Reform of Family Law

MARRIAGE AND DIVORCE

Marriage and divorce have had a disproportionate

share in public debate among all matters of family
law. Marriage is frequently theorised as the
foundation of a family, and family the foundation
of society. The glorification of marriage sometimes
also means that there are arguments made for
non-interference in personal matters, however,
discrimination and even violence in intimate
relationships cannot be overlooked on pretext of
privacy.
There are significantly different attitudes towards
how a union between two people is imagined.
While in Hindu law, marriage is a sacrament, in
Christian law, divorce continues to be stigmatised;
in Muslim law, marriage is a contract and Parsi law
registration of marriage is central to the ritual of
marriage. It is important that these different
attitudes are respected and not placed in
hierarchy, pitting one religious attitude against
another. At the same time marriage cannot be
defined in religious terms alone, and religiously
inspired gender roles and stereotypes cannot be
allowed to come in the way of women‘s rights.
For instance, the relatively easier procedure of
divorce under Islamic law for men and women is
also reflected in the relatively open attitudes
towards remarriage of divorced and widowed
women, a right that most Hindu women achieved
through legislation. However, once the legislation
was in place, Hindu law evolved through a series of
piecemeal legislative interventions on recognition
of women as coparceners in 2005, recognition of
diverse customs within the Hindu Marriage Act
(Madras Amendment) 1967 incorporating priest-
less marriages among many others. Amendments
to Christian marriage and divorce laws in 2001, and
Hindu Adoption and Maintenance Act,1956 and
Guardians and Wards Act, 1890, in 2010 are also
examples of how once codified, personal laws can
be opened up for further public debates and
scrutiny. Thus, history shows that amendments to
codify personal laws is not only a tried and tested
way of bringing targeted social legislation but also
of developing jurisprudence on family laws.
Through codification of different personal laws,
one can arrive at certain universal principles that
prioritise equity rather than imposition of a
uniform code in procedure which can also
discourage many from using the law altogether
given that matters of marriage and divorce can also
be settled extra judicially. Thus, there are certain
universal principles with regard to adultery, age of
consent, grounds for divorce et al that can be
integrated into all existing statutory provision on
marriage and divorce under personal and civil laws,
while the procedure for divorce, and grounds for
divorce may vary between communities the
Commission will address the difference in grounds
of divorce available to men and women within the
same community.
GENERAL CHANGES APPLICABLE TO MARRIAGE
AND DIVORCE LAWS:
Adultery:
The First Law Commission (1834) under
Thomas Macaulay while drafting Indian Penal Code
did not include adultery as a criminal offence and
instead kept it under the purview of civil law as a
matrimonial offence. However, the Second Law
Commission, headed by John Romilly,
recommended criminal punishment for the
offence, but given the social conditions of the time,
excluded women from it19.
Section-497 of the Indian Penal Code, 1860
(IPC) makes the offence of adultery as a punishable
offence, only for man without holding woman
responsible. So, far as Jammu and Kashmir is
concerned section 497 of Ranbir Penal Code, 1932
makes the ‗errant wife‘ also an accused along with
her ‗paramour‘.
Adultery‘ remains a ground for divorce under
various family law Acts. Under Christian law before
the 2001 amendment in the Divorce Act, 1869, for
a woman to seek a decree of divorce on grounds of
adultery was insufficient until she also included
‗cruelty‘ as a ground for divorce. However, in 2001
this was amended and both men and women were
given the right to seek divorce on ground of
adultery alone. Further, it also did away with the
provision of ‗compensation for adultery‘ finally
acting on the recommendations of the Law
Commission of India 15th report, ‗Law relating to
Marriage and Divorce amongst Christians in India‘,
(1960). This provision reduced women to chattels,
as adultery was something that could be
compensated for almost as a compensation or
‗damages‘ to property.
Under Muslim law adultery is not recognised
as a ground for divorce unless it is committed with
‗women of evil repute or leads an infamous life‘,
which is included under ‗cruelty‘. The Dissolution
of Muslim Marriage Act, 1939, also requires
amendment to explicitly include adultery as a
ground for divorce for both spouses. Bigamy is
dealt with separately later in this chapter.
Under Section 32(d) of the Parsi Marriage and
Divorce Act, 1936 a person can file an application
of divorce if the defendant, after marriage has
committed the offence of adultery, fornication
bigamy, rape or an unnatural offence. However,
this ground of divorce is available only when the
other spouse files the application within two years
of discovery of the fact.
Thus, while all family laws include adultery as a
ground for divorce it is important to ensure that
the provision is accessible to both spouses. There
have been multiple attempts by women‘s
organisations, NGOs to reduce the offence of
adultery from criminal to matrimonial, but the
provision has been preserved in the statute books,
ironically, on the argument that it is ‗pro-women‘.
The Malimath Committee, which suggested that
the offence of adultery should indeed be made
gender-neutral, but it should remain punishable by
two years was opposed by the National
Commission of Women in 2007. The Report on
Status of Women 2015 recommended a wholesale
removal of this provision.
The Indian Penal Code (Amendment) Bill 1972,
suggested for removing the special privilege
guaranteed to woman under section 497, IPC but
the Bill lapsed and could not be carried out. The
validity of the provision has been challenged
several times on the ground of discrimination, as
the woman indulging in adultery is not an accused.
However, the Supreme Court has consistently
upheld its validity in Yusuf Abdul Aziz v. State of
Bombay20; Sowmithri Vishnu v. Union of India21 ;
V Revathi v. Union of India22.
In Hirachand Srinivas Managaonkar v.
Sunanda23 the Supreme Court observed that living
in adultery on the part of husband is a ‗continuing
matrimonial offence‘ and the said offence is not
wiped out even on passing of decree of judicial
separation, as the same merely suspends certain
obligation of spouse in connection with their
marriage and does not snap matrimonial tie.
In Joseph Shine v. Union of India24 the Supreme
Court, while referring the matter to Constitutional
Bench, observed:
―The provision (Section 497) really creates a dent
in the individual independent identity of a woman
when the emphasis is laid on the connivance or

20 AIR 1954 SC 321

21 AIR 1985 SC 1618
22 AIR 1988 SC 835
23 AIR 2001 SC 1285
24 (2018) 2 SCC 189

consent of the husband. This tantamounts to

subordination of a woman where the Constitution
confers (women) equal status,‖
By presuming, that only women can be victims, the
law takes a patronising attitude towards women.
The prosecution under section 497 entirely
contingent on the husband's word to the extent
that a woman can practically enter into an
adulterous relationship upon her husband‘s
consent, thereby reducing her to a commodity of a
man.25
In the course of the correspondence between the
Ministry of Law and Justice and the Law
Commission, the Commission was assigned the
task of undertaking a study on the provision of
adultery within its report. As the judgment of the
Constitution Bench in Joseph Shine v. Union of
India is awaited, (hearing stood concluded) it is not
appropriate for the Commission to make any
suggestion in this regard at this stage but it urges a
consideration about the utility or the lack there of,
of a provision such as 497 IPC.
Compulsory Registration of Marriages:

The 270th report of the Law Commission of India

on Compulsory Registration of Marriages (2017)
states:
Since independence, numerous initiatives have
been taken to address the issue of gender
inequality. Reform initiatives taken so far have
succeeded to a large extent, however, child
marriages, bigamy and gender violence continue to
persist in our society, despite legislations
prohibiting and penalising such practices. Several
disputes are pending before the courts regarding
matrimonial status of the parties. Women are
often denied the status of wife due to absence of
record proving a valid marriage. The courts have
time and again emphasised on making registration
of marriage compulsory, to prevent denial of status
to women and to children born out of wedlock.
Instances of marriage fraud have also come to light
in recent times. In the absence of compulsory
registration, women are duped into marrying
without performance of the conditions of a valid
marriage. This deprives women of societal
recognition and legal security. Such fraudulent
marriages are especially on rise among non-
resident Indians. Compulsory registration can
serve as a means to ensure that conditions of a
valid marriage have been performed.
From the Supreme Court‘s reference in Seema v.
Ashwini Kumar26, to repeated attempts by
National Commission for Women (NCW) to
Convention on Elimination of All Forms of
Discrimination Against (CEDAW) women have
repeatedly argued that registration of marriages
would go a long way in addressing discrimination
towards women and children. The problem of
different ages of consent provided under various
personal laws and repeated violation of the
Prevention of Child Marriages Bill has created a
situation that needs immediate attention. The
Law Commission‘s 270th Report ‗The
Compulsory Registration of Marriages‘ (2017)
recommended that the Registration of Births and
Deaths Act be amended to include marriages. The
report further clarified that:
Once enacted, the amended law would enable
better implementation of many other civil as well
as criminal laws. It would provide citizens, not new
rights but better enforcement of existing rights
under various family laws that grant and provide to
protect many rights of spouses within a marriage.
Registration of a marriage under any of the
prevailing marriage Acts e.g. the Indian Christian
Marriages Act. 1872; the Kazis Act, 1880; the
Anand Marriage Act, 1909; the Parsi Marriage and
Divorce Act, 1936; the Sharia Application Act,
1937; Special Marriage Act, 1954; Hindu Marriage
Act, 1955; any other custom or personal law
relating to marriage will be acceptable and a
separate standalone legislation may not be
required so long as an amendment is made to the
Births, Deaths Registration Act to include
Marriages…..

26 (2006) SCC 578

The details of how this procedure will address the
various anomalies in the law have been explained
in the 270th report (2017) and it is suggested that
the report be read along with this report on family
law reforms. However, in the absence of a clear
status for child marriages - be it void, voidable or
valid – the required age for registration of is a
question that needs to be decided separately.
Age of Consent For Marriage:
 A uniform age of consent between all citizens
of marriage warrants a separate conversation from
a discussion about prevention of child marriages
for the simple reason that maintaining the
difference of eighteen years for girls and twenty-
one years of age for boys simply contributes to the
stereotype that wives must be younger than their
husbands.27

If a universal age for majority is recognised, and

that grants all citizens the right to choose their
governments, surely, they must then be also
considered capable of choosing their spouses. For
equality in the true sense, the insistence on
recognising different ages of marriage between
consenting adults must be abolished. The age of
majority must be recognised uniformly as the legal
age for marriage for men and women alike as is
determined by the Indian Majority Act, 1875, i.e.
eighteen years of age. The difference in age for
husband and wife has no basis in law as spouses
entering into a marriage are by all means equals
and their partnership must also be of that between
equals.

27Response submitted by Anoop Baranwal and his

group, ‗Uniform civil code‘, to the Commission.

The Criminal Law (Amendment) Act 2013 now

deems any intercourse under the age of eighteen
years as rape. The law in such cases needs to duly
consider whether criminalising all intercourse,
even between the ages of sixteen-eighteen after
2013 amendment may also have the consequence
of criminalising consensual intercourse. The end
goal of any legislative endeavour for
empowerment of women or gender justice should
prioritise autonomy of women.
In Independent Thought v. Union of India28, the
Supreme Court read down Exception 2 to Section
375 of IPC that allowed the husband of a girl child
— between fifteen and eighteen years of age the
right to have intercourse with her. The Supreme
Court dealt specifically with the exception dealing
with married girls aged between fifteen to
eighteen.29 The Court rightly held that a child
remains a child regardless of whether she is
married or unmarried and therefore intercourse
with a minor would be rape regardless of her
marital status.
A large number of judicial pronouncements
recognise persons under the age of eighteen as
‗children‘. To argue that marital status of a woman
under eighteen years of age would have a bearing
on a criminal offence such as rape would amount
to holding a difference between underage women
without ‗distinction‘.
The current interlaced legislative system often
leaves unanswered gaps where in the absence of
pronounced court orders, several cases seem to
fall astray. Section 5(iii) of the Hindu Marriage Act,
1955 (the Act 1955) and section 2(a) of the
Prohibition of Child Marriage Act, 2006 (PCMA)
prescribes eighteen years as the minimum age for
the bride and twenty-one years as the minimum
age for the
28 AIR 2017 SC 4904
29 The law as it stands does not delve into whether
consent of married women is significant to sexual
intercourse between the partners.

groom. Hindu law recognises the marriage

between a sixteen-year-old girl and eighteen-year-
old boy as valid, but voidable. Muslim Law in India
recognizes marriage of minor who has attained
puberty as valid.
The Special Marriage Act, 1954 (the SMA 1954)
also prescribes eighteen years and twenty-one
years as the legal minimum for women and men
respectively. However, under section 11 and 12 of
the Act, 1955 marriages where one or more parties
do not meet the legal minimum age are neither
void nor voidable and merely liable to pay fine.
Section 3 of the PCMA deems a marriage where
one or more parties are minor as voidable at the
option of the minor. The laws on guardianship are
clear, the husband will be the guardian of his
wife30 minor or major. The issue also becomes
relevant if the husband of the minor girl himself is
a minor. The question then arises that when it
comes to compulsory registration of marriage
should the law encourage this tacit compliance of
child marriage by allowing these
―valid marriages‖ under various personal laws to
get registered, or should the law not register these
marriages which may amount to turning a blind
eye allowing the activity continue unregulated. The
Delhi High Court emphasized need for compulsory
registration of marriage:
―… registration of marriages has still not been
made compulsory. Compulsory registration
mandates that the age of the girl and the boy
getting married have to be mentioned. If
implemented properly, it would discourage
parents from marrying off their minor children
since a written document of their ages would
prove the illegality of such marriages. This would
probably be able to tackle the sensitive issue of
minor marriages upheld by personal laws.‖31
As of now, under the Dowry Prohibition Act, 1961,
in a marriage between minors the bride‘s stridhan
lies with her father in

30 See, Section 21 of The Guardians and Wards Act,

1890; section 6 (iii) of Hindu Minority and Custody
Act, 1956.
31 2012 (6) AD (Delhi) 465

law and husband who stand as trustees till she

attains the age of majority. Though the law wishes
to exterminate underage marriages, such
marriages remain a harsh reality in India and
therefore a conversation about ‗trustee‘ of
stridhan needs to be had so that women are not
denied their access to stridhan once they attain
majority, regardless of the success achieved in
preventing child marriages.
Further, Medical Termination of Pregnancy
Act, 1972, section 3 provides that at the time of
termination of pregnancy if the wife is a minor
consent of the husband is required. However, on
occasion that the husband himself is a minor, the
consent stands vitiated. Thus, all these laws
operate on the belief that child marriage is a reality
in India and till the time such marriages are
common the existing laws must be updated so as
to not contradict other existing laws.
Grounds for Divorce
The Law Commission in its 71st Report ‗Hindu
Marriage Act, 1955‘ (1978), dealt with the concept
of irretrievable breakdown of marriage in
substantial detail. The report mentions that in as
far back as 1920, New Zealand was the first of the
Commonwealth countries to introduce the
provision that a three-year or more separation
agreement was ground for filing a petition in the
courts for divorce. In 1921, in the first case of the
granting of divorce on these grounds in New
Zealand, the court laid down that when
matrimonial relations have, in fact, ceased to exist
it is not in the interest of the parties or in the
interest of the public to keep a man and woman
bound as husband and wife in law. In the event of
such a separation, the essential purpose of
marriage is frustrated and its further continuance
is not merely useless but mischievous. This
formulation has become a classic enunciation of
the breakdown principle in matrimonial law.
The Law Commission in the 1978 report observed
that restricting divorce to matrimonial disability
results in an injustice in cases where neither party
is at fault, or if the fault is of such a nature that the
parties do not wish to divulge it and yet the
marriage cannot be worked out. It refers to a
situation where the emotional and other bonds,
which are the essence of marriage, have
disappeared and only a façade remains. This
commission echoes the suggestion that where a
marriage has ceased to exist both in substance and
in reality, divorce should be seen as a solution
rather than a taboo. Such a divorce should be
concerned with bringing the parties and the
children to terms with the new situation and
working out a satisfactory basis for regulating
relationships in the changed circumstances. Not to
dwell on the ‗wrongs‘ of the past.
In the case of Naveen Kohli v.Neelu Kohli32, the
Supreme Court held that situations causing misery
should not be allowed to continue indefinitely, and
that the dissolution of a marriage that could not be
salvaged was in the interest of all concerned. The
court concluded that the husband was being
mentally, physically and financially harassed by his
wife. It held that both husband and wife had
allegations of character assassination against them
but had failed to prove these allegations. The court
observed that although efforts had been made
towards an amicable settlement there was no
cordiality left between the parties and, therefore,
no possibility of reconnecting the chain of marital
life between the parties.
Much is spoken about the misuse of section
498A of IPC, 1860. Simplifying the procedure for
divorce would discourage lawyers from invoking
section 498A as a means to secure a quick exit.
Very often, women wanted to exit a difficult
marriage are encouraged to use section 498A as a
way to expedite divorce proceedings. While
registering a police complaint, sections 498A and
377 IPC are used by
32 AIR 2006 SC 1675

women only because of the prevailing marital rape

exception. It is therefore important to take into
account the reasons why certain provisions are
overused and acknowledge that often this happens
because of the lack of other provisions in the law
to address the specific nature of grievances.
After Arnesh Kumar v.State of Bihar,33 there are
strict guidelines to ensure that there are no
frivolous complaints under section 498A IPC.
However, the problem of its overuse can only be
truly addressed by understanding what is the exact
nature of grievance that underlies the complaint.
Simplifying divorce procedures will ensure that
unhappy couples can exit their marriage rather
than resorting to criminal law provisions only to
separate.
In a recent judgement the Court has reiterated that
in cases of mutual consent the period of cooling off
could be waived in certain circumstances. The
Court in Amardeep Singh v Harveen Kaur34 stated:
Since we are of the view that the period mentioned
in Section 13B(2) is not mandatory but directory, it
will be open to the Court to exercise its discretion
in the facts and circumstances of each case where
there is no possibility of parties resuming
cohabitation and there are chances of alternative
rehabilitation.
Encouraging a simplified procedure for divorce
is imperative for sustaining a healthy perception of
marriage which is free of any discrimination or
violence. Simplifying the procedure for couples
where no reconciliation is possible would also be
beneficial in curbing the false allegations against
parties, which are often made in order to hasten
the process of divorce. Lengthy procedures
incentivise the use

33 AIR 2014 SC 2756

34 AIR 2017 SC 4417

of severe grounds such as cruelty and adultery

rather in order to secure a divorce which may have
been prompted merely by inability of the partners
to find mental, emotional or physical compatibility.
Lastly, given that matrimonial suits take years to
conclude often results in individuals spending a
substantial part of their lives fighting in courts
whereas they could give their lives a second chance
if the divorce is amicably concluded35. Further, the
children of such wedlock would also not be caught
up in the whole process.
The Marriage Laws (Amendment) Bill, 2010,
proposed that under the HMA 1955 and the SMA
1954 there should be a ground of irretrievable
breakdown of marriage for divorce, provided that
the wife has a right to oppose such petition on the
grounds of grave financial hardship. The
maintenance of child(ren) born out of the marriage
should be consistent with the financial capacity of
the parties to the marriage. The Bill also provides
that after filling for divorce by mutual consent, the
six months waiting period should be done away
with. The Bill for Irretrievable Breakdown of
Marriage was introduced in Parliament in 2013
addressing many of the problems of the 2010 bill.
However, due to the reasons explained in next
part, it lapsed.
Community of Property upon Divorce and
Maintenance
The Bill for Irretrievable Breakdown of Marriage of
2013 lapsed and faced criticism over the fact that
while allowing for immediate and unilateral
divorce left women in a particularly vulnerable
position. To address this there needs to be a robust
doctrine for recognising the community of
property of all self acquired

35 It is important that we address the problem of

violence- physical, mental, economic in a marriage
to address the larger problem of young people
growing up with the notion that such violence is
normal to a marriage. Normalisation of male
aggression and emphasis on hyper-masculinity is
as harmful for boys as it is for girls. Introducing
irretrievable breakdown of marriage as a ground
for divorce will safeguard children from being
caught in long drawn court proceedings over a
divorce which often necessitate the levying of
grave accusations on both parties in order to
secure divorce.
property, acquired after marriage. All property
acquired after marriage of either spouse be
treated as a unit between the couple. It is often
women, who compromise on careers in order to
support families, they also contribute in most
households in India to a major share of housework
which is never calculated in monetary terms. The
society inadequately values housework and further
for working women, childbearing results in a career
break which affects their employment in a way that
it does not affect their husband‘s career.
Therefore, it is important that regardless of
whether the wife ‗financially‘ or
‗monetarily‘ contributes to the family income, her
contribution to a household in terms of household
labour, home management, and child bearing and
care should entitle her to an equal share in a
marriage and thus all property for income gained
after marriage should be divided equally upon
divorce. This does not mean that inherited
property will also be included in this division but its
value can be taken in to account by the court for
determining maintenance and alimony.
The idea is not a novel one, nor is it new to
India. In 1938 there was a report called ‗Women‘s
Role in Political Economy‘ which discussed
women‘s contribution to a household in
substantial detail and argued for its calculation in
economic/ monetary terms.36
Under the United Kingdom law in the case of
White v White37, the courts rely on the principle
of equality of division to both parties, ensuring
they receive their rightful share of the matrimonial
property on divorce or dissolution of partnership.
Lord Nicholls had stated
―there should be no bias in favour of the money-
earner and against the home-maker and child-
carer‖.38
36 Banerjee, Nirmala. "Whatever happened to the
dreams of modernity? The Nehruvian era and
woman's position." Economic and Political Weekly
(1998): WS2- WS7.
37 (2000)UKHL 54
38 Ibid.
However, this principle does not automatically
translate to an ‗absolute‘ equal split of property at
the end of the relationship, both the Court as well
as the legislature recognises that in a number of
cases such a yardstick may bring an unfair burden
to one of the parties.
Thus, it is important to retain the discretion of the
Court in such cases but the availability of a ‗no
fault divorce‘ must accompany community of self-
acquired property. The Hindu Marriage Act, 1955,
Special Marriage Act, 1954, the Parsi Marriage and
Divorce Act, 1936, the Dissolution of Muslim
Marriages Act, 1939 can be amended to reflect
this.
Rights of Differently-Abled Persons in Marriage:
 The Personal Laws (Amendment) Bill, 2018,
proposes to amend the Christian Divorce Act,
1869, Section10 (iv); the Dissolution of Muslim
Marriages Act, 1939, Section 2 (vi); the Hindu
Marriage Act, 1955, Section 13 (iv) the Special
Marriage Act, 1954 Section 27 (g) and the Hindu
Adoptions and Maintenance Act, 1956, Section 18
(2)(c) to remove leprosy as a ground for seeking
divorce or as a ground to deny maintenance. Not
only the disease is now curable but it is also
common, and maintaining such a provision
amounts to discrimination against individuals
suffering from this condition.
Leprosy, however, is one in many ways that the
laws may intentionally or unintentionally
discriminate against persons with disability. There
have been multiple occasions on which a parent
with disability is unable to negotiate custody of
children. A submission made by The Equals Centre
for Promotion of Social Justice offers fine
comparative review of how various countries have
systematically moved towards incorporating
provisions that end discrimination towards
persons who are differently abled. Further, India
having

ratified the UN Convention on the Rights of

Persons with Disabilities in 2007 is also obligated to
respect, protect and fulfil the rights of persons with
disabilities:
Respect: Refrain from interfering with
the enjoyment of the right
Protect: Prevent others from interfering with the
enjoyment of a right
Fulfil: Adopt appropriate measures towards full
realization of the right
This is particularly important given that mental
health is inadequately addressed in our country,
and therefore despite no law specifically
preventing the access of persons with disability to
a marital or familial life, they continue to be in a
disadvantaged position, for example:
1. Persons with visual impairments cannot read
the documents associated with the execution of
personal laws;
2. Persons with speech and hearing impairments
cannot communicate with authorities and officials;
3. In general, attitudinal barriers portray women
with disabilities as inferior and often leads to
situations where they are married to men who are
already married and are made to provide childcare
and other domestic work, with no rights as a
―second wife‖.
4. Persons with disabilities, particularly women,
are denied inheritance either directly (excluded
from Wills) or indirectly (not given their share of
the property);

5. Women with disability are subjected to non-

consensual sterilization by their families or by the
institutions that they are residing in.
6. Women with intellectual, developmental and
psychosocial disability (mental illness) who fall
pregnant have their pregnancies terminated on the
grounds that they cannot take care of their
children or a fear that the disability will pass on.39
Thus, in order to move towards a more inclusive
framework of rights, the general reference to
terms such as ‗unsound mind‘, ‗lunacy‘, ‗mental
disorder‘, need to be broken down and analysed
further.
The explanations under section 13 (1) (iii) of the
Act, 1955 and in section 32 (bb) in Parsi Marriage
and Divorce Act,1936 needs to be opened up such
that each definition can be narrowed to exclude
forms of illnesses that can be cured or controlled
with adequate medical treatment or counselling.
Presumption of Marriage for Cohabiting Couples:

The law is well settled on the question of

presumption of marriage for couples cohabiting. In
Bharatha Matha & Anr. v. R. Vijaya Renganathan &
Ors.,40 this was affirmed relying upon a large
number of precedents.
The issue of maintenance, therefore, is also settled
given as the claim for maintenance of wife or
presumed wife will be identical.
40 AIR 2010 SC 2685.

is also urged that a greater study be initiated into

rights of all persons who are cohabiting as a
conjugal unit.41
HINDU LAW

The Hindu Marriage Act, 1955 brought with it some

significant reforms, but remained far from
satisfactory. Reform of Hindu law which has
historically been celebrated as a watershed
moment, has in the recent decades also been
viewed with a critical lens, which highlighted that
codification of Hindu law in essence was a
codification of North Indian upper caste
morality.42
In the subsequent decades the law saw a number
of amendments where the law was forced to
incorporate customs and other forms of
solemnisation of marriages that did not necessarily
entail ‗saptapadi‘ or other Brahmanical norms. For
instance, the Hindu Marriage (Madras Amendment
Act), 1967 enabled couples married under
Suramariathai customs of a priest-less marriage to
register their marriage under the Act, 1955.43
Thus, the significance of the Act, 1955 lay in the
fact that it made religious customs and practices
amendable, and these practices, in order to prevail
had to meet the test of constitutionality.
Despite codification, there remained areas where
inequality between men and women continued
that these practices if tested against the
fundamental rights under the constitution may not
hold

41 At a later stage the possibility of a civil

partnership must be assessed. It needs to be
debated alongside the moves to enact a
‗transgender bill‘. The broader definitions of
‗man‘ and ‗woman‘ that the law now
presumes, should now imply that matrimonial
rights must also be accessible all persons inhabiting
these legal definitions. We urge deeper
consultation with the LGBTQI communities to take
this conversation forward.
42 Som, Reba. "Jawaharlal Nehru and the Hindu
Code: A Victory of Symbol over Substance?."
Modern Asian Studies 28, no. 1 (1994): 165-194.
Sinha, Chitra. Debating Patriarchy: The Hindu Code
Bill Controversy in India (1941-1956). Oxford
University Press, 2012. Newbigin, Eleanor. "The
Hindu Code Bill and the making of the modern
Indian state." PhD diss., University of Cambridge,
2008.
43 Anandhi, S. "Women's Question in the Dravidian
Movement c. 1925-1948." Social Scientist (1991):
24-41.

good. Slowly but surely through legislative

attempts to codify fair and acceptable laws to
govern marriage, and Supreme Court‘s attempt to
nullify the unfair traditions and the civil society
movement‘s tireless campaign in highlighting the
problems in personal laws, India is now taking
small steps towards creating a more egalitarian
society.

Nowhere in the Hindu texts does one find

support for practices such as Maitri Karaar or
Draupadi-vivah, yet these practices prevail as
‗customs‘. Before the codification of Hindu law in
1950s there were a number of prevailing provincial
legislations governing marriage and divorce among
Hindus. With challenges to statutes such as
Prevention of Hindu Bigamous Marriage Act, 1946,
there emerged cases that not only informed, but
also in many ways defined the boundaries of
personal law and had a significant bearing on the
relationship between religion and the state. In
State of Bombay v. Narasu Appa Mali44 the Court
laid the ground for the degree to which the State
could intervene in religious practices under
religious
‗personal law‘. The Bombay High Court concluded:
A sharp distinction must be drawn between
religious faith and belief and religious practices.
What the State protects is religious faith and belief.
If religious practices run counter to public order,
morality, health or a policy of social welfare upon
which the State has embarked, then the religious
practices must give way before the good of the
people of the State as a whole.
While the intervention was worded largely as
‗social reform‘, the court also clarified that there
was a distinction between religious faith and
religious practice. While the former warranted
protection by the State, the latter had to face the
constitutional test. What practice qualified as
reform-worthy or worth preserving often
depended on whether it entailed a ‗criminal‘
offence or not.

44 AIR 1952Bom 84

However, the boundary between ‗civil‘ and

‗criminal‘ law is a porous one and what would
constitute ‗criminal‘ at a particular point in history
could be revisited in the course of time. For
instance, the condemned practices such as dowry
were ‗criminalised‘ over time. Therefore, in
Narasu Appa Mali the Court took the view that the
regulation if not a total banning of bigamy among
Hindus was in line with the social, political and
even economic demands of the time. Therefore,
concluding that such an intervention finds its basis
in democratic social movements.

Even though there remains substantial controversy

over whether the judgment of Narasu Appa Mali is
binding in its conclusion that personal laws cannot
necessarily be tested against fundamental rights
guaranteed in the Constitution because there is
uncertainty about whether personal laws in fact
qualify as ‗laws in force‘. However, the more
persevering legacy of the case should in fact, be
that it categorically held that practices not
‗essential‘ to religion need not be preserved as
personal law of that religion, as bigamy was held to
be not ‗essential‘ to Hinduism.
 However, soon after Narasu Appa Mali, the
Hindu Marriage Act, 1955, abolished bigamy
among Hindus. Six different legislations were
passed by Parliament between the years 1954 and
1956, which codified Hindu family law, and also the
Special Marriage Act, 1954 to govern cross-
community marriages. Polygamy was banned and
divorce was introduced and women‘s right to
inherit property was also supported. The
significant achievement of codification of family
law was that despite the imperfect nature of the
legislation,45 once written in the form of statutes
the Hindu law Acts served to open up new public
discussions and debates on various aspects of
religion and the

45 Agnes, Flavia. "Hindu men, monogamy and

uniform civil code." Economic and Political Weekly
(1995): 3238-3244.
ways in which these could be
contradicted or reconciled with
constitutional provisions and in particular with
Fundamental Rights.
Repudiation of marriage:

The 1955 Act has seen a number of amendments

since its enactment. However, one particular
provision has escaped amendment even as it
contradicts the Prohibition of Child Marriage Act,
2006 (PCMA). Section 13(2) (iv) of the Act, 1955
provides that a girl given in the marriage before the
age of fifteen years, has an option to repudiate the
marriage after attaining fifteen years of age but
before she is of eighteen years of age.
Under PCMA, however, the window for
repudiation of a child marriage is not limited to
fifteen-eighteen years of age. Section 3(3) provides
that either party, who was given in the marriage
before attaining the age of eighteen years, can
repudiate the marriage. The party also has a span
of two years, after eighteen years of age, to avail
this remedy.
Restitution of Conjugal Rights:

Section 9 of the HMA 1955, provides for the

restitution of conjugal right. While hearing the
petition of divorce the Bombay High Court even
suggested that women ‗should be like Sita‘ and
follow their husbands everywhere46. In the
current context when a number of women are as
educated as men are and are contributing to their
family income, the provision of restitution of
conjugal rights should not be permitted to take
away these hard-earned freedoms. In Suman
Kapur v.Sudhir Kapoor47 the Supreme Court cited
women‘s focus on their careers as ‗neglect‘ of
their household responsibilities. If women

46 See,
https://timesofindia.indiatimes.com/city/mu
mbai/A-wife-should-be-like- goddess-Sita-
Bombay-HC/articleshow/13054421.cms;
http://www.womensviewsonnews.org/2012/05/b
ombay-high-court-judge-tells- woman-to-be-like-
sita/
47 AIR 2009 SC 589

are given equal opportunity to study it should be

presumed that they will seek equal opportunity to
advance their careers and as a corollary, men
should not just cooperate but contribute actively
towards household activities and responsibilities
such as management of household, childcare and
equal partners in marriage, rather than misusing
the provision of restitution of conjugal rights to
force their wives to cohabit.

In Bhikaji vs. Rukhmabai, 1885 Rukhmabai a

physicist, had refused to cohabit with the man she
was married to in her childhood. Justice Pinhey
observed that English law would not apply in this
case because it presumed that a marriage would
have been solemnised between two consenting
adults and so far as Hindu law was concerned,
there was no precedent for forcing cohabitation.
While the appeal to the decision was allowed in the
re-trial, restitution of conjugal rights remains a
colonial inheritance which finds no precedent in
Hindu law before it was codified under the HMA.48

In T Sareetha v.Venkatasubiah49 the Andhra High

Court had struck down Section 9 of the HMA 1955
but this view was disapproved by the Supreme
Court in Saroj Rani v.Sudarshan Kumar Chaddha50.
The conjugal relations in a marriage are indeed
significant, and are well safeguarded under
‗grounds available for divorce‘ and the forced
nature of cohabitation must be discouraged
socially and also reflected in the law. The Madras
High Court in NR Radhakrishna v. Dhanalakshmi51
and the Delhi High Court in Swaraj Garg v. RM
Garg52 also agreed that in the modern day, it
cannot be presumed that wifely duty is fulfilled by
following their husbands everywhere and it is an
unreasonable ask.

48 Ee also, Sarkar, Tanika. "Rhetoric against age of

consent: Resisting colonial reason and death of a
child-wife." Economic and Political Weekly (1993):
1869-1878. 49 AIR 1983 AP 356
50 AIR 1984 SC1562
51 (1975) 88 LW 373
52 ILR(1979)1 Del 41

The Report by High Level Committee on Status of

Women, Ministry of Women and Child
Development in 2015 had also recommended that
restitution of conjugal rights had no relevance in
independent India and the existing matrimonial
laws already protects conjugal relations, as denial
of consummation is recognised as ground for
divorce.53 The report, under the leadership of Pam
Rajput highlighted the fact that this provision was
only being used to defeat maintenance claims filed
by wives and served little purpose otherwise. The
Commission echoes the recommendation of the
Committee in this regard and suggests the deletion
of section 9 from the Act, 1955, section 22 of the
SMA,1954, and section 32 of Indian Divorce Act,
1869.
Bigamy upon Conversion
Anthropological evidence has shown that
bigamous arrangements among Hindus continue
to exist and have local recognition despite their
being a law against it. In fact, data suggests that
many Hindus convert to Islam in order to practice
bigamy as highlighted by the Sarla Mudgal v.Union
of India54 in 1994. Such conversion takes place
despite there being clarity on the fact that another
marriage of a spouse by conversion would not be
considered valid if the previous partner of the
spouse continues to remain of the religion under
which the marriage was solemnised.
The Law Commission 18th Report ‗Converts‘
Marriage Dissolution Act, 1866‘ (1961) had dealt
with rights of spouses in the case of conversion in
substantial detail. The report had clarified that
conversion from a monogamous religious to a
polygamous one did not by itself dissolve the
marriage. This however needs to be clarified by
53 The Report by High Level Committee on Status
of Women, Ministry of Women and Child
Development 2015. Chaired by Pam Rajput.
54 AIR 1995 SC 1531

statute rather than on a case to case basis. The Law

Commission‘s 227th Report Preventing Bigamy via
Conversion to Islam – A Proposal for giving
Statutory Effect to Supreme Court Rulings (2009)
had exclusively dealt with the subject of bigamy by
conversion. The existing law on bigamy, section
494 Indian Penal Code (IPC) provides that a person
shall be punished with the imprisonment, which
may be extend to seven years, if he/she marries
during the lifetime of their spouse.

This also carved out the exception where marriage

with such husband or wife has been declared void
by a court of competent jurisdiction, or falls within
the ambit of sections 107-108 of the Evidence Act
of 1872, i.e. that the husband or the wife has not
been heard of for seven years. Section 495 IPC,
further provides that if the offence of bigamy is
committed by not disclosing the fact of former
marriage, to the person with whom the
subsequent marriage is contracted, it shall be
punished with imprisonment which may be extend
to ten years and fine. With regard to this the
recommendation of the Committee on Status of
Women, Ministry of Women and Child
Development (2015) are very relevant, as it
recommended making such marriages void.

The report further highlighted that often women

tend to be on the receiving end of a society‘s
disapproval of bigamy. Often the second wife
whose marriage is declared void suffers without
maintenance and bears the burden of maintaining
her children who are deemed illegitimate.
Therefore, the report further recommended that,

―Section 16 should be amended to include all

children born out of wedlock and not just those
from void and voidable marriages. Further the
term ‗illegitimate‘ should not be used in any
statute or document.‖
Thus, the Law Commission reiterates the
recommendations of the previous reports55 and
urges swift legislative action on clarifying a
precedent that has repeatedly been upheld by the
courts.
SIKH LAW:
There has been a long-standing demand for
registering marriages under the Anand Marriage
Act, 1909 (the Act 1909), for Sikh couples, who do
not wish to use the provisions of the HMA 1955.
This was enabled in a limited way by the
Government of Delhi and Sikh marriages can now
be registered under the Act, 1909 instead of the
Act, 1955.56 After the 2012 Amendment it is no
longer necessary to register the marriage under
Registration of Births Deaths and Marriages Act of
1969, however in this respect the Law Commission
of India‘s recommendations in 270th Report
‗Compulsory Registration of Marriage‘ (2017)
must apply.
On March 15th 2018 in Pakistan, the Punjab
government enacted the Punjab Anand Karaj
Marriage Act, 2018. Under the Act all marriages
between Sikhs should be registered as Sikh
Marriages, it also laid down definition of who was
recognised as ‗Sikh‘ and that Guru Granth Sahib be
recognised as the last and eternal-living guru.
Under this Act, they provide for an arbitration
council which the couple can approach for seeking
Dissolution of Marriage. The council first takes the
necessary steps towards facilitating reconciliation,
however, if after ninety days the dispute is not
resolved the marriage can be dissolved by order of
the Chairperson of the arbitration council.

The Anand Marriage Act, 1909 in India, however,

lacks a provision for divorce and couples therefore
rely provisions of the

55 The 227th Report (2009); the Status of Women,

Ministry of Women and Child Development (2015)
56 L-G gives nod to notify Anand Marriage Act for
Sikhs. Press trust of India, 02-02- 2018.

Hindu Marriage Act, 1955. There has also been a

demand for codifying provisions for a divorce but
no steps have been taken towards creation of a
provision for dissolution of marriage. While the
provisions of the Hindu Marriage Act can be
accessed for seeking divorce, the Commission‘s
suggestions to changes to Hindu Marriage Act,
1955 such as community of property, provision for
a no-fault divorce will therefore also apply to Sikh
marriages.