Divorce: Indians can choose to be governed under personal religious laws or secular law. The Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Dissolution of Muslim Marriage Act, 1939 and Divorce Act, 1869 are some of the religious personal laws applicable in family proceedings. The Special Marriage Act, 1954 is a secular law under which any two persons may solemnize or dissolve their marriage.

• Hindu: As per section 19 of the Hindu Marriage Act, 1955, divorce proceedings may be initiated either in the jurisdiction where the marriage was solemnized, where the spouses last resided together or where the respondent resides at the time of filing, or where the petitioner resides at the time of marriage (provided the petitioner is the wife or the respondent is a foreign resident or has not been heard of as alive for 7 years) either of the parties resides at the time of filing of the petition.
• Muslim: Dissolution of Muslim Marriages Act, 1937 and Muslim Personal Law (Shariat) Application Act, 1939 govern certain aspects of Muslim matrimonial laws, however Muslim law is largely uncodified. Muslims may approach the family court with divorce petitions.
• Christian: As per section 18 of the Divorce Act, 1869, any husband or wife may present a divorce petition to the District Court.

Under Section 7 of the Family Courts Act, 1984 (FCA), the family courts have the jurisdiction to try divorce proceedings f or Hindus, Muslims and Christians.

• Parsi: As per section 29 of the Parsi Marriage and Divorce Act, 1936, suits instituted under this Act may be brought where the defendant resides at the time of the institution of the suit or where the marriage under this Act was solemnized. When the defendant is a foreign resident, such suit lies at the place where the plaintiff and defendant last resided together. Under leave of the court, the petition may be filed at the place where the plaintiff resides or at the place where the plaintiff and the defendant last resided together.

Special courts, i.e. the Parsi Chief Matrimonial Courts and Parsi District Matrimonial Court have the jurisdiction to try family matters of the Parsis covered. The judge is to be aided by five delegates.

Property Division: Recently, in Geeta Anand v. Tanya Arjun, 2024 SCC OnLine Del 2327, the Division Bench of Delhi High Court, held that where there is intrinsic and unwavering connection between the cause of action in suit proceedings and the marital relationship, then family courts would have jurisdiction over the matter under section of 7 of the FCA. Section 8 of the FCA expressly excludes the jurisdiction of civil courts in areas where family courts have been established. In areas where there are no family courts, recourse lies with civil courts.

For the determination of territorial jurisdiction, section 17 of Civil Procedure Code, 1908 (CPC) provides that the suit for any immovable property may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated. According to section 20 of the CPC, a suit regarding movable property can be filed in a court where the defendant resides, carries on business, or personally works for gain, or where the cause of action arises. Unlike immovable property, the territorial jurisdiction for disputes involving movable property is more flexible, allowing parties to initiate legal proceedings in courts that have jurisdiction over the location or business of the defendant, or where the transaction or dispute concerning the movable property occurred. The pecuniary jurisdiction of the civil courts to try the suit varies from state to state in India.

In India, the courts have power to issue an anti-suit injunction to a party over whom the court has personal jurisdiction in an appropriate case. However, this power is used only in exceptional cases having regard to the rule of comity, since the effect of anti-suit injunction though directed against a person, interferes with the exercise of the jurisdiction of another court. In Sumit Sapra v. Akansha Ahuja Sapra, 2024 SCC OnLine Del 6, the Division Bench of Delhi High Court has observed that the cases of injunction are governed by the doctrine of equity and one of the tests adopted in such cases for issuance of anti-suit injunction is whether the foreign proceedings are “oppressive or vexatious” and if the grant of anti-suit injunction is necessary in the interest of justice.

In the context of a Hindu couple married in India and thereafter migrating abroad, the Indian courts face challenges when determining the validity of decree granted by foreign courts. Section 1 of Hindu Marriage Act, 1955 (HMA), provides for extraterritorial application of the statute on Hindu couples settled abroad. Therefore, any divorce proceeding for such couples should ideally be filed under the HMA. However, In the case of Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451 the Supreme Court held that a foreign court has jurisdiction only if it is recognized by the law under which the couple was married.

The enforceability of foreign judgments in India is governed by Section 44 A read with 13 of the Civil Procedure Code, 1908, which specifies that foreign judgments are not conclusive if, among other reasons, they were not passed by a court of competent jurisdiction or on the merits, or if they violate Indian law or if they fail to follow principles of natural justice.

A foreign divorce decree will only be recognized if it is based on grounds that are valid under the HMA and if both parties have actively participated in the proceedings. The Supreme Court also carved out few exceptions for recognition of foreign decree – (a) in cases where the respondent is domiciled or permanently resides in the forum, (b) in cases where the respondent voluntarily submits to the foreign court’s jurisdiction, (c) in cases where the respondent consents to the relief despite the jurisdiction being inconsistent with the matrimonial law, the foreign decree will be recognized by Indian courts.

Applicable law for proceedings before Indian courts will generally be Indian laws – be they religious or secular. There is no comprehensive law on the subject and the law is evolving as per judicial pronouncements. The main question which generally arises is the recognition of foreign divorce decrees by Indian courts. In the case of Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451 the Supreme Court has held that foreign divorce decrees are to align with the matrimonial laws under which the marriage was solemnized. In the case of Arun A. v. The Marriage Officer (Sub-Registrar), WP(C) NO. 21638 of 2023, the Kerala High Court ruled that foreign judgments can be accepted in India if the parties voluntarily submit to the foreign court’s jurisdiction and consent to the relief, regardless of whether the jurisdiction aligns with their matrimonial laws. This underscores the importance of party autonomy in cross-border legal matters.

The grounds for divorce vary under different religious and secular laws, but most are fault-based.

Hindu: For Hindus a marriage can, be dissolved under section 13 of the Hindu Marriage Act, 1955 (HMA) on grounds such as adultery, cruelty, desertion for two years, conversion to another religion, mental unsoundness, venereal disease, renouncement of the world, or not being heard as alive for seven years. A wife can also seek divorce if the husband since marriage has been guilty of bigamy, rape, sodomy, or bestiality, or if a maintenance order operates against the husband with the couple not cohabitating for over a year. Section 13B of the HMA allows parties to divorce by mutual consent, if they are not cohabitating for a year or more.

Muslim: Under Muslim law, a woman can seek divorce if her husband’s whereabouts are unknown for four years, if he fails to provide maintenance for two years, is imprisoned for seven years or more, is impotent, insane, or has a venereal disease, or if the marriage was contracted before she was 15 and she repudiates it before turning 18. Cruelty, including physical abuse or forcing her into immoral activities, is also a ground for divorce under Section 2 of the Dissolution of Muslim Marriage Act, 1939. The Triple Talaq or the Talaq-ul-Biddat, which permitted Muslim husbands to divorce their wives under Islamic laws, has been held as unconstitutional by the Supreme Court in 2016. A Muslim man can divorce his wife without needing to provide specific grounds through Talaq, which is a no-fault-based form of divorce. However, if he wishes to seek a judicial divorce, he may cite reasons like irretrievable breakdown of marriage or cruelty, although these are less common compared to the unilateral Talaq.

Christian: Under the Divorce Act, 1936, a husband can file for divorce if the wife has committed adultery, while a wife can seek divorce if the husband has converted to another religion and married another woman, committed bigamy with adultery, incestuous adultery, rape, sodomy, bestiality, or adultery with cruelty or desertion for two years.

Parsi: As per section 29 of the Parsi Marriage and Divorce Act, 1936, grounds for divorce are unconsummated marriage due to the wilfulness of the defendant for a period of 1 year post marriage, mental unsoundness, the defendant was pregnant by some other person at the time of marriage, defendant has committed adultery, rape, bigamy, cruelty, grievous hurt, defendant is undergoing a sentence of imprisonment for seven years or more, desertion for over 2 years, convention to another religion, non – resumption of cohabitation within one year of proceedings for judicial separation or restitution of conjugal rights and mutual consent.

Secular law: Under the Special Marriage Act, 1954 (SMA) either spouse can file for divorce on grounds like adultery, desertion for two years, imprisonment for seven years, cruelty, unsoundness of mind, or venereal disease. A wife may also file for divorce under section 27 of SMA, if her husband commits rape, sodomy, or bestiality, or if cohabitation has not resumed after a maintenance order or judicial separation.

In conclusion, mostly the grounds for divorce are fault-based, meaning they are based on the wrongful actions of a spouse, but evolving jurisprudence is also recognising mutual consent divorce. Further, under Article 142 of the Constitution of India, the Supreme Court may exercise discretionary powers to grant divorce on the grounds of irretrievable breakdown of marriage.

Service to Respondent within India:

In India, sections 27-29 read with Order V of Civil Procedure Code, 1908 govern the issuance and service of the summons. The courts, after a preliminary hearing on the matter, issues summons to the respondent / defendant to appear and answer the claim by filing a written statement. Once the summons is issued and the process fee is filed, the summons along with a copy of petition is served through a process server. Each district court has its own branch for process serving. In 2019, the National Service and Tracking of Electronic Processes (NSTEP) was launched by the Department of Justice, Ministry of Law and Justice, Government of India which has been implemented in 28 States/Union Territories. The NSTEP is a centralized process service tracking application consisting of a web application and a complementary mobile app designed to streamline the process. Thereafter, a service report is filed before the court by the process server regarding the service.

In addition to this, the courts may also direct the petitioner / applicant to serve the summons through alternative modes of communication i.e., through postal service and electronic modes such as email and WhatsApp and thereafter file an affidavit of service to ensure that the respondent has been duly served with the summons and petition.

Order V Rule 20 of CPC also provides a procedure for substituted service through publication/advertisement in a newspaper circulated in the locality in which the respondent last resided. In case, the court is satisfied that there is a reason to believe that respondent is avoiding service, then the court may direct the service through substituted service.

Service to a respondent outside India:

As India is a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1995 (Hague Convention on Service), the service of summons to a respondent residing outside India has to be in conformity with laws of that country. Where the receiving country is a signatory, the courts in India will send the summons to the Ministry of External Affairs who will then forward the same to the Indian High Commission/Indian Mission of that country. For service to non-signatory countries, service of process/summons can be undertaken by means of Letters of Request/Rogatory to the foreign jurisdiction.

Service of summons issued by foreign court to the Respondent in India:

The service to the Respondent residing in India has to be effectuated as per laws of India. India has declared its reservations to Article 10 of the Hague Convention on Service i.e., service through any other alternative method. Therefore, the service to the Respondent in India can only be done through the Ministry of Law and Justice, Government of India. For example, where one person has filed a divorce petition in United Kingdom and seeks to serve her spouse residing in India. At first, the wife has to approach the central authority of the United Kingdom who will then send the requisite documents to the Ministry of Law and Justice in India. Thereafter, the Ministry of Law and Justice after verification of the documents will serve the same upon the spouse residing in India.

Foreign Marriage: A foreign marriage is recognized under the Foreign Marriage Act, 1969 if it is conducted in a foreign country according to that country’s law, with at least one party being an Indian citizen, and the party requests its registration in writing with the Marriage Officer under section 17 of the FMA. The marriage must satisfy the following conditions: neither party – has a living spouse; is of unsound mind; the bridegroom is at least 21 years old and the bride at least 18 years, and they are not within prohibited degrees of relationship unless allowed by personal law or custom.

Foreign Divorce: In the case of Y. Narasimha Rao and Ors. v. Y. Venkata Lakshmi and Anr., 1991 SCC (3) 451, the Supreme Court held that for a foreign divorce decree to be recognized, the jurisdiction of the foreign court and the grounds for divorce must align with the matrimonial laws under which the parties are married. Exceptions include cases where the respondent is domiciled or permanently resides in the forum, voluntarily submits to the foreign court’s jurisdiction, or consents to the relief despite the jurisdiction being inconsistent with the matrimonial law.

Further, the foreign judgments/orders which are conclusive in nature can be enforced in India under section 44 A read with section 13 of CPC where the foreign jurisdiction is a reciprocating country. If the foreign jurisdiction that issued the judgment or order is not a reciprocating country, it can be enforced by filing a civil suit and once the same is allowed then it can be executed as per Order 21 of CPC.

No. India does not legally recognize same-sex marriages, including those solemnized abroad. The Supreme Court of India recently ruled against the legalization of same-sex marriage on October 17, 2023, in the case of Supriyo @ Supriya Chakraborty & Anr. v. Union of India, 2023 SCC OnLine SC 1348, stating that the issue should be addressed by the Parliament and not through judicial intervention. However, the judges directed the government to set up a committee to look into the rights and entitlements of queer persons in such unions. There is currently a review petition pending in the Supreme Court.

Substantive financial orders related to maintenance and property can be made by courts under various statutes. Maintenance and alimony can be claimed during matrimonial proceedings.

The principles that courts follow is that the amount of maintenance awarded in a case should be fair, realistic, and avoid extremes – neither too high to be oppressive for the husband, nor too low to leave the wife in financial hardship. In deciding this, the court considers factors such as the status of both parties, the wife’s and children’s needs, her education, employment, and income, as well as the husband’s financial capacity, income, and expenses. If the wife left her job to care for the family, this must be taken into account, especially if it’s difficult for her to re-enter the workforce. A working wife can still receive maintenance, and the husband must prove his case if he argues that he cannot support the family. Child expenses, including education and any necessary coaching, are generally the father’s responsibility, though they may be shared if the wife earns adequately. Disabilities or serious health issues in the family are also relevant. The court can consider other factors based on the specifics of each case.

The Supreme Court in the case of Rajnesh v. Neha, 2020 SCC OnLine SC 903 has provided guidelines addressing overlapping jurisdictions under different laws, criteria for determining maintenance, and enforcement.

The permanent maintenance, subject to recognition of divorce can be applied as per following provisions:

• Section 25 of HMA,
• Section 125 of CrPC / Section 144 (1) of BNSS,
• Section 37 of SMA,
• Muslim Women (Protection of Rights on Divorce) Act, 1986,
• Section 40 of Parsi Marriage and Divorce Act, 1936, and
• Section 36 of Divorce Act, 1869.

If the Protection of Women from Domestic Violence Act, 2005 is applicable, maintenance may be awarded under this Act in addition to other orders like residence rights under Sections 17 and 19, and compensation under Section 22.

When it comes to orders related to pensions, courts often make decisions in the context of maintenance or alimony payments. In matrimonial cases, the financial status of both parties, particularly the earning capacity of the husband and the needs of the wife, are important factors. Pensions, being part of the husband’s income, can be included when determining the amount to be paid as maintenance or alimony.

The Supreme Court of India in Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129 held that -25% of the husband’s net salary is a just and proper amount to be awarded as maintenance to the wife. This decision underscores the principle that the amount should be in line with the financial capacity of the husband and the status of the parties involved. Net income, including pension, should be considered when determining maintenance. In view of the said judgment, several High Courts of India have held that- maintenance allowance that is granted to the wife would not come within the purview of debt and thus, the pension of the husband is not exempt from attachment towards payment of arrears of maintenance.

Thus, when determining alimony, courts may direct that a portion of the pension, being part of the net income, be included in the calculation of the husband’s financial obligations toward the wife, keeping in mind the status and financial capacities of both parties.

It is important to note that records of divorce etc., have to be very carefully maintained because customary divorce though accepted amongst certain communities may not be recognised in law, thus in effect making a second wife ineligible to claim pension amounts for maintenance or alimony.

Yes, the court can make interim provisions, including for legal costs, during pending the completion of the proceedings.

Hindu: As per the provisions of section 24 of the HMA and section 18 of the Hindu Adoption and Maintenance Act, 1956, if either the wife or the husband does not have sufficient independent income to support themselves or meet the necessary legal expenses, the court may, upon request, order the respondent to pay the petitioner a reasonable amount for legal expenses and a monthly sum during the proceedings. This amount is based on the incomes of both parties to ensure fairness. It is also required that the court decides on these applications for expenses and maintenance within sixty days from the date of service of notice to the respondent to provide timely relief.

Christian: Under section 36 of the Divorce Act, 1869, the wife may seek maintenance or necessary expenses of the suit. The courts will issue directions within sixty days from the date of service of notice.

Parsi: Under section 39 of the Parsi Marriage and Divorce Act, 1936, either spouse may seek maintenance or necessary expenses of the suit, if they have no sufficient independent income. The courts will issue directions within sixty days from the date of service of notice, having regard to the plaintiff’s own income and the income of the defendant.

Secular: Additionally, under section 144 of the BNSS (erstwhile section 125 of CrPC) which applies to all individuals irrespective of religion, a Magistrate may grant interim maintenance during divorce proceedings if a person with sufficient means neglects or refuses to maintain his wife. The court can order interim maintenance and legal expenses, with such applications to be disposed of within sixty days of notice. Maintenance orders can take effect from the date of the application or the order, and non-compliance can result in recovery warrants and imprisonment. However, a wife is not entitled to maintenance if she is living in adultery, refuses to live with her husband without just cause, or if both parties live separately by mutual consent. The court may cancel maintenance if any of these conditions are met.

Under section 36 of Special Marriage Act, 1954, where marriage is solemnized under the Act, the wife may seek maintenance or necessary expenses of the suit. The courts will issue directions within sixty days from the date of service of notice, having regard to the plaintiff’s own income and the income of the defendant.

Yes, there are specific laws governing the claim of maintenance in India which are applicable irrespective of any orders passed by courts of foreign jurisdiction.

As with other foreign orders, a foreign financial claims order which is conclusive in nature can be enforced in India as per section 44 A read with section 13 of Civil Procedure Code, 1908 (CPC) where the foreign jurisdiction is a reciprocating country to India. If the foreign jurisdiction that issued the judgment or order is not a reciprocating country with India, it can be enforced by filing a civil suit and once the same is allowed then it can be executed as per Order 21 of CPC, 1908.

Claim for Maintenance:

The law on maintenance to wives / children who are unable to maintain themselves is settled in that the spouse is entitled to maintenance, but the amounts might be left to the discretion of the courts. The claim can be filed for both interim as well as permanent maintenance, even in case the divorce proceedings are ongoing or concluded before foreign courts. The law on rules for maintenance differs among different religions.

Therefore, the courts of India first must recognize the foreign decree of divorce and even if they accept the said decree, the same shall not prevent the wife/children/parents from seeking maintenance.

Foreign judgments/orders which are conclusive in nature can be enforced in India as per section 44 A read with section 13 of Civil Procedure Code, 1908 (CPC) where the foreign jurisdiction is a reciprocating territory and, in such cases, the foreign order can be enforced by filing a civil suit and once the same is allowed then it can be executed as per Order 21 of CPC.

In India, the legal regime pertaining to matrimonial property is not formally recognised or codified. However, there are legal provisions that address property distribution and rights between spouses in certain circumstances. In India, economic partnership does not exist between the spouses and there is no concept of matrimonial property subject to division.

Hindu: Under section 27 of the Hindu Marriage Act, 1955, (HMA), the Court has the discretion to make orders regarding the disposal of property jointly owned by both spouses at the time of judicial separation. In Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam, (1997) 7 SCC 500, the Supreme Court of India clarified the scope of section 27, stating that the provision covers not only acquired property at the time of marriage but also before or after, as long as it is connected to the marriage. However, the ruling emphasized that individually acquired properties, especially those obtained through the personal efforts of either spouse after marriage and unrelated to the marriage, should be safeguarded.

There are no statutory provisions recognizing pre and post nuptial agreements in India. However, it might be taken as an indication of the intent of the parties during matrimonial proceedings. While certain financial aspects of these agreements may be enforceable under contract law, any clauses that attempt to override statutory protections related to marriage, divorce, maintenance, or custody are unlikely to be upheld by Indian courts.

Under Muslim law, marriage is a civil contract. The nikahnama is considered a pre-nuptial agreement. For Christians, section 40 of the Divorce Act, 1869 allows courts to take into account the terms of any pre-nuptial agreements when deciding on the division of assets between disputing couples. However, these agreements often fail the test of ‘public policy’, which is a key factor in contract enforcement.

In India, the law governing child maintenance is encapsulated under personal religious laws and secular laws.

Personal Laws: Section 20 of the Hindu Adoption and Maintenance Act, 1956 along with section 26 of the Hindu Marriage Act, 1955 provides for maintenance of children for Hindus. Section 41 of the Divorce Act, 1869 governs child maintenance for Christians. Section 49 of the Parsi Marriage and Divorce Act, 1936 governs child maintenance for Parsi. Child maintenance for Muslims may be provided under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Secular Law: Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (erstwhile section 125 of the Code of Criminal Procedure,1973) is a secular law and mandates any person with sufficient means must provide financial support for their legitimate or illegitimate minor child if the child is unable to maintain themselves. This provision extends to both married and unmarried children, children born of unwed parents, as well as to adult children who are physically or mentally incapacitated. A Magistrate of the first class can order the parents to provide a monthly allowance to ensure the child’s well-being. Furthermore, if the person ordered to pay maintenance neglects or refuses to do so, the Magistrate may issue a warrant for recovery and may also impose imprisonment for up to one month if the arrears are not cleared. Importantly, the Magistrate can also grant interim maintenance during the pendency of the proceeding. The goal of this provision is to ensure that children do not suffer financially due to parental neglect or refusal of support, safeguarding their right to maintenance irrespective of the marital status of their parents. These expenses are generally the responsibility of the father. In cases where the mother is also financially capable, these costs can be shared proportionately.

Section 38 of the Special Marriage Act, 1954 covers the maintenance of children where the marriage was solemnized under this Act.

Apart from maintenance, the court does have the power to make financial provisions for a child, including housing and capital sums, in certain circumstances. These provisions are generally aimed at ensuring the child’s welfare, which includes their living expenses, education, and overall well-being.

In Rajnesh v. Neha, (2021) 2 SCC 324, the Supreme Court emphasized that a child’s living expenses include not just basic necessities like food and clothing, but also housing, education, and medical expenses. The court highlighted that education costs, including coaching or vocational training, are an essential part of child support. The court also takes into consideration special circumstances, such as a child’s illness or disability, while determining the extent of financial support.

India does not have specific laws governing live-in relationships. In the case of Lata Singh v. State of U.P., AIR 2006 SC 2522, the court stated that a live-in relationship between two consenting adults is legal and brings with it rights and responsibilities. The Supreme Court and several High Courts have acknowledged the existence of live-in relationships among same-sex and trans couples and granted them certain limited legal protections.

Courts have recognised the right to inheritance of children of unmarried persons in a live-in relationship. A woman in a live-in relationship is also afforded protection under the Protection of Women from Domestic Violence Act, 2005. In Chanmuniya v. Virendra Kushwaha, 2011 (1) SCC 141, the Supreme Court affirmed that a woman in a live-in relationship is entitled to seek maintenance under section 144, Bharatiya Nagarik Suraksha Sanhita (erstwhile section 125 of the Criminal Procedure Code, 1973).

In India, the legal framework for financial claims between unmarried couples after separation is still developing. Although no specific law governs financial entitlements for live-in relationships, the judiciary has progressively recognized the need to protect individuals, particularly women, from financial vulnerability after such relationships end. The courts have emphasized that individuals in live-in relationships, especially women, should not be left destitute and that maintenance rights must be extended to ensure social justice and dignity. These financial claims are often assessed through principles of equity, preventing destitution, and ensuring fairness.

One of the key legal provisions that addresses this issue is the Protection of Women from Domestic Violence Act, 2005 (DV Act). In Lalita Toppo v. State of Jharkhand, (2019)13 SCC 796, the Supreme Court ruled that a live-in partner has the right to seek maintenance under the DV Act, even if she is not legally recognized as a wife. Under the DV Act, a live-in partner can claim not only financial support but also the right to live in a shared household, offering more comprehensive relief to women in such relationships.

The Supreme Court has also discussed the financial claims of women in live-in relationships in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 and held that a man who lived with a woman for a considerable time should be responsible for providing maintenance if he deserts her, regardless of whether the legal requirements of marriage were fulfilled. The definition of “wife” is interpreted broadly to include women who live with a man as his wife for a significant period.

Where the child is born of parents in a marital union who later separate by way of judicial separation or divorce, the biological parents are recognised as such under law after separation as well.

There is no comprehensive legislation on children of unmarried couples in India, however, biological parents, even unmarried, are recognised in official documents. Unwed mothers faced difficulties when not desiring to include the name of the biological father in official documents such as passports, birth certificates etc. However, in the case of ABC v. State (NCT of Delhi), AIR 2015 SC 2569, the Supreme Court of India has held that preference and priority is given to the biological mother over the father of the child in cases where the child is born of unmarried parents. Where the biological father is unaware or uninvolved in the child’s life, the court in the best interest of the child, may dispense with the statutory requirement to notify the putative father of the child when the mother is seeking sole guardianship of the child.

In the case of S.P.S Balasubramanyam v. Suruttayan, AIR 1992 SC 756, the Supreme Court considered the question of inheritance rights of children born from live-in relationships. The court, giving implied recognition to the status of the unmarried couple as parents, upheld the right of the child to inherit the property of their father.

Child custody cases are filed in the jurisdiction of the family court or competent court where a minor child “ordinarily resides” as per section 9 of the Guardians and Wards Act, 1890. Guardianship petitions under the substantive law governing Hindus (including Jain, Buddhists and Sikhs), i.e., the Hindu Minority and Guardianship Act, 1956 are also made to these courts.

The Supreme Court of India’s ruling in Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 held that “resides” means something more than a flying visit to, or casual stay at a particular place. It implies the person’s choice makes it their abode permanently or even temporarily. The Indian courts have further held that an ordinary residence cannot be created where one parent has unilaterally removed the child to another jurisdiction.

In addition to jurisdiction based on ordinary residence, Indian Supreme court and High courts may assert child custody jurisdiction on the basis of parens patriae jurisdiction and under a writ of habeas corpus. These commonly arise in cases of cross border removal of the child by the unilateral decision of one parent.

Child custody in India for Hindus is governed by the Hindu Minority and Guardianship Act, 1956 and the Guardian and Wards Act, 1890. Under section 26 of the Hindu Marriage Act, 1955, section 49 of the Parsi Marriage and Divorce Act, 1936 and section 41 of the Indian Divorce Act, 1869, courts are authorized to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts.

In most cases, custody lies with either or both biological parents, though there have been instances of relatives, grandparents etc., being granted custody by courts. The courts may grant one parent sole custody and provide visitation or access rights to the non- custodial parent to visit the child for limited periods. Joint custody is also given to both parents in some cases. In the case of KM Vinaya v. B Srinivas, MFA No. 1729/2011, the Karnataka High Court divided the child’s time between the parents, the parents were directed to equally divide expenses of the child, and access was provided to the non-custodial parents during the time the child was in the custody of the other parent.

The welfare and best interests of the child is the paramount guiding concern in cases of child custody. Here, the judge weighs not only the financial resources of the parent but also their character, mental stability, ability to provide a loving, safe and secure environment, the child’s age and gender, the child’s emotional and physical wellbeing, education of the child etc. Where the child has attained sufficient age and maturity, the court will also take into consideration the preferences of the child. It is often the case that the judge personally interacts with the child in these circumstances in order to gauge such preferences. The best interest of the child analysis allows for wide discretion and varied interpretations of this principle are found in cases.

There are no rules or guidelines in India with respect to relocation of a child. Parents, being natural guardians and custodians are permitted to relocate the child within and outside the jurisdiction of India.

In case of dispute between the parents or fear of unilateral removal by one parent to another jurisdiction, the matter may be taken to court, where the judge will decide on a case-by-case basis taking the best interest of the child into account. The court will undertake a holistic analysis, so the relocation does not cause any moral, physical, social, cultural or psychological harm to the child. Disobedience of a court order prohibiting relocation will amount to contempt and is punishable under law.

As per section 26 of the Guardian and Wards Act, 1890, a guardian appointed by the court requires the leave of the court before taking the child outside the jurisdiction of the court.

The Law Commission of India in its 257th report has suggested the following factors be considered by courts: Whether relocation  is for a legitimate purpose, each parent’s reasons for seeking and opposing relocation, the quality of the relationships between the child and each parent, the impact of the relocation on the quantity and the quality of the child’s future contact with the non-relocating parent, the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation and the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.

In the case of Nithya Anand Raghavan v. State (NCT of Delhi), AIR 2017 SC 3137, it was held that foreign orders are to be taken into consideration by Indian courts but are not conclusive factors / binding in child custody cases. The Indian courts are obliged to consider the best interest of the child independently. Where the order is from a jurisdiction having close concern or intimate contact with the child, i.e., the child has been a habitual resident of that jurisdiction, there are greater chances of recognition and enforcement of foreign orders. This is more so if the child is uprooted and placed in an alien environment, language and custom, and has not yet developed roots in India.

In the case of Dr. Navtej Singh v. State (NCT of Delhi), 2018 SCC Online Del 7511, the concept of ‘mirror orders’ was used by the Indian court to facilitate a speedier resolution to custody issues and the return of the child to its home jurisdiction. The use of such orders is still evolving in India and has not seen widespread use yet.

The Surrogacy (Regulation) Act, 2021 permits surrogacy arrangements in cases where (i) an intending married couple with no living child, or (ii) a widowed or divorced woman between the ages of 35 and 45, has a medical indication necessitating surrogacy.

Payment of any kind to surrogate mothers or her dependents or her representative is prohibited and a punishable offense under the Act. The Act however permits the payment of medical expenses, and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.

Section 89 of the Civil Procedure Code, 1908 gives civil courts unfettered discretion to refer cases to alternate modes of dispute settlement where in the judges’ mind “there exist elements of settlement between parties”. Arbitration, conciliation and mediation are alternatives to court dispute resolution available in India. Arbitration and Conciliation Act, 1996 governs arbitration and conciliation in India.

The Family Courts Act, 1984, was enacted in India to establish family courts aimed at promoting conciliation and ensuring speedy resolution of disputes related to marriage and family affairs. Section 9 emphasizes the court’s role in encouraging reconciliation between parties, focusing on mediation and settlement rather than adversarial proceedings. Section 12 enables courts to engage experts for counselling and support in resolving family disputes, promoting reconciliation.

Section 23 of the Hindu Marriage Act, 1955 and section 34 of the Special Marriage Act, 1954 allows the Court to adjourn the case and refer it to mediation as a means to facilitate resolution and communication.

Mahila Adalat’s, or women’s courts, are community-based dispute resolution forums in India designed to address issues specifically affecting women. Established to provide a supportive environment, these courts focus on matters like domestic violence, marital disputes, and other gender-related grievances. The aim is to empower women by facilitating access to justice in a less formal and more approachable setting.