SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY
Project Report On
A CRITICAL ANALYSIS OF LEGAL EMANCIPATION IN INDIAN
SOCIETY.
Submitted by
OM Shukla & Rajamrit Das
Division: D (BBA.LL.B.), PRN: 21010324085, 21010324099 , Semester: 3
Symbiosis Law School, Hyderabad
In
November 2022
Under the guidance of
Dr. Sunnita Bacchav
Assistant Professor at Symbiosis Law School, Hyderabad.
Table of Contents
PART-I..........................................................................................................................................3
ABSTRACT................................................................................................................................3
INTRODUCTION......................................................................................................................3
RESEARCH OBJECTIVE.........................................................................................................4
RESEARCH QUESTION...........................................................................................................4
LITERATURE REVIEW...........................................................................................................5
PART-II.........................................................................................................................................7
POSITION OF EMANCIPATION LAWS IN INDIA..................................................................7
MINOR EMANCIPATION LAWS IN INDIA............................................................................9
PRAGMANTIC EFECT OF MINOR EMANCIPATION AND LAWS REALTED WITH IT:
..............................................................................................................................................10
NEED FOR EMANCIPATION LAWS IN INDIA.....................................................................11
CONTRASTING SITUATION OF PARENTS WITH REGARD TO LEGAL EMANCIPATION
.................................................................................................................................................13
DIVORCE AS A TYPE OF LEGAL EMANCIPATION...........................................................13
DIVORCE UNDER HINDU LAW........................................................................................14
DIVORCE UNDER MUSLIM LAW.....................................................................................14
DIVORCE UNDER CHRISTIAN LAW................................................................................15
DIVORCE UNDER OTHER SPECIAL LAW.......................................................................15
CONCLUSION............................................................................................................................17
REFERENCES..............................................................................................................................18
PART-I
ABSTRACT
Legal Emancipation is considered a disgrace in the Indian fraternity, be it divorce or a child
legally getting separated from its legitimate/adopted parents. For ages, In India relationship
between two people is considered the divine and purest bonding, especially when it’s a blood
relation. But sometimes, those in that bond can be mentally, physically, and legally distorted and
need reform to start a new beginning. Emancipation is a new concept in the Indian legal and
social system. It is also the need of the hour as there are rapid increases in domestic abuse which
eventually lead to the death of many people.
The research paper will be focused on different type of legal emancipation which includes
emancipation of spouses, children from their parents and vise versa in light of supporting case
and suggestion amid the existing problems.
INTRODUCTION
Emancipation in general sense means separation from an entity. In todays world emancipation
is a common concept in the foreign countries, however this concept is still not introduced in
India. Legal emancipation can be referred as a person not having any legal right over another
person related to them.
Emancipation is however disregarded in the Indian society but it is the need of the hour for
betterment of the society. Emancipation can be between spouses, i.e., divorce which is
different according to different law or between a parent and their child or vise versa or
emancipation of a minor or person from its legal guardian.
Blood Relations are considered as one of the purest forms according to Indian society and most
people refrain from considering emancipation, but in recent times abuse has been increasing
rapidly. Even if a child is suffering through abuse, they still do not have the option to move out
or take a recourse especially when they are minors and the same happens with the people
whose wards harass them during their old age.
The research paper will be upon a few articles to analyze the concept of emancipation and to
form a base for a comparative analysis of the situation of emancipation in India with
developing countries. The research will also place reliance upon a few case laws to understand
the need for emancipation and finally will lay down a few suggestions or methods that can be
adopted till a uniform code of emancipation is made.
Keywords: Family Law, Legal Emancipation , Divorce, Legal Separation, Emancipation Laws.
RESEARCH OBJECTIVE
The primary objective of the study is to examine all the provisions of emancipation laws and
how an individual can use it as a relief and examine the position of emancipation laws in India
with respect to provisions abroad so, the current research focuses on:
a. understanding the meaning, scope and limitations of emancipation laws.
b. understanding how an individual can use legal emancipation as a relief.
c. analysing the position of emancipation laws with respect to other countries.
RESEARCH QUESTION
Following are the questions that are dealt with in this study:
I. What is Legal Emancipation?
II. What is The Scope of Legal Emancipation in India?
III. What is The Comparative Study of Legal Emancipation in India and Abroad?
RESEARCH METHODOLOGY
The current study is based on the guidelines of doctrinal research. Doctrinal research refers to
and studies existing facts, such as laws and statistics. The researchers contend that it is best to
conduct doctrinal research and assess the relevant laws for successful research on the current
topic, as it relies heavily on existing laws and how they interact.
The researchers believe that research techniques should not be limited to analytical and
prescriptive tools but must also include secondary and tertiary empirical material that aids in a
more critical study of the current issue. Consequently, the researchers consider the tools used in
this study to be most appropriate for the issue at hand.
LITERATURE REVIEW
Emancipation being a newer concept doesn’t have a lot of literature with regard to it over the
world very few articles have been written with regard to it. Moreover, before the interpretation of
the literature in context of legal emancipation we need to understand as to why there is a need for
research in the field of family law itself.
To facilitate the understanding the need for research in family law the paper place its reliance
upon “The Need for Research in Family Law”1 by Max Rsheinstein. In this article the author
has talked about the scenario of family law in Europe back in 1850s. The article also talks about
the books by Peck and Madden which is meant for the student to use and also consist of limited
study of statute law acc to Vernier’s comprehensive survey, while rest of the work consists of
practitioner's handbooks, particularly on separation and community property, law review papers
dealing with a variety of issues, and infrequent allusions to legal issues in the large sociology and
social service literature.
1
Rheinstein, Max. “The Need for Research in Family Law.” The University of Chicago Law Review 16, no. 4
(1949): 691–99.
Moreover, the paper has referred to “Scale and Freedom in the American South”2, by
EDWARD L. AYERS and SCOTT NESBIT, where they have briefly discussed about the
importance of idea of Emancipation, though most of their work have been the emancipation with
respect to slaves during the colonial period but they provide the idea of free being with the use or
exercising of emancipation.
Furthermore, the paper has referred to “Emancipation as a Three-Dimensional Process for the
Twenty-First Century3” by Diana Coole, which potray two overlapping frameworks for
understanding and applying liberation to women. The first contrasts between a) an initial concept
based on Roman Law and described as freedom from slavery, and b) an Enlightened sense in
which the emancipatory process is linked to a critical ethos. This latter interpretation comes from
an examination of Kant's and Foucault's separate works on enlightenment and in the current
research paper has been referred while understanding divorce as a means of legal emancipation.
PART-II
POSITION OF EMANCIPATION LAWS IN INDIA
There are currently no legislation in India that permit for emancipation. There is a very simple
reason for this, and it is linked to the basic reason why child rights don't really exist in India. By
2
AYERS, EDWARD L., and SCOTT NESBIT. “Seeing Emancipation: Scale and Freedom in the American South.”
Journal of the Civil War Era 1, no. 1 (2011): 3–24..
3
COOLE, DIANA. “Emancipation as a Three-Dimensional Process for the Twenty-First Century.” Hypatia 30, no.
3 (2015): 530–46.
the way, this is not to be mistaken with kid "protection." Child protection rights have been
widely practised in India. From the prohibition of child labour to the significance of the kid's
welfare in child custody, it's all there. However, the girl children are still treated as if they are
object or property under their parents possession. The child’s parents compellingly or efficiently
own them financially or in many other ways until they attain majority.
The reason for the absence of emancipation legislation in India is straightforward. It, like other
child rights laws, does not appeal to a certain voter demographic and so has no state-specific
purpose. Moreover, if such a law is implemented, it puts parenting (a voting group) in a
precarious situation wherein they aren't in command, which is an unpleasant idea that no one
wants to put to the test. Particularly in a country where "rough love" is common. Another word
for it is noxious parenting. Why would any government would like to lose a whole demographic
and have it turn against them, especially when so much is at stake?
The main reason why there is no emancipation legislation is that procreation systems in India
considerably outnumber those in other countries. However, the issue we must ask here is, "Who
says?" How can it be true when so many incidences of domestic violence and bodily abuse go
unreported, and beating children is viewed as an Indian parent's right? . Education, food, and a
place to live aren't the essential prerequisites. Those are only the essentials. If we rely to them as
models for good parenting, we've made a mistake somewhere in our thinking. It would be absurd
to speak about psychological torture and abuse since it has been acceptable in Indian culture,
without anybody looking at the long-term repercussions it has on a kid, especially because Indian
parents do not believe in the notion of therapy.
A youngster should never "speak back" to their parents since doing so is considered rude.
However, this leads to a society in which authority is never questioned, and the brutal cycle
repeats, with the kid becoming the parent and reciting the cycle until the rare moment when a
parent chooses to break it by saying, "No, I wil not abuse my kids the way that I was or in any
other way."
It's also why occupations in India don't cater to kids, until they are towards/in the countryside,
where youngsters work informally at tea shops, mechanic shops, and other places. This is a
never-ending circle. If a juvenile becomes suddenly able to make money, the likelihood of such
minors opposing their parents rises. This is not ideal for any parent, thus society as a whole
works to prevent it from happening by enacting regulations and rules to guarantee that children
remain dependant on their parents for far lengthier than they would otherwise need to. Two
instances come to focus here:
Let us begin with the obvious. The instance of an emotionally or bodily toxic parent in which the
kid needs to leave but is unable to do so, or the youngster just does not want to be reliant upon
his or her parent owing to their own desire for independence. It doesn't mean they don't love their
parents. It's likely that they simply desire to be on equal level with their parent, to be regarded as
an equal rather than a dependant.
In the instance of emancipation, it is primarily a matter of the latter.
It is not an issue of removing a child from parental custody. It is a scope where the juvenile
aspires to venture out by themselves or making choices beyond their parent's approval. If a
youngster is old enough and financially sufficient, why shouldn't they be permitted to?
However, I feel that before there is any legal movement in this area, kids beyond the age of 14
must be financially independent. It would enable them to be independent if they so choose.
Otherwise, even with legal revisions, granting emancipation may be a superfluous provision.
What good are statutory improvements if the youngster is unable to care for himself or herself?
Hence it is critical for us as a community to adjust and stop being quite so fearful of our kids
leaving us. After all, if a child has been well-reared, that anxiety should not exist.
MINOR EMANCIPATION LAWS IN INDIA
India is a place of cultural variety, and the individuals who live here have varied perspectives.
The reason for classifying children under 18 years of age as minors is because they have not
reached a suitable degree of maturity. This plainly indicates that the Indian legal system believes
that children under the age of 18 do not have the capacity to discern what is good and evil. The
situation is different in other nations, where the law grants children the right to legally split from
their parents, i.e. to divorce their parents. This implies that many other nations acknowledge the
legality of minor emancipation legislation.
We have observed that the endurance of marriage in other nations is frequently lower, and as a
result, the kid suffers as well. Emancipation laws provide individuals the opportunity to live their
individual lives and escape from these difficult circumstances. Indians are said to have deeply
established ideas and customs. We take responsibility for our marriages, children, and other
societal interests. Indian children enjoy superior care from their parents than children in all over
the world. In India, parents have specific responsibilities to their children, such as providing their
children efficient health and education.
This illustrates that the position of kids and their childhood in many other nations is significantly
superior. This is the primary reason why emancipation legislation is still not necessary in India.
Since individuals throughout the country hold a variety of opinions and beliefs, this law may
provoke unrest. In addition, we have a slew of laws that safeguard liberty and the right to live in
integrity. Many legal scholars have argued whether emancipation laws are superfluous because
we already have protections like Article 214 and 19.5
PRAGMANTIC EFECT OF MINOR EMANCIPATION AND LAWS
REALTED WITH IT:
4
The Constitution of India, 1950, Art 21
5
The Constitution of India, 1950, Art 19
We have addressed how this sort of rule is unnecessary in India and produces chaos, yet we
cannot dismiss its favourable elements. We have always encouraged personal rights and choice
as a sovereign nation. The Indian Constitution explicitly lays forth various provisions that
safeguard these aspects of society. The Supreme Court too has affirmed individual choice in a
number of decisions. When the minor's emancipation becomes legal, they may make their own
decisions, regardless of their parents' opinions.6
Unfortunately, majority child-related legislation exists only on paper and is rarely successfully
enforced. We must acknowledge that emancipation laws are necessary in some cases. Children
of prisoners, for example, are obliged to live in jail alongside their parents or guardian. The
situation of youngsters admitted to homes is much more pitiful since the authorities or the
superintendent of the house abuse the children for twisted bodily requirements.7
The administration is always concerned that any adjustments to these laws would not result in a
reduction in human trafficking. As a result, the timetable for the passage of an emancipation law
in our nation is too far.
In many circumstances, we have noticed that additional pressure causes youngsters to mature and
understand at an early age. Furthermore, the fact that several children have lost their parent or are
living under guardianship and are not receiving adequate parental care can’t be denied by us.
However, according to the regulations, they are compelled to live under guardianship. This
minor emancipation law will safeguard them independence and liberty to live their lives as they
see fit.
NEED FOR EMANCIPATION LAWS IN INDIA
6
“ Knapp, Victor (1983). International Encyclopedia of Comparative Law, Chapter 3. Martinus Nijhoff Publishers.
p. 42. ISBN 9024727871.”
7
“J. Anderson, Sailing Alone: Teenage Autonomy and Regimes of Childhood, 31 L. PHIL, 522, 524 (2012)”.
This is due to Indian culture's long-standing and deeply rooted patriarchy, orthodoxy, and
familial feelings. This is an effort to analyse, assess, convey, and reach likely conclusions
concerning the changes that are taking place and the resulting need for laws dealing to minors
emancipation in India.
A kid is considered a minor until the age of 18 years old, under the Majority Act of 1875 8.
Furthermore, there are some further restrictions, which include:
Juveniles are unable to enter into contracts and cannot legally separate from their parents. They
can only live their life as they choose after they attain the age of adulthood. Over the years, there
have been numerous discussions, deliberations, and talks over the establishment of legislation
relevant to minor emancipation.
The argument for designating children under 18 years of age as juveniles, on the other hand, is
based on the notion that they have not reached a certain development level until the age of 18,
and therefore are not capable of making judgments. As formerly mentioned, India is a country
with deeply ingrained socio-cultural practises and familial ties. Because of the societal shame
associated with it, it is extremely hard for them to deviate from the expected norms after they
become parents. Furthermore, legal and cultural restrictions make protectionism look preferable
to liberalism.
Another reason for the paucity of minor emancipation legislation is the prominence of provisions
of the constitution such as Articles 19 and 21 of the Indian Constitution, which allow enough
liberty to live a decent life.
However, provided the number of cases awaiting approval inside the Indian judicial system, as
well as the orthodoxy and supremacy in which youths live, it is extremely unlikely that any
conflicts will be brought before the court system in order to receive the safeguards guaranteed by
Articles 199 or 2110 of the Indian Constitution.
8
THE MAJORITY ACT, 1875
9
Supra, 5
10
Supra, 4
The typical action taken for these children is accepting and then separation from their parents
when they attain the age of 18, while we may witness some daring actions of eloping in some
cases. Given their state of mind, individuals are always at risk of engaging in delinquent
behaviour. Although each case is unique, what we really need to understand is the position these
juveniles are in, their desires, attitude, maturity level, thinking capacity, and competency that
they may achieve prior to becoming adults in order to live a life on their terms.
Because the court views emancipation very seriously, it sets higher conditions for examining or
approving the petition. Emancipation is employed in several contexts. In certain circumstances,
juveniles seek emancipation since they are already self-sufficient or residing on their own but are
unable to rent a home or sign into agreements as underage minors. Others are in a life-
threatening or severe situation at home. In such circumstances, children choose to flee their
homes. They might instead seek emancipation through the emancipation procedure. The process
of emancipation differs per state.
Legal authorities do not prevent juveniles from separating from their parents, but instead need
proof that the minors seeking emancipation are mature enough to handle adult duties. They
might verify that the candidate is actively working, can afford safe housing, and has a general
knowledge of how to handle other parts of life as part of this procedure. Expecting governmental
assistance after freedom is not desirable. If your parents are deemed unfit to be guardians, the
court might choose to involve a state's child welfare agency.
However, People with mental impairments and those who are differently-abled in such a way
that they are unable of caring for oneself will not be recognised or legally viewed as liberated,
despite attaining the age of maturity, according to the norms and regulations. Other legal issues
will be unaffected by the non-emancipated status.
CONTRASTING SITUATION OF PARENTS WITH REGARD TO LEGAL
EMANCIPATION
Its not always the child that suffer domestic violence but as the time passes and the parents
become older and dependent on their child, it creates a more vulnerable situation for them. Most
of the time child don’t want to take the burden to provide reasonable care to their parents and
they often end up in old age home or some NGOs. However, time and again the courts have
pronounced judgements, which has helped the parents to be on equal footing and provide them
justice.
Mr. N Nagarajan vs Mr. Shekhar Raj11
In this case Asha, J. Granted the parents permission to cancel their settlement deed with their
eldest son due to the ill-behaviour from their side. It was pronounced by Justice Asha that “
Where a son conducts himself in such a manner that others around would praise the father and
state that the father must have endured immense penance to have spawned such a son.”
The court was affected by the father's email to his son, wherein he emphasised his helplessness
and wondered as to whether he should join an old-age care. The complainant, N Nagarajan, and
his spouse were forced to sell their jewellery and use the rest of their money and pensions to pay
for their health bills after their two sons refused to care for them, according to the verdict. As a
result, Justice Asha approved the parents' appeal in reaction to a lower court ruling favouring
their eldest child in a property dispute.
The judge found that the petitioners had the authority to withdraw the settlement agreement they
entered in 2012 in favour of their two sons since the boys had failed to meet their duties since
then.
DIVORCE AS A TYPE OF LEGAL EMANCIPATION
Divorce can be termed as when two people bound by marriage get separated legally. Thus it can
be referred as a type of legal emancipation where two people are getting separated due to certain
11
S.A.No.602 of 2020 and C.M.P.No.12757 of 2020, IN The High Court of Madras
issues or obligation which they are not able to full fill. In this underneath section the paper will
be briefly discussing about the divorces in para matai to the Indian Family Law; which consist of
Hindu Law, Muslim Law, Christian Law and other special law.
DIVORCE UNDER HINDU LAW
Divorce is recognised under Hindu personal law by the Hindu Marriage Act, 1955, which
appears to apply to any ordinary person who belongs to a Hindu by religion irrespective of its
forms or advancements, or a person with Buddhist, Jain, or Sikh by religious practice, and any
other person residing in the areas to which this Act extends to a person not a Jew, Muslim, Parsi
or Christiaan by religion.
Section 1312 of the Act allows for the dissolution or divorce of a marriage, about which either
spouse may make an application with the relevant court for a decree.
Section 13-B13 allows for mutual consent divorces if both spouses have been living apart for one
or more years and file a divorce petition on the grounds that they have been unable to live in
harmony and have jointly consented to end the marriage.
DIVORCE UNDER MUSLIM LAW
Section 2 of the Muslim Personal Law Application Act, 193714 stipulates notwithstanding the
any tradition or usages in circumstances of marriage dissolution when the parties are Muslims,
the Shariat or Muslim Personal Law would rule.
A Muslim wife has the option of seeking judicial separation in certain circumstances, such as the
husband's impotency, brutality by the husband that makes it dangerous for her to reside in the
husband's dominion if the wedding was irregular, and the husband's failure to perform marriage
obligations imposed on him through the marriage contract, etc.
12
THE HINDU MARRIAGE ACT, 1955, Sec 13
13
THE HINDU MARRIAGE ACT, 1955, Sec 13-B
14
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937, Sec 2
JUDICIAL SEPERATION
A Muslim wife has the option of seeking judicial separation in certain circumstances, such as the
husband's impotency, brutality by the husband that makes it dangerous for her to reside in the
husband's dominion if the wedding was irregular, and the husband's failure to perform marriage
obligations imposed on him through the marriage contract, etc.
DIVORCE UNDER CHRISTIAN LAW
The Divorce Act of 186915 allows a person of Christian faith to obtain a divorce. The statute
applies when one person to the wedding is a Christian, and the marriage can be terminated
without a court order under the Act. Sec 1016 provides the ground for divorces.
DIVORCE UNDER OTHER SPECIAL LAW
The Special Marriage Act of 195417 allows for the marrying of parties regardless of religion,
creed, caste, or other factors. Similarly, the divorce of parties who wedded under the act is
controlled by the same legislation. The reasons for divorce are basically the same as those
outlined in the Hindu Marriage Act of 195518.
Another statute, the Foreign Marriage Act, 1969 19, is available to parties when at least one person
is an Indian citizen and the wedding takes place in a foreign nation while complying to the
standards specified in the Act. Divorce proceedings between such individuals are handled under
Special Marriage Act, 195420, subject to the requirements of Foreign Marriage Act 196921.
SITUATION OF EMANCIPATION IN INDIA & ABROAD
This scenario is very different in foreign nations, where children may divorce and legally split
from their parents if they believe they are ready to live on their own. They have legalised minor
emancipation.
15
THE DIVORCE ACT, 1869
16
THE DIVORCE ACT, 1869, S 10
17
THE SPECIAL MARRIAGE ACT, 1954
18
Supra, 6
19
THE FOREIGN MARRIEGE ACT, 1969
20
Supra, 11
21
Supra, 12
As defined by the Cambridge English dictionary, emancipation is the process of granting
individuals social, political, and economic independence and rights. This term is closely related
to the 'Mature Minor' doctrine, which is widely practiced in the United States, and under which
unemancipated children have the option to accept or reject a specific health therapy without the
consent or knowledge of their parents.
We cannot have legislation dealing towards the emancipation of children in the Indian context
without any exceptions. In certain countries, emancipation is a legal method through which a
minor may get legally separated from his/her parents before attaining the age of majority. A kid
who has achieved emancipation is midway between an adult and a kid.
An emancipated child may be allowed to vote, enter into contracts, take medical decisions, and
such without the agreement of their parents, relying upon legislative structure. These activities
exemplify autonomy which we often connect with adults. Not to mention that the actions
described above might have disastrous consequences on their own.
As a result, it is vital that the emancipated kids are completely aware, capable of making
decisions, reasonable, and understands the consequences of their actions.
CONCLUSION
From the study it can be clearly inferred that this specific area of law is very new to the 20 th
Century and will take at least a decade for its formulation. As, of now there are now proper
legislation in India that recognize legal emancipation as a law and for the same reason there are
minimal case laws, articles or even precedents in this regard. However, time to time the courts
have pronounced in certain cases where the aggrieved party were able to emancipated or proper
course of reforms were awarded to them. One such case has been referred in this paper to at least
form the basis of the study. This study has also referred to various articles, statues and books to
understand the scope and position of emancipation in today’s time. Keeping today’s contrasting
situation in mind it won’t be wrong to say that the time has come to form separate and proper
legislation for emancipation so as to serve proper justice to the needy.
REFERENCES
STATUES
The Constitution of India, 1950
The Majority Act, 1875
The Hindu Marriage Act, 1955
Foreign Marriage Act, 1969
Special Marriage Act, 1954
The Divorce Act, 1869
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937
ARTICLES
Knapp, Victor (1983). International Encyclopedia of Comparative Law, Chapter 3. Martinus
Nijhoff Publishers. p. 42. ISBN 9024727871.
J. Anderson, Sailing Alone: Teenage Autonomy and Regimes of Childhood, 31 L. PHIL, 522,
524 (2012)
Rheinstein, Max. “The Need for Research in Family Law.” The University of Chicago Law
Review 16, no. 4 (1949): 691–99.
AYERS, EDWARD L., and SCOTT NESBIT. “Seeing Emancipation: Scale and Freedom in the
American South.” Journal of the Civil War Era 1, no. 1 (2011): 3–24..
COOLE, DIANA. “Emancipation as a Three-Dimensional Process for the Twenty-First
Century.” Hypatia 30, no. 3 (2015): 530–46.
