Chanderprabhu Jain College of Higher Studies

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School of Law
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E-NOTES

CLASS & SECTION : B.A.LL.B/ BBA LL.B III

SUBJECT NAME : FAMILY LAW 1
SUBJECT CODE : LLB 201

UNIT-IV

PROVISIONS OF SPECIAL MARRIAGE ACT, 1954

Marriage has traditionally held a sacred place in Indian society, with people placing the
union of two individuals as a couple on a very high pinnacle. Throughout history, the
practice of marriage has accumulated so many norms and ethics that it has resulted in a
union of two families rather than two individuals. When picking partners for marriage,
there is frequently a significant level of social involvement. In many regions of India, for
example, marriage between members of the same social status or caste has become a
norm, while inter-caste marriages are strongly prohibited. Inter-religious marriages, on
the other hand, are frowned upon, with individuals being outcasts or socially boycotted
simply for marrying someone of their choice who does not share their religious beliefs
and customs. Various vigilante organisations have further exacerbated the couples‘
troubles to the point where they must engage in a protracted battle to guarantee that their
lives and safety are not jeopardized.
Since the Hindu Marriage Act of 1955, or the registration of marriages under Muslim
personal laws, religious laws in India have not been able to accommodate and regulate
marriages between interfaith or inter-caste couples who do not want to associate and
solemnise their marriage according to any particular religious laws since the colonial era.
Taking note of this stumbling barrier that stopped two consenting eligible adults from
marrying, the British Government in India created the Special Marriage Act, 1954, 1872,
in order to protect the cherished principle of secularism in the society. The

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current Special Marriage Act, 1954, 1954, was thus framed and implemented along the
lines of the colonial statutory provision in newly independent India, which was highly
essential to ensure that the secular fabric of the nation remained tightly knit after it had
been significantly torn due to the after-effects of the partition of 1947.
Nevertheless, the laws that were framed during the colonial era and thus were
incorporated into a specific legislation, had a large number of loopholes and did not fit
perfectly into the constitutional setup of modern-day India. Thus, the legislation was in a
desperate need of being amended in order to fit into the current society setup. Hence, the
Special Marriage Act, 1954 of 1954 was enacted to facilitate inter-caste and inter-
religious weddings, in which the couple is not needed to abandon their faith in order to
marry. Registration might even take place while they preserve their religious identity.
A brief overview of the Special Marriage Act, 1954
It is a piece of law that establishes a special type of marriage by registration. Marriage is
unique in that there is no requirement to convert or reject one‘s religion. Unlike
conventional arranged weddings, which include two families from the same caste or
community, the Act aspires to legalise interreligious or inter-caste marriages. The Act‘s
Certificate of Registration has been regarded as universal evidence of marriage. As stated
in the Preamble, the Act allows for a special form of marriage in specific circumstances,
registration of such and other marriages, and divorce.
Objectives of the Special Marriage Act, 1954
The following are the key goals that may be derived from the Act‘s Preamble:
A specific type of marriage,
documentation of certain marriages,
separation

Purpose of the Special Marriage Act, 1954

The purpose of the Act is to establish consistent legal measures to protect those who want
to marry across castes or religions. By establishing a system for inter-faith marriages, the
Act serves the interests of all Indian people.

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The Act includes provisions for lawful marriage, prerequisites for a valid marriage,
dissolution of an inter-faith marriage, marriage registration, and other regulations. As a
result, the enactment of the aforementioned legislation intended to protect people‘s basic
rights and enable them to pick their married partners. The Act also intends to reduce the
threat of societal ills such as honor killing and love jihad, as well as to acknowledge the
rights of children born out of such marriages.
Elements of the Special Marriage Act, 1954
The Act, via the use of the following elements, drastically revolutionized society‘s
perception of inter-caste and inter-faith marriages in the following ways:
Unlike the previous marriage legislation, this Act applies to all Indian citizens, regardless
of religion or caste. As a result, any individual desirous of marrying another individual
might do so under the aforementioned Act.
Since the Act considers marriage to be a legal transaction, no rituals or ceremonies are
conducted. The marriage is carried out in accordance with the law i.e, through court
marriage.

Applicability of the Special Marriage Act, 1954

The Special Marriage Act, 1954 extends to all Indian states as well as Indian nationals
living in other countries. Individuals of diverse faiths, such as Muslims, Hindus, Parsis,
Sikhs, or Christians, can marry under this Act. The Act applies not only to interreligious
or inter-caste marriages or love marriages but also to intra-faith marriages and provides
an option to register marriages performed in accordance with the couple‘s personal laws.
The fulfillment of customs and ceremonies to solemnise the marriage is a requirement of
personal laws, whether Hindu or Muslim law, however, the Special Marriage Act, 1954
does not demand the performance of any rituals or ceremonies; rather, the single
requirement for being married is two persons having permission.
It applies to the whole of India except the State of Jammu and Kashmir and applies also
to citizens of India domiciled in the territories to which this Act extends who are (in the
State of Jammu and Kashmir). Marriages between Hindus, Muslims, Christians, Sikhs,
Jains, and Buddhists are all covered under the statute. As a result, there is no distinct

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court marriage for different faiths; rather, it is a uniform process of being married
regardless of religion.
Requirements
Since Indians believe in marriages with proper rituals, customs, and ceremonies that
include pomp and show & extravagant celebrations, none of them is required by the
Special Marriage Act. The fundamental requirement under this Act for a valid marriage is
the consent of both parties to the marriage. If both parties to the marriage are willing to
marry each other, that‘s enough; caste, religion, race, etc. can‘t act as a barrier to their
union here. For marriage under this Act, the parties must file with the district‘s Marriage
Registrar a notice stating their intention to marry each other in which at least one of the
parties to the marriage has lived for at least 30 days prior to the date on which such notice
is filed. After the expiry of 30 days from the date that such notice was published, the
marriage is then said to be solemnized. But if any person related to the parties objects to
this marriage and the registrar finds that it is a reasonable cause of objection, on such
grounds he can cancel the marriage. For a valid marriage, the parties must also give their
consent to the marriage before the marriage officer and three witnesses. These are the
basic requirements for a valid marriage under the Special Marriage Act that every Indian
must know about.
Important Sections of the Special Marriage Act, 1954
Section 4 of the Special Marriage Act, 1954 addresses the numerous requirements for a
lawful marriage. It specifies four basic requirements for a legitimate marriage:
It forbids polygamy and declares a marriage null and void if neither party had a spouse
living at the time of the marriage.
The married partners must be in a sound state of mind. The parties must be able to make
their own decisions and be sane at the moment of marriage.
Both parties to the marriage must have reached the legal age of majority. The female
party must be at least eighteen years old at the time of marriage application, and the male
party must be at least twenty-one years old.
The parties going into marriage should not be in close proximity to one another and
should not be in a forbidden connection with each other.

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The degree of banned relationship is determined by the conventions of the persons

involved and differs from one tradition to the next. Schedule one of the legislation
outlines the degrees of banned connections; nonetheless, in typical circumstances, the
norms governing persons take precedence. The marriage will only be lawful if all of these
prerequisites are met. Other prerequisites for a lawful marriage include the permission of
the parties, with both parties entering into the marriage providing acceptable consent. The
willingness of both parties is taken into account. The caste or religion of either party is
not taken into account and will not operate as a barrier.
Section 5 of the Act specifies that the parties must give written notice to the Marriage
Officer of the District and that at least one of the parties must have lived in the district for
at least 30 days immediately before the date of such notification. The application must be
filed in accordance with the required format, which is listed in schedule two of the act.
According to Section 6 of the Act, the original and genuine copy of the notification must
be submitted in the ‗Marriage Notice Book.‘ After the Marriage Officer receives the
application, he or she will publish a thirty-day public notice to see whether there are any
objections to the marriage. Non-compliance with any of the Act‘s criteria or requirements
is one of the most common objections dealt with.
Section 8 of the legislation stipulates that anybody may object to the intended marriage
after the notice is published. When a Marriage Officer receives an objection, he or she
must do the necessary investigation and deal with it correctly.
According to Section 11 of the Act, the declaration of marriage must be signed by the
parties to the marriage and three witnesses, and it must be checked and signed by the
Marriage Officer.
According to Section 12 of the Act, the marriage may be solemnised in the Marriage
Officer‘s office or within a reasonable distance of the office. If the marriage takes place
outside of the Marriage Officer‘s office, there should be additional costs paid.
Section 13 of the Act deals with marriage certification. The marriage officer enters the
marriage in the ‗Marriage Certificate book‘ and issues a Marriage Certificate when the
marriage is solemnised.

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There are no religious rites necessary under Section 16 of the Act which defines the
procedure for registration of marriage. The marriage under this Section is solemnised by
a Marriage Officer designated by the Government, and the relevant parties to the
marriage must provide notice to the Marriage Officer in the appropriate way.
Section 26 of the Act recognizes the validity of children born to people who married
under the Special Marriage Act, 1954. They retain ownership of the property even after
the marriage is declared null and void. The offspring of such marriages are not entitled to
ancestral property. They can only obtain a share of their parents‘ self-owned or inherited
property.
Conditions of the Special Marriage Act, 1954
Under the Special Marriage Act, 1954 of 1954, certain circumstances must be met before
a marriage can be solemnised. These qualifications are outlined in Chapter II, Section 4.
The prerequisites for this particular sort of marriage are not dissimilar to those for regular
customary marriages and are fairly comparable to Section 5 of the Hindu Marriage Act,
1955.
To begin with,
Firstly, both parties should be monogamous at the time of marriage; that is, neither party
should have a living spouse at the time of marriage.
Second, both parties must be mentally fit and, in a position, to make their own decisions;
that is, neither party should be of unsound mind, suffer from any mental ailment, or have
been subject to recurrent outbreaks of insanity.
Third, the man must be at least twenty-one years old and the female must be at least
eighteen years old at the time of marriage.
Fourth, the parties must not be within the degrees of forbidden kinship; that is, they
should not be blood relatives.
As a result, any violation of any of the conditions stated in Section 4 of the Act will
render the union null and void.
Solemnization of Marriage
After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any
field. The notice is valid for 3 months. Before the marriage is solemnized, the parties and

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three witnesses should sign declarations in the prescribed form in the presence of the
marriage officer.
In whatever form the parties may choose to adopt, marriage can be solemnized. The
marriages can be solemnized either within a reasonable distance from the office of the
marriage officer or at such other place as the parties may wish.
Procedure for solemnisation of marriage
The Special Marriage Act, 1954 of 1954 mandates various preliminaries and civil
requirements before marriage may be solemnised. Both intending parties to the marriage
must send a written notification to the Marriage Registrar of the district in which at least
one of the parties to the marriage has lived for a minimum of 30 days. When the Marriage
Registrar obtains the notice of marriage, he must publish it by affixing a copy to a
prominent location in his office. The Marriage Registrar is required to maintain all
notices with records in his office and to register a genuine copy of each such notice in the
‗Marriage Notice Book,‘ which is available to everybody for examination without charge.
Any individual may object to the marriage before the expiration of thirty days from the
date of publication on the grounds that it violates the requirements established in Section
4 of the Act.
Following the completion of the thirty-day objection period, the marriage will be
solemnised, unless it has already been opposed to by any individual. In any case, if an
objection is raised against an intended marriage, the Marriage Registrar cannot solemnise
the marriage until he has investigated the matter of objection and reached a decision that
the earlier raised objection will not prevent the marriage from being solemnised, or the
prior objection is withdrawn by the individual raising it. However, if the marriage officer
validates the objection and refuses to solemnise the marriage, any of the intended parties
may file an appeal with the district court within the local limits of the marriage officer‘s
office within thirty days, and the decision of the district court on such appeal will be
binding, and the marriage officer must act in accordance with the court‘s decision.
Before the marriage may be solemnised, the intended parties and three witnesses must
sign a statement in the prescribed form in the presence of a Marriage Officer, and the
declaration must also be notarized by the Marriage Registrar himself. Following this, the

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marriage can be solemnised in the Marriage Registrar‘s office or wherever else the
parties prefer. In front of the Marriage Officer and three witnesses, each party must state
to the other partner in any language known by the parties, ―I, (X), accept the (Y), to be
my lawful wife (or husband).‖ After the marriage is solemnised, the Marriage Officer
writes the facts on a certificate which he keeps in a ‗Marriage Certificate Book‘ also
called the Marriage Registration Record which has to be duly signed by the newlyweds
along with the three witnesses and serves as definitive proof of the marriage.
Before the expiration of 30 days from the date on which any such notification has been
published under sub-section (2) of Section 6, any person may object to the marriage on
the grounds that it would violate one or more of the requirements mentioned in Section 4.
Registration of Marriage Celebrated in Other Forms
Any marriage celebrated, with the exception of those solemnized in accordance with
these provisions, may be registered by a marriage officer under Chapter III of the Act,
subject to the condition that a marriage ceremony has been conducted for the parties
under any of the Acts and that the couple has since led a marital life. Besides that, the
conditions for the conduct of marriage specified in this Act shall apply.
Implications on Family Membership
Any member of an undivided family who professes the religion of Hinduism, Buddhism,
Sikhism or Jainism would be forced to separate from such a family, i.e. a family member
married under this Act would not be considered a part of the family hierarchy after the
marriage proceedings under this Act were terminated.
Restitution of Conjugal Rights
On marriage, it is the parties ‗ primary duty to live together in order to fulfill their marital
obligations. This right to cohabit with one another is called the‘ consortium‘ right.
Husband and wife have the right to each other‘s society, comfort, and affection. The
origin of the action seems to lie in the husband‘s early concept of law having a quasi-
proprietary right over the wife. It included the society of his wife as well as its services.
The consortium notion presumed a distinct footing of mutuality with the passage of time.
Conjugal rights can not be enforced by either party‘s actions, and by force, a husband can

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not seize his wife and detain her. If a spouse makes an infringement of this obligation
without any justifiable cause, the other may go to court to restore his conjugal rights.
Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under
which a petition for restitution of conjugal rights would be based.
Restitution of conjugal rights – When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply to petition to the district court for restitution of conjugal rights, and the court, on
being satisfied of the truth of the statements made in such petition, and that there is no
legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.
Explanation: Where a question arises as to whether there was a reasonable excuse for
withdrawal from society, the burden of proving a reasonable excuse is on the person who
withdrew from society.
The section‘s elements are as follows:
The respondent withdrew from the petitioner‘s society.
Without reasonable cause, the respondent has withdrawn.
The burden of proving a reasonable cause lies with the respondent.
In the district court, the petition is filed.
The court is satisfied with the truth of the statement, and there is no other reason to deny
the relief.
Corresponding Law
This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of
the Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and
Section 13 of the Matrimonial Causes Act, 1965.
Withdrawal from Society
The word ‗society‘ that occurs in the section means the same thing as consortium or
cohabitation, i.e. living together as husband and wife in a place called ‗matrimonial
home‘. It is therefore evident that withdrawal from the other‘s society would mean
withdrawal from the matrimonial home by either spouse that would involve a total loss of
consortium such as desertion. Society withdrawal involves two elements: animus and

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factum. This means that the withdrawing spouse intends to put an end to the cohabitation
and, secondly, the mere intention of withdrawal would not amount to withdrawal unless it
is combined with the factum of separation on the part of spouse‘s withdrawn.
Cohabitation
Cohabitation does not necessarily mean that parties live together under the same roof, but
there may be cohabitation states where they see each other as much as they can and yet
are not separated.
Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or
on business because it does not determine the conjugal relationship in any form.
G v. G, (1930), A husband can not be considered to have deserted his wife without
reasonable cause because he is forced to live away from her because of his work in life.
Matrimonial Home
Shastri law was based on the principles that the wife is bound to live with her husband
and submit herself to his authority. This rule of law that gave the husband the right alone
to set up a matrimonial home in preference to the wife was based on a custom that
reflected the condition of the age in which the custom was practised. Moreover, the
husband‘s right to establish a matrimonial home is not a law proposition; it is simply a
proposition of ordinary good sense arising from the fact that the husband is usually the
bread earner and has to live near to his work. It becomes quite natural in such
circumstances that the husband should have the right to choose a matrimonial home.
India‘s Constitution gives both sexes equal status, so both have equal rights to pursue
their careers. Now the casting vote on the choice of the matrimonial home is not with the
husband or wife, but it is a matter that has to be decided in a friendly manner between
them.

Case Reference
In several cases, the question as to what amounts to withdrawal from society came to our
courts in an interesting way: does the refusal of the wife to give up her job in the
husband‘s case amount to withdrawal from the husband‘s society? In several cases, the
question came before the Punjab High Court for consideration and in the affirmative, it

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was answered. In the cases Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad
v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v. Ayodhya Prakash 1977 HLR
175, The courts held that the husband had the right to decide the matrimonial home and
that the wife had to resign and live with him. The other view, which is contrary to this
extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the wife can
not be prevented from taking up employment in the present social scenario and can not be
forced to live in the same place where her husband lives. None of the parties shall have a
casting vote, and the matter shall be settled by agreement between the parties, by process
of giving and taking and by reasonable accommodation.
Without Reasonable Excuse
The burden of proving that he/she has withdrawn with a reasonable excuse would be on
the respondent once the petitioner proves that the respondent has withdrawn from his/her
society. A restitution petition will fail if the respondent is found to have withdrawn from
the petitioner‘s society with a reasonable excuse to do so.
It will be a reasonable excuse or reasonable cause under the modern matrimonial law:
If there is a reason for this, the respondent may claim any matrimonial relief. So if the
petitioner is found to have another wife (Parkash v. Parmeshwari, AIR 1987 P & H 37),
is guilty of cruelty (Bejoy v. Aloka, AIR 1969 Cal 477), or is adulterous (Laxmi Malik v.
Mayadhar Malik, AIR 2002 Ori. 5) the petition will fail.
If the petitioner is guilty of any matrimonial misconduct, then it is not sufficient to be the
ground for matrimonial relief but sufficiently weighty and serious.
If the petitioner is guilty of such an act, omission or conduct that makes a living with him
impossible for the respondent.
Jurisdiction
The jurisdiction under the section to entertain a petition for restitution of conjugal rights
rests with the district court. The District Court has been defined in S. 2(e) the Act. It
means the principal civil court of original jurisdiction and a civil court of the city where
such court exists. An aggrieved party may invoke the jurisdiction of a district court if any
of the following qualifications are fulfilled:
The marriage has been solemnized within that court‘s local limits.

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The husband and wife both live together within that court‘s local limits.
Both the husband and wife last lived together within that court‘s local limits.
Judicial Separation
Under English law, before the Reformation, the church considered the marriage as a
sacrament which made it impossible to obtain a divorce. The ecclesiastical courts in the
case of a marriage validly contracted granted ‗divorce a men‘s et thoro,‘ i.e. divorce from
bed and board, which did not allow the parties to remarry. This solution was not divorce,
i.e. it didn‘t dissolve the marriage. This solution is now called judicial separation,
allowing the parties to live separately from each other, without dissolving the marriage
bond, with the option of re-uniting and re-living together if conditions change
subsequently.
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the
husband or the wife:
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27
on which a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and
the Court, on being satisfied of the truth of the statements made in such petition, and that
there is no legal ground why the application should not be granted, may decree judicial
separation accordingly.
(2) Where the Court grants a decree for judicial separation, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the Court may, on the
application by petition of either party and on being satisfied of the truth of the statements
made in such petition, rescind the decree if it considers it just and reasonable to do so.
Corresponding Law
This section is in accordance with Section 10 of the Hindu Marriage Act, 1955, Section
34 Parsi Marriage and Divorce Act, 1936, Section 22 of the Divorce Act, 1869 and
Section 12 of the Matrimonial Causes Act, 1965.
Grounds for Judicial Separation

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A district court shall lodge a petition for judicial separation from either the husband or
the wife on any of the grounds that the respondent:
Has committed adultery.
Has deserted the spouse for a period of two years immediately prior to the petitioner‘s
submission without cause.
Is imprisoned for an offence as described in the Indian Penal Code for seven years or
more.
Has the petitioner treated with cruelty?
Has been of unsound mind incurably.
Has been suffering from the communicable form of venereal disease.
Has suffered from leprosy that the petitioner has not contracted.
Has not been heard for at least seven years as being alive.
Where the petitioner is the wife, on the additional ground, she can file a petition for
judicial separation:
That since the solemnization of marriage her husband has been guilty of Rape, Sodomy,
or Bestiality; or
That there has been no cohabitation between her and the husband for not less than one
year after passing a decree or maintenance order against her husband in her favour, or
That her husband has failed to comply with a decree to restore conjugal rights.
The aforementioned grounds are similar to divorce grounds under Section 27 of the Act.
Power of the Court
The District Court must be satisfied with the truth of the statements made in such petition
upon presentation of the petition. If the court is satisfied, a judicial separation decree will
be passed. The parties are free to live apart from one another after the passing of the
decree. However, if it considers it fair and reasonable to do so, the court may rescind the
decree of judicial separation upon subsequent application by either party. In a petition for
divorce, if the petitioner fails to establish the alleged ground for divorce, although facts
establish a ground for judicial separation, the court has the power to pass a decree for
judicial separation, even though no such prayer has been made in the petition, as held in
Bhagwan v. Amar Kaur, AIR 1962 Punj 144.

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Effect of Decree
The decree of judicial separation entitles the parties to live separately, and cohabitation is
not compulsory on either party as the essential of the marital relation. But it does not
break husband and wife‘s marital status. No one is able to remarry until the divorce
decree. Each party may submit a divorce petition to the district court on the ground that
there has been no resumption of cohabitation as between the parties for a period of one
year or upwards after passing a judicial separation decree.
Nullity of Marriage
The law of nullity refers to impediments to premarriage. The subject matter of
impediments to marriage is covered under the capacity to marry. If there are certain
impediments, parties are unable to marry each other. If they get married, despite
impediments, their marriage may not be valid. These impediments are generally split into
two:
Absolute impediments: If there are absolute impediments, a marriage is void ab initio, i.e.
from the start it is an invalid marriage.
Relative impediments: If there are relative impediments, a marriage is voidable, i.e. one
of the parties to the marriage may avoid it if he or she wishes.
These impediments classify the marriage into Void and Voidable Marriages.
Void Marriage
A void marriage is not marriage, i.e. from the beginning, it does not exist. It is called
marriage because there are two people who have undergone ceremonies of marriage.
Since they absolutely lack the capacity to marry, they can not become husband and wife
just by undergoing marriage ceremonies. In other words, avoid marriage does not give
rise to any legal consequences. No court decree is required in respect of void marriages.
Even when a decree is passed by the court, it simply declares the marriage to be null and
void. It is not the court‘s decree that makes such a marriage void. It is an existing fact that
the marriage is void and the court is merely making a factual judicial statement. In
accordance with Section 24 of the Special Marriage Act, 1954, either party can make a
petition for nullity to marriage.

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Void marriage- (1) Any marriage solemnized under this Act shall be null and void and
may, on a petition presented by either party thereto against the other party, be so declared
by a decree of nullity if –
(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been
fulfilled, or
(ii) the respondent was impotent at the time of the marriage and at the time of the
institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be
solemnized under this Act within the meaning of Section 18, but the registration of any
such marriage under Chapter III may be declared to be of no effect if the registration was
in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:
Provided that no such declaration shall be made in any case where an appeal has been
preferred under Section 17, and the decision of the District Court has become final.
Corresponding Law
This section corresponds to Section 11 of the Hindu Marriage Act, 1955, Section 18 and
19 of the Indian Divorce Act, 1869 and Section 9 of the Matrimonial Causes Act, 1965.
Grounds for Void Marriage
A marriage may be declared void by a decree of nullity on the following grounds:
Any of the conditions stated in clauses (a), (b), (c) and (d) of section 4 of the Act have
not been fulfilled. Such conditions are as follows:
At the time of marriage, neither party has a spouse living. The first marriage ought to be a
valid marriage.
Neither party is unable to give valid consent.
The male should have 21 years of age, and the female should have 18 years of age.
The parties are not within the degrees of prohibited relationship.
The defendant was impotent at the time of marriage and at the time of the institution of
the suit. The initial responsibility in the case of impotency is on the petitioner‘s wife to
prove the respondent husband‘s impotence.
Voidable Marriage

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So long as it is not avoided, a voidable marriage is perfectly valid. Only one of the parties
to the marriage may request it to be avoided. If one of the parties refuses to demand the
annulment of the marriage, the marriage will remain valid. If one of the parties dies
before the annulment, no one can challenge the marriage, and it will remain valid forever.
All the legal implications of a valid marriage flow as long as it is not avoided. The
grounds for voidable marriages are set out in Section 25 of the Special Marriage Act.
Voidable marriage: Any marriage solemnized under this Act shall be voidable and may
be annulled by a decree of nullity if:
(i) the marriage has not been consummated owing to the willful refusal of the respondent
to consummate the marriage, or
(ii) the respondent was it the time of the marriage pregnant by some person other than the
petitioner, or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as
defined in the Indian Contract Act, 1872 (9 of 1872);
Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless
it is satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) those proceedings were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the grounds for a decree.
Provided further that in the case specified in clause (iii), the Court shall not grant a decree
if:
(a) proceedings have not been instituted within one year after the coercion has ceased or,
as the case may be, the fraud had been discovered, or
(b) The petitioner has with his or her free consent lived with the other party to the
marriage as husband and wife after the coercion had ceased or, as the case may be, the
fraud had been discovered.
Corresponding Law

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This section corresponds to Section 12 of the Hindu Marriage Act, 1955, Section 19 of
the Divorce Act, 1869, Section 32 of the Parsi Marriage and Divorce Act, 1936 and
Section 9 of the Matrimonial Causes Act, 1965.
Grounds for Voidable Marriage
Non-consummation of marriage: Due to the respondent‘s willful rejection, the marriage
has not been consummated. In Sunil K. Mirchandani v. Reena S Mirchandani, where the
parties had lived together for about 5 months, and a letter written by a husband to wife
indicates his satisfactory sexual relationship with her, there could be no basis for an
annulment of marriage under Section 25(1) of the Act.
Pre-marriage pregnancy: The presumption of law is that a child born during the
continuity of a valid marriage or within the gestation period of 280 days after the
dissolution is legitimate unless there is strong evidence to prove otherwise. The
petitioner‘s right is somewhat limited to initiate proceedings on this ground of the
respondent‘s pregnancy at the time of marriage by an individual other than the petitioner.
In such cases, the court shall not issue a nullity declaration unless it is satisfied:
That at the time of marriage, the petitioner was quite unaware of the fact of pregnancy.
The proceedings were initiated within a year of the date of the marriage.
That no marital intercourse has happened with the petitioner‘s consent since the alleged
facts were discovered.
Coercion or fraud: if either party‘s consent to the marriage has been obtained by coercion
or fraud as described in Section 15 and 17, respectively, of the Indian Contract Act 1872,
the marriage can be avoided.
Section 15 describes coercion as committing or threatening to commit, any act forbidden
by the Indian Penal Code or any unlawful detention or threat of detention of any property,
to the prejudice of any person, with the intention of causing an individual to enter into an
agreement.
Section 17 of the Indian Contract Act describes fraud, which implies and involves any of
the following acts committed by a party to a contract or his connivance, or by his agent,
with the intention of deceiving or inducing another party or his agent to enter into the
contract:

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A statement as to a fact that is not true by anyone who does not believe that it is true.
The deliberate concealment of a fact by someone who has knowledge or belief of the
fact.
A promise made without any intention to perform it.
Any other deception-fitting act.
Any such act or omission as stated by law to be specifically fraudulent.
In GitikaBagchi v. SubhabrotaBagchi, AIR 1999 Cal 246, where the wife concealed the
fact that she was 3 years older than her husband, it amounted to fraud as provided in
Section 25(iii) of the Act. In Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263, hiding of
fact by the wife that she was previously married and widowed at the time of the second
marriage is a material fact, and as such, it amounts to fraud committed on her second
husband, he is entitled to a decree of nullity.
The court should not issue a decree of nullity in case of coercion or fraud unless
proceedings were not initiated within one year after the coercion had ended or the fraud
had been detected.
The petitioner lived with the respondent with his or her free consent after the coercion
been ended or the fraud had been detected.
In such cases, the petitioner‘s acquiescence to such an act or omission will be assumed,
and the petitioner‘s right to such scores will be waived.
The legitimacy of Children of Void or Voidable Marriages
Section 26 aims to give the children begotten a status of legitimacy before the nullity
decree is passed. Where a decree of nullity is issued for void or voidable marriage, it shall
be considered to be a decree of dissolution for the specific purpose of conferring the
status of legitimacy on the children begotten before the decree is issued. But the child
from such a union shall have right on the parents‘ property but no rights in or to the
property of any person. In those cases, the child is considered not to be a legitimate child
of his parents by a legal fiction.
Divorce
Divorce puts an end to marriage; the parties return to their unmarried status and are free
to marry again. The grounds for divorce are set out in Section 27 of the Act.

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Grounds for Divorce

The District Court is the proper forum for filing a divorce petition on any of the following
grounds:
Adultery
The respondent to the case has committed adultery since the solemnization of the
marriage. Adultery is the matrimonial offence in which a married person and a person of
the opposite sex, other than the wife, have consensual sexual intercourse during the
subsistence of the marriage, as held in Dawn Henderson v. D Henderson, AIR 1970 Mad
104 (SB). In view of provision (a) of cl. (1) of s. 27 of the Act, a single act of adultery
may constitute an adequate ground for divorce. As required in Section 13 of the Hindu
Marriage Act, 1955, it is not necessary to prove that the respondent was ‗living in
adultery‘.
In the case of adultery, the court must be satisfied that adultery has been committed,
beyond a reasonable doubt. But adultery can, if ever, be proven very rarely by direct
evidence of the witness. Therefore, in most cases, the evidence must be circumstantial in
nature and depends on the probabilities of the situation. However, as in the case of
Jyotish Chandra Guha v. Meera Guha, AIR 1970 Cal 266 (DB), in the absence of wife‘s
reciprocity, the mere production of love letters written by a person to a wife will not
prove adultery.
Desertion
The respondent must have deserted the petitioner without cause for at least 2 years before
the petition was submitted. In essence, desertion means intentional permanent forsaking
and abandonment of one spouse by the other without the consent of the other and without
reasonable cause. It is a complete repudiation of the marriage obligations. Desertion is
not a withdrawal from a place, but from a state of things that are necessary for marital
life. It is a continuing offence and must exist for two years immediately before the
petition is presented. The essential elements of desertion are factum or intention to desert
or physical separation and animus. All these ingredients must remain in place during the
statutory period. The Doctrine of Constructive Separation is one when one spouse is

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compelled to leave the matrimonial home by the conduct of the other. The spouse that
drives out is guilty of desertion. There is no significant difference between the case of a
man who intends to stop cohabitation and leaves his wife and the case of a man who
compels his wife to leave him with the same intention through his conduct.
In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the
husband had inadequate income, the wife had abandoned him after seven months of
marriage. She began to live with her parents and gave birth to a child. She did not attempt
to rejoin the husband and continued her job as a teacher. She knew about the husband‘s
income status before marriage. Desertion on her part has been proved under the
circumstances. Due to the unpalatable atmosphere in the matrimonial home, the wife left
the matrimonial home in Sunil Kumar v. Usha, AIR 1994 MP 1, and the reign of terror
that prevailed there drove her out. She was held not guilty of desertion.
Imprisonment
The respondent is subject to a seven-years or more imprisonment decree for an offence
laid down in the Indian Penal Code. On this ground, however, no decree for divorce shall
be granted unless the respondent has already been imprisoned for at least three years out
of the said period of seven years or more prior to the petition being presented.
Cruelty
Since the marriage solemnization, the petitioner must have been treated with cruelty by
the respondent. The term‘ cruelty‘ was not defined in the Act and could be attached to it
as such a broad meaning. Russell v. Russell, [1897] AC 395, laid down the legal position
of cruelty in divorce proceedings. The legal concept of cruelty is usually described as the
conduct of such a character as to have caused risk to life, limb or health (physical or
mental) or to give rise to a reasonable apprehension of such danger.
In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the
respondent has behaved in such a way that the petitioner can not be called upon to endure
in the circumstances and that misconduct has caused injury to health or a reasonable
apprehension of such injury. The standard of proof required is the preponderance of
probability and not beyond all reasonable doubt as in criminal proceedings.
Unsoundness of mind

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The respondent must be of unsound mind, which is incurable. The burden of proof lies
with the petitioner that the respondent is of unhealthy mind or has suffered from such a
kind of mental disorder continuously or intermittently and to such an extent that it is not
reasonable to expect the petitioner to live with the respondent. The petitioner will also
need to prove that the unsoundness of mind is incurable. If the court finds that the
respondent‘s unsoundness of mind is incurable, it does not interfere with the degree of
unsoundness of mind for decision-making purposes, as stated in Lock v. Lock, (1958) 1
WLR 1248.
Venereal Disease
The respondent must be suffering from venereal disease in a communicable form. Where
it is not contracted from the petitioner who provides evidence that he or she has not had
any intercourse with any person other than the respondent, it is a prima facie case that the
respondent had committed adultery. It is then up to the respondent to refute the prima
facie case against him by calling for medical evidence to demonstrate that:
The respondent did not suffer from the disease, or
The respondent innocently contracted the disease, or
The respondent had not committed adultery.
The doctor who examined the respondent personally can only provide evidence to this
effect.
Leprosy
The respondent should have been suffering from leprosy and the disease must not be
contracted from the petitioner. Proving the disease have a communicable nature is not
necessary.
Not heard as being alive
The respondent has not been heard by people who are closely related to the respondent as
being alive for not less than seven years. If the person is not heard of for 7 years by those
people who would naturally have heard of him being alive, then it is presumed that the
person is dead. The burden of proving that the respondent is alive lies with the person
who asserts it.
Husband is guilty of Rape, Sodomy or Bestiality

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The wife can make a petition at the District Court on the ground that her husband has
been guilty of rape, sodomy, and bestiality since the solemnization of marriage. These are
also grounds for prosecution on criminal charges. However, the husband‘s conviction on
these grounds of criminal offence is not enough to grant a divorce decree. The
commission of the offense must be proven de novo either by the petitioner calling
witnesses or by the respondent admitting guilt; the court will decide whether any
evidence is desirable to be corroborated.
Decree or order of maintenance obtained by the wife
The wife can also file a divorce petition on the ground that she has obtained a decree or
maintenance order and since the passing of such decree or order, she has been living apart
and has no resumed the cohabitation between her and her husband.
No resumption of cohabitation after a decree of judicial separation
The parties have not resumed cohabitation for at least one year after the passing of a
decree of judicial separation. The legislature‘s intention to give such space and time to
the parties so there would be a possibility of reconciliation between the parties. In the
absence of any such change of mind of the parties, the legislature believes that for any
further period there is no justification for keeping the right of cohabitation available to
the parties. Based on their peculiar facts and circumstances, each case has to be decided.
A single act of cohabitation does not mean the resumption of cohabitation.
Non-compliance with a decree for restitution of conjugal rights
There has been no restitution of conjugal rights between the parties for a period of not
less than one year after the decree of restitution of conjugal rights has been passed.
Divorce by Mutual Consent
Under section 28 of the Act, which deals primarily with provisions relating to obtaining a
divorce by mutual consent in respect of a marriage solemnized and/or registered under
the Act, a petition for divorce may be filed with the District Court by mutual consent. The
following are some key points to consider when seeking a divorce by mutual consent:
Both parties must present a petition for divorce to the District Court together.
There must be a petition on the grounds,
They lived separately for a period of one year or more.

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That they were not able to live together.

That they agreed to dissolve the marriage mutually.
Only after one year from the date of entering the wedding certificate in the Marriage
Certificate Book then only the petition can be presented. However, in instances where the
petitioner suffers extraordinary hardship or in instances of extraordinary depravity on the
part of the respondent, relaxation may be provided.
The petition seeking divorce by mutual consent could be submitted to a district court
within its jurisdiction, either, the marriage was solemnized.
Between 6 months after and within 18 months, the date of filing of the petition for
seeking divorce by mutual consent, both parties must make a motion together for seeking
a decree of divorce.
Among other aspects, the District Court considers the following, before passing a divorce
decree,
That the petition has not yet been withdrawn.
That under the Act, marriage has been solemnized.
That the petitioner‘s averments are true.
The divorce consent was not obtained through force, fraud or undue influence.
That there was no unnecessary or inappropriate delay in commencing the proceedings.
Thus, the provisions and procedures under the Special Marriage Act for acquiring divorce
by mutual consent are relatively straightforward and fairly simple.
However, parties wishing to obtain a divorce by mutual consent must bear in mind that
the Act also contains provisions dealing with the granting of alimony and maintenance,
both permanent and during the pendency of the proceedings. In cases of divorce by
mutual consent, the parties may agree on the terms relating to the payment of alimony or
maintenance and the same may be incorporated in the pleadings before the Court.
However, care must be taken to incorporate the appropriate provisions in the pleadings in
order to avoid future misunderstandings or litigation. Therefore, while discussing the
various issues related to seeking a divorce by mutual consent with their advocates, it is
advisable that the parties should specifically discuss their arrangement and alimony and

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maintenance arrangements and take appropriate steps to ensure that their interests are
safeguarded.
Restriction on Divorce during 1st year of the marriage
Any person who is married under the Special Marriage Act must be aware of this
important provision of the Act. Unless and until one year has expired from the date of
their marriage as recorded in the marriage books, the parties may not apply for divorce in
the District Court. However, in cases where the court considers that the petitioner has
suffered exceptional hardship or the respondent has shown exceptional depravity on his
part, a request for divorce would be retained, but if there is any misrepresentation on the
part of the petitioner to apply for divorce before the expiry of 1 year, the court may, if
any order has been passed, state that order to take effect only after the expiry of 1 year, as
mentioned in Section 29 of the Act.
Remarriage
Speaking of the option of remarriage available for marriages of persons registered under
the Special Marriage Act, 1954, one important thing to bear in mind is that, where the
marriage has been dissolved, and there is no right of appeal available, or there is no
petition for it within the required period, or where the appeal is dismissed, the parties
may remarry as provided by the parties.
The General and Legal understanding
The general understanding is that only marriages are sacred and auspicious which are
done in one‘s own caste, whereas the legal aspects of it as discussed above doesn‘t make
marriages any less sacred or valid under this act. Our Law, under its provisions, gives
every citizen the right to marry and have a happy life with any person of their choice. But
many support this opinion and criticize it. Some people think it‘s valid; some don‘t. The
effect of arranged marriages on love marriage has brought about this situation which,
even after judgments and laws have been passed more frequently in this regard, has not
brought about a major change in the mindsets of people who support marriages within
religion and caste.
Difference between the Hindu Marriage Act and Special Marriage Act

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The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act
extends to all Indian citizens.
The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu
Marriage Act allows for an already solemnized marriage to be registered. It does not
provide for Registrar for solemnization of a marriage. Parties to the marriage must apply
to the Registrar in whose jurisdiction the marriage is solemnized or to the Registrar in
whose jurisdiction either party to the marriage has resided for at least six months
immediately before the date of marriage. Both parties must appear with their parents or
guardians or other witnesses before the Registrar within one month from the date of
marriage. There is a provision for the Registrar, and subsequently, the District Registrar
concerned to condone delay for up to five years.
The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide
the citizens of India and all Indian nationals in foreign countries with a special form of
marriage, regardless of the religion or faith practised by either party. The Special
Marriage Act provides for marriage solemnization as well as registration by a marriage
officer. The parties to the intended marriage must notify the marriage officer in whose
jurisdiction at least one of the parties has resided for at least 30 days prior to the date of
the notice. It should be put in his office at some conspicuous place. If either party lives in
another Marriage Officer‘s area, a copy of the notice for similar publication should be
sent to him. If no objections are received, the marriage may be solemnized after the
expiry of a month from the date of publication of the notice The Marriage Officer has to
enquire into them if any objections are received and make a decision either to solemnize
the marriage or to refuse it. Registration will be made after the marriage has been
solemnized.Any marriage already celebrated, subject to certain conditions, may also be
registered under the Special Marriage Act after giving a 30-day public notice.
Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District
Court that the wife does not have enough independent income for her support and the
required expenses of the proceeding, the wife may, at the request of the court, order the
husband to pay her the costs of the proceeding and, in the course of the preceding

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proceeding, weekly or monthly, such amount should regard to husband‘s income, which
the court may seem reasonable.
Permanent Alimony and Maintenance
Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the
time of the passing of any decree or at any time after the decree, order the husband to
secure the wife‘s maintenance and support, if necessary, by charge on the property of the
husband, such gross sum or such monthly or periodic payment of money for a period of
time not exceeding her life.
If the District Court is satisfied that there is a change in the circumstances of either party
at any time after it has rendered an order pursuant to subsection (1), it may, in either
party‘s case, alter, adjust or cancel any such order in such a manner as it may appear to
the Court to be reasonable.
(3) Where the District Court is satisfied that the wife for whom an order has been made
pursuant to this section has remarried or has not lived a chaste life, it may, in the case of
the husband, change, alter or cancel any such order and in such a manner as the Court
may deem appropriate.
Amount of Maintenance
The maintenance amount shall be purely the Court‘s discretion. The court shall take due
account of the following factors in deciding the amount of maintenance, namely:
The position and status of the parties;
The fair preference of the claimant;
If the claimant resides separately, whether the claimant is justified in doing so;
The value of the claimant‘s estate and any income derived from that property or from the
claimant‘s own income or from any other source; or any other relevant facts and
circumstances.
By its very nature, the captioned subject is complex. In such cases, after reviewing the
relevant provisions of the law, i.e. the Special Marriage Act, 1954, The Code of Civil
Procedure, 1908, The Limitation Act, 1963, The Evidence Act, 1872, The Code of
Criminal Procedure, 1973, Other Acts & Judgments and Citations of the Hon‘ble
Supreme Court of India and the High Courts. Even otherwise, the question of how rules,

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decisions, and quotations are to be applied is rather more complicated as it requires a

thorough examination of substantive laws, procedural laws and precedents of the Court in
a given set of facts and circumstances.
Offences and punishment under the Special Marriage Act, 1954
Section 43 of the Special Marriage Act, 1954 discusses the penalty for a married person
marrying again under this Act, which states that anyone who, while married, procures a
marriage of himself or herself to be solemnised under this Act shall be deemed to have
committed an offence under Section 494 or Section 495 of the Indian Penal Code, 1860
as the case may be, and the marriage so solemnised shall be void.
Section 44 of the statute further highlights the penalties for bigamy. It states that anyone
whose marriage is solemnised under this Act and who contracts any other marriage
during the lifetime of his or her wife or husband shall be subject to the penalties provided
in Sections 494 and 495 of the Indian Penal Code, 1860 for the offence of getting married
again during the entire life of a husband or wife, and the cohabitation so contracted shall
be void.
The punishment for signing a fraudulent statement or certificate is detailed in Section
45 of the Special Marriage Act, 1954. It says that anybody who makes, signs, or attests
any declaration or certificate required by or under this Act that contains a false statement
that he either knows or believes to be false or does not believe to be true commits the
offence stated in Section 199 of the Indian Penal Code, 1860.
Benefits of the Special Marriage Act, 1954
The Special Marriage Act, 1954, along with its implementation, has provided significant
benefits to the two individuals who are marrying, and these benefits are as follows:
Marriage does not require the spouses to alter their caste.
Since caste and religion have not been altered, the rights to ancestral property also remain
unchanged. Personal laws manage the succession of property, which is governed by
people‘s beliefs. As a result, despite marrying outside the religious fold, the rights of
inheritance and succession granted by the particular faith continue to exist.
The property obtained by the married couple is devolved to their offspring under the
secular law of succession, the India Succession Act, 1925.

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Because of the age requirements, the Act inhibits child marriage.

Polygamy is discouraged.
It protects the womens‘ right to refuge and support.
Unlike the earlier Marriage Act of 1872, the present Special Marriage Act, 1954 allows
for divorce. It also emphasises on mutual consent to divorce. It registers marriage with
the government, legalising it in a court of law, and allows for marriage under unusual
situations.
When determining a maintenance amount, the wife‘s income is taken into account (i.e.
alimony).
Drawbacks of the Special Marriage Act, 1954
Although the Special Marriage Act, 1954 of 1954 permits couples to reject society‘s
traditional conventions and marry outside the human-made limits of caste, religion, and
faith, certain aspects of the Act appear to cause trouble and limit an individual‘s freedom
to marry a partner of his or her own choice.
The Special Marriage Act, 1954 of 1954 permits citizens of India and Indian nationalities
in foreign countries to marry beyond man-made boundaries of religion, caste, and
community, but it also regards such weddings with caution by applying criteria that do
not apply in interfaith marriages.
There is no option for a quick procedure for instant marriage; instead, the couple must
wait 30 days from the day the notification was issued. If there have been no previous
objections to such notification, the union can be solemnised at the conclusion of the
thirty-day period.
In addition, the Act compels intended spouses to wait one month following the
publication of the notice, which is believed to be the time of objection. This interval,
however, appears to be too prolonged for people who are constantly threatened by their
relatives and communities. The Act gives family, caste, and society ample time and space
to harass persons who intend to use it. Despite the fact that it allows two consensual
adults to marry without regard for the faiths to which they belong, the law does not make
it simpler in practice, since it appears that such couples still want community acceptance
to confer validity to their marriage.

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It is difficult to understand how couples married under the Special Marriage Act, 1954 of
1954 differ from those marrying under their own laws. There appears to be a
misalignment between the goal intended by this Act and the methods taken to attain it
through its provisions.
Due to the exposure in the local registration office, family members who are opposed to
the union may try to halt it by pressure. In such circumstances, the candidates‘ lives may
be jeopardised. There have been instances of right-wing organisations opposing interfaith
weddings while keeping an eye on marriage office notice boards and taking down the
data of the parties in order to pressure them into abandoning the notion.
As a result, it appears that the Act‘s negative features exceed its beneficial aspects. Some
changes to the Act must be made in light of the problems that have been identified in
order to accomplish the vision of secularism and to encourage those couples who wish to
marry under this Act by providing them with legislation that is just, fair, and reasonable,
and that does not bend with age or socio-cultural oppression. Only then can couples of all
religions and groups be encouraged to marry under this Act, allowing the country to
attain its ideal of secularism in its genuine sense.
Case Laws
The Supreme Court in the landmark decision of Lata Singh v. State of UP, 2006 directed
the state governments to establish a framework to protect individuals marrying under the
Special Marriage Act, 1954. In the current instance, the petitioner sought to have the
petition filed by her furious brother dismissed since the petitioner had an intercaste
marriage. As a result, the Supreme Court determined that the petitioner, at the age of 24,
is of legal age and can choose her spouse.
In Kuldeep Singh Meena v. State of Rajasthan, 2018 the Rajasthan High Court confirmed
this rationale, holding that the Special Marriage Act, 1954 simply requires a notice to be
shown on the display board at the Marriage Officer‘s office. The High Court makes it
very apparent that authorities cannot impose extra obligations on spouses in addition to
the conditions established in the Special Marriage Act, 1954.
The Delhi High Court in case of Pranav Kumar Mishra v. Govt. of NCT of Delhi,
2009 held that ―the Special Marriage Act, 1954 was intended to permit a special form of

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marriage for any Indian person professing multiple faiths or preferring a civil form of
marriage.‖ Unwarranted exposure of marital arrangements by two individuals authorised
to solemnise it may undermine the marriage itself in certain circumstances. Due to
parental meddling, it may potentially jeopardise one or both parties‘ life or limb in some
cases. In such circumstances, if such a method is taken by the authorities, it is wholly
arbitrary and without legal power.
The question of marrying without interference came up before the Supreme Court of
India in the case of Shafin Jahan v. Asokan K.M. and Others, 2018 in which the Court
declared, ―The constitution respects the freedom and sovereignty which inheres in each
individual.‖ This involves the ability to make choices about parts of one‘s personality and
identity. The choice of a partner, whether within or outside of marriage, is entirely up to
the person. Marriage intimacies exist within the fundamental zone of privacy, which is
impenetrable. The ultimate right of a person to choose a life partner is unaffected in the
least by religious considerations.
In the case of Sufiya Sultan and Ors. v. State of U.P. and Ors, 2021 the Allahabad High
Court stated that, while giving notice under Section 5 it is up to the couple to request in
writing to the concerned Marriage Officer if they want to publish a public notice under
Section 6 and follow the objection procedures under Section 7.
Conclusion
In Indian society, the caste system is not a fresh notion. History demonstrates that
massive empires lost their hold owing to the prevailing caste system. The beginning of
which could not be determined, but the conclusion of which may be near. Individuals
would be able to marry the person of their choice regardless of caste, community,
religion, or cultural taboos if a competent version of the Special Marriage Act, 1954 was
enacted. Bearing in mind the community‘s wrath, the Special marital Marriage is meant
to safeguard the couple to the greatest extent feasible. The Act has established laws for
lawful marriage, invalid marriage, voidable marriage, registration procedure, reasons for
divorce, support, child status, and remarriage. The goal was to develop a universal code
that would minimise the gap running deep in the society and devouring it like a termite.
EMERGING TRENDS

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Surrogacy
Surrogacy Law in India: Surrogacy is a practice whereby one woman bears and gives
birth to a child for an intending couple. The child is handed over to the commissioned
couple after birth.
Surrogacy Law in India is monitored under the Surrogacy (Regulation) Act, 2021 (SRA)
and the ART (Assisted Reproductive Technology Act) Regulation 2021.
SURROGACY LAW IN INDIA 2021
Surrogacy Regulation Act, 2021 (SRA)
Certificate for eligibility: Surrogacy is available only to Indian couples, married for at
least 5 years. The husband must be between 26 and 55 years of age and a wife between
23 and 50 years.
Indian couples having biological or adopted children are prohibited to undertake
surrogacy. There are some exceptions if the couple has children who are mentally or
physically challenged children or suffering from a life-threatening disorder or fatal
illness.
Certificate for Essentiality: Certificates of proven infertility/expert medical reports of
either spouse or of intending couple must be obtained from a District Medical Board.
According Surrogacy Law There should be an order of parentage and custody of the
surrogate child passed by a Magistrate‘s court.
Insurance coverage must be bought for a period of 16 months covering postpartum
delivery complications for the surrogate.
Surrogate Mother: The surrogate mother should be married and have a child of her own.
She can be a surrogate mother only once in her lifetime.
The surrogate mother must be a close relative of the couple. She cannot be given
payments, rewards, benefits, or fees, except the medical expenses and related expenses
and the insurance coverage.
She should possess a certificate of medical and psychological fitness for surrogacy.
Purpose: In addition to altruistic and infertility condition, surrogacy must not be carried
out for the purpose of selling children, prostitution, or other types of exploitation, and for
any condition or disease specified throughregulations.

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Features of Surrogacy Laws

Registered clinics: All surrogacy clinics must be registered with the government and only
then the procedure can be conducted.
Surrogacy boards: National Surrogacy Board (NSB) and the State Surrogacy Boards
(SSB have to be set up. They advise the government in laying down the code of conduct
of surrogacy clinics and review the implementation of the Act.
Authorities are constituted at national and state levels to grant or suspend licenses, check
on complaints of breach of the Act‘s provisions and carry out other related tasks.
Surrogacy Law on Abortion: An abortion of the surrogate child needs the written consent
of the surrogate mother and the authorization of the appropriate authority.The
authorization must comply with the Medical Termination of Pregnancy Act, 1971.
Surrogacy Law on Punishment: Practicing commercial surrogacy allows imprisonment
for a term of at least 10 years and a fine extending to Rs 10 lakh.
Criticism of Surrogacy Law
Violates test of equality: Putting conditions such as nationality, marital status, sexual
orientation or age does not pass the test of equality.
Beyond state domain: Reproductive autonomy, inclusive of the right to procreation and
parenthood, is beyond the domain of the State.
Violates right to privacy: The certificate to prove infertility violates individual‘s privacy.
This goes against the right to life under Article 21 of the Constitution.
Harsh punishment: The punishment of 10 years of imprisonment and a fine of Rs 10 lakh
for a medical practitioner for violating provision of the Act is very harsh.
Patriarchal norms: Critics say that the new law imposes patriarchal norms on a woman by
not giving any economic value to women‘s work.
Altruistic nature: Altruistic surrogacy (without monetary benefits) limits the option of the
intending couple in choosing a surrogate mother as very limited relatives will be ready to
be a surrogate.

ART (Assisted Reproductive Technology Act) Regulation 2021:

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ART are the techniques that try to obtain a pregnancy by handling the sperm or the
oocyte (the immature female egg) outside the human body and transferring into the
reproductive system of a woman.
This is open to married couples, live-in partners, single women, and also foreigners.
Procedures such as gamete donation, intrauterine insemination, and in-vitro fertilisation
or IVF come under ART.
LIVE-IN RELATIONSHIP
Live-in relationships are still considered beyond the pale in India. But, in a country where
parents sometimes even murder their children for marrying out of caste, many brave
couples do live together without getting married. They face social opprobrium and many
legal hurdles. Since I am on the verge of such a relationship, I thought it‘s worth
preparing a guide on what a couple intending to live together should be prepared for.
Live-ins and the law
In many other countries, there has been a broader understanding of the idea of a couple
and a family, which can be seen in their legal recognition of prenuptial agreements,
cohabitation, civil union, and domestic partnership. In India, the Domestic Violence Act
2005 included within its purview live-in relationships under which a woman having a
man ―a relationship in the nature of marriage‖ can go to court if abused. Since this covers
economic abuse, it affords women protection in case of a violation of their financial
rights. The Supreme Court has stated that if a man and a woman‖ lived like husband and
wife‖ for a long period and had children, the judiciary would presume that the two were
married.
In another case, the court even declared, ―Living together is a right to life.‖
Official documents
In having joint accounts, insurance, and visas, and possibly in visitation rights to a
hospital, it could be tough if the couple is not legally married. International chess player
Anuradha Beniwal was peacefully living in with her partner with no objections from
family. (She did face veiled disapproval from some mothers who stopped sending their
daughters to her for chess tuitions.) But when her partner decided to take up a job offer in

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London and she too was willing to move, they got married in a rush to avoid visa
troubles.
How is live-in defined under Indian Law?
The Supreme Court in Indra Sarma v. V.K.V. Sarma defined live-in relationships in five
distinct ways- A domestic cohabitation between an adult unmarried male and an adult
unmarried female. This is the simplest kind of relationship.
A domestic cohabitation between a married man and an adult unmarried woman (entered
mutually). A domestic cohabitation between an adult unmarried man and a married
woman (entered mutually).
These two are the most complex grey areas of acknowledging a live-in relationships.
Furthermore, the second type of relationship mentioned is adultery which is punishable
under the Indian Penal Code.
A domestic cohabitation between an unmarried adult female and a married male entered
unknowingly is punishable under the Indian Penal Code as well. A domestic cohabitation
between two homosexual partners, which cannot lead to a marital relationship in India as
no marital laws against homosexuality are defined yet.

Legal Status of Live-in

In most western countries there is a broader understanding of the idea of a couple in a
relationship, which is evident in their legal recognition of prenuptial agreements, civil
and domestic union of couples, etc. However, it is not the same in India.
The Apex Court in so many of its judgments has stated that if a man and a woman ―lived
like husband and wife‖ in a long-term relationship and even had children, the judiciary
would presume that the two were married and same laws would be applicable.
In another instance, the Apex court even declared that for a man and a woman in love to
live together is part of the right to life and not a ―criminal offence‖. Therefore, live-in
relationships are legal in India.
Difference between marriage and live-in relationship
Marriage:

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The institution of marriage is a socially and ritually accepted union and a contract
between spouses that institutes rights and legal obligations towards each other. In light of
the diverse culture in India, separate laws have been formulated which lay down the
procedure and guidelines for the proper execution of marriages in various religions.
In addition to the law of maintenance under personal laws, Section-125 of the Code of
Criminal Procedure also provides for maintenance if the wife is unable to maintain
herself. Women can also seek extra-maintenance apart from the maintenance received by
her under any other law as per Section- 20 (1) (d) of the Protection of Women from
Domestic Violence Act.
Live-in relationship:
There is no law binding the partners together, and subsequently, either of the partners can
walk out of the relationship, as and when they wish to do so.
There is no legal definition of live-in relationship, and therefore, the legal status of such
type of relations is also unconfirmed. The right to maintenance in a live-in relationship is
decided by the court by the Domestic Violence Act and the individual facts of the case.
Though the common man is still hesitant in accepting this kind of relationship, the
Protection of Women from Domestic Violence Act provides for the protection and
maintenance thereby granting the right of alimony to an aggrieved live-in partner.
Protection against exploitation of women and children in live-in relationships
Maintenance of lady partner
The right of maintenance is available to wives under all personal laws in India. However,
none of the religions recognizes and accept live-in relationships. Since no remedy is
granted to women involved in a live-in relationship, Indian Courts have widened the
scope of maintenance under the Criminal Procedure Code.
Therefore, Section- 125 of the Criminal Procedure Code has been provided to give a legal
right of maintenance to lady partners in or out of a marriage.
Domestic Violence
The Domestic Violence Act was enforced as an attempt to protect women from abusive
(physical, mental, verbal, or economic) marital relationships. However, as per Section- 2

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(f), it not only applies to a married couple, but also to a ‗relationship in the nature of
marriage‘.
Therefore, considering all this even the Supreme Court in a couple of cases has allowed
live-in relationships to be covered within the ambit of the law specified.
Children out of marriage
Partners living together for a long time may have kids together. However, live-in couples
are not allowed to adopt kids as per the Guidelines Governing the Adoption of Children
as notified by the Central Adoption Resource Authority. In case of dispute with respect to
the custody of the child, you may also consult a Child Custody Lawyer.
Custody and maintenance rights of children
The position on the maintenance rights of children out of marriage varies in personal
marriage laws. For instance, under the Hindu Law, the father has to maintain the child,
whereas under the Muslim Law the father has been absolved of such an obligation.
However, under Section- 125 of the Criminal Procedure Code, the remedy is available for
children who are unable to claim maintenance under personal laws. Section- 125 provides
a legal right of maintenance to wives, children.
Conclusion
The media misprinted the report that couples who go for live-in relationships are more
likely to divorce each other. But that is not true. Reports have been shown that the
couples who go for live-in relationships are more opposite to divorce then the ones who
marry without living with each other because of their social or religious concerns. It‘s
quite rational also because most couples go for live-in relations because they hate to be
divorced, so why they will do the same after marriage?
Well still the opposing communities are on the rock, and it is uncertain that the live-in
concept is acceptable or not? But it is rooting up day by day and it needs ethical and legal
concerns.
IVF-IN VITRO FERTILIZATION
What is IVF?
In-vitro fertilization is an advanced type of fertility treatment in which fertilization takes
place outside of the body that is used to treat infertility where other types of Assisted

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Reproductive technology like surrogacy, etc failed. It can be described as a process where
a woman‘s egg and man‘s sperm is combined in a laboratory. A woman has to undergo
many IVF treatments before she gets pregnant.

Who is recommended to have IVF?

IVF is suitable for people who are suffering from infertility. Women who have damaged,
blocked or missing fallopian tubes are recommended to have IVF. Since it bypasses the
fallopian tube completely it is a good option for them. Women suffering from disorders
like Polycystic ovary syndrome or endometriosis are also recommended to have IVF.
Even when a male has infertility disorders like less sperm count, no sperm count, low
sperm count, IVF is recommended in these situations as well.
How far is IVF safe?
IVF is generally considered to be a safe treatment but there are some risks involved in
having an IVF treatment. As IVF is a medical treatment, it comes with a small chance of
side effects and the most severe of them could be the Ovarian hyperstimulation
syndrome. This is caused when too many eggs develop in the ovaries.IVF can also cause
multiple pregnancies as more than one embryo is put back in the uterus. According to a
report, around 30% of IVF can result in multiple pregnancies. IVF also has a higher
chance of causing an ectopic pregnancy.
Legal and Ethical issues
There is a debate on IVF due to many ethical value systems which questions IVF
treatment. As we know how advantageous IVF is but there are some deep ethical and
Legal questions concerned with IVF like:
Defining the ethically wrong done to Pre Embryo
With the growing success of IVF, one thing is never mentioned that is what happens to
all those extra embryos. As many embryos are involved to improve the chance of
pregnancy but only one embryo is used at a time, due to this those embryos which are not
needed are frozen for research work. Also, these frozen embryos which are not
transferred to the uterus are used for research or else destroyed. If an embryo is

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considered as an individual then it is unethical to destroy it. It is similar to intentionally

killing an individual.
As an embryo is a human being and a human being should be recognised as an
individual. The protection of an individual‘s life should be from its conception, from its
first moment. But some people argue that embryos are too primitive to be given rights.
Thus, it is ethical to use the embryos for research and elimination which satisfies the
interests of humans. Unfortunately, discussion on the rights of embryos does not give an
answer to the issue that is if the destruction of embryos is ethical or not.
Defects in Offspring
As the success of IVF depends on the result of many stages of the process, throughout the
process, the main concern is to monitor the safety of the treatment as the treatment can
cause many defects and disorders. The children born of IVF are more likely to be shorter
than the normal children or even have low weight. It can also cause multiple pregnancies.
It is reasonable to reject the use of a treatment which can cause side effects and many
genetic disorders. So in such cases, can the parents sue the treatment provider? Should we
proceed with technology which can cause defects? No, we should provide insurance to
the parents so that if there is a defect they can treat it.
Commercialization of IVF
IVF treatment treats an embryo as a commodity because its very nature is buying and
selling. Parents are treating the child through IVF as a commodity as the offspring can be
modified through IVF. We don‘t have a right to disturb the natural process to achieve the
results through artificial means.
Wrong done to a Couple
As IVF success depends on the number of embryos transferred in the uterus. Sometimes
this process can cause multiple pregnancies. Multiple pregnancies are a threat to the
mother as it can cause bleeding in the uterus and high blood pressure. So whether the
wrong done by IVF can be ignored due to its advantages.
The case of Frozen Embryos
Supernumerary embryos are the by-product of the IVF. The embryos are frozen for next
time when the couple wants another child. However, not every embryo is replaced and

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not every couple conveys what should be done with the remaining embryos. This has led
to the creation of an excessive number of embryos which are stored in fertility labs after
10 years for the research. There are many ethical questions regarding Frozen embryos
that are: what is the fate of the frozen embryos if the couple is dead? Who will have the
ownership of the frozen embryos if there is a divorce? Also, there has been a concern
regarding the time for which the embryos are frozen and then transferred as this can have
detrimental side effects on the fetus.
Rights of children born out of IVF
The protection of the rights of a child born through IVF is important. Different countries
have different laws like in India the Union Government approved Assisted Reproductive
Technology (ART) Regulation Bill 2020 allows the child born of IVF to enjoy all the
rights as a natural biological child to protect the child from exploitation. The bill also
made it mandatory to conduct tests to identify the genetic defects in the embryos. Also,
India recognises the relationship by blood (adoption included) and IVF does not pose any
question on the blood relationship and the question of paternity of the offspring.
Success rates of IVF
There are a number of factors on which the success of IVF depends like the quality of
eggs, the cause of infertility, the quality of the semen, at what age the treatment is going
to be done as the older the woman,the fewer her genetically normal eggs would respond
to the treatment. The success rate of the IVF also depends on the type of treatment
received like how the women‘s own eggs are used, the use of donor eggs. In India,
the success rate of IVF is 30% to 35% and for young women, it is 40%.
Current regulations
According to the 228th Law Commission of India report, in 2009 the Assistive
reproductive technology industry was recognised as a 25000 crore gold pot. Although in
India we do not have a specific law to regulate IVF, each state has come with its own
approach to regulate it. IVF in India is regulated by the Indian Council of Medical
Research. There are some guidelines which are issued by Indian Council of Medical
Research to regulate In-vitro fertilization like the clinic should not disclose any
confidential information of the donor and the clients except in the cases that involve court

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order. If the person is under the age of 21 the gamete presented should not be used by the
clinic. The child born through IVF shall be presumed as the legitimate child of the
parents as it is done with the proper consent of the parents. The couple must be given
mandatory counselling before the procedure. Human embryos cannot be placed in a non-
human body and all the research on embryos should be done after taking consent from
the Institutional ethical committee.
To make a specific law relating to IVF, the Central Government approved the Assisted
Reproductive Technology Regulation Bill 2020. It can be a path-breaking bill for the
women in the country. According to the bill, the government will form an apex body
which will be known as ―NATIONAL BOARD‖ which will regulate IVF clinics across
the country. This board will make a code of conduct to be observed by the employees
working at the clinics and will decide the minimum standards of work and working
environment to be maintained by the clinics. The bill also proposes to ban the sale of
human embryos. Those involved in trafficking of human embryos shall be fined 10 lakh
rupees for the first time and for the second time the person could be imprisoned for 12
years. This bill is the best chance to eliminate exploitation in this field.
Challenges
Some of the risks and challenges of IVF are:
Reprogenetics
One of the challenges of IVF is reprogenetics. As there is an increase in the scientific
knowledge of genomics it can give access to our personal genetic information. People in
the future will start considering reprogenetics alongside IVF as it will allow them to edit
the DNA of embryos according to them before transferring it into a uterus. It will help
them to influence the particular characteristics of an embryo. Initially, it might help in
preventing genetic disorders but it can be used in another way. It can create
discrimination and division in society.
Financial challenges
IVF treatments are very costly; these treatments are becoming a financial risk for many
people. The cost of IVF treatment in India is around 1.5 lakhs to 2.5 lakhs and this cost
can be a limiting factor for many couples who wanted to opt for this treatment. With the

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 Chanderprabhu Jain College of Higher Studies
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success rate around 40%, there should be insurance for the couple opting for this
treatment. But insurance companies fail to provide insurance on this treatment as the
insurance only covers the aftermath, not preplanning. The insurance covers illness and
fertility treatments are not an illness.
Suggestions
Some suggestion regarding the challenges faced by IVF are:
Insurance cover should be provided to those who opt for this treatment as these
treatments are costly and can cause a financial burden on the couple. Paying out of
pockets for many couples is not a viable option as the success rate of IVF is only 30 to
40%.
The state should ensure the proper way to use the frozen embryos as it is unethical to
destroy the embryos as the science also considers embryos as an individual and also the
state should set a time limit for the use of frozen embryos.
An intervention should be there when it comes to reprogeneticsin order to accept them
legally. Intervention is important for the welfare of society and for future generations as
reprogenetics can create divide and division in the society.
Commercialisation and trafficking of the embryos should be banned and proper
guidelines should be made regarding this.
DOMESTIC VIOLENCE
Domestic violence means physical violence and also called domestic abuse or family
violence. It can be defined to include any threatening, abusive, or violent behavior in the
home, including between adults, children and other adult family members. It is violence
committed by someone in the victim‘s domestic circle.
This includes partners and ex-partners, immediate family members, other relatives and
family friends. It is used in for intimate partner violence, which is committed by a partner
in an intimate relationship against the other partner, and can take place in heterosexual or
same sex relationships, or between former spouses. It also involves violence against
children, teenagers, parents, or the elderly.
Types of Domestic Violence

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1. Physical Abuse: it is the most visible form of domestic violence. When anyone causes
bodily pain, harm or danger to life, limb or health of the person or harms the health or
development of the person, it would be physical abuse. Physical abuse include:-Hitting,
Beating, Kicking, Biting, slapping, battering, shoving, punching, pulling hair, burning,
cutting, pinching
2. Sexual Abuse: when the abuser or wrongdoer coerces or attempts to coerce the victim
into having sexual contact or sexual behavior without the victim‘s consent. It is attempt
to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or
otherwise directed, against a person‘s sexuality using coercion.
For example-
∙ When you force the aggrieved women to have sexual intercourse.
∙ When you force the aggrieved women to look at pornography.
∙ When you indulge in sexual abuse of child.
∙ Sexually demeaning the victim.
3. Verbal and Emotional Abuse: It means psychological abuse. Where deflating the
victim‘s sense of self-worth and/or self-esteem. Following acts may amount to verbal and
emotional abuse-

∙ Stopping the woman from assessing or using any part of the house. ∙ Not allowing the
woman use of clothes, articles or things of general household use.
Victims of domestic violence
Women and girls are the largest group of victims. However, men, children and elderly
people are also be victims of domestic violence. Domestic violence occurs at all levels in
society and in all population groups. Sometimes people can no longer cope with caring
for relatives. The situation can then escalate and result in abuse.
Effects of Domestic Violence
Domestic violence in India
In India, domestic violence is any form of violence suffered by a person from a biological
relative. Typically, it is the violence suffered by a woman by male members of her family
or relatives. In India most women are suffering with domestic violence. Women in the

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15–49 age group had experienced domestic violence in their lifetime.

It was found in the survey that 85% of women who suffered with violence, in or outside
of marriage, and never sought help. Only 1% of women report it to the police against the
violence. In India woman are the largest group of victims who suffered from domestic
Violence. Every single day a woman and a girl are suffering from domestic violence.
There are several domestic violence laws in India. By these laws they protect the women
from violence. Crimes against Women are covered under the Special and Local Laws.
Earlier the Dowry Prohibition Act 1961 which made the act of giving and receiving
dowry a crime. After this act two new sections, in 1983 Section 498A and in 1986
Section 304B were introduced into the Indian Penal Code.
Domestic violence provisions under Indian penal code.
Section 498A, Cruelty by Husband or his Relatives
It deals with the issues of cruelty by a husband or his relatives. The objective behind the
introduction of this provision was to punish the husband and his relatives who torture, ill
treat and harass a woman with a view to force her or any other person related to her to
meet any unlawful demands.

Section 304B, Dowry Death

Dowry deaths and bride burning are sinful act which are still prevailing in the Indian
society. It is a symptom of a special social illness and are unfortunate developments of
our society. Under this Section 304B (1) defines dowry death whereas clause (2) lays
down its punishment which is not less than seven years and may extend to life
imprisonment.
The recent legislation is the Protection of Women from Domestic Violence Act
(PWDVA) 2005. The PWDVA, a civil law, includes physical, emotional, sexual, verbal,
and economic abuse as domestic violence. The Protection of Women from Domestic
Violence Act, 2005.
This act has been enacted to prevent women from domestic violence. Domestic violence
is currently defined in India by the Protection of Women from Domestic Violence Act of

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2005.
Under section 3, Domestic Violence means
For the purposes of this Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it—
(a) Harms or injures or endangers the health, safety, life, limb or well-being, whether
mental or physical, of the aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her
or any other person related to her to meet any unlawful demand for any dowry or other
(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved
person. Explanation I.—for the purposes of this section, —
(i) ―physical abuse‖ means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) ―Sexual abuse‖ includes any conduct of a sexual nature that abuses, humiliates,
degrades or otherwise violates the dignity of woman;—
(b) Repeated threats to cause physical pain to any person in whom the aggrieved person
is interested.
(iv) ―Economic abuse‖ includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a court or
otherwise or which the aggrieved person requires out of necessity including, but not
limited to, household necessities for the aggrieved person and her children, if any,
stridhan, property, jointly or separately owned by the aggrieved person, payment of rental
related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or
immovable, valuables, shares, securities, bonds and the like or other property in which
the aggrieved person has an interest or is entitled to use by virtue of the domestic
relationship or which may be reasonably required by the aggrieved person or her children
or her stridhan or any other property jointly or separately held by the aggrieved person;

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and
(c) Prohibition or restriction to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of the domestic relationship
including access to the shared household.
The Act covers all women who may be mother, sister, wife, widow or partners living in a
shared household. The relationship may be in nature of marriage or adoption. In addition
relationships with family members living together as a joint family are also included.
Domestic violence is a serious issue. Overall, one-third of women age 15-49 have
experienced physical violence and about 1 in 10 have experienced sexual violence. There
is a lot of violence against the women. And day by day the crime rate of domestic
violence against victims is increasing. And this violence are against women is protected
by laws. These laws and acts provide protection to the victims.
SAME SEX MARRIAGE
Current generations and Indian Government are learning to be tolerant towards LGBTQ
community. But even after decriminalizing section 377 of IPC, the plight of
Homosexuals is not coming to an end.
In rural areas, being homosexual is considered as a mental illness and homosexuals
are subjected to extreme violence. A proper law on Same sex marriage is the
need of hours. Homosexuals are being subjected to mentality, emotional, physical
and economic violence, harassment, exclusion, mockery, discrimination and
stigmatization.
We need to change our mentality and accept them as normal, ordinary citizens. Even after
declaring section 377 of IPC, the plight of LGBTQ community is not coming to
an end. They are being subjected to mental, physical, emotional, and economic violence.
Same Sex Marriage in India
India does not recognize same sex marriage. Our country does not possess any law
governing same sex marriage. India is home to people of diverse faith and has
codified laws which govern their marriage but none of these laws
incorporates provisions for homosexuals.
Marriage is a union which gives certain rights. Marriage is an ancient institution that has

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 Chanderprabhu Jain College of Higher Studies
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An ISO 9001:2015 Certified Quality Institute
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existed in every society. It solemnizes emotional connection.Our society has still not
accepted people who belong to LGBTQ community.They face both social and
legal difficulties. They cannot file for divorce, maintenance, allowances, succession,
pensions etc. They cannot even get a complaint registered if they are raped or
physically abused because there is no proper in India which protects their rights.
Homosexual couples in India face a lot of trouble when it comes to buying property,
health insurance, opening back account, getting passports, getting gratuity funds,
pensions and other benefits that covers spouses and partners. Making same sex
relationship legal is not enough. There should be proper laws that give legal
recognition to their homosexual relationship and protect their rights.
Section 377 of Indian Penal Code,1860
Section 377 of Indian Penal Code which was introduced in India during
the British rule, states that ―Whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animal shall be punished with imprisonment
for life, or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.―
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section.
In other words, section 377 of Indian Penal Code states that any person who indulges in
any form of unnatural sexual act/carnal intercourse against the order of
nature will be punished for imprisonment for life. Thus, some parts of
section 377 have been declared unconstitutional.
However, on September 6, 2018, the Supreme Court of India in a historic judgement
of nave Singh Jahar & Or‘s v. Union of India, struck down parts of section 377 of
IPC,1860 which criminalizes sexual intercourse against the order of nature.
The main reason behind decriminalizing homosexuality was that every citizen
should have rights to choose his/her own partner, regardless of sex. This
judgment made Homosexuality legal in India.
Landmark Judgements
Naz Foundation v. Govt. of NCT of Delhi 2009

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In this case, the Court held that right to life and liberty guaranteed by Article 21
includes right to dignity and privacy and held that criminalization of
consensual gay sex violated these rights. The court held that section 377 also
violates Article 14 of the Constitution as it creates unreasonable classification and
targets homosexuals as a class. Article 15 of the Constitution forbids discrimination
based on certain grounds which includes sex. The Court held that the term sex
includes not only biological sex but also sexual orientation and,
therefore discrimination on the ground of sexual orientation is unconstitutional.
Hence, those parts of section 377 which criminalizes homosexual acts were declared
unconstitutional and left the amendment part of the Parliament.
Suresh Kumar Kosha v. Naz Foundation ,2013
In this case, the Supreme Court struck down the decision given by the High Court in the
Naz Foundation Case stating that judicial intervention was required in this issue.
This decision of the Supreme Court recriminalized ‗‘sexual intercourse against the
order of nature.‘‘
National Legal Service Authority (NALSA) v. Union of India
In this landmark judgement, Supreme Court legally recognized third
gender/transgender persons. The court held that the third gender persons were entitled
to fundamental rights guaranteed under Article 14,15,16,19(1)and 21 of the
constitution. Further, the SC stated that Article 14 of the Constitution protects
rights not only of Men and women but also transgender people. Article 15
forbids discrimination on the grounds of sex. Here, sex does not only refer
to biological sex but also sexual orientation. So, discrimination of the ground of
sex included discrimination on the basis of gender identity.
Justice K.S. Pettaway v. Union of India
In this case, court held that the right to privacy is protected as an intrinsic
part of the Constitution. Court held that sexual orientation is an essential
attribute of privacy and this attribute is protected by various rights under Part 3 of the
Constitution.
Navtej Singh Johar v. Union of India

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In this case, Supreme Court held that criminalization of consensual sexual sex
between adults was unconstitutional as it violated the Right to Equality
guaranteed under Article 14 of the Indian Constitution. Further, the court held that
the choice of whom to partner, the ability to find fulfilment in sexual intimacies
and the right not be subjected to discriminatory behavior are intrinsic to the
constitutional protection of sexual orientation.
Violation of Fundamental Rights
Right to Equality
Article 14 provides that the State shall not deny to any person equality before
the law or equal protection of the laws within the territory of India and It also
prohibits equality before law and equal protection law. Article 14 of the
Indian Constitution prohibits discrimination on the ground of religion, race, caste, sex,
or place of birth. Section
377 of IPC violates article 14 as it unreasonably discriminates homosexuality as a class
and criminalizes them.
Right Against Discrimination
Article 15(1) prohibits discrimination on the grounds of religion, race, caste, sex
and place of birth. In the case of National Legal Service Authority (NALSA) v.
UOI, the Supreme Court held that legal recognition should be given to transgenders as a
third gender. So, non-recognition of same sex marriage/homosexual act amounts to
discrimination on the ground of sex. Thus, section 377 violates section Article 15(1).
Right to Freedom of Speech And Expression
Article 19 states that all citizens shall have the right to freedom of speech and
expression and to form associations or unions. Article 19(1)(a) also includes the
right to express one‘s sexual identity and orientation. Section 377 violates their
ability to express themselves openly. Article 19 protects privacy, gender identity,
integrity.
Right to Privacy
Article 21 provides for protection of life and personal liberty. Right to live with
dignity includes ‗‘right to choose gender identity.‘‘ Article 21 of the Indian

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Constitution protects right to marry a person of one‘s choice and this right also
applies to same sex couples also. Section 377 of IPC denies recognitions of same sex
marriage. Hence, it violates Article 21of the Indian Constitution.

Same Sex Marriage Under Various Personal Laws in India

Hindu Personal Law
Hindu Marriage Act was enacted by Parliament in 1955 to amend and to codify
marriage law between Hindus. Section 5 of Hindu Marriage Act states that
marriage can be solemnized between any two Hindus. But it uses the words like Bride,
Bridegroom, Hindu Man, Hindu Women which makes in heteronormative in nature.
Hindu Marriage Act does not expressly prohibits Same Sex Marriage and can be
easily amended to include the provisions for Same Sex Marriage.
Muslim Personal Law
Homosexual acts are forbidden in traditional Islamic Jurisprudence and are liable
to different punishments, including death penalty. As per the traditional
Islamic Law, homosexuality is a sin and hence it is banned. The procedure laid
down for marriage in the Quran is heteronormative in nature. According to
Muslim Personal Law, marriage is a contract and the purpose of marriage is to
legalize relationship between a man and woman. The procedure provided for
Divorce and Nikah also uses the terms man and women. However, it cannot be said that
Homosexuality is expressly banned in Muslim Personal law.
Christian Personal Law
Christian Marriage Act does not expressly prohibit same sex marriage. It does use terms
like Christian Woman and Christian Man which makes it heteronormative in nature.
Section 60 of the Christian Marriage Act lays down the age of man and women intending
to be married. However, it does not expressly prohibit same sex marriage.
Special Marriage Act
Special Marriage Act,1954 lays down procedures for marriage between individuals
from different Religions and Castes. There is no provision for same sex

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School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)

marriage in Special Marriage Act. The Special Marriage Act uses terms like
Man and Woman, making heteronormative in nature. However, it can be
easily amended and modified to include same sex marriage. It has been argued in the
Court that Special Marriage Act should be interpreted to also apply to same sex
marriages.
Conclusion
Since same sex couple does not have legal recognition, they are being subject of various
crime and abuses. Even after decriminalization of Same Sex relationship the plights of
homosexuals still continue. Our society has still not accepted it.
Marriage is not just union between two individuals but it brings two families together.
The real challenge is to make same sex marriage legal in India. It still feels like a
distant dream. .

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