also be given to the minor children,
if there is any. If any person fails to comply with the conditions that are
specified by the Magistrate then the person will be held liable and shall be
imprisoned for a period of one month or until payment if made sooner. The Hindu
Marriage Act 1955 also mention about the maintenance of wife.
In section 24 it is about the Maintenance pendente lite and expenses of
proceedings where either of the party is unable to meet their court proceeding
expenses and they require the support of the other member in order to continue
the case. Section 25 is about the Permanent Alimony that should be given to the
party. The maintenance reliefs that are available to a women in Muslim Law is
vast and the maintenance is governed under the Muslims Women (Protection of
Rights on Divorce) Act 1986.
This Act came into force after a landmark case Mohd. Ahmed Khan VS Shah Bano
Begum And Ors
1 where in the Supreme Court upheld the right to alimony and
the judgment set off for a political battle as well as a controversy about the
extent to which the court can extent to the Muslim Personal Laws.
This case is the basis for getting women equal rights and protection against
Marriage and Divorce. For Muslim women to get maintenance it is termed as
‘NAFQAH' which means the amount that is spent by the male member of the family
for their maintenance. In Muslim Law there is an advantage to the women where in
the earning women can also claim maintenance from her husband and this rule
applies only to Muslim Women and not in any other laws.
The Shia Law decides the quantum of maintenance by taking into consideration the
requirements of wife. The Shafei Law determines the quantum of maintenance by
the post of the husband. The basis of determination of quantum of maintenance is
different for different sub-caste of Muslims.
On the other hand the custody means the custody of the children to either of the
parents whoever is earning well and who can take good care of the child. This is
governed by the Guardianship and Wards Act 1890 where in the custody of the
child is given only to one parent who are divorced. The age of the child is also
taken under consideration , if the child is below five years then the physical
care is given to mother. If the child is more than five years then the physical
custody and the bringing up of the child is decided by the court.
The main things that are included in the custody of the child are the safe
keeping of the child, ethical upbringing of the child, good education to be
imparted and economic well being of the guardian. In the modern period both
mother and the father are given a equal chance of taking better care for the
children. In case of unmarried parents then the statutes of the states require
the mother to be awarded the physical custody of the child unless the father
takes action to be awarded custody.
An unwed father cannot win the custody of the child in most of the cases but he
can take some form of custody and visitation rights towards the child. If any of
the parent is dead and the other parent starts to live their life with someone
else (Adultery) then that parent has the obligation and right to take care of
the child and providing proper maintenance for the child for its survival.
The personal laws states that if the child is with the mother and father is
providing maintenance then he has to provide maintenance until the child attains
puberty and the child is in the stage wherein he can take care of himself. The
father has the responsibility of taking care of the child where ever he may be.
There are also circumstances in which the court allows the child to decide as to
with whom does the child wants to be with.
means the divorce according to Muslim Laws which is either initiated by
the husband or sometimes the wife. According to Quran ‘once a person is married
to another then it is a “firm bond between them and it is unbreakable and it is
also governed by the divorce acts. But in most of the cases it is the husband
who initiates Talaq for some reason to end the contract of marriage with the
Talaq-ul-biddat can be given in any form namely:
- By any electronic message
- By oral or in a written message
- Or by instantaneous saying over the phone or directly to a person
The practice of triple talaq is banned in Shia Law but in Hanafi Law it is
taught as a sinful action but it is practiced among the huge Muslim population.
In this type of talaq the husband does not follow the approved form of
talaq-ul-sunnat neither does he wait for the iddat period to get completed nor
to the abstention of sexual intercourse.
This was an escape route developed by the Muslim patriarchal society to avoid
their marriage. In this form of Divorce husband repudiates his wife by three
divorces in one sentence. The biggest problem with this type of talaq is that it
is one of irrevocable nature unlike its counterparts.
The Supreme Court in Shayara Bano case1 wherein it held that the Triple Talaq or
Talaq-e-biddat is not protected by the exception laid down in Article 25 i.e.
the court found the said practice not an essential element of Islamic religion.
The court justified its point of view in the sense that although it is practiced
by the Hanafi School but it is considered sinful in it. Triple Talaq is against
the basic tenets of Quran and whatever is against Quran is contrary to Shariat.
Therefore, such practice is declared unconstitutional and was set aside by the
The Triple Talaq bill was amended in the recent 2019 amendment wherein it is
being held unconstitutional and if it is practiced anywhere then it will be held
as void. The Muslim Women (Protection of Rights on Marriage) Bill 2019 was
passed after a long discussion and finally got the verdict to all women. This
Act came into force on the 1st August 2019 for safeguarding the womens rights in
marriage and divorce and also protecting the interest of the married women.
This bill was proposed to criminalise triple talaq and make it, in any form,
null and void. Punishment for breach of the law was proposed to include up to
three years imprisonment for the husband pronouncing triple talaq.
The act statutorily provides:
- A married Muslim woman upon whom talaq is pronounced shall be entitled
to receive from her husband such amount of subsistence allowance, for her
and dependent children, as may be determined by the Magistrate.
- No person accused of an offence punishable under this Act shall be
released on bail unless the Magistrate, on an application filed by the
accused and after hearing the married Muslim woman upon whom talaq is
pronounced, is satisfied that there are reasonable grounds for granting bail
to such person.
- An offence punishable under this Act shall be compoundable, at the
instance of the married Muslim woman upon whom talaq is pronounced with the
permission of the Magistrate, on such terms and conditions as he may
Therefore, Muslim women, after decades have got their due rights and
protection from this Act which relieved them from the archaic and arbitrary
custom and its consequences and shortcomings on them.
An aggrieved party can file a petition before a district court when either of
the party to marriage withdraws from the society having no reasonable excuse and
the court must be satisfied about the statements made, also there should be no
legal ground for refusal of the relief. The burden of proving reasonable excuse
lies on the person who withdraws from the society. The primary object of showing
proof lies on the petitioner. Once the petitioner has proved, the burden of
proof now shifts the other party to prove the defense ‘reasonable cause
There must be voluntary act of respondent to end consortium. The fundamental
rule is that the spouse must live together. Also, the marriage must be valid, it
should not be invalid or void or voidable one. The restitution of conjugal right
is only available to husband and wife only.
In Sushila Bai v/s. Prem Narayan
, the husband deserted the wife and was totally
unresponsive to her. The court held that his behavior was sufficient to show
that he has withdrawn from the society and therefore the wife was entitled to
conjugal rights. Husband cannot maintain a suit for restitution of conjugal
rights against his wife when he has an illicit relationship with another woman.
In the case Harvinder Kaur V. Harmander Singh Choudhry
, it stated that the
remedy aimed at preserving marriage and not disrupting in case of divorce or
judicial separation. It observed marriage is a contract formed with a view not
only to benefit parties of marriage but to benefit third parties and their
offspring. The main object of restitution decree is to bring cohabitation
between them so that they can live together in harmony.
The word cohabitation does not merely depend upon whether there is sexual
intercourse but it means living together as husband and wife. In the case
Saroj Rani V. Sudarshan Kumar Chadha
, the Supreme Court held that section 9 of
Hindu Marriage Act, 1955
serves an aid to prevention of breakup of marriage. The Apex
Court viewed that section 9 is not in violation of article 14 or article 21.
In 2019, a petition was filed challenging the legality of court allowing
restitution of conjugal rights to force warring couple to get along. The
petition also challenged the validity of sec 9 of Hindu marriage act, 1955 and
section 22 of special marriage act. Chief justice of India said the provision
was anti women as it was violating her rights and wish by going back to her
husband. It was argued that it was violation of right to privacy guaranteed
under article 21.
Also, there is a disproportionate burden on women which is therefore violative
under article 14 and 15(1).the court held restitution of conjugal rights as
coercive act on part of state. Also, the petitioner requested to reconsider the
1984 verdict the Andhra Pradesh high court quashed section 9. The court held
that such right was inherent in the institution of marriage.
In Baldev Raj V. Bimla Sharma
, Restitution of conjugal rights and Divorce cannot
be prayed together as they are diametrically opposite. But it is true that when
a conjugal rights decree is passed and is not compiled by the spouse for a
period of one year or more after passing the decree it gives right to another
spouse to claim divorce.
Marriage is an institution of social relevance and with social changes, it has
also changed correspondingly. The institution of marriage is subject to human
errors. In many situations, marriages simply fail as a result of disharmony
between them. In such case, putting end to social bondage is the only way.
Section 13 of Hindu Marriage Act, 1955,
divorce can be obtained when any of party
to the marriage had voluntary intercourse with another person other than his/
her spouse; when the petitioner was treated with cruelty; has deserted the
petitioner for a continuous period of not less than two years; ceased to be a
Hindu by conversion to any other religion; who is of unsound mind ,suffering
continuously from mental disorder to such extent where the petitioner cannot
reasonably live with respondent.
In Jayachandra v/s Aneel Kaur
, The Apex Court defined cruelty (Section 13[i][a])
as willful conduct of such character to cause danger to life or health or to
give apprehension of danger. Cruelty includes both physical as well as mental
with falls under the purview of matrimonial wrong. Also, it must be more than
ordinary wear and tear of married life. The Supreme Court held that a spouse
living alone does not amount to desertion. Cruelty means absence of mutual
respect and understanding between them. Cruelty in matrimonial cases can be of
different variety, it can be brutal or subtle or it may be expressed by words or
gesture. The categories of cruelty in certain case are never closed.
Adultery (section 13[i]) is defined as a voluntary sexual intercourse by a
married person with a partner other than his/her spouse.
In Vishnu Dutt Sharma V. Manju Sharma
, it has been held that irretrievable
breakdown of marriage is not a ground for divorce as it is not with regard to
section 13. It is for the Parliament to enact or amend the law and not for the
Divorce can be is sought on the ground of mutual consent and must be presented
to court jointly by both parties and should not be obtained by force, fraud or
undue influence(section 13-B).They can obtain decree of divorce when they have
been living separately for a period of one year; they have not been able to live
together; they mutually agreed that marriage should be dissolved.
If the parties
to the marriage did not make earlier than six months after the date of
presentation of petition and not later than eighteen after the said date, and
the petition is not withdrawn in the meantime, the Court shall, on being
satisfied, after hearing the parties and after making inquiries, pass a decree
of divorce declaring the marital bondage to be dissolved with effect from date
of decree. This period is intended to provide healing time to them to ponder
over their differences and to check whether their differences are capable of
resolution. If the continuation of the marriage results in continued mental
stress, the parties would ask for the relief of dissolution.
Marital Rights Of Same Sex Couple
Lesbian, Gay, Bisexual, Transgender (LGBT) people in India may face legal and
social difficulties. In 2018, The Supreme Court of India declared Section 377 of
Indian Penal Code
as unconstitutional in respect of consensual homosexual sex
between adults. Over the past decade, LGBT people have increasingly gained
acceptance in large cities. Same sex marriage is the practice of marriage
between same gender. The legal and social responses have been varied from
celebration on one hand to criminalization on another hand.
According to Section
5 of Hindu Marriage Act, 1955
, gives no room for the marriage to be solemnized
between any two Hindu that is, between men and men and women and women.
In Naz Foundation V. Government Of NCT Of Delhi
is a landmark case which held
that treating homosexual sex between two adults is violative of fundamental
rights of Indian Constitution. The verdict resulted in decriminalizing
homosexual acts. This was overturned by Supreme Court of India in Suresh
Kumar Koushal v/s Naz Foundation
, which reinstated Section 377 of Indian Penal Code
However, in the case Navrej Singh Johar V. Union Of India
in 2018, held that to
decriminalizes homosexuality once again.
In Obergefell v/s Hodges
, the U.S Supreme Court ruled that denying the
fundamental institution of same sex marriage is violation of the 14th amendment
of the U.S Constitution. Under the 14th amendment, it must provide equal
protection of laws to all their citizen. It also provides people should not be
deprived of life, liberty or property without due process of law.
Many of these rights are now granted in all states which includes property
rights, employee benefits, tax, divorce. Same sex couple has same rights as
heterosexual couple towards property. These rights protect spouses in event of
divorce or death. They also enjoy marriage related property benefits such as
marital estate planning resources. Same sex couples can be included in medical
plans of their spouses and can benefit from retirement savings plan. They also
benefit from both state and federal tax rules. Divorce laws is applicable
equally to both same and opposite sex. There are still a number of legal rights
and protection enjoyed by heterosexual married couple that are not granted to
homosexual married couples.
Also, there is no presumption of parentage for same sex couples. This is because
on an implicit assumption both a man and woman are biological parents of any
children conceived during their marriage. In some states, joint adoption by same
sex couples is still banned.
The Constitutional Court Republic of China recently ruled that it is
unconstitutional for country to deny same sex marriage. Asia is the first
country to legalize same sex when homosexuals face intensifying repression
The same sex couples often face civil rights issue such as employment and
housing discrimination. In many states they still fire someone based on their
sexual orientation. Any disputes between them many require heavy legal
assistance. This is because the laws are still subject to change and
adjustments. Thus, legal conflicts should be handled with assistance who can
guide on the rules and policies of the state.
Uniform Civil Code (Ucc)
The Uniform Civil Code has its base in The Special Marriage Act 1954. It
basically deals about the different caste marriage which are happening in the
society and it becomes the rules and guidelines for these kind of marriages.
Marriage is governed in various laws and in various customs and practices but
all of them are not the same and they have their own unique influence of
personal customs in it.
The UCC is governed in Article 44 of the Indian Constitution in the Directive
Principles. Article 44 is expected to be followed by all the citizens in the
country as it is the law that governs the entire territory. When the Hindu Code
bill was passed the personal laws in India had two major application: the common
Indian citizens and the Muslim community whose laws were kept away from any
The frequent conflict between the secular and the religious authorities over the
over the issues of uniform civil code decreased eventually. This is because of
the Shah Bano Begum case
wherein the Supreme Court held the maintenance
of wife, children and parents not only to this case but applied to all the
citizens of the country irrespective of their religion. Personal law gets
distinguished from public law and cover marriage, divorce, inheritance, adoption
The Uniform Civil Code mainly focuses on bringing uniformity in all the religion
and there is no extra rights and liberty given to any religion and leaving the
other behind. Goa is the best example of the Indian State for having Uniform
Civil Code as it has a common family law throughout the state.
In the case of Jose Paul Countinho Vs Maria Luiza Valentina
Court held that the property whether it is being held inside Goa or outside the
territory of Goa it should be governed by the civil code of Goa.
The Supreme Court further held that the Portuguese Civil Code being a special
Act, applicable only to the domiciles of Goa, will be applicable to the Goan
domiciles in respect to all the properties wherever they be situated in India
whether within Goa or outside Goa and Section 5 of the Indian Succession Act or
the laws of succession would not be applicable to such Goa domiciles.
Thus Uniform Civil Code is applicable and give rights to all the people in the
territory to follow a particular law which the country imposes and it shall be
followed by all religion without any bias. Therefore, Uniform Civil Code is an
obligation to be followed by all the citizens of the country.
The society as well as Indian legislation attempt to safeguard the institution
of marriage. Indian society is of patriarchal in nature. There is a strict
gender role where woman play a passive role and husband, an active role.
Societal norms are powerful and generally override the legislative provisions in
The object of marriage is begetting children for their parental satisfaction.
Family and the society are interrelated to each other. If, the family develops,
the society and country prosper. The basic unit of the society is receiving
major shocks in the name of live in relationship and same sex couples by the
The concept of live in relationship is not illegal in the eyes of law even it is
immoral by the society. The Supreme Court said that live in relationship was
earlier considered as a taboo but now it is an acceptable norm in the society
and therefore it is not a prohibited relationship.
Same sex marriage is controversial and divisive because it is not about
legalizing such concepts will confer legal and financial benefits upon them.
Learning about the changes of sexual orientation and developing an appreciation
of the differences in that field will help to deepen understanding of others,
changes attitudes of people and in the end, make life better for people of all
- Hari Bharadhwaj - Bcom Llb(Hons.) Sastra University Thanjavur. &
- Aparna S - Bcom Llb(Hons.) Sastra University Thanjavur.