In Dr. Srimati Basu’s presentation, she sought to examine the relationship between men, women and the Indian family law. In India the feminists’ movement has prevailed and the laws especially family laws favoring women. Men are oppressed and harassed by women using the family laws (Basu, 2018). Therefore, Dr. Srimati Basu sought to support men despite the significant pro-women movement that was prevailing. In this paper, I will discuss who are argued as the victims and who has the many and power between men and women in the India society. Moreover, I will also discuss the ways that the men’s rights groups tried to re-purpose the family law in order to liberate themselves.
The men’s rights groups argued that men are the victims of the family law especially divorce law. They argue that the family and divorce laws favor women and women misuse that opportunity by harassing men. A woman and her parents tend to harass the husband by chasing him away out of the family without anything since the divorce law supports these acts claiming that the in case of a divorce, the woman retains all the wealth and the man left with nothing (Basu, 2018). Essentially, the one who has the money in a family is the man since he is the one who works to provide for the family but unfortunately, the woman has the power and can take everything from the man because the family laws and divorce laws protect them.
The men’s rights groups have stepped up to fight for the liberation of men using the law. The men’s rights groups especially those claiming that to be victims of dowry laws harassment have joined forces to seek for their liberation using the law by filing petitions to fight legal battles as well as help one another in the current pro-women legal world (Basu, 2018). To re-purpose the family law, the men’s rights groups adopted the psychological fight by encouraging every man to write letters every three months to any senior citizen’s commission. They spent about Rs 100 to 150 every month on the letters and mailing. They encourage every man to right the harassment and the unfair treatment they undergo by the family laws especially the family laws. They sent these letters to the any top commissioners including the president, the prime minister, mohalla ka pradhan amongst other commissioners (Basu, 2018). This strategy actually was effective as the men expressed their feelings and oppression that they went through attracted attention of the senior commissions causing rapid action to address the situation (Basu, 2018). They also used the transnational connection with other pro-men supporters from other countries to support them in these legal battles (Basu, 2018). Moreover, they exercise legal empowerment by advocating for equal rights and review of the laws to liberate men from the oppression.
A Q&A guide to family law in India
The Q&A gives a high-level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements and matrimonial property regimes; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; controversial areas and reform; and the effect of COVID-19.
This Q&A is part of the global guide to family law.
This global guide is published in association with the International Academy of Family Lawyers.
Jurisdiction and conflict of law
1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?
Sources of law
Marriage and divorce. India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
- Hindu: Hindu Marriage Act 1955.
- Muslim: Muslim marriage is a contract under Muslim law.
- Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
- Parsi: Parsi Marriage and Divorce Act 1936.
In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.
All these laws apply throughout India.
Welfare of children. Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which applies to all communities.
The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minor children of any caste and creed. However, while approving and declaring a person as a minor’s guardian, the court will also consider the minor’s personal law. The Guardian and Wards Act 1890 aims to protect the minor child’s person and property.
The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, and secure speedy redressal of disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges who undertake trials and review evidence. The Family Courts follow the Civil Procedure Code. Family proceedings are generally public but can be conducted in private at the request of the parties or if circumstances require (see Question 37).
2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?
All Indian matrimonial statutes contain jurisdictional rules. Two matters are relevant regarding jurisdiction:
- The place in which the petition or suit in a matrimonial cause is filed.
- The court in which the petition or suit in a matrimonial cause should be filed.
Whether a court has jurisdiction depends on the:
- Parties’ domicile.
- Place of solemnisation of marriage.
- Marital residence and the residence of the respondent (or, if the respondent resides outside India, where the petitioner resides).
Jurisdictional requirements are the same under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. A divorce petition can be presented to the district court within the local limits of whose original civil jurisdiction the:
- Marriage was solemnised.
- Respondent, at the time of the presentation of the petition, resides.
- Parties to the marriage last resided together.
- Wife resides on the date of presentation of the petition (if she is the petitioner).
- Petitioner resides at the time of the presentation of the petition, in a case where the respondent, at that time, either:
- resides outside the territories to which the acts extend; or
- has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him/her if he/she were alive.
The applicability of the Special Marriage Act is not restricted to Indians and foreign nationals can marry under the Act. The parties need not be domiciled in India to solemnise their marriage under the Special Marriage Act.
Under the Indian Divorce Act 1869, a petition in a matrimonial cause can be presented in the court of the district judge within the local limits of whose ordinary jurisdiction either the:
- Husband and wife reside.
- Husband and wife last resided together.
Where a number of courts have jurisdiction, a party can choose one of them. Where a court’s jurisdiction is questioned, preference is generally given to factors that support its jurisdiction.
Same-sex spouses and civil partners
Same-sex marriages and civil partnerships are not legally recognised in India.
There is no concept of matrimonial property under Indian law. A woman can ordinarily claim maintenance and not a right over the property/house in which she resides. A woman can claim “right to reside” in her matrimonial home under the Protection of Women from Domestic Violence Act 2005. Cases under this Act can be filed in the court of the place where the aggrieved woman resides.
Disputes over children are adjudicated by the courts with the closest contact with the child. Therefore, the court of the place where the child resides will assume jurisdiction for any disputes over custody and other children-related issues.
Domicile, nationality and habitual residence
3. How do the concepts of domicile, nationality and habitual residence apply in relation to divorce, financial arrangements, and children?
There are two types of domicile:
- Domicile by origin. An individual automatically acquires the domicile of the country in which he/she is born. This remains his/her domicile until and unless they acquire a new domicile.
- Domicile by choice. Domicile of choice is that which the individual has elected and chosen for himself to replace his/her domicile of origin.
In relation to domicile by choice, a man’s domicile is the place in which he has decided himself and his family will live, with the intention of making it a permanent home. The Apex Court has acknowledged the concept of domicile as established under English law (Central Bank of India Ltd v Ram Narain AIR 1955 SC 36). It held that the two constituent elements that are necessary under English law for the existence of domicile are:
- A residence of a particular kind. The residence need not be continuous, but it must be indefinite and not purely fleeting.
- An intention of a particular kind. There must be a present intention to permanently reside in the country where the residence has been taken up.
An intention of permanent residence proves a change of domicile (Kedar Pandey v Narain Bikram Sah  3 SCR 793). The test for establishing change of domicile is that a person acquires a new domicile when he/she settles in a new country with the intention of making it his/her permanent home and continuing to reside there permanently (Louis De Raedt v UOI and others (1991) 3 SCC 554).
The Hindu Marriage Act 1955 extends to the whole of India, and also applies to Hindus domiciled in the territories to which the Act extends but who are outside of those territories (section 1(2), Hindu Marriage Act 1955). The Hindu Marriage Act 1955 applies to persons who are not residing in India but continue to be domiciled in India.
The concept of habitual residence is not defined but is recognised by Indian courts. Indian statutes require residence as a ground for jurisdiction. The Supreme Court has held that residence, for the purposes of the application of Indian matrimonial statutes, does not mean a temporary residence but a habitual residence or a residence which is also intended to be permanent (Smt Satya v Teja Singh  2 SCR 1971).
The concept of residence is important in India, as the courts to which a divorce petition under the matrimonial statutes can be presented include place where either the:
- Parties to the petition last resided.
- Respondent (or the petitioner if she is the wife) resides.
In the landmark judgment in Y Narasimha Rao and others v Y Venkata Lakshmi and others (1991) 3 SCC 451, it was held that marriages that take place in India can only be dissolved under either the customary or statutory law in force in India. Therefore, the only law that can apply to matrimonial disputes is the one under which the parties are married.
However, confusion occurs in relation to parties who are domiciled abroad but came to India for the sole purpose of solemnisation of marriage. When these parties, who are domiciled abroad but were married in India under Indian laws, enter into matrimonial disputes, it is unclear whether the divorce petition is maintainable in India.
The Supreme Court of India has not adjudicated on this issue. The main view emerging from the views of the High Courts is that held by the Bombay High Court that domicile in India is held to be a necessary requirement for the application of Indian matrimonial statutes (Ms Kashmira Kale v Mr Kishore Kumar Mohan Kale Writ Petition No 1242 of 2010). However, this view does not bind other high courts. For the purposes of jurisdiction, Indian domicile of one of the parties is sufficient to confer jurisdiction on the Indian court.
In relation to child custody, the child’s interests and welfare is of primary importance. The issues regarding child custody are adjudicated by the courts in whose jurisdiction the child and the person closest with the child resides. Indian courts can decide on the issue of the custody of a child who is a foreign citizen only if the child is within the territorial jurisdiction of the Indian courts.
The Supreme Court of India has held that even where a foreign court has taken a particular view on any aspect concerning the welfare of a minor, the Indian courts should objectively and independently review the matter. In Ruchi Majoo vs Sanjeev Majoo (2011) 6 SCC 479, it was held by the Supreme Court of India that the judgment by a foreign court should only be taken as input for its final adjudication. In this case, the Apex Court allowed the trial court in India to hear the mother’s application for custody of the child.
Indian courts believe in the comity of law. However, priority is given to the welfare of the child.